The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 8].
This is an action for gender discrimination and for violation of civil rights pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"), and 42 U.S.C. § 1983. The plaintiff Ambrea C. Phillips, by her father and next of kin, Audie L. Phillips, and Audie L. Phillips, individually, allege that Ms. Phillips was wrongfully removed from a weightlifting and conditioning class because of her gender by the guidance counselors, assistant principals, and principal at Anderson County High School. The plaintiffs bring suit against the Anderson County Board of Education ("the Board"), alleging that the Board is the elected ruling body of the Anderson County School District; that the Board is responsible for the management of the Anderson County High School; and that the Board, through its agents and employees, denied Ambrea Phillips the right to participate and enroll in the weight lifting and conditioning class solely because of her gender and in violation of her right to the equal protection of laws as guaranteed by the Fourteenth Amendment of the United States Constitution. [Doc. 1].
This matter is now before the Court on the Board's Motion for Summary Judgment [Doc. 16], which was filed on October 13, 2006. The plaintiffs responded on November 2, 2006 [Doc. 19], and the Court heard oral argument on the motion on November 16, 2006. Participating on behalf of the plaintiffs was attorney Roger L. Ridenour. Participating on behalf of the defendant was attorney Arthur F. Knight, III.
As required by Rule 56 of the Federal Rules of Civil Procedure, the Court will recite and consider the relevant facts in the light most favorable to the plaintiffs.
In the spring of 2006, the plaintiff Ambrea Phillips was a senior at Anderson County High School. Classes at Anderson County High School are in four blocks of approximately ninety minutes each: the first two blocks are in the morning, and the third and fourth blocks are in the afternoon. There are three assigned lunch periods of thirty minutes, each which occur during third block class time. [Ambrea Phillips Dep. at 18].
On January 3, 2006, Ms. Phillips was allowed to register for a weightlifting and conditioning class. The weightlifting and conditioning class was assigned to the first lunch period, which started at 11:25 and lasted approximately until noon. [Id. at 19]. Working with Linda Rauch, the guidance counselor at Anderson County High School, Ms. Phillips arranged her schedule to have Office Tech Co-Op for her first two class blocks; weightlifting and conditioning class for her third class block; and U.S. Government/Economics for her fourth class block. [Rauch Dep. at 24; McCracken Dep. Ex. 6].
The weightlifting and conditioning class in which Ms. Phillips enrolled consisted of approximately 35 males and one other female. [Ambrea Phillips Dep. at 34-35, 56; McCracken Dep. Ex. 8]. Anderson County High School had offered the course for years and had always offered it to both boys and girls. [Ambrea Phillips Dep. at 29, 40]. In fact, another weightlifting and conditioning class was offered the same semester during the second block period. This class also included boys and girls. [Rauch Dep. at 31; Kerr Dep. at 5, 7; Ambrea Phillips Dep. 29, 55]. Both classes were taught by Josh Kerr. [Kerr Dep. at 5, 7].
The weightlifting and conditioning class is a course and not a competitive sport. [Ambrea Phillips Dep. at 32]. It involves running and using free weights and machines. Free weight exercises in the program include bench presses, squats, leg lifts, lunges, curls, and shoulder presses. [Id. at 31, 34-35]. Spotting on these exercises requires some physical contact between the lifter and the spotter. [Kerr Dep. at 15].
The parties dispute the circumstances leading to Ms. Phillips's removal from the weightlifting and conditioning class.*fn1 The defendant maintains that Ms. Phillips was removed after the other female student in the class withdrew on January 5, 2006. [McCracken Dep. Ex. 8]. Thereafter on January 6, 2006, Anderson County High School Principal Bob McCracken consulted with Mr. Kerr and decide to remove Ms. Phillips from the class because of "safety" and "liability" concerns. [Id. at 51-52, 57, 59-62, 71, 85]. Specifically, Dr. McCracken testified that he was concerned about the possibility of inappropriate behavior toward Ms. Phillips by the male students; the difficulty in Mr. Kerr supervising the class if he spotted Ms. Phillips; and Ms. Phillips's size compared to other weightlifters. [Id.].
The plaintiffs maintain, on the other hand, that as of Friday, January 6, 2006, the other female was still enrolled in the weightlifting class. Ms. Phillips testified that on January 6, 2006, Rhonda Woodfin, a secretary in the Anderson County High School guidance office, approached both her and the other female and informed them that they were both being removed from the class due to the lack of other females. [Ambrea Phillips Dep. at 36]. Ms. Phillips testified that Ms. Woodfin informed them that they were to report to the office on Monday January 9, 2006, to work as an office assistant or as a helper in the guidance office. [Id.].
On January 9, 2006, Ms. Phillips talked to Dr. McCracken and Principal Murrell Albright and questioned them about her removal from the weightlifting and conditioning class. [Ambrea Phillips Dep. at 44]. Both principals informed her that they would not have a class consisting of all boys, a male teacher, and one or two females in the class. They also told her that they did not care whether it was fair or not. [Id. at 45]. That same day, Ms. Phillips's father, Audie L. Phillips, contacted Anderson County High School to make sure that his daughter was not being removed from the class for being in trouble. [Audie Phillips Dep. at 9-10]. Mr. Phillips talked with Principal Albright, who informed him that his daughter would not be placed back into the class. [Id. at 27]. When Mr. Phillips asked Principal Albright about Title IX, he responded that he was not concerned about Title IX, that this was "our" school, and that Ms. Phillips would not be allowed back into the class. [Id.].
Mr. Phillips contacted a local television station, as well as the Tennessee Department of Education. [Id. at 26]. On Wednesday, January 11, 2006, Dr. McCracken was interviewed by the local television news reporter. During the interview and throughout his deposition, Dr. McCracken repeatedly acknowledged that he had removed Ms. Phillips from the class because she was female and because he was concerned for her safety in a room full of thirty-five boys and a male teacher. [McCracken Dep. at 54, 71, 7, 85, 62]. Dr. McCracken stated that his overriding concern for removing her from the class was that she may be raped or sexually assaulted. [Id.]. Dr. McCracken stated that any other concerns, such as spotting and lifting weights, were secondary to his overriding concern regarding a possible sexual assault. [Id. at 85].
Later that day, an attorney with the State of Tennessee contacted the Anderson County Director of Schools, Dr. V.L. Stonecipher, and advised him that the media had contacted her department regarding a possible Title IX violation at Anderson County High School. [Stonecipher Dep. at 14]. Following a principals' meeting that day, Dr. Stonecipher met with Dr. McCracken and advised him, "you need to take care of this, if you dropped somebody from a class make sure it's not because of their [sic] sex." [Id.]. Dr. Stonecipher also instructed Anderson County Title IX Coordinator Chuck Puglisi to investigate. [Id. at 17-19]. Mr. Puglisi testified that he met with the plaintiffs on January 11, 2006 in order to begin "work[ing] to get her back in class." [Puglisi Dep. at 33]. At 3:10 p.m. on Wednesday, January 11, 2006, Dr. McCracken and Ms. Rauch met with Ms. Phillips and told her that she would be allowed back into the weightlifting and conditioning class the next day. [Ambrea Phillips Dep. at 57]. Dr. McCracken told Ms. Phillips to report to the weightlifting and conditioning class at 11:25 a.m. [Id.]. In a meeting late Wednesday afternoon between the plaintiffs and Mr. Puglisi, Ms. Phillips complained about being instructed to report to class at 11:25 a.m. She explained that her co-op ended at 11:25 and that it would impossible for her to make it to class on time. She told Mr. Puglisi that she would simply eat lunch on her way to class and then join the class at 12:00, after the first lunch period had ended. Mr. Puglisi made some calls, and Ms. Phillips was never required to report to the class thirty minutes earlier than the male students. [Ambrea Phillips Dep. at 57, 62-63; Audie Phillips Dep. at 17-20].
Ms. Phillips returned to the weightlifting and conditioning class on Thursday, January 12, 2006. She completed the semester and received an "A" in the weightlifting and conditioning course. [Ambrea Phillips at 32, 59]. She graduated in May 2006 with an overall GPA of 3.75. [Id. at 10].
Ms. Phillips testified that the stress of her removal from the weightlifting and conditioning class for those three days caused her to be unable to eat. [Id. at 43]. Due to the stress and her weakened immune system, she alleges that she contracted mononucleosis. [Id. at 65-66].
The plaintiffs contend that Ms. Phillips's removal from this weightlifting and conditioning class was not the first time that an allegation of discrimination had been "ignored" or "covered" up by the defendant. The plaintiffs rely on two examples. The first incident involved the transfer of a principal from one of the County's high schools to another high school for allegedly having an affair with another employee at the school. [McCracken Dep. at 14-16]. The second incident cited by the plaintiffs involved an alleged improper relationship between a student and an assistant volleyball coach at Anderson County High School. Dr. McCracken testified that despite having knowledge of improper emails and improper acts committed by the assistant coach, Dr. Stonecipher told Dr. McCracken not to investigate unless something in "writing" was presented to him. [McCracken Dep. at 21-27].
II. The Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of establishing that there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In considering a motion for summary judgment, the Court must take all of the evidence submitted by the non-moving party as true, and must draw all reasonable inference in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Id. at 248. The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
Once the moving party presents evidence sufficient to carry its burden under Rule 56, the non-moving party may not rest upon its pleadings, but must affirmatively set forth, by affidavits or otherwise, "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). An entry of summary judgment is mandated if, "after adequate time for discovery and upon motion, [the non-moving party] fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. In reviewing the evidence, the Court must determine "whether the evidence ...