Daugherty v. Westminster Schools

M.H.D., Plaintiff-Counter-Defendant-Appellant,

v.

WESTMINSTER SCHOOLS, Defendant-Appellee,

John Ferguson, Defendant-Counter-Claimant-Appellee.

No. 97-8039.

United States Court of Appeals,

Eleventh Circuit.

April 16, 1999.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-cv-2376-JEC),
Julie E. Carnes, Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Appellant M.H.D.1 brought this suit under Title IX of the Education Amendments of 19722 ("Title

IX") and Georgia tort law against Westminster Schools, Inc. ("Westminster"), and John Ferguson, a teacher,

for injuries she sustained on account of a sexual relationship that existed between herself and Ferguson while

she was a ninth-grade student at Westminster. Because appellant filed her complaint eleven years after the

last sexual incident occurred, the district court held that the statute of limitations barred her claims and

granted the defendants summary judgment.3 We affirm.

I.

1
Due to the sensitive nature of the underlying events in this case, we refer to the children involved in
this proceeding by their initials.
2
Pub.L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as amended at 20 U.S.C. §§ 1681-1688).
3
As explained in the text, infra, this was an alternative holding. The district court also held that it
lacked subject matter jurisdiction because Title IX provides no relief against private schools that do not
receive "Federal financial assistance," and Westminster's tax-exempt status did not constitute such
assistance.
 In the 1983-84 school year, appellant was a fourteen-year-old student in the ninth grade at

Westminster, a school located in Atlanta, Georgia.4 During the fall of that year, while walking in the school

hallway, appellant saw two of her friends, K.S. and R.K. (both of whom also were ninth graders), reading a

letter that Ferguson had written to R.K. The letter expressed Ferguson's desire to pursue R.K. romantically.

The girls showed appellant the note.

Soon thereafter, Ferguson lured R.K.—and then K.S.—into a sexual relationship with him.5 At some

point during the fall, the two girls told Ferguson that appellant knew about his relationship with them, and

Ferguson replied that he wanted to meet her. Thereafter, appellant began accompanying R.K. and K.S. when

they visited Ferguson in his office at Westminster, both during and after school hours.

Ferguson initiated an intimate relationship with appellant during the spring semester. The

relationship involved at least four sexual encounters, the last of which occurred before the semester ended

in June.6 Although appellant was alone with Ferguson during the last of these encounters, the other two girls

participated in the first three incidents. During each of these meetings, Ferguson led the girls to a secluded

place (either on or off Westminster's campus) and then kissed and fondled them.

Although appellant at first was "fascinated" by the attention that Ferguson showed her and the other

two girls, she increasingly felt confused and uncomfortable about her relationship with him. According to

appellant, she did not know why she felt uncomfortable; all that she knew was that she did not want her

4
Because we are reviewing a grant of summary judgment, we view the facts in the light most favorable
to appellant. See Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1351 (11th Cir.1998).
5
This relationship consisted of several encounters where Ferguson fondled and kissed the girls.
During the spring semester, Ferguson also engaged in sexual intercourse and oral sex with R.K.
6
Because of the long period of time between these events and the filing of her lawsuit, and the fact that
appellant tried to forget what Ferguson did to her, appellant admits that her memory of her encounters
with Ferguson is not complete. Consequently, although appellant believes that she probably had other
sexual encounters with Ferguson, she has no memory of any encounters beyond these four incidents.
Despite her inability to recall all of the details of her relationship with Ferguson, appellant has never
forgotten that she had a sexual relationship with Ferguson or that the four encounters she described took
place.

2
relationship with Ferguson "to be happening." Appellant revealed this feeling of discomfort during her

second encounter with Ferguson; when Ferguson began kissing each of the girls, appellant pushed him away

and left the group.

At some point during the spring semester, appellant became so upset about her relationship with

Ferguson that she told him and the other two girls that she would no longer participate in their sexual

encounters.7 After withdrawing from the group, however, appellant discovered that because she had spent

so much time with Ferguson, R.K., and K.S., she had become isolated from all of her other friends at

Westminster. Consequently, after one or two weeks, appellant rejoined the group.

The sexual encounters came to an end in June 1984 after K.S.'s father discovered a note that K.S. had

written to appellant. The note indicated that Ferguson had told K.S. he wanted to have sexual intercourse

with her.8 After K.S.'s father found the note, he confronted K.S., who told him of Ferguson's relationship with

her and the other two girls. K.S.'s father then informed R.K.'s parents of the situation, and they in turn

informed the headmaster of Westminster. Appellant, who had been afraid to tell anyone about her

relationship with Ferguson for fear of getting into trouble, finally told her parents what had happened. They

also contacted the headmaster. The headmaster then confronted Ferguson about his relationship with the three

girls, and Ferguson admitted that he had an affair with R.K. and K.S. (but not appellant). Ferguson then

resigned from Westminster.

Although her relationship with Ferguson was over, appellant was just beginning to experience the

psychological harm that resulted from his abuse. Appellant knew that Ferguson's conduct was inappropriate,

but contends that she did not fully comprehend how wrong it was, or that it had injured her. Although

7
The record does not indicate the specific point in appellant's relationship with Ferguson that she tried
to withdraw from the group; the record suggests, however, that this occurred after her second encounter
with Ferguson.
8
Ferguson also told appellant that he wanted to have intercourse with her.

3
appellant agreed with her parents that she should receive counseling about her relationship with Ferguson,

neither appellant nor her parents followed up on the idea.

Appellant returned to Westminster in the fall of 1984, entering the tenth grade. During her eleventh

and twelfth grade years she became depressed, her grades dropped, and she ceased almost all extracurricular

activities. After graduating in June 1987, appellant took a year off before attending college; she felt "duped,

betrayed and taken advantage of" by Ferguson, and "needed some time off." Appellant began seeing a

therapist in 1989 to seek treatment for her depression, and by 1993 Ferguson's sexual abuse had become a

regular topic of discussion in her therapy sessions. During the spring of 1993, appellant also wrote an essay

for her college English class about her relationship with Ferguson. In the essay, appellant described herself

as a victim of sexual abuse, which she defined as "any sexual activity or experience imposed on a child which

results in emotional, physical, or sexual trauma."9

Appellant filed this lawsuit against Westminster and Ferguson on September 21, 1995. Her complaint

contained one federal law claim and four state law claims. The federal claim was brought under Title IX. It

alleged that Ferguson's abuse was sufficiently severe and pervasive to constitute a hostile and abusive school

environment and thus to render Westminster liable for money damages. Although Title IX only applies to

educational programs that receive "Federal financial assistance,"10 appellant's complaint asserted that

Westminster was subject to Title IX because its federal tax-exempt status constituted such assistance.

9
Appellant described her abuse at the hands of Ferguson in this essay as follows:

I always referred to it as "this thing that happened my first year in high school." I never
saw myself as a victim of sexual abuse, but as I read through an old training manual for
the Women's Rape Crisis Center in Burlington I saw myself in its pages.

I was one of three girls known to me to have been abused by one of the teachers
at my high school.
10
Title IX states: "No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education program
or activity receiving Federal financial assistance...." 20 U.S.C. § 1681(a) (1994).

4
 The state law claims sought compensatory and punitive damages against Westminster and Ferguson

for assault, battery, and intentional infliction of emotional distress. The complaint also sought compensatory

and punitive damages against Westminster for negligence because it failed to take action to end the abuse.

Appellant claimed that the district court had jurisdiction over her Title IX claim pursuant to 28 U.S.C. §§

1331 and 1343 (1994), and that it had supplemental jurisdiction to hear her state law claims under 28 U.S.C.

§ 1367 (1994).

Following discovery, both defendants moved for summary judgment. Westminster contended that

Title IX could afford appellant no relief because its tax-exempt status did not constitute "Federal financial

assistance" within that statute's meaning, and, alternatively, that appellant's claims were time-barred.

Westminster suggested that if the court agreed that Title IX could provide no relief, it could avoid the statute

of limitations issues by granting summary judgment on the Title IX claim and declining to exercise its

supplemental jurisdiction over the state law claims. Ferguson, who was not amenable to suit under Title IX,

see Does v. Covington County Sch. Bd. of Educ., 930 F.Supp. 554, 566 (M.D.Ala.1996), contended that he

was entitled to summary judgment on the state law claims because they were time-barred.

On December 17, 1996, the district court entered an order on the defendants' motions for summary

judgment. Although Westminster had not suggested that the court lacked federal question jurisdiction to

entertain appellant's Title IX claim, the court's order, after concluding that Title IX could provide appellant

no relief, "dismissed" her claim for want of subject matter jurisdiction. In the court's view, Westminster's

federal tax exemption did not constitute "Federal financial assistance" under Title IX.

The court's order also granted the defendants' motions for summary judgment on the ground that all

of appellant's claims were barred by the statute of limitations. The court agreed with the defendants that

appellant's claims were governed by Georgia's two-year statute of limitations for personal injury actions and

5
that the two year period began running on May 30, 1987, when appellant reached the age of majority.11

Because appellant did not file suit until September 21, 1995, eight years after the statute of limitations began

to run, the court held that her claims were time-barred.

We agree with the district court that the statute of limitations bars appellant's claims, and therefore

affirm its grant of summary judgment in favor of the defendants.12

II.

11
Under Georgia law, when a claim accrues while the plaintiff is a minor, the statute of limitations is
tolled until the plaintiff reaches the age of majority. See O.C.G.A. § 9-3-90(a) (Supp.1998).
12
Although we affirm the district court's judgment, we note that the court incorrectly concluded that it
lacked subject matter jurisdiction over this case. When a party claims a right that arises under the laws of
the United States, a federal court has jurisdiction over the controversy. If the court concludes that the
federal statute provides no relief, as is true in this case, then it properly dismisses that cause of action for
failure to state a claim under Fed.R.Civ.P. 12(b)(6) or 12(c). See Bell v. Hood, 327 U.S. 678, 681-82, 66
S.Ct. 773, 775-76, 90 L.Ed. 939 (1946); McCallum v. City of Athens, 976 F.2d 649, 650 n. 1 (11th
Cir.1992). Dismissal for want of subject matter jurisdiction is inappropriate in such an instance unless the
federal claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction
or where such a claim is wholly insubstantial and frivolous." Bell, 327 U.S. at 682-83, 66 S.Ct. at 776.

Here, appellant's allegation that tax-exempt status constitutes "Federal financial
assistance" is neither immaterial nor wholly frivolous. The crux of appellant's argument is that
exemption from federal taxes produces the same result as a direct federal grant—Westminster
possesses funds that otherwise would belong to the Government. Thus, appellant contends, a
direct grant and a tax exemption should be treated the same; because a grant constitutes "Federal
financial assistance" under Title IX, tax-exempt status also should satisfy this element of the
statute.

At least one court has held that a tax exemption constitutes "Federal financial assistance,"
albeit in the context of Title VI, not Title IX. See McGlotten v. Connally, 338 F.Supp. 448, 461
(D.D.C.1972); see also Fulani v. League of Women Voters Educ. Fund, 684 F.Supp. 1185, 1192
(S.D.N.Y.1988) (concluding that defendant received "Federal financial assistance" within the
meaning of both Title VI and Title IX because it received both direct grants and tax-exempt
status). Because Title IX was modeled after Title VI, however, McGlotten provides support for
appellant's position. See Grove City College v. Bell, 465 U.S. 555, 566, 104 S.Ct. 1211, 1218, 79
L.Ed.2d 516 (1984).

We conclude that appellant's Title IX claim is neither immaterial nor wholly frivolous,
and therefore, that the district court had jurisdiction to entertain this controversy. Because we
conclude, however, that the statute of limitations bars this suit, we do not reach the merits of any
of appellant's claims. We therefore express no view on the question whether a federal tax
exemption actually constitutes "Federal financial assistance" under Title IX.

6
 A.

Georgia's statute of limitations for personal injury actions mandates that "[a]ctions for injuries to the

person ... be brought within two years after the right of action accrues." O.C.G.A. § 9-3-33 (1982). We agree

with the district court that this statute governs appellant's claims.13

Under Georgia law, section 9-3-33 is the general statute of limitations for personal injury claims,

covering "not only injuries to the physical body, but every other injury, for which an action may be brought,

done to the individual, and not to his property." Hutcherson v. Durden, 113 Ga. 987, 39 S.E. 495, 497 (1901)

(discussing an antecedent version of the statute). Appellant's causes of action for assault, battery, intentional

infliction of emotional distress, and negligence all constitute claims of injury to the individual, and therefore

are governed by section 9-3-33. See Alpharetta First United Methodist Church v. Stewart, 221 Ga.App. 748,

472 S.E.2d 532, 533 (Ga.Ct.App.1996) (concluding in a sexual abuse case that section 9-3-33 is the

applicable statute of limitations for claims of assault, battery, intentional infliction of emotional distress, and

negligence).

Section 9-3-33 also applies to appellant's Title IX claim. Because Congress did not provide a statute

of limitations for Title IX, the "most closely analogous" statute of limitations under state law governs the

federal cause of action. Reed v. United Transp. Union, 488 U.S. 319, 323, 109 S.Ct. 621, 625, 102 L.Ed.2d

665 (1989). Courts generally agree that a Title IX claim for damages is most closely analogous to a common

law action for personal injury; therefore, the statute of limitations for personal injury actions controls. See

Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 729 (6th Cir.1996) (stating that the federal courts of

appeals "have uniformly applied the state personal injury limitations period" to Title IX claims). Here, the

injury for which appellant seeks the remedy of damages under Title IX—sexual abuse—is an injury to her

13
We review the district court's application of the statute of limitations and its subsequent grant of
summary judgment in favor of the defendants de novo. See Technical Coating Applicators, Inc. v. United
States Fidelity & Guar. Co., 157 F.3d 843, 844 (11th Cir.1998); Therrell v. Georgia Marble Holdings
Corp., 960 F.2d 1555, 1561 (11th Cir.1992). In so doing, we apply the same legal standards as the
district court. See Technical Coating Applicators, 157 F.3d at 844.

7
as an individual. See Long v. Marino, 212 Ga.App. 113, 441 S.E.2d 475, 476 (Ga.Ct.App.1994) (applying

section 9-3-33 to a case involving sexual abuse). We therefore conclude that appellant's claim is regulated

by Georgia's two-year statute of limitations for personal injury.14

14
Although Georgia has a specific five-year statute of limitations for childhood sexual abuse, we
disagree with appellant that this statute, not the two-year personal injury statute of limitations, applies to
her claims. This statute provides:

(a) [T]he term "childhood sexual abuse" means any act committed by the defendant
against the plaintiff which act occurred when the plaintiff was under the age of 18 years
and which act [under Georgia law constitutes] rape; ... sodomy [or] aggravated sodomy;
... statutory rape; ... child molestation [or] aggravated child molestation; ... enticing a
child for indecent purposes; ... pandering; ... pandering by compulsion; ... solicitation of
sodomy; ... incest; ... sexual battery; ... [or] aggravated sexual battery....

(b) Any civil action for recovery of damages suffered as a result of childhood sexual
abuse shall be commenced within five years of the date the plaintiff attains the age of
majority.

O.C.G.A. § 9-3-33.1 (Supp.1997) (emphasis added). According to appellant, because Ferguson's
abuse constitutes sexual battery, this five-year statute of limitations governs her suit.

This statute, however, was not adopted until 1992; the legislation which enacted it states:
"No action for childhood sexual abuse which, prior to July 1, 1992, has been barred by the
provisions of Title 9 [regarding statutes of limitations], shall be revived by this Act." 1992 Ga.
Laws 2473, § 2. Because we conclude that appellant's claims were time-barred before July 1,
1992, see infra part II.B, this statute does not govern her suit.

We also note that appellant's causes of action would be time-barred even if she did
receive the benefit of this five-year statute of limitations. The statute provides that the five year
limitations period begins to run when the plaintiff reaches the age of majority, which for
appellant, occurred on May 30, 1987. Appellant did not file her suit until September 21, 1995,
well over five years later. Thus, even under the statute of limitations for childhood sexual abuse,
the limitations period expired before appellant filed her suit.

Appellant contends that her claims are not time-barred under the five-year statute of
limitations because the "discovery rule" applies; this rule states that the statute of limitations does
not begin to run until the plaintiff knows the cause of her injury. See King v. Seitzingers, Inc.,
160 Ga.App. 318, 287 S.E.2d 252, 254 (Ga.Ct.App.1981). (For a more detailed discussion of the
discovery rule, see infra, part II.B.) Appellant contends that she first discovered that she was
injured by Ferguson's conduct in 1995, and thus the limitations period did not commence to run
until that time.

The discovery rule, however, does not apply to claims brought under section 9-3-33.1.
The primary purpose of the section was to increase the limitations period for victims of childhood

8
 B.

Having concluded that the two-year statute of limitations for personal injury claims governs

appellant's causes of action, we next determine the date on which the limitations period began to run. The

Supreme Court of Georgia has stated:

The test to be applied ... is ... whether the act causing the damage is in and of itself an invasion of
some right of the plaintiff.... [I]f the act causing such subsequent damage is of itself unlawful in the
sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of
action accrues and the statute begins to run from the time the act is committed, however slight the
actual damage then may be.

Hoffman v. Insurance Co. of N. Am., 241 Ga. 328, 245 S.E.2d 287, 289 (1978) (quoting Barrett v. Jackson,

44 Ga.App. 611, 162 S.E. 308, 309 (Ga.Ct.App.1932)). Thus, the statute of limitations begins to run when

the plaintiff's cause of action becomes legally cognizable. In this case, the sexual abuse perpetrated by

Ferguson itself was unlawful and constituted an immediate legal injury to appellant. Consequently,

appellant's causes of action were legally cognizable in the spring of 1984.

Under Georgia law, the statute of limitations is tolled until the plaintiff reaches the age of majority.

See O.C.G.A. § 9-3-90(a) (Supp.1998). Because appellant was only fourteen years old in the spring of 1984,

the limitations period did not begin to run until May 30, 1987, the day on which she turned eighteen.

Appellant seeks to toll the statute of limitations even further. She contends that the "discovery rule"

applies in this case, and therefore that the limitations period did not commence to run until 1995. Under the

discovery rule, the statute of limitations does not begin to run until the plaintiff knows (or reasonably should

know) the cause of her injury. See King v. Seitzingers, Inc., 160 Ga.App. 318, 287 S.E.2d 252, 254

sexual abuse. Although the original version of this statute adopted the discovery rule to
accomplish this goal, some members of the Georgia legislature opposed adopting the rule because
they believed the uncertainty of such a long limitations period was unfair to potential defendants.
As a compromise, the legislature replaced the discovery rule with the five-year limitations period
that section 9-3-33.1 now features. See Jami Philpott, Legislative Review, 9 Ga. St. U.L.Rev.
154, 155-57 (1992). Thus, the Georgia legislature clearly did not intend the discovery rule to
apply to claims governed by section 9-3-33.1.

9
(Ga.Ct.App.1981).15 Here, appellant contends, she knew that she was severely depressed as early as 1989;

however, because she did not understand until 1995 that there was a causal connection between Ferguson's

conduct and her emotional and psychological injuries, the statute of limitations was tolled until that time.

We disagree that the discovery rule applies in this case. Although courts in other jurisdictions have

concluded that the discovery rule applies to all cases involving childhood sexual abuse, see, e.g., Osland v.

Osland, 442 N.W.2d 907, 909 (N.D.1989), the Georgia Supreme Court has explicitly limited the discovery

rule's application "to cases of bodily injury which develop only over an extended period of time."

Corporation of Mercer Univ. v. National Gypsum Co., 258 Ga. 365, 368 S.E.2d 732, 733 (1988) (quoting

Lumbermen's Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 330 S.E.2d 344, 348 (1985) (Weltner, J.,

dissenting)). Thus, in Georgia the discovery rule only applies to cases involving "continuing torts," where

the plaintiff's injury developed from prolonged exposure to the defendant's tortious conduct. See Bitterman

v. Emory Univ., 175 Ga.App. 348, 333 S.E.2d 378, 379 (Ga.Ct.App.1985) (stating that the discovery rule

"was adopted in Georgia to aid a plaintiff suffering a continuing tort," and defining a continuing tort as "one

inflicted over a period of time").

The discovery rule has been applied, for example, in a case involving plaintiffs who were injured by

six years of exposure to toxic chemicals that the defendant sprayed in their house. See Andel v. Getz Servs.,

Inc., 197 Ga.App. 653, 399 S.E.2d 226, 228 (Ga.Ct.App.1990). In another case, the court concluded that the

discovery rule applied where the plaintiff suffered from lead poisoning caused by fumes he inhaled during

the five years that he worked in the defendant's battery treatment plant. See King, 287 S.E.2d at 254-55.

Appellant's injuries were not caused by a continuous tort. In contrast to the plaintiffs' injuries in

Andel and King, which developed from several years of frequent (even continuous) exposure to the

defendant's tortious conduct, appellant's injuries in the present case are the result of four instances of abuse,

15
The rule is designed to prevent the unfairness that would result from the running of the limitations
period before the plaintiff is aware of the facts underlying her cause of action. See Hammer v. Hammer,
142 Wis.2d 257, 418 N.W.2d 23, 26 (Wis.Ct.App.1987).

10
all of which occurred within a few months. We conclude that appellant's injuries did not develop over an

extended period of time, and therefore that the discovery rule does not apply to her claims. See. Hickey v.

Askren, 198 Ga.App. 718, 403 S.E.2d 225, 228 (Ga.Ct.App.1991) (concluding that plaintiff's injury was not

caused by a continuous tort where her injury resulted from two sexual encounters with her doctor that

occurred over a period of several months).

Furthermore, even if the discovery rule were to apply to appellant's claims, her claims still would

be time-barred because she discovered the cause of her injuries more than two years before she filed her

lawsuit. There was ample evidence that appellant understood as early as 1984, well over two years before

she filed suit, that Ferguson's abusive conduct had injured her. In 1984, appellant acknowledged that what

Ferguson did to her was wrong, and agreed with her parents that she should receive counseling about her

relationship with him. Appellant would not have thought she needed counseling unless she understood that

she suffered at least some degree of psychological injury. Appellant's psychiatrist even testified that while

appellant was still in high school she understood "[o]n some level" that Ferguson had caused her pain and

suffering.16

The clearest indication that appellant understood the fact and cause of her injuries, however, was the

essay she wrote for her college English class in the spring of 1993.17 In this essay, appellant characterized

herself as a victim of sexual abuse, which she defined as "any sexual activity or experience imposed on a

child which results in emotional, physical, or sexual trauma." (emphasis added). This essay leaves no room

16
Although appellant may not have understood the extent of the harm caused by Ferguson's abuse until
much later, the statute of limitations began to run under the discovery rule as soon as she understood that
the abuse caused some injury, no matter how minor. See Hickey, 403 S.E.2d at 227-28.
17
There are indications, other than those that manifested themselves in 1984 and 1993, that appellant
knew that Ferguson's conduct had injured her. Appellant stated, for example, that in 1987 she felt
"duped, betrayed and taken advantage of" by Ferguson. Furthermore, she stated that in 1991 she was
angry at Ferguson for having an "inappropriate relationship" with her, and that she was beginning to
understand that as a 14 year old she was incapable of choosing to be intimate with him; instead he had
used his position of power to manipulate her into engaging in a sexual relationship with him. These
statements are indications that appellant understood—at least on some level—that Ferguson abused her.

11
for doubt that by the spring of 1993 appellant knew she had suffered injury—emotional, physical, or

sexual—at Ferguson's hands. Because appellant filed her lawsuit more than two years after she wrote this

essay, her suit would be time-barred even if the discovery rule applied.

III.

We conclude that the two-year limitations period commenced to run on appellant's eighteenth

birthday, May 30, 1987. Because appellant filed her suit more than two years after this date, the statute of

limitations bars all of appellant's claims. The district court's grant of summary judgment in favor of the

defendants is therefore

AFFIRMED.

12