M.h.d., Plaintiff-counter-defendant-appellant, v. Westminster Schools, Defendant-appellee,john Ferguson, Defendant-counter-claimant-appellee, 172 F.3d 797 (11th Cir. 1999)

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.

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 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 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.

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 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 

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 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 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 (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, 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 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.

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.