author: PER CURIAM. MURDOCK, Justice PARKER, Justice SHAW, Justice

text:
    L.N. v. MONROE COUNTY BOARD OF EDUCATION et al.
    1110672.
    Supreme Court of Alabama.
    July 12, 2013.
    Rehearing Denied Aug. 80, 2013.
    Shane M. Oncale of The Oncale Firm, P.C., Birmingham, for appellant.
    Mark S. Boardman and Alicia Fritz Bennett of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellees.
   PER CURIAM.

AFFIRMED. NO OPINION.

MOORE, C.J, and STUART, BOLIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

PARKER and SHAW, JJ., concur in part and dissent in part.

MURDOCK, Justice

(concurring specially).

I concur in affirming the trial court’s judgment. I write separately to explain my reasons for doing so in the face of the contrary views expressed in the special writings of Justice Parker and Justice Shaw.

Liability under Title IX and § 1983 for supervisory state officials not directly involved in discriminatory conduct cannot be based upon rumors or mere “notice” that might be said to warrant a further investigation. It must be based upon “actual knowledge” of a statutory or constitutional violation that compels the supervisor to act to correct the violation. In this case, the trial court appears to have correctly concluded that the facts in this case do not meet the “extremely rigorous” supervisor-liability standards applicable under Title IX and § 1983. Nor were the decisions of the supervisors in this case as to when to investigate and when not to investigate “beyond their authority” for purposes of State-agent immunity under Alabama law.

Before January 2004, the only “notice” Larry Turner, the principal, and Dennis L. Mixon, the school superintendent, had regarding the possibility of misconduct involving Willie White, Jr., and L.N. was provided by N.C. and her mother, G.C., who in early 2003 merely repeated what they had heard in this regard. Turner and Mixon apparently did not put much “stock” in N.C.’s and G.C.’s accusations of a “sexual affair” between White and L.N. and apparently decided not to initiate an investigation at that time.

In January 2004, however, L.N.’s stepfather, K.M., met with Turner and told Turner that he and L.N.’s mother recently had heard a “rumor” that White and L.N. were sexually involved. K.M. indicated to Turner, however, that he did not believe the rumor. Mixon testified that Turner reported the meeting with K.M. to him but that he told Mixon that KM. and P.M., L.N.’s mother, did not believe the rumor and instead believed that it had been started by girls who did not like L.N.

Nonetheless, Turner investigated the rumor, talking with L.N., White, and Sandra Lambert, one of L.N.’s teachers with whom N.C. had had conflicts. All three denied the rumor was true. Nonetheless, Turner also instructed L.N. not to go into White’s office for any reason.

Later, in August 2004, in response to a police incident report stating that White and L.N. had been seen together outside school, a further investigation was made and White was dismissed from the employment of the Monroe County Board of Education.

I. Title IX

Justice Parker’s special writing quotes and relies upon the following synthesis of Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), and two of its progeny by the United States Court of Appeals for the Eleventh Circuit in Doe v. School Board of Broward County, Fla., 604 F.3d 1248, 1254 (11th Cir.2010):

“ ‘[Ajpplying the Gebser [v. Lago Vista Independent School District, 524 U.S. 274 (1998),] framework to the summary judgment context requires three related inquiries. First, the plaintiff must be able to identify an “appropriate person” under Title IX, i.e., a school district official with the authority to take corrective measures in response to actual notice of sexual harassment. See Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir.1999). Second, the substance of that actual notice must be sufficient to alert the school official of the possibility of the Title IX plaintiff’s harassment. See Gebser, 524 U.S. at 291, 118 S.Ct. at 2000. And finally, the official with such notice must exhibit deliberate indifference to the harassment. See Sauls [ v. Pierce County Sch. Dist], 399 F.3d [1279,] 1281 [ (11th Cir.2005) ].’ ”

141 So.3d at 477 (emphasis added). The special writing makes note of the 2003 accusation made by N.C. and her mother, G.C., that was not acted upon by Turner or Mixon and argues that this accusation amounted to the “notice” contemplated by the second of the Gebser elements and that the failure of Turner and Mixon to act upon the accusation constituted “deliberate indifference to the harassment.” My disagreement with this argument lies in the fact (1) that the requirement announced in Gebser is not merely one of “notice” sufficient to warrant some further investigation, and (2) that a failure simply to conduct such a further investigation, as occurred here in 2003, does not amount to the “deliberate indifference to discrimination” contemplated by Gebser.

Gebser is the opinion in which the Supreme Court crafted the standard that the Eleventh Circuit was merely attempting to summarize in Doe. As accurately “applied,” if not quoted by the trial court in this case, the Supreme Court in Gebser announced a requirement not of mere “notice” sufficient to trigger a further investigation, but of “actual knowledge” of a Title IX violation:

“[W]e hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.”

524 U.S. at 290 (emphasis added). Furthermore, the Supreme Court goes on to explain the “exacting standard” applicable to Title IX claims based on this “actual knowledge” requirement:

“We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation.”

Id. (emphasis added).

The trial court in this case was fully correct in its conclusion that there was not substantial evidence that Turner and Mix-on had “actual knowledge” of White’s inappropriate behavior with L.N. or that, based on such actual knowledge, they were “deliberately indifferent” to it. In keeping with the wording of the standard announced at the end of the above-quoted passage, the trial court here was correct in determining that the record provides no meaningful support for the notion that Turner and Mixon made “an official decision ... not to remedy [a known] violation.” 524 U.S. at 290.

Based on the “exacting standard” set by the Supreme Court itself in Gebser, I must conclude that the trial court correctly entered a summary judgment as to the Title IX claims, and I therefore concur in the affirmance of that judgment.

II. State-agent Immunity

I remain of the view that, in recent years, this Court has “ballooned” the “beyond authority” exception to State-agent immunity identified in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and Ex parte Butts, 775 So.2d 173, 178 (Ala.2000), into something that threatens to, and that taken to its logical conclusion does, swallow the rule of State-agent immunity also identified in those cases. By this reference, I incorporate herein the position I expressed as to this issue in Ex parte Watson, 37 So.3d 752, 765-66 (Ala.2009) (Murdock, J., concurring in part and dissenting in part). Furthermore, I also incorporate by this reference the analysis provided by the United States Court of Appeals for the Eleventh Circuit in Holloman v. Harland, 370 F.3d 1252 (11th Cir.2004), a case I have only recently noticed, but one that perhaps offers a more erudite explanation than have I thus far as to what that court would call the “untenable tautology” created by a “beyond authority” exception to immunity that has been “framed” by this Court.

Specifically, my understanding of the purpose and nature of the “beyond authority” exception in Alabama law finds a parallel in the federal law’s inquiry into whether a state official is entitled to “qualified immunity” from certain federal-law claims. In Holloman, the Eleventh Circuit explained how it is that a state official might be considered to be acting within his or her authority, even in the course of violating the constitution, which of course the official ultimately is not authorized to do. Substitute a concern for whether a teacher or state official can ever be said to act within his or her authority when violating a handbook or other instructions, which the teacher or official is not authorized to do, and the analysis in Holloman parallels and validates the understanding I attempted to express in Ex parte Watson.

As was true of the defendant in Hollo-man, Turner and Mixon engaged in a “legitimate job-related function” (or a “job-related goal”) and did so “through means that were within [their] power to utilize.” 370 F.3d at 1265. It is undisputed that they were pursuing the general, job-related goal of supervising the high school and maintaining a safe environment for students. In the course of pursing this general function, they exercised “powers” within their arsenal, including the power and responsibility to evaluate information that might be relayed to them and to exercise their judgment as to what weight to assign that information and whether it warranted further investigation at the time. I cannot conclude in this case that Turner and Mixon engaged in actions “beyond their authority” within a properly understood meaning of that exception to State-agent immunity.

PARKER, Justice

(concurring in part and dissenting in part).

I concur in part with and dissent in part from the majority’s no-opinion affirmance of the Monroe Circuit Court’s summary judgment in favor of Larry Turner, Dennis L. Mixon, the Monroe County Board of Education (“the Board”) and its members Tony K. Powell, William F. Andrews, Patricia M. Black, Martha Jordan, and George N. Coker (hereinafter collectively referred to as “the Board members”). Because the majority affirms without an opinion, a recitation of the relevant facts and procedural history is necessary.

I. Facts and Procedural History

L.N.’s complaint is based on alleged sexual abuse by Willie White, Jr., the assistant principal of Monroe County High School (“the school”) and the head basketball coach. L.N. attended the school from the fall of 2001 through 2004. During this period, Turner was the principal of the school, and Mixon was the superintendent of Monroe County Schools.

The affidavit testimony of G.C., the mother of N.C., a classmates of L.N.’s, indicates that in early 2003 G.C. told Turner and Mixon that White was engaged in a sexual relationship with L.N. G.C.’s affidavit testimony indicates that Mixon refused to inform the Board of her allegations and that Mixon would not allow G.C.’s allegations to be presented to the Board.

N.C.’s deposition testimony indicates that during N.C.’s 10th-grade year of school she and G.C. informed Mixon that White was having a sexual relationship with L.N. Her testimony was as follows:

“[N.C.:] We went to [Mixon] — me and [G.C.] both went to him, and [G.C.] told [Mixon] that I had something I wanted to tell him. And I tried to explain to him that when I went to [White] concerning the pass to get back in class, he would not give me one. He told me he didn’t want to talk to me or hear any of my problems. And I told him that I assumed just because I wouldn’t have no dealings with Coach White, that’s why he wouldn’t help me with any of my problems with Ms. Lambert.[]
“Q. And did you also tell [Mixon] that you thought [White] gave other students passes because they would have dealings with [White]?
“A. Yes, ma’am.
“Q. And did [Mixon] respond to you by saying those were just rumors?
“A. Yes.
“Q. What information did you have that the rumors were true?
“A. [L.N.] told me herself that her and Coach White have dealings.
“Q. When you say have dealings, what does that mean?
“A. [L.N.] told me that [she and White] was involved sexually, that [White had] given [L.N.] money, and that [White] put gas in [L.N.’s] car and that [L.N.] meets [White] at Winn-Dixie [grocery store].
“Q. But you didn’t tell Mr. Mixon that? You just told him that you assume because [White] was with other girls that they....
“A. No. I told [Mixon] that I knew that’s why because me and [L.N.] was kind of friends at first. And it was like Coach White was hitting on both of us. And that I....
“Q. Did you tell Mr. Mixon that you knew that [L.N.] was involved with Coach White sexually?
“A. Yes, ma’am. And [Mixon] said he didn’t want to hear it because he heard that was rumors.
“Q. Did you tell Mr. Mixon that you knew that Coach White gave [L.N.] money?
“A. Yeah.
“Q. Did you tell Mr. Mixon that you knew that Coach White put gas in [L.N.’s] car?
“A. Yes.
“Q. And you told Mr. Mixon that you knew that [L.N.] met Coach White at Winn-Dixie?
“A. Yes.”

Although P.M., L.N.’s mother, testified during her deposition that January 7, 2003, was the first time she heard of White’s alleged sexual harassment of L.N., P.M. later stated that she could have heard of it for the first time on January 7, 2004. Other evidence in the record indicates that P.M. first learned of White’s alleged sexual harassment of L.N. in January 2004.

Upon hearing rumors of White’s alleged sexual harassment of L.N., K.M., P.M.’s husband and L.N.’s stepfather, informed Turner of White’s alleged sexual harassment of L.N. Turner’s deposition testimony indicates that K.M. telephoned Turner to inform Turner about White’s alleged sexual harassment of L.N. but that K.M. indicated at that time that he did not believe the allegations against White were true; Turner stated that this was the first time he had heard of White’s alleged sexual harassment of L.N. K.M. asked Turner to transfer KM.’s telephone call to White so that K.M. could discuss the matter with White, and Turner did so. K.M.’s deposition testimony indicates that White denied the allegations. KM. did not tell anyone else about White’s alleged sexual harassment of L.N. at that time. Turner did not immediately report to the Board the allegations that White and L.N. were involved in a sexual relationship because KM. had indicated that he did not believe that the allegations were true; Turner later reported White’s alleged sexual harassment of L.N. to the Board. Turner did, however, within a week of learning about White’s alleged sexual harassment of L.N., investigate the allegations. In the course of investigating the allegations, Turner spoke ■with L.N., White, and Sandra Lambert, one of L.N.’s teachers. Turner stated that L.N. denied that White had sexually harassed her. Turner also stated that he instructed L.N. to not go into White’s office for any reason. Turner stated that White and Lambert also denied the allegations.

Mixon’s deposition testimony indicates that he learned of the allegations against White from Turner. Mixon stated that Turner indicated to him that KM. and P.M. had said that the allegations were not true and that the allegations had been initiated by girls who did not like L.N. Mixon stated that, before hearing of White’s alleged sexual harassment of L.N., he had never heard any rumors involving improper sexual conduct on the part of White or any allegations that White “was involved with a student.”

On August 11, 2004, L.N., who was 18 years old at the time, met White off campus on a dirt road near a landfill in Mon-roeville. L.N.’s deposition testimony indicates that during that meeting L.N. and Wfiiite performed oral sex on one another. At some point, two Monroe County deputy sheriffs arrived on the scene. The deputy sheriffs questioned L.N. and White about why they were there and then allowed L.N. and White to leave; neither L.N. nor White informed the deputy sheriffs that L.N. and White had engaged in sexual acts. The deputy sheriffs compiled an incident report. On August 16, 2004, Mixon learned that the deputy sheriffs had seen L.N. and White together off campus on August 11, 2004.

Mixon initiated an investigation into the sexual-harassment allegations after he reviewed the incident report prepared by the deputies. White was placed on administrative leave during the investigation; he later retired. At some point L.N. told K.M. and P.M. about her relationship with White, and L.N. later filed a police report in which she detailed her relationship with White, including their sexual encounters.

At all times relevant to this appeal, the Board had in place the following sexual-harassment policy, which all students of the school, including L.N., had received:

“Students shall not engage in conduct constituting sexual harassment. Sexual harassment, whether between students or between a student and an employee!,] is illegal and will not be tolerated. The Board will investigate all allegations of sexual harassment and take appropriate action against students who engage in sexual harassment. Sanctions against students for violation of this policy may include verbal or written warning, suspension, or expulsion.
“Definition
“Sexual harassment is defined to include unwelcome sexual advance, request for sexual favors, and other verbal or physical conduct of a sexual nature when the advances, requests, or conduct have the effect of interfering with performance of school related activities or creating an intimidating, hostile, or otherwise offensive environment in or about the school or school facility.
“Complaint Procedure
“A student who believes he or she has been or is being subjected to any form of sexual harassment shall immediately report the matter to the school counsel- or, principal or the Superintendent. Any student who becomes aware of or suspects that a student is being sexually harassed shall immediately report the information to the school counselor, principal or Superintendent. A student’s request to make his or her report of sexual harassment to someone of the same sex as the student shall be granted.
“No student alleging sexual harassment shall be required to present the matter to the person who is the subject of the complaint.
“If the complaint is received by someone other than the school principal, the person receiving the complaint shall promptly inform the school principal. The principal shall start an immediate investigation into the matter. The custodial parent(s) of the student will be informed of the complaint. The completed investigation shall be reviewed by the Superintendent or the Superintendent’s designee and legal counsel for prompt and appropriate action, if warranted. A written response to the student’s complaint will be provided to the custodial parent(s) of the student and the student within 45 days of the date the student first registered the complaint. The student or the custodial parent(s) of the student may appeal the decision within 10 days of receipt of the decision by filing a written notice of appeal with the Superintendent. The Superintendent shall present the decision and notice of appeal to the Board at the next scheduled meeting of the Board. The Board shall make a final decision and notify the student and the custodial parent(s) of the student in writing of the Board’s decision.
“Protection of Complainant

“No student shall be subject to adverse action for any good faith report of sexual harassment under this policy. To the fullest extent practical, all reports of sexual harassment will be kept confidential.”

On January 19, 2007, L.N. sued Turner, Mixon, the Board members, and the Board (hereinafter referred to collectively as “the Monroe County defendants”). L.N. alleged that the Monroe County defendants’ responses to L.N.’s allegations of sexual harassment by White were inadequate, raising claims under 20 U.S.C. § 1681(a) (“Title IX”) and 42 U.S.C. § 1983 for violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. L.N. also asserted claims of negligent and/or wanton hiring, training, supervision and/or retention; negligence; gross negligence; wantonness and/or recklessness; invasion of privacy; sexual assault and battery; and the tort of outrage.

On February 8, 2007, pursuant to Rule 12(b)(6), Ala. R. Civ. P., the Monroe County defendants filed a motion to dismiss L.N.’s claims of invasion of privacy and sexual assault and battery. Following a hearing, the circuit court granted the motion to dismiss as to Turner, Mixon, and the Board members, but it denied the motion as to the Board. On March 7, 2008, the Monroe County defendants filed an answer to L.N.’s complaint.

On April 22, 2011, the Monroe County defendants filed a motion for a summary judgment, which they later supplemented, seeking a summary judgment on all of L.N.’s remaining claims against them. Specifically, the Monroe County defendants argued that the individual defendants are entitled to qualified immunity from L.N.’s § 1983 claim, that the Board is absolutely immune from suit under § 14, Ala. Const.1901, and that the individual defendants are entitled to State-agent immunity on L.N.’s negligence claims.

Although L.N. had not yet filed a motion for a summary judgment, she filed the deposition testimony of N.C. and the affidavit testimony of G.C. The Monroe County defendants filed a motion to strike N.C.’s testimony and portions of G.C.’s testimony.

On May 6, 2011, L.N. filed a response to the Monroe County defendants’ summary-judgment motion. All pending motions were set for a hearing to occur on July 26, 2011.

On September 7, 2011, the circuit court entered a summary judgment in favor of the Monroe County defendants. Curiously, the circuit court’s order granting the Monroe County defendants’ summary-judgment motion makes no mention of N.C.’s deposition testimony or of G.C.’s affidavit testimony. The relevant portions of the circuit court’s summary-judgment order state:

“I. [L.N.’s] CLAIMS AGAINST THE MONROE COUNTY BOARD OF EDUCATION.
“A [L.N. ⅛7 Title IX Claim.
“To establish a violation of Title IX, the plaintiff must satisfy the standard set forth by the United States Supreme Court in Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 118 S.Ct. 1989 (1998). In Gebser, the Supreme Court held that:
“ ‘[A] damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual notice of discrimination in the recipient’s programs and fails adequately to respond.
“ ‘We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme [of Title IX] presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation.’
“Gebser, 524 U.S. at 290. The Court also emphasized in Gebser that a school district cannot be held liable under Title IX for a teacher’s harassment based upon principles of constructive notice or respondeat superior. 524 U.S. at 281-290. The evidence in this case establishes that no school official had prior actual knowledge of the alleged sexual harassment of [L.N.]. The evidence further establishes that when school officials and employees learned of Willie White’s alleged harassment of [L.N.], they took immediate corrective action.
“[L.N.] has no admissible evidence that these Defendants had actual knowledge of any alleged misconduct committed by Willie White prior to his alleged actions with [L.N.]. The only information [L.N.] refers to is ‘rumors’ that White was engaged in inappropriate conduct with other students. However, the evidence in this case establishes that the Board officials had no knowledge of any rumors about Mr. White prior to the rumor that came up about [L.N.].
“Principal Turner testified that he had not heard of any rumors concerning Mr. White prior to being contacted by [K.M.]. (Turner Depo., p. 48). Dennis Mixon also testified that he had heard no rumors prior to the time he was notified about this incident by Principal Turner. (Defs.’ Mixon Depo., pp. 24-25). Moreover, [L.N.] and her parents testified that they had no evidence to establish that the Board officials knew of any alleged relationships between Willie White and Monroe County students ([L.N.] Depo., p. 43; [K.M.] Depo., p. 49; [P.M.] Depo., pp. 47, 79).
“[L.N.] asserts that rumors should be enough to establish liability on the part of the Board. However, to create liability, [L.N.] must show deliberate indifference, not negligence. Even assuming, arguendo, that school officials had notice of previous rumors, or even of the rumors about [L.N.], such rumors are insufficient to establish deliberate indifference. See Brown v. Lamar County Sell. Dist., [No. 5:06-CV-294 (HL), Sept. 30, 2008] (M.D.Ga., Sep. 30, 2008) [not reported in F.Supp.2d]; see also Hackett v. Fulton Co. School Dist., 238 F.Supp.2d 1330 (N.D.Ga.2002).
“Upon learning of [L.N.]’s allegations against Willie White, the Board did not act with deliberate indifference. Upon receipt of information that Willie White might have been acting inappropriately with [L.N.], Principal Turner indisputably took action. He investigated the Turner allegation by talking with White and [L.N.], both of whom denied the rumors. Despite these denials, Principal Turner told [L.N.] that she should not go into White’s office and thus should limit her contact with White. (Turner Depo., p. 86; [L.N.] Depo., pp. 51-52).
“While [L.N.] says the corrective measures were ultimately ineffective in preventing White’s further harassment of [L.N.], the failure of such corrective measures does not constitute deliberate indifference, particularly when the undisputed testimony is that [L.N.] did not stay away from Willie White as directed by Principal Turner.
“When Board officials received an actual report that Willie White was indeed engaged in inappropriate conduct with [L.N.], the officials took immediate corrective measures. The undisputed evidence shows that Superintendent Mixon placed White on administrative leave, thus removing him from the school. (Mixon Depo., p. 127; see also Defs.’ Exh. 8). Mr. White never taught at the school again.1 (Defs.’ Exh. 8, August 24, 2004, correspondence from Superintendent Dennis Mixon to Willie White regarding administrative leave with pay; Defs.’ Exh. 9, August 24, 2004, correspondence from Superintendent Dennis Mixon to Willie James White, Jr., regarding Board of Education’s approval of application for retirement; and Defs.’ Exh. 10, August 30, 2004, letter from Superintendent Dennis Mixon to [P.M. and K.M.] regarding White’s administrative leave).
“Based on the above, the Board Defendants did not act with deliberate indifference to any rumors or actual reports of inappropriate conduct by Willie White. Accordingly, the Monroe County Board of Education is entitled to summary judgment in its favor as to the Title IX claim against it. See Ex parte Madison Co. Board of Educ., 1 So.3d 980 (Ala.2008); see also Davis v. DeKalb Co. School Dist., 233 F.3d 1367 (11th Cir.2000); Sauls v. Pierce Co. School Dist., 899 F.Sd 1279, 1284 (11th Cir. 2005).
“B. State-Agent Immunity.
“In Ex parte Cranman, 792 So.2d 392 (Ala.2000), the Alabama Supreme Court restated the rules governing immunity of state agents for tort liability as follows:
“ ‘A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(1) formulating plans, policies, or designs; or
‘“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“ ‘(a) making administrative adjudications;
“ ‘(b) allocating resources;
“ ‘(c) negotiating contracts;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel; or
“ ‘(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State-agent performs the duties in that manner; or
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“‘(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.’
792 So.2d at 405 (emphasis added). At all times relevant to this case, the Board defendants were either members or employees of the Monroe County Board of Education who exercised their judgment in supervising personnel and educating students. Furthermore, [L.N.] has not presented substantial evidence that these defendants acted willfully, maliciously, in bad faith, or beyond their authority. As such, they are entitled to State-agent immunity and thus, summary judgment on [L.N.j’s state law negligence and wantonness claims. See L.S.B. v. Howard, 659 So.2d 43 (Ala.1995); C.B. v. Bobo, 659 So.2d 98 (Ala.1995); and Hill v. Allen, 495 So.2d 32 (Ala.1986).
“CONCLUSION AND ORDER
“In accordance with the foregoing, the summary judgment motion of defendants Monroe County Board of Education, Larry Turner, Dennis L. Mixon, Tony K. Powell, William F. Andrews, Patricia M. Black, Martha Jordan, and George N. Coker is GRANTED and all of [L.N.’s] claims against these defendants are DISMISSED with prejudice. Costs taxed to [L.N.].
" *At some point, Mr. White attempted to rescind his retirement; however Superintendent Mixon refused to allow such action and ordered that Mr. White never return to the Monroe County High School campus. See Defs’. Exh. 8. There is no evidence that Mr. White had any further school-related contact with [L.N.].”

(Capitalization in original.) In its conclusion concerning L.N.’s Title IX claim, the circuit court concluded that “[t]he evidence in this case establishes that no school official had prior actual knowledge of the alleged sexual harassment of [L.N.].” Again, as stated above, the circuit court made no mention of N.C.’s deposition testimony or of G.C.’s affidavit testimony in its summary-judgment order.

On October 4, 2011, L.N. filed a motion to alter, amend, or vacate the circuit court’s judgment pursuant to Rule 59(e), Ala. R. Civ. P. Among other things, L.N. argued that N.C.’s deposition testimony and G.C.’s affidavit testimony created a genuine issue of material fact as to whether the Monroe County defendants had actual notice of White’s alleged sexual harassment of L.N. On January 4, 2012, the circuit court denied L.N.’s post-judgment motion; the circuit court did not explain why it ignored N.C.’s deposition testimony and G.C.’s affidavit testimony. On February 10, 2012, L.N. appealed the summary judgment in favor of the Board, Turner, Mixon, and Andrews (hereinafter collectively referred to as “the appellees”).

II. Standard of Review

“Our standard of review of a summary judgment is well settled:
“ ‘ “A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmov-ing party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala. Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”’”

Cobb v. Fisher, 20 So.3d 1253, 1256-57 (Ala.2009).

III. Discussion

I concur with the majority’s decision to affirm the circuit court’s summary judgment on L.N.’s tort claims against the Board, Turner, Mixon, and Andrews in their official capacities; I also concur with the majority’s decision to affirm the circuit court’s summary judgment on L.N.’s § 1983 claim. I respectfully dissent, however, from the majority’s decision to affirm the circuit court’s summary judgment on L.N.’s Title IX claim because by doing so the majority unequivocally ignores N.C.’s deposition testimony and G.C.’s affidavit testimony, as did the circuit court. I also respectfully dissent from the majority’s decision to affirm the circuit court’s summary judgment insofar as that judgment was premised on the holding that Turner and Mixon were entitled to State-agent immunity.

A. L.N.’s Title IXClaim

L.N. argues that the Board is not entitled to a summary judgment on L.N.’s Title IX claim. In Doe v. School Board of Broward County, Fla., 604 F.3d 1248, 1254 (11th Cir.2010), the United States Court of Appeals for the Eleventh Circuit set forth the applicable law governing a Title IX claim:

“Title IX provides that ‘[n]o 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). The Supreme Court has recognized an implied right of action for money damages in Title IX cases of intentional sexual discrimination and has held that a teacher’s sexual harassment of a student constitutes actionable discrimination under Title IX. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75-76, 112 S.Ct. 1028, 1037-38,117 L.Ed.2d 208 (1992). In the case of teacher-on-student sexual harassment, our analysis is governed by the Supreme Court’s decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989,141 L.Ed.2d 277 (1998).
“In Gebser, the Supreme Court made plain that not all sexual harassment by teachers is sufficient to impose liability on a school district. Because ‘Title IX is predicated upon notice to an “appropriate person” and an opportunity to rectify any violation,’ id. at 290, 118 S.Ct. at 1999 (citing 20 U.S.C. § 1682), the Court explained that school districts may not be held liable on a theory of respondeat superior or mere constructive notice, id. at 285, 118 S.Ct. at 1997. Rather, Title IX liability arises only where ‘an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.’ Id. at 277,118 S.Ct. at 1993.
“Therefore, applying the Gebser framework to the summary judgment context requires three related inquiries. First, the plaintiff must be able to identify an ‘appropriate person’ under Title IX, i.e., a school district official with the authority to take corrective measures in response to actual notice of sexual harassment. See Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir.1999). Second, the substance of that actual notice must be sufficient to alert the school official of the possibility of the Title IX plaintiffs harassment. See Gebser, 524 U.S. at 291, 118 S.Ct. at 2000. And finally, the official with such notice must exhibit deliberate indifference to the harassment. See Sauls [ v. Pierce County Sch. Dist.], 399 F.3d [1279,] 1281 [ (11th Cir.2005) ].”

First, it is undisputed that Turner, Mix-on, and the Board members were “appropriate persons” “with the authority to take corrective measures in response to actual notice of sexual harassment” under the test set forth in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), which the Eleventh Circuit relied upon in Doe.

Second, L.N. argues that Turner and Mixon had actual notice of L.N.’s alleged sexual harassment by White. L.N. relies upon the deposition testimony of N.C. and the affidavit testimony of G.C., set forth above. N.C.’s and G.C.’s testimony indicates that they informed Turner and Mix-on of White’s alleged sexual harassment of L.N. in the early part of 2003. N.C.’s deposition testimony indicates that she told Mixon that L.N. had told N.C. that L.N. and White were engaged in a sexual relationship, that White had provided her with money, and that White had met L.N. at a location off campus. Curiously, the circuit court makes no mention of this evidence in its summary-judgment order. The parties have not directed this Court’s attention to anything in the record indicating that the Monroe County defendants’ motion to strike N.C.’s deposition testimony and G.C.’s affidavit testimony was granted; thus, I will assume that the evidence was properly before the circuit court. Therefore, I conclude, unlike the majority, that N.C.’s deposition testimony and G.C.’s affidavit testimony create a genuine issue of material fact as to whether the Board received actual notice of White’s alleged sexual harassment of L.N.

L.N. also argues that the third factor of the Gebser test was satisfied in that the Monroe County defendants acted with deliberate indifference after receiving actual notice of White’s alleged sexual harassment of L.N. In Doe, the Eleventh Circuit set forth the following concerning the deliberate-indifference prong of the Gebser test:

“In addition to requiring that an appropriate person have actual notice of the teacher’s misconduct, a Title IX plaintiff must show that the official was deliberately indifferent to that misconduct. Gebser, 524 U.S. at 277, 118 S.Ct. at 1993. Deliberate indifference is an exacting standard; school administrators will only be deemed deliberately indifferent if their ‘response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.’ Davis [ v. Monroe County Bd. of Educ.], 526 U.S. [629,] 648, 119 S.Ct. [1661,] 1674 [(1999)]. In essence, Title IX’s premise ‘is an official decision by the recipient not to remedy the violation.’ Gebser, 524 U.S. at 290, 118 S.Ct. at 1999.”

Doe, 604 F.3d at 1259.

The circuit court states in its order granting the Monroe County defendants’ summary-judgment motion that it is an undisputed fact that, “after learning of White’s alleged sexual harassment of [L.N.], Principal Larry Turner took action.” However, this statement ignores N.C.’s deposition testimony and G.C.’s affidavit testimony in which N.C. and G.C. indicate that they informed Turner and Mixon of “White’s alleged sexual harassment of L.N. in early 2003 and that Turner and Mixon did nothing to investigate those allegations. In fact, in her postjudgment motion, L.N. argued that the circuit court had failed to consider N.C.’s deposition testimony and G.C.’s affidavit testimony in reaching its conclusion. It was not until early 2004, when KM. and P.M. informed Turner and Mixon that they had heard that White was sexually harassing L.N., approximately a year after Turner and Mixon learned of White’s alleged sexual harassment of L.N. from N.C. and G.C., that Turner investigated the allegations.

The appellees argue that the “evidence in this case shows that no [Monroe County defendant] was actually aware of a serious risk of harm to L.N. by Willie White.” The appellees’ brief, at p. 23. However, the appellees have ignored N.C.’s deposition testimony and G.C.’s affidavit testimony as they pertain to this issue. In light of the circumstances of this case, I conclude, unlike the majority, that there is a genuine issue of material fact as to whether Turner and Mixon were deliberately indifferent in their lack of response to White’s alleged sexual harassment of L.N. Both N.C.’s deposition testimony and G.C.’s affidavit testimony indicate that Turner and Mixon simply refused to believe N.C. and G.C. The undisputed evidence shows that Turner did not investigate White’s alleged sexual harassment of L.N. until early 2004, approximately a year after he learned from N.C. and G.C. of the allegations against White. In my opinion, there exists a genuine question of material fact as to whether Turner and/or Mixon made an official decision not to remedy the alleged violation. Therefore, I dissent from the majority’s decision insofar as it affirms the summary judgment in favor of the Monroe County Board of Education on L.N.’s Title IX claim; to do otherwise would require me to ignore substantial evidence properly before the circuit court.

B. State-Agent Immunity

Next, L.N. argues that the circuit court’s holding that Turner and Mixon are entitled to State-agent immunity as to L.N.’s tort claims asserted against them in their individual capacities was in error.

“ ‘A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(1) formulating plans, policies, or designs; or
“ ‘(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“ ‘(a) making administrative adjudications;
“ ‘(b) allocating resources;
“ ‘(c) negotiating contracts;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel; or
“ ‘(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“‘(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“‘Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“ ‘(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“ ‘(2) when the State agent acts willfully,- maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’

“Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000).

“ ‘This Court has established a “burden-shifting” process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). “A State agent acts beyond authority and is therefore not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’” Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).’

“Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006). Additionally, as this Court recently stated:

“ ‘ “State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.” Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000). However, “[o]nce it is determined that State-agent immunity applies, State-agent immunity is withheld upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. [Ex parte] Cranman, 792 So.2d [392,] at 405 [ (Ala.2000) ].” Ex parte Bitel, 45 So.3d 1252, 1257-58 (Ala.2010).’

“N.C. v. Caldwell, 77 So.3d 561, 566 (Ala.2011).

Ex parte Montgomery Cnty. Bd. of Educ., 88 So.3d 837, 842-43 (Ala.2012).

L.N. argues that Turner and Mixon, as employees of the Board, were subject to the Board’s sexual-harassment policy. L.N. argues that Turner’s and Mixon’s adherence to the Board’s sexual-harassment policy was not discretionary and that the failure to conduct an immediate investigation upon learning of allegations of White’s sexual harassment of L.N. was a violation of the policy. L.N. relies upon N.C.’s deposition testimony and G.C.’s affidavit testimony as substantial evidence that Turner and Mixon received a complaint and did not act immediately upon the complaint. The Board members, Turner, and Mixon make no mention of N.C.’s deposition testimony or G.C.’s affidavit testimony concerning this issue in their brief on appeal.

As set forth above, N.C.’s deposition testimony and G.C.’s affidavit testimony indicates that they informed Turner and Mixon of White’s alleged sexual harassment of L.N. There is substantial evidence that neither Turner nor Mixon acted in compliance with the Board’s sexual-harassment policy upon receiving notice from N.C. and G.C. of White’s alleged sexual harassment of L.N. Specifically, there is substantial evidence that Turner did not immediately conduct an investigation upon learning from N.C. and G.C. of the allegations of White’s sexual harassment of L.N. and that Mixon did not promptly report White’s alleged sexual harassment of L.N. to Turner so that Turner could, in turn, conduct an immediate investigation. According to the Board’s sexual-harassment policy, neither Turner nor Mixon had the discretion to ignore a report that a student was being sexually harassed. Instead, the Board’s sexual-harassment policy is clear that certain procedures must take place upon a report of sexual harassment. N.C.’s deposition testimony and G.C.’s affidavit testimony are substantial evidence creating a genuine issue of material fact as to whether Turner and/or Mixon “acted willfully, maliciously, fraudulently, in bad faith, [or] beyond his ... authority,” Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000), thereby making State-agent immunity unavailable to them. See Montgomery Cnty. Bd. of Educ., 88 So.3d at 843 (quoting N.C. v. Caldwell, 77 So.3d 561, 566 (Ala.2011)); see also id. (quoting Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006), quoting in turn Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003), quoting in turn Ex parte Butts, 775 So.2d 173, 178 (Ala.2000) (‘““A State agent acts beyond authority and is therefore not immune when he or she Tail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ ” ’ ”)). Therefore, I respectfully dissent from the majority’s decision to affirm the summary judgment insofar as the circuit court determined that Turner and Mixon were entitled to State-agent immunity.

IV. Conclusion

My reasoning for dissenting in part from the majority’s decision to affirm without opinion the circuit court’s summary judgment rests solely on the disregard for substantial evidence properly before the circuit court. The circuit court, the appel-lees, and the majority have set forth no reason for the utter disregard of N.C.’s deposition testimony and G.C.’s affidavit testimony. If considered, N.C.’s and G.C.’s testimony clearly creates a genuine issue of material fact as to the issues set forth above; L.N. has met her burden and is entitled to have her case tried before a jury of her peers. The majority’s decision to affirm without an opinion the circuit court’s decision, which unequivocally and without explanation ignores substantial evidence before it, diminishes L.N.’s due-process rights.

SHAW, Justice

(concurring in part and dissenting in part).

I concur in part and dissent in part. The facts in this case are set out in Justice Parker’s special writing, and I see no need to repeat them here. It is sufficient to note that, according to G.C., in early 2003 she told Principal Larry Turner and Superintendent Dennis L. Mixon that L.N. and Willie White, Jr., were engaged in a sexual relationship. Additionally, N.C. testified that, shortly thereafter, she met with Mixon and also informed him that L.N. and White were involved sexually. The standard of review requires that we consider this evidence in the light most favorable to the nonmovant. Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

No investigation of whether a sexual relationship existed between L.N. and White occurred as a result of G.C.’s and N.C.’s 2003 allegations; the first investigation occurred in early 2004, when L.N.’s stepfather discussed with Turner certain rumors that L.N. and White were involved in a sexual relationship. The failure to conduct an investigation after the 2003 allegations would indicate that Turner and Mixon violated the Monroe County Board of Education’s sexual-harassment policy, which requires an “immediate” investigation into an allegation of sexual harassment. Thus, I believe that a genuine issue of material fact exists regarding whether Turner and Mixon, under 20 U.S.C. § 1681 et seq. (“Title IX”), had notice that L.N. was being sexually harassed and whether, by failing to initiate an investigation under the sexual-harassment policy, they exhibited “deliberate indifference” to the harassment, thus rendering them liable under Title IX. Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248 (11th Cir.2010). Additionally, a genuine issue of material fact exists regarding whether Turner and Mixon failed to adhere to the Board’s rules and regulations governing their activities, i.e., the sexual-harassment policy, thus depriving them of State-agent immunity from L.N.’s State-law claims. Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000) (“[A] State agent shall not be immune from civil liability in his or her personal capacity ... when ... rules[ ] or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise....”). Given these genuine issues of material fact, I would reverse the summary judgment in favor of Turner and Mixon on L.N.’s Title IX and State-law claims. As to all the remaining issues on appeal, including the judgment in favor of the appellees on L.N.’s claims under 42 U.S.C. § 1983, I would affirm the trial court’s judgment.

      . According to N.C.'s deposition testimony, White made an inappropriate comment to her in 2001 when he walked into the girl’s locker room while N.C. had her shirt "halfway off.” N.C. reported the incident to the girls basketball coach, who told N.C. she would report it to Turner, but it is unclear if she actually did so. N.C. testified that she later quit the basketball team because White was "coming on to her” and that she told Turner the reason she had quit.

        . N.C. was at one point expelled from school because of "problems” with another teacher stemming from an altercation between N.C. and other students.

      . The special writing quotes an apparently incorrect quotation of Gebser by the trial court in which the trial court changed the Gebser Court’s reference to "actual knowledge” to a reference to "actual notice.” 141 So.3d at 473 (quoting the trial court’s opinion). The Gebser Court also invokes the term "actual notice” throughout its opinion, clearly considering it to mean "actual knowledge” for purposes of that case.

      . It appears that N.C.’s "problems with Ms. Lambert” stemmed from an altercation between N.C. and several other students that ultimately resulted in N.C.’s expulsion from the school.

      . The Board and the Board members attack N.C.’s credibility as a witness; however, they do not argue that N.C.’s testimony was not properly before the circuit court. This Court has stated:
      "It goes without saying that ‘ " 'a court may not determine the credibility of witnesses on a motion for summary judgment.’ ” ’ Wilson v. Teng, 786 So.2d 485, 498 (Ala.2000) (quoting Ex parte Usrey, 777 So.2d 66, 68 (Ala.2000), quoting in turn Phillips v. Wayne's Pest Control Co., 623 So.2d 1099, 1102 (Ala.1993)).”

        Dixon v. Board of Water & Sewer Comm'rs of the City of Mobile, 865 So.2d 1161, 1166 n. 2 (Ala.2003). Therefore, the Board and the Board members' argument attacking the credibility of N.C. as a witness is irrelevant. I also note that the Board and the Board members do not attack the credibility of G.C.'s testimony in their brief to this Court.

      . Turner's deposition testimony also indicates that, prior to learning about White’s alleged sexual harassment of L.N., he was not aware of any allegations of sexual harassment against White by other students.

      . Although Turner could not remember the exact date he informed Mixon of White’s alleged sexual harassment of L.N., Turner was certain that he reported the alleged sexual harassment to Mixon before Mixon learned of the August 11, 2004, incident.

      . I note that the circuit court determined that the Board members, Turner, and Mixon were entitled to State-agent immunity insofar as L.N. sued them in their individual capacities. Although L.N. generally states in an argument heading in her appellate brief that "the individual Board defendants are not entitled to State-agent immunity,” L.N. clearly limits her argument, both in her appellate brief and in her reply brief, to Turner and Mixon. Therefore, I will analyze only whether the circuit court erred in determining that Turner and Mixon are entitled to State-agent immunity as to L.N.’s tort claims asserted against them in their individual capacities.

      " 1 Although Cranman was a plurality opinion, the test set forth in Cranman was subsequently adopted by a majority of the Court in Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).”

      . As set forth above, the Board’s sexual-harassment policy states, in pertinent part:
      "A student who believes he or she has been or is being subjected to any form of sexual harassment shall immediately report the matter to the school counselor, principal or the Superintendent. Any student who becomes aware of or suspects that a student is being sexually harassed shall immediately report the information to the school counselor, principal or Superintendent....

      "If the complaint is received by someone other than the school principal, the person receiving the complaint shall promptly inform the school principal. The principal shall start an immediate investigation into the matter."

      (Emphasis added.)

      . However, I am not convinced that the summary judgment in favor of the Board on the Title IX claim is due to be reversed. In Doe, the court noted that "school districts may not be held liable on a theory of respon-deat superior....” Doe, 604 F.3d at 1254. I see no argument presented in the materials before me indicating that the Board could be held liable under Title IX in this case.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    David T. HARRIS and Stacy L. Harris v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under the Pooling and Servicing Agreement dated November 1, 2005, GSAMP Trust 2005-HE5.
    1110054.
    Supreme Court of Alabama.
    Sept. 13, 2013.

      Bill Thomason and Clay J. Thomason of Thomason Law, Bessemer, for appellants.
    D. Keith Andress, Natalie R. Bolling, and Stephen Kieran Pudner of Baker, Do-nelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellee.
   MURDOCK, Justice.

David T. Harris and Stacy L. Harris appeal from a summary judgment entered by the Shelby Circuit Court in favor of Deutsche Bank National Trust Company, as Trustee under the Pooling and Servicing Agreement dated November 1, 2005, GSAMP Trust 2005-HE5 (“the trustee”), as to the trustee’s statutory-ejectment action against them and as to their counterclaim against the trustee. We vacate the trial court’s summary judgment in favor of the trustee as to its ejectment action and remand the case for further proceedings; we affirm the summary judgment in favor of the trustee as to the Harrises’ counterclaim.

I. Facts and Procedural History

In June 2005, the Harrises purchased a house in Shelby County (“the property”) through a loan from SouthStar Funding, LLC (“SouthStar”), in the amount of $120,350. The debt was divided into two adjustable-rate notes made payable to SouthStar — the first in the amount of $96,300 and the second in the amount of $24,050. The Harrises executed mortgages to secure the notes. The mortgages identified the “Lender” as SouthStar and the “mortgagee” as “Mortgage Electronic Systems, Inc.” (“MERS”), “acting solely as a nominee for Lender and Lender’s successors and assigns.” This action concerns the first note and mortgage for the debt of $96,300.

The note provided that SouthStar “may transfer this Note,” and the mortgage provided that the note “can be sold one or more times without prior notice to” the Harrises. The mortgage contained the following pertinent provisions concerning notices, acceleration of the debt, and invocation of the power of sale by the Lender:

“15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address.
“22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... The notice shall specify (a) the default; (b) the action required to cure the default; (c) a date, no later than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) the failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property.... If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and other remedies permitted by Applicable Law.
“If Lender invokes the power of sale, Lender shall give a copy of a notice to Borrower in the manner provided in Section 15. Lender shall publish notice of sale once a week for three consecutive weeks in a newspaper published in Shelby County, Alabama, and thereupon shall sell the Property to the highest bidder at public auction at the front door of the County Courthouse of this County. Lender shall deliver to the purchaser Lender’s deed conveying the Property. Lender or its designee may purchase the Property at any sale.”

Additionally, the mortgage stated that SouthStar or MERS, “as nominee for [SouthStar’s] successors and assigns,” had “the right to foreclose and sell the Property.”

The Harrises began falling behind on their mortgage payments in 2007; the Harrises do not dispute that they failed to meet their mortgage obligations. Evidence in the record indicates that on March 20, 2008, Litton Loan Servicing LP (“Litton”) sent a letter addressed to the Harrises at the property address informing the Harrises that they had “fallen behind on [their] mortgage payments.” The letter stated that Litton “would like to explore options that may be available to help preserve your home ownership,” and it provided contact information for Litton’s “Loss Mitigation Department.” The letter also stated that Litton “is a debt collector.” The Harrises deny receiving the March 20, 2008, letter or any other correspondence until they were served with the complaint in the instant ejectment action.

There also is evidence indicating that, on April 16, 2008, Litton sent a letter “on behalf of the owner and holder of your mortgage loan,” this one by certified mail to the property address, informing the Harrises that their mortgage was “in default for failure to pay amounts due.” The letter explained that to cure the default the Harrises “must pay all amounts due under the terms of your note and Deed of Trust/Mortgage.” It also related that if they failed to cure the default within 45 days of the date of the letter, “Litton will accelerate the maturity date on the Note and declare all outstanding amounts under the Note immediately due and payable.” The letter further stated that, “[u]pon acceleration of [the] Note, Litton will refer the property for foreclosure.”

On June 16, 2008, according to evidence in the record, Litton sent a letter to the Harrises at the property address that extended “a loan modification offer” to the Harrises. As with Litton’s first letter, this one contained contact information for Litton’s “Loss Mitigation Department.”

The record also contains evidence indicating that, on July 14, 2008, Colleen McCullough of the law firm of Sirote & Permutt, P.C., on behalf of the trustee, sent a letter addressed to the Harrises at the property address that noted that the Harrises’ mortgage had been “transferred and assigned to Deutsche Bank National Trust Company.” The letter stated that, “pursuant to the terms of the Promissory Note and Mortgage,” and “by virtue of default in the terms of said Note and Mortgage, [the trustee] hereby accelerates to maturity the entire remaining unpaid balance of the debt....” The letter provided the payoff amount as of the date of the letter, and it stated that the trustee was “at this time commencing foreclosure under the terms of the Mortgage.” The letter indicated a copy of it had been provided to Litton.

Finally, the record also contains evidence indicating that, on December 29, 2008, McCullough, on behalf of the trustee, sent another letter to the Harrises at the property address, once again informing the Harrises that the note was being accelerated as a result of their default on the mortgage and that foreclosure proceedings were being initiated. The letter stated that a copy of the public foreclosure notice was enclosed with the letter and that the foreclosure sale was scheduled for February 3, 2009.

Public notices of the foreclosure sale were published on December 31, 2008, January 7, 2009, and January 14, 2009. The notices stated that the mortgage had been transferred to the trustee and that the “Mortgagee/Transferee” would sell the property on February 3, 2009. It also listed Sirote & Permutt, P.C., as the “Attorney for Mortgagee/Transferee.”

On January 8, 2009, MERS executed and delivered an assignment of the mortgage to the trustee. That assignment was recorded in the Shelby Probate Office on January 13, 2009.

On February 3, 2009, the trustee, through its attorney, conducted a foreclosure sale on the property. The trustee, as the highest bidder, purchased the property and obtained a foreclosure deed. The foreclosure deed stated that the mortgage executed by the Harrises on June 10, 2005, had “subsequently been transferred and assigned to [the trustee]” and that the trustee “was authorized and empowered in case of default in the payment of the indebtedness secured thereby ... to sell said property....” The foreclosure deed naming the trustee as the grantee was recorded in the Shelby Probate Office on February 12, 2009.

Also on February 3, 2009, McCullough, on behalf of the trustee, sent a letter to the Harrises at the property address demanding possession of the property based upon the foreclosure and informing the Harrises of their right of redemption.

On February 11, 2009, the trustee filed a complaint asserting a claim in the nature of ejectment against the Harrises in which it alleged that it was the “owner” of the property “by virtue of foreclosure on February 3, 2009.” The complaint noted that the trustee had served a written demand for possession upon the Harrises and that they had not vacated the property. The trustee attached a copy of the foreclosure deed to the complaint. The Harrises responded to the complaint on March 18, 2009, through a motion to dismiss or, in the alternative, for a more definite statement, in which they stated that they were “unable to file a complete answer without knowledge of the [the trustee’s] alleged standing.”

On March 30, 2009, the trustee filed a motion for a summary judgment along with an affidavit asserting the basis for the trustee’s ownership of the property. The Harrises did not file a response to the motion. On July 8, 2009, the trial court granted the trustee’s motion for a summary judgment and denied the Harrises’ motion to dismiss or motion for a more definite statement.

On August 3, 2009, the Harrises filed a motion to reconsider the order entering a summary judgment in favor of the trustee. The Harrises attached to the motion an affidavit from David Harris in which he averred that he had not had any dealings with the trustee but, rather, had always dealt with Litton regarding the mortgage. He also asserted that “Litton did not give us any notice of default or inform us that it had accelerated the mortgage and intended to foreclose.” Harris also claimed that he and his wife did not receive a copy of the motion for a summary judgment.

On September 25, 2009, the trial court granted the Harrises’ motion to reconsider and vacated the summary-judgment order. It provided the Harrises 14 days to file a response to the motion for a summary judgment. On October 7, 2009, the Har-rises filed their response to the motion for a summary judgment in which they alleged that the trustee had not fulfilled the contractual notice requirements that ■ were conditions precedent to foreclosure. They also asserted that they had not been afforded the opportunity to conduct discovery concerning “the present holder of the underlying note.” The Harrises also filed an answer to the complaint and a counterclaim in which they asserted that they had not been given proper notice of: (1) any transfer of loan servicing; (2) default; (3) actions required to cure the default; and (4) the acceleration of the debt. The Har-rises claimed damages for “wrongful foreclosure.”

The trustee answered the counterclaim on November 24, 2009. On May 24, 2010, the trustee filed a motion to supplement its motion for a summary judgment, to which it attached copies of several letters sent from Litton to the Harrises and from McCullough to the Harrises. In an amended motion to supplement the motion for a summary judgment filed two days later, the trustee attached an affidavit from McCullough in which she confirmed that she had executed “two notices of default and acceleration letters” to the Har-rises, that the letters had been mailed in the regular course of business, and that they had not been returned as undeliverable.

On July 27, 2010, the trial court entered an order granting the trustee’s motion for a summary judgment. In part, the trial court found:

“2. The mortgage was ... assigned to [the trustee] on or about January 8, 2009.
“3. That the [trustee], as mortgagee, and with proper authority, conducted a foreclosure sale on or about February 3, 2009, with [the trustee] being the purchaser at said sale.
“4. Prior to said sale, proper notice was provided to the [Harrises] as required by the mortgage contract and state law.”

The trial court awarded immediate possession of the property to the trustee. • It also entered a summary judgment in favor of the trustee as to the Harrises’ counterclaim.

On August 19, 2010, the Harrises filed a motion to reconsider the summary judgment, which the trial court subsequently denied. The Harrises appealed that judgment, but this Court dismissed the appeal as being from a nonfinal judgment because of the trial court’s failure to adjudicate the trustee’s claim for damages. Harris v. Deutsche Bank Nat’l Trust (No. 1100307, March 1, 2011). On April 4, 2011, the trustee filed a notice withdrawing its claim for damages and requesting the entry of a final order. The trial court thereafter entered an order affirming its previous summary judgment in favor of the trustee and denying the trustee’s claim for damages.

The Harrises subsequently filed a motion to vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P. In that motion, the Harrises argued that the trustee had not demonstrated that it had obtained the foreclosure deed through a valid foreclosure sale because, they asserted, it was not entitled to the debt at the time it executed the power of sale. Along with their motion, the Harrises submitted what they termed “newly discovered evidence,” which included a copy of the trust “pooling services agreement” (“PSA”) related to their mortgage, a “Limited Power of Attorney” appointing Litton as attorney-in-fact for the trust, excerpts from a June 9, 2009, deposition of Denise Bailey in a Florida action, and an affidavit dated February 11, 2011, from the in-house counsel of MERSCORP, Inc., the parent company of MERS, submitted in a New Jersey action.

Following a response filed by the trustee and a hearing on the motion, the trial court denied the Harrises’ Rule 59(e) motion. The order stated that the trial court had reviewed the parties’ arguments, but it made no reference to the Harrises’ “newly discovered evidence.” The Harrises appealed the trial court’s summary judgment in favor of the trustee.

II. Analysis

A. The Trustee’s “Initiation of Foreclosure Proceedings” Before Being Assigned the Mortgage

The Harrises argue that the trustee did not establish that it was either “the nominal mortgagee or [the] owner of the mortgage debt” until at least January 8, 2009, after it had accelerated the debt and stated in July 2008 that it was “commencing foreclosure under the terms of the Mortgage.” They contend that, because the trustee did not hold the power of sale associated with the mortgage when it “initiated foreclosure proceedings,” those proceedings were deficient and the foreclosure deed ultimately obtained by the trustee as the successful purchaser at the foreclosure auction is invalid. On this premise, the Harrises initially argue that the trustee lacked standing to bring its ejectment action against them. This same premise conflicts with the trial court’s existing finding on the merits of the ejectment claim that the trustee had “proper authority” to foreclose on the property and is urged by the Harrises as part of the framework for a reexamination of those merits, which it asks us to order on a remand of the case.

We reject the stated premise both as it relates to the issue of standing and to the merits of the trustee’s claim. As we explain in our separate decision issued today in Ex parte GMAC Mortgage, LLC, [Ms. 1110547, Sept. 13, 2013] — So.3d - (Ala.2013), the failure of a foreclosing party to have received an assignment of the mortgage (and by extension the power of sale attendant to the mortgage debt) before “the initiation of foreclosure proceedings” does not of itself invalidate the eventual conveyance of the property in foreclosure of the mortgagor’s rights. See also Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, Sept. 13, 2013] — So.3d -(Ala.2013) (holding that an issue such as that presented by the Har-rises goes to the merits of a foreclosure purchaser’s ejectment claim, not its “standing” to make that claim).

B. Other Alleged Deficiencies in the Foreclosure Process

As noted, the Harrises also challenge the summary judgment entered against them on the trustee’s ejectment action on its merits. They do so on the basis of various alleged deficiencies in the foreclosure process that they contend invalidate the foreclosure conveyance to the trustee and therefore the title to the property upon which the trustee bases its ejectment claim under § 6-6-280(b), Ala.Code 1975.

We first note that the Harrises raise an issue as to whether the notice of default and of the possibility of an acceleration of the loan and a sale of the property, as required by the mortgage, was given. We may assume for purposes of this issue that the trustee proved a prima facie case for ejectment but that the Harrises introduced sufficient evidence to require the trustee to go beyond that proof and prove that the foreclosure conveyance to it was not invalid for failure of the above-described notice. Even so, the specific argument made by the Harrises in their brief as to this notice issue is merely that the trustee “failed to produce substantial evidence” tending to show that the required notice was given. We reject this argument.

The mortgage provides that “[a]ny notice to [the Harrises] in connection with this Security Instrument shall be deemed to have been given to [the Harrises] when mailed by first class mail or when actually delivered to [the Harrises’] notice address.” As we noted in our rendition of the facts, the record indicates that Litton sent the Harrises a letter via certified mail on April 16, 2008, notifying them of default on the mortgage and of an intent to accelerate if the default was not cured. The record contains a certified-mail receipt, bearing the stamp of the United States Postal Service and indicating that a letter was mailed on that date to the Harrises at the requisite notice address. The record also contains two letters dated July 14, 2008, and December 29, 2008, respectively, from McCullough on behalf of the trustee to the Harrises informing them that their loan was in default, that their payment obligations were being accelerated, and that foreclosure proceedings were being instituted. The record also contains an affidavit from McCullough in which she testifies that both of those letters were mailed by “placing [the] same in the United States mail, postage prepaid, on or about July 14, 2008 and December 29, 2008, respectfully.”

“ ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’” Dow v. Alabama Democratic Party, 897 So.2d 1035, 1039 (Ala.2004) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). The record contains substantial evidence indicating that the required notice was given in accordance with the requirements of the mortgage contract. The Harrises’ argument to the contrary is without merit.

Next, the Harrises make two arguments based upon evidence they submitted in support of their Rule 59(e) motion to vacate the judgment of the trial court. First, based on their submission of the PSA, the Harrises contend that the trust was not allowed to acquire mortgage loans after November 22, 2005. Second, based on a deposition of Denise Bailey in a Florida action and an affidavit from the in-house counsel of MERSCORP, Inc., submitted in a New Jersey action, the Harris-es contend that MERS did not properly assign the mortgage to the trust.

As to the PSA, “[d]ocuments submitted in support of or in opposition to a summary-judgment motion are generally required to be certified or otherwise authenticated; if they are not, they constitute inadmissible hearsay and are not considered on summary judgment.” Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1053 (Ala.2007). In addition, even if the PSA had been authenticated and it could not have been located by the Harris-es’ counsel with due diligence before the trial court entered the summary judgment, the Harrises failed to respond in both the trial court and in their briefs to this Court to the trustee’s argument that the Harris-es cannot enforce the terms of the PSA because they are neither parties to nor third-party beneficiaries of the PSA. See Ware v. Deutsche Bank Nat’l Trust Co., 75 So.3d 1168 (Ala.2011), (turning aside a similar argument by the mortgagor because he was neither a party to nor a third-party beneficiary of the PSA at issue). As in Ware, the Harrises’ argument based on the PSA is due to be rejected for failure to explain the basis on which they can invoke the PSA.

Furthermore, “[e]vidence submitted in an effort to revise an interlocutory summary judgment can be considered by the court if the nonmovant can offer a proper explanation for its failure to submit the evidence earlier, in response to the motion for summary judgment.” Hail v. Regency Terrace Owners Ass’n, 782 So.2d 1271, 1278 (Ala.1999). A Rule 59(e) motion does not, per se, operate to extend the time for filing affidavits or other material in opposition to a motion for a summary judgment. A party seeking to rely upon “newly discovered evidence” in support of a Rule 59(e) motion has the burden of showing “that the evidence submitted with his motion for reconsideration was ‘newly discovered evidence which by due diligence could not have been discovered’ before submission of defendants’ motion for summary judgment.” Moore v. Glover, 501 So.2d 1187, 1189 (Ala.1986) (emphasis omitted). In their Rule 59(e) motion, the Harrises’ only explanation as to why they were not able to submit much of their “newly discovered evidence” in response to the summary-judgment motion was that the evidence “was not located” until after the trial court granted the trustee’s summary-judgment motion. This is not an adequate explanation of why this evidence could not have been obtained or submitted earlier. Accordingly, the submission of this evidence does not require us to reverse the trial court’s judgment.

The Harrises also argue that the power of sale described in the mortgage was given by the Harrises as part of the security for the repayment of the debt evidenced by the note and can be “executed” only by the trustee if it was the party entitled to the money thus secured. They cite § 35-10-12, Ala.Code 1975, which states that the power to sell lands given in a mortgage “is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured.” In Carpenter v. First National Bank, 236 Ala. 213, 181 So. 239 (1938), this Court applied the predecessor to § 35-10-12, stating:

“A power of sale in a mortgage of real estate is a part of the security, and passes to any one who by assignment or otherwise becomes entitled to the money secured. Code 1923, § 9010.
“But an agent of such holder to whom the mortgage is delivered merely for the purpose of foreclosure, having no ownership of the debt, is not authorized to foreclose in his own name, and execute a deed in his name to the purchaser,[] Ownership of the debt does not pass to such agent merely because the note is indorsed in blank. Such foreclosure is ineffective, and a court of equity may take jurisdiction for the purpose of foreclosure.”

236 Ala. at 215, 181 So. at 240 (emphasis added). The foreclosure deed in this case was executed by the trustee in its own name, not on behalf of the lender, SouthS-tar, or any other party to which SouthStar may have assigned the note. The deed was effective to transfer title and to foreclose the rights of the mortgagor, therefore, only if the trustee, in its own name, was entitled to receive the money secured by the note at the time it executed and delivered that deed.

The parties agree in their briefs, however, and we accept for purposes of this case, that the mortgage given MERS “solely as a nominee for Lender and Lender’s successors and assigns” did not entitle MERS to the money secured by the mortgage. Accordingly, the subsequent assignment of that mortgage by MERS to the trustee did not accomplish an assignment of that right to the trustee. The trustee in fact concedes that summary judgment was inappropriate in this case and that on the state of the current record there is a genuine issue of material fact as to whether the trustee received an assignment of the note so as to have entitled it to execute the power of sale in its own name. (It asserts that, if this case is returned to the trial court, it will introduce “conclusive evidence” of its receipt as early as 2005 of the debt evidenced by the original note signed by the Harrises.) The summary judgment entered by the trial court therefore is due to be vacated and the case remanded for a determination as to whether the trustee received an assignment of the right to receive the money secured by the note, and thus the power to execute the corresponding power of sale in its own name, before executing and delivering the foreclosure deed.

Finally, the Harrises argue that the trial court erroneously entered a summary judgment in favor of the trustee on the Harrises’ counterclaim for “wrongful foreclosure.” We disagree in light of the following statement of law:

“Alabama has long recognized a cause of action for ‘wrongful foreclosure’ arising out of the exercise of a power-of-sale provision in a mortgage. However, it has defined such a claim as one where ‘a mortgagee uses the power of sale given under a mortgage for a purpose other than to secure the debt owed by the mortgagor.’ Reeves Cedarhurst Dev. Corp. v. First American Fed. Sav. & Loan Ass’n, 607 So.2d 180, 182 (Ala.1992).”

Jackson v. Wells Fargo Bank, N.A., 90 So.3d 168, 171 (Ala.2012) (emphasis added).

In their “counterclaim,” the Harrises did not allege that the power of sale was exercised for any purpose “other than to secure the debt owed by [them].” Instead, their claim merely goes to whether the trustee complied with certain contractual or statutory prerequisites for a valid foreclosure. Therefore, the trial court did not err in entering a summary judgment on the Harrises’ counterclaim. '

III. Conclusion

For the reason discussed above, we vacate the summary judgment entered by the trial court in favor of the trustee on its claim for ejectment and remand this case to the trial court for further proceedings and for the entry of a new judgment consistent with this opinion. Specifically, we instruct the trial court to determine whether the trustee received an assignment of the right to receive the money secured by the note, and thus the power to execute the corresponding power of sale in its own name, before executing and delivering the foreclosure deed. The trial court’s summary judgment in favor of the trustee on the Harrises’ counterclaim is affirmed.

JUDGMENT VACATED IN PART; AFFIRMED IN PART; AND REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and STUART, BOLIN, SHAW, MAIN, WISE, and BRYAN, JJ„ concur.

      . The Harrises acknowledge that Litton was the servicer of their loan and that they made their mortgage payments to Litton.

      . Bailey was the MERS employee who had executed the assignment of the mortgage.

      . The Harrises argue that McCullough is "not competent” to testify as to whether notice was mailed by Litton. Their only other challenge to McCullough’s testimony is that the only person who should be allowed to testify as to the "policy” of McCullough’s firm in regard to the mailing of default and acceleration notices and the compliance with that policy in this case is "the person whose duty it is actually to carry out the custom.” The Har-rises do not explain why McCullough is not that person. In any event, it does not appear that either of the objections now raised to McCullough's testimony was presented by the Harrises to the trial court.

      . As discussed in Ex parte GMAC Mortgage, LLC, - So.3d -, it is the execution and delivery of a deed that "forecloses” the mortgagor's rights and vests the foreclosure purchaser with legal title sufficient to support an ejectment action under § 6-6-280(b).