Doe No. 60 v. G-Star School of the Arts, Inc.
Filing
84
ORDER denying 52 Defendant's Motion for Summary Judgment. Signed by Judge Beth Bloom on 5/16/2017. (mc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-80446-BLOOM/Valle
JANE DOE NO. 60,
Plaintiff,
v.
G-STAR SCHOOL OF THE ARTS, INC.,
Defendant.
__________________________/
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant G-Star School of the Arts, Inc.’s
(“Defendant” or “G-Star School”) Motion for Summary Judgment, ECF No. [52] (the “Motion”).
The Court has reviewed the Motion, all opposing and supporting submissions, the record and the
applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is
denied.
I.
BACKGROUND
This action is brought by minor Plaintiff Jane Doe No. 60 ("Plaintiff") and arises out of
the alleged sexual harassment and assault of Plaintiff by one of her high school teachers at GStar School, a not-for-profit charter school. Plaintiff attended G-Star School from August 2011,
when she began the tenth grade, through June 2014, when she graduated. Defendant’s Statement
of Undisputed Facts, ECF No. [52] (“Def. SOF”) at ¶¶ 2, 30.1 According to Plaintiff, throughout
her tenth grade year, her history teacher, Ismael Martinez ("Martinez), “groomed” her to gain her
trust and develop an inappropriate relationship with her. See ECF No. [75] at ¶ 9. This process
1
Where a fact is uncontroverted by the opposing party, the Court cites only to the originating Statement
of Facts.
Case No. 16-cv-80446-BLOOM/Valle
began at the beginning of the school year when Martinez stated to her that she was beautiful and
assigned her to sit in the front of his class. Plaintiff’s Additional Material Facts, ECF No. [58] at
3-10 (“Pl. Additional Facts”), ¶ 1.2 On another other occasion, Martinez allegedly sang the lyrics
of a sexually explicit song to Plaintiff and asked her what she likes to do sexually. Id. at ¶ 3.
Plaintiff further alleges that some time afterwards, on April 17, 2012, Martinez had her
attend a tutoring session in his classroom after school. Id. at ¶ 6. Allegedly, while Martinez and
Plaintiff were alone in his classroom, Martinez again asked Plaintiff what she likes to do
sexually, stated to Plaintiff that he "like[s] to eat pussy[,]" and then, at the end of the tutoring
session when Plaintiff was getting ready to leave, sexually assaulted Plaintiff. Id. Specifically,
Plaintiff alleges that Martinez came up to her from behind as she was packing her book bag,
caressed her thighs and buttocks, and began kissing her neck. Id. Martinez then placed Plaintiff
on her desk, felt her breasts, pulled down her blouse and bra, kissed her on the breasts while
whispering "I want you so bad[,]" and placed her hand on his penis. Id. Martinez also tried to
remove Plaintiff's pants, but Plaintiff stopped him. Id. According to Plaintiff, she began to
believe that she was in love with Martinez after the alleged sexual encounter, and the
inappropriate relationship between them continued throughout her eleventh and twelfth grade
years. Id. at ¶ 7; ECF No. [75] at ¶¶ 12-14.
Throughout the course of this litigation and since first being confronted with reports of
the alleged relationship between him and Plaintiff, Martinez has denied what Plaintiff now
alleges, maintaining that he has never been involved in an inappropriate relationship with
Plaintiff. The first of those reports stemmed from Plaintiff herself, though indirectly. Shortly
after the alleged sexual encounter on April 17, 2012, Plaintiff disclosed to a fellow classmate,
2
Plaintiff’s Statement of Material Facts, ECF No. [58] (“Pl. SOF”), also provides 31 “Additional Material
Facts,” see id. at 3-10. Defendant does not address these facts individually, but does generally address
their subject matter in its Reply. See ECF No. [63].
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Nina Nordarse (“Nordarse”), that she was in a relationship with Martinez. Def. SOF at ¶ 5; Pl.
SOF at ¶ 5.
Thereafter, Nordarse spoke with a G-Star School employee, Travis Hagler
(“Hagler”), informing him that a girl in one of her classes had hinted to her that she was in a
relationship with Martinez. Def. SOF at ¶ 7. Hagler then immediately advised the founder and
CEO of G-Star School, Gregory Hauptner (“Hauptner”), of the information he received during
his conversation with Nordarse. Id. at ¶¶ 9-10.
On Friday, April 20, 2012, Hauptner and the principal of G-Star School, Kimberly
Collins (“Principal Collins”), spoke with Plaintiff in their office. Id. at ¶ 11. At that meeting,
Plaintiff denied that she was inappropriately involved with any teacher of G-Star School and
stated that some girls in the school were spreading untrue rumors about her, including that one.
Id. at ¶ 12. Plaintiff’s statements at the meeting were memorialized in a typed statement, which
Plaintiff then reviewed and signed. Id. at ¶ 13; see also ECF No. [52-1] at Exh. E.
The next day, Martinez contacted Hauptner and Principal Collins to inform them that a
student named Nicole Elkins (“Elkins”) had told him of a rumor going around that “he hooked
with a student,” which he denied to Hauptner and Principal Collins. Def. SOF at ¶¶ 14-15.
Hauptner made a written note of this conversation, and indicated on the note his intention to find
out how Plaintiff commuted home from school, whether she ever stays at school after hours, and
what day the rumored incident could have taken place. Id. at ¶¶ 15-16.
The following Monday, on April 23, 2012, Plaintiff was again called into Hauptner and
Principal Collins’ office, this time due to a rumor that Plaintiff was going to shoot someone. Id.
at ¶ 17. At that meeting, Plaintiff explained that she had only joked with her friends about
shooting someone. Id. at ¶ 18. Hauptner and Principal Collins documented this meeting in a
typed note. id. at ¶ 19. The note indicates that the two of them spoke with Plaintiff’s parents
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over the phone later that same day regarding both the shooting-related rumor and the meeting
with Plaintiff, see ECF No. [52-1] at Exh. H. According to the note, Hauptner and Principal
Collins also informed Plaintiff’s parents during their conversation that they “had been hearing
rumors concerning their daughter and had asked her about any inappropriate activity between
her, any teacher, any staff member or students[,]” and also requested that Plaintiff’s parents “call
[] immediately” if they learned any more information about the rumors from Plaintiff. ECF No.
[52-1] at Exh. H. During the conversation, Plaintiff’s father informed Hauptner that Plaintiff had
been arriving home from school at the usual time every day except for the previous Tuesday or
Wednesday (April 17th or April 18th) because she had to make up a test. Def. SOF at ¶ 22
(citing ECF No. [52-1] at Exh. H).
Thereafter, Martinez, at the instruction of Hauptner and Principal Collins, prepared a
document outlining his schedule during the week of April 16, 2012—identifying in particular
any students who were in his classroom either during the lunch hour or after school that week—
which reflected that Plaintiff stayed after school to complete make-up homework on April 17,
2012. Id. at ¶¶ 24-25. Hauptner and Principal Collins then had the rest of the teachers with
classrooms in the same building as Martinez indicate whether they also had students stay after
school on April 17, 2012 and provide what time each of them left the school that day. Id. at ¶¶
26-27. Upon collecting the above information, Hauptner and Principal Collins concluded in a
final report that there was a “complete lack of any evidence that the rumor is true that [Plaintiff]
and the teacher had any inappropriate contact[,]” noting that both Plaintiff and Martinez
“completely denied” the rumor. Id. at ¶ 28 (citing ECF No. [52-1] at Exh. K). Thus, as reflected
in the final report, Hauptner and Principal Collins concluded that “[t]here was no inappropriate
contact between the teacher and [Plaintiff]” and deemed “[t]he matter concerning the teacher []
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dropped.” ECF No. [52-1] at Exh. K. Apparently, no further action was taken by G-Star School
with respect to Plaintiff and Martinez.
After graduating from G-Star School in 2014, Plaintiff filed the instant action against GStar School on March 21, 2016. In an Amended Complaint filed on April 25, 2016, ECF No. [6],
Plaintiff asserted a claim for negligence (Count I) and a claim for violations of Title IX, 20
U.S.C. § 1681 et seq. (Count II).3 On September 6, 2016, the Court granted a Motion for
Judgment on the Pleadings filed by G-Star School, dismissing Plaintiff’s negligence claim
without prejudice for Plaintiff’s failure to allege that G-Star School was provided with pre-suit
notice as required under Fla. Stat. § 768.28(6). ECF No. [35]. The Court advised that Plaintiff
would be allowed to refile the negligence claim after complying with the pre-suit notice
requirements of Fla. Stat. § 768.28(6). Id. at 15. On April 14, 2017, the Court, satisfied that
Plaintiff had thereafter complied with the pre-suit notice requirements of Fla. Stat. § 768.28(6),
granted Plaintiff leave to file a Second Amended Complaint reasserting the negligence claim
against Defendant, which Plaintiff filed on April 19, 2017. See ECF Nos. [72], [74]. Prior to the
filing of Plaintiff’s Second Amended Complaint, on March 3, 2017, G-Star School filed its
Motion for Summary Judgment with respect to Plaintiff’s Title IX claim—the only claim
asserted at the time. ECF No. [52]. Plaintiff’s Response, ECF No. [57], and G-Star School’s
Reply, ECF No. [63], timely followed.4
II.
LEGAL STANDARD
A court may grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
3
Plaintiff also filed a complaint with the Palm Springs Police Department against Martinez after she
graduated. Def. SOF at ¶ 30.
4
G-Star School has since filed a Motion to Dismiss Count I of Plaintiff’s Second Amended Complaint,
ECF No. [78], seeking dismissal of Plaintiff’s negligence claim with prejudice. The Court will address
G-Star School’s Motion to Dismiss by separate order.
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law.” Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
56(c).
An issue is genuine if “a reasonable trier of fact could return judgment for the
non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243
(11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in the party’s favor.
See Davis v.
Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The
Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,
1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,
1356 (11th Cir. 1986)).
The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each
essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
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and admissions on file, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343. But even where an opposing party
neglects to submit any alleged material facts in controversy, a court cannot grant summary
judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted
material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
In resolving the issues presented under Fed. R. Civ. P. 56, “the court may not weigh
conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary
judgment must be denied.” Carlin Commc’n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d
1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, 2011 WL 5838233, at *1 (S.D. Fla.
Nov. 21, 2011) (“If a reasonable fact finder could draw more than one inference from the facts,
and that inference creates an issue of material fact, then the court must not grant summary
judgment.” (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993)).
Even “where the parties agree on the basic facts, but disagree about the factual inferences that
should be drawn from those facts,” summary judgment may be inappropriate.
Warrior
Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
In particular, summary judgment is inappropriate where the Court would be required to
weigh conflicting renditions of material fact or determine witness credibility. See Hairston, 9
F.3d at 919; see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is
not the court’s role to weigh conflicting evidence or to make credibility determinations; the nonmovant's evidence is to be accepted for purposes of summary judgment.”); see also Strickland v.
Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (“Credibility determinations, the
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weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he [or she] is ruling on a motion for summary judgment
or for a directed verdict.” (quoting Anderson, 477 U.S. at 255)); Gary v. Modena, 2006 WL
3741364, at *16 (11th Cir. Dec. 21, 2006) (Fed. R. Civ. P. 56 precludes summary judgment
where court would be required to reconcile conflicting testimony or assess witness credibility);
Ramirez v. Nicholas, 2013 WL 5596114, at *4 (S.D. Fla. Oct.11, 2013) (“The Court may not
make the credibility determinations needed to resolve this conflict; only the jury may do so.”).
III.
DISCUSSION
The essence of Plaintiff’s claim under Title IX is that the alleged sexual assault of
Plaintiff and the alleged inappropriate relationship that formed between her and Martinez subject
G-Star School to civil liability for sexual harassment. 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 under Title IX in cases of intentional sexual discrimination,
including a teacher's sexual harassment of a student. Franklin v. Gwinnett Cnty. Pub. Schools,
503 U.S. 60, 75-76 (1992); see also Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650
(1999) (“[S]exual harassment' is ‘discrimination’ in the school context under Title IX.”).
A school district's Title IX liability for teacher-on-student harassment is governed by the
Supreme Court's decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274
(1998).
However, damages are only recoverable under Title IX for teacher-on-student
harassment if a school official with authority to address the alleged discrimination and to
institute corrective measures has actual knowledge of and is deliberately indifferent to the
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discrimination. Id. at 290; see also Davis, 526 U.S. at 641 (affirming that a recipient of federal
education funds may be liable under Title IX where it is deliberately indifferent to known acts of
sexual harassment). “Therefore, applying the Gebser framework to the summary judgment
context requires three related inquiries.” Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248,
1254 (11th Cir. 2010).
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. 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. And finally, the official with such notice must
exhibit deliberate indifference to the harassment.
Id. (internal citations omitted). Deliberate indifference “is an official decision by the recipient
not to remedy the violation[,]” Gebser, 524 U.S. at 290, which requires a showing that a school
district's actions are “clearly unreasonable in light of the circumstances[,]” Davis, 526 U.S. at
648.
Here, the parties do not dispute that G-Star School qualifies as a recipient of federal
education funding for Title IX purposes, nor is there any argument that Hauptner and Principal
Collins are not school officials with the authority to address the alleged discrimination and to
institute corrective measures on the Title IX recipient’s behalf. Rather, G-Star School argues in
its Motion that Plaintiff’s Title IX claim fails as a matter of law for two reasons: (1) the record
does not demonstrate that G-Star School received actual notice that Plaintiff and Martinez were
involved in an inappropriate relationship; and (2) the record fails to demonstrate that G-Star
School’s response to the rumor brought to its attention by Hagler on April 20, 2012 constituted
deliberate indifference. ECF No. [52] at 12. The Court will address each argument in turn.
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A. Actual Notice
G-Star School’s argument that it did not receive actual notice that Plaintiff was subjected
to sexual harassment by Martinez is straightforward: Plaintiff, during her initial meeting with
Hauptner and Principal Collins on April 20, 2012, “adamantly denied the rumor” that she and
Martinez were involved in an inappropriate relationship, and in doing so, “decided to not give
the school actual notice of any sexual harassment by Martinez.” Id. at 13-14. G-Star School
emphasizes that “there were no third-party witnesses to any inappropriate conduct” and that
“Plaintiff would be the only person, other than Martinez, with firsthand knowledge of Martinez’s
alleged misconduct towards her.” Id. at 13. Plaintiff, on the other hand, avers that there is
evidence in the record showing that, before the alleged sexual encounter on April 17, 2012, she
advised the Assistant Principal for Discipline of G-Star School, Anthony Andrepont
(“Andrepont”), that Martinez had made inappropriate sexual communications to her, and
Andrepont immediately reported that information to Principal Collins. ECF No. [57] at 3-4, 1112.
Plaintiff argues that Andrepont’s report, in addition to the “multiple reports” of an
inappropriate relationship between Plaintiff and Martinez following the alleged sexual
encounter—namely, the rumors brought to Hauptner and Principal Collins’ attention—
sufficiently notified G-Star School that Martinez posed a substantial risk of sexual harassment.
See id. at 10-14.
As reflected above, the parties are at odds with respect to the operative theory of actual
notice underpinning Plaintiff’s Title IX claim. More specifically, Plaintiff’s argument in favor of
actual notice places significant focus on an occurrence that G-Star School’s argument against
actual notice does not even acknowledge—that is, Plaintiff’s report to Andrepont of
inappropriate comments made to her by Martinez prior to the alleged sexual encounter on April
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17, 2012 and Andrepont’s subsequent relay of that report to Hauptner and Principal Collins. GStar School suggests in its Reply that Plaintiff’s reliance on this alleged occurrence constitutes an
improper attempt to amend the Second Amended Complaint by way of argument in order to
create an issue of material fact concerning G-Star School’s actual notice of any misconduct by
Martinez prior to the alleged sexual encounter on April 17, 2012. See ECF No. [63] at 2-3, 5.
G-Star School asserts as follows: “Plaintiff has never alleged in any pleading that she informed
Andrepont or any administrator about communications that she had with Martinez, and she has
never alleged that Andrepont subsequently reported that information to Hauptner and Collins.
More importantly, Plaintiff has never moved to amend her Complaint to reflect these allegations
. . . .” Id. at 5. As such, G-Star School contends that based on the four corners of the Second
Amended Complaint, the only issue to be addressed with respect to actual notice in this case is
whether G-Star School received actual notice of the alleged sexual encounter on April 17, 2012;
according to G-Star School, no other theory of notice may be relied upon by Plaintiff at this
point. See id. at 3. The Court disagrees.
To begin with, it is important to recognize the scope of what can constitute sufficient
actual notice for purposes of Title IX in the context of teacher-on-student harassment. As the
Eleventh Circuit has explained, “lesser harassment may still provide actual notice of sexually
violent conduct, for it is the risk of such conduct that the Title IX recipient has the duty to deter.”
Sch. Bd. of Broward Cty., 604 F.3d at 1258 (citation omitted) (emphasis added). “Even if prior
complaints by other students are not clearly credible, at some point ‘a supervisory school official
knows . . . that a school employee is a substantial risk to sexually abuse children.’” Id. at 1259
(quoting Escue v. N. Okla. Coll., 450 F.3d 1146, 1154 (10th Cir. 2006)) (emphasis added); see
also Johnson v. Galen Health Institutes, Inc., 267 F. Supp. 2d. 679, 688 (W.D. Ky. 2003) (“[T]he
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Court thus finds that the actual notice standard is met when an appropriate official has actual
knowledge of a substantial risk of abuse to students based on prior complaints by other
students.”).
Accordingly, setting aside for a moment what Plaintiff’s Second Amended
Complaint does or does not allege, the Court recognizes that at a general level, Plaintiff would by
no means be limited to proving G-Star School’s actual notice of the alleged sexual encounter on
April 17, 2012—and only such actual notice—in order to prevail on her Title IX claim. Rather, a
Title IX claim such as Plaintiff’s may prove sufficient where it can be shown that the appropriate
school official has actual knowledge that a particular school employee presents a substantial risk
to abuse students.
It is within this purview that the Court addresses G-Star School’s argument that the
Second Amended Complaint does not allow for what it characterizes as a newly raised theory of
actual notice. G-Star School is correct in pointing out that Plaintiff does allege that G-Star
School had actual notice of the alleged sexual encounter on April 17, 2012. See ECF No. [75] at
¶ 24. However, a careful review of the Second Amended Complaint reveals that that allegation
of actual notice is not necessarily to the exclusion of any other actual notice on the part of G-Star
School, such as actual notice that Martinez posed a substantial risk of abuse to students prior to
the alleged sexual encounter on April 17, 2012.
Indeed, the Second Amended Complaint
specifically alleges that Martinez took advantage of G-Star School’s “sexually charged and
permissive environment” by “grooming” one other female student, and, more importantly, that
“it was foreseeable that male teachers, including . . . Martinez, would sexually groom and
sexually harass or molest female students.” Id. at ¶¶ 18-20. Perhaps even more relevant, the
Second Amended Complaint also alleges that “at all relevant times there were ‘red flags’ known
at the School by administration regarding Martinez’s sexual proclivities with female students[,] .
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. . includ[ing] Martinez’s acts and conduct of excessive and inappropriate flirting and sexual
harassment of female students.” Id. at ¶ 23. As an example, the Second Amended Complaint
alleges that Martinez “made sexually inappropriate comments to female students . . . .” Id. In
light of these allegations, the Court cannot conclude that the four corners of the Second
Amended Complaint preclude the particular theory of actual notice asserted by Plaintiff, which
stems in part from an allegation that, prior to the alleged sexual encounter on April 17, 2012,
Martinez made inappropriate sexual communications to Plaintiff and Plaintiff reported those
communications to a G-Star School official, who in turn reported those communications to
Hauptner and Principal Collins.
Ultimately, Plaintiff’s theory of actual notice places at the forefront a genuine dispute
between the parties, as G-Star School not only presents evidence directly challenging that theory,
but also challenges the evidence Plaintiff has presented in support of it—which includes
deposition testimony from Plaintiff and Andrepont, as well as a declaration signed by Andrepont.
See ECF Nos. [58-1], [58-2], [58-13]; see also ECF Nos. [52-1] at Exhs. F, M-O. According to
Andrepont’s November 15, 2016 deposition testimony, Plaintiff approached him one day during
the school lunch hour and informed him that Martinez had asked her questions and made
comments to her that made her feel uncomfortable, which Andrepont promptly reported to
Principal Collins. ECF No. [58-2] at 12-13. That account was consistent with Plaintiff’s
testimony at her second deposition on November 18, 2016, which added that Plaintiff
specifically told Andrepont that Martinez had sung a song to her with sexually charged lyrics.
See ECF No. [58-1] at 79-82. As G-Star School points out, however, both Hauptner and
Principal Collins deny that Andrepont ever approached them about Plaintiff and Martinez. See
Def. SOF at ¶ 42; ECF No. [52-1] at Exh. A at 107-08; ECF No. [52-1] at Exh. B at 63. G-Star
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School seemingly attempts to attack the plausibility of Andrepont’s and Plaintiff’s accounts by
claiming that they rely on Andrepont’s “sham declaration”5 and emphasizing that Plaintiff
initially testified at her first deposition on September 8, 2016 that she never told anyone that
Martinez made inappropriate comments to her. ECF No. [63] at 5; see also Def. SOF at ¶ 31.
Problematically, however, these attempts clearly call for credibility determinations and the
weighing of competing evidence, both of which are improper for the Court to engage in when
adjudicating a motion for summary judgment. See Strickland, 692 F.3d at 1154; Hairston, 9
F.3d at 919; Mize, 93 F.3d at 742.
Instead, “[w]here the non-movant presents direct evidence that, if believed by the jury,
would be sufficient to win at trial, summary judgment is not appropriate even where the movant
presents conflicting evidence. . . . [T]he non-movant’s evidence is to be accepted for purposes of
summary judgment.”
Mize, 93 F.3d at 742.
Here, if Plaintiff is able to prove her and
Andrepont’s assertions that Hauptner and Principal Collins were aware of a report that Martinez
had engaged in sexually harassing behavior toward Plaintiff prior to the alleged sexual encounter
on April 17, 2012 and the related rumors that ensued, a reasonable jury could find that Hauptner
and Principal Collins knew that Martinez posed a substantial risk of sexual abuse to the students
of G-Star School. Viewed in totality, Hauptner and Principal Collins would have been alerted
to—on three separate occasions and from at least three separate sources—the possibility of
inappropriate behavior of a sexual nature by Martinez directed specifically at Plaintiff. First
would have been Andrepont’s report that Plaintiff herself disclosed inappropriate sexual
comments made to her by Martinez. Second would have been Hagler’s report, made shortly
5
In his declaration, Andrepont initially indicated that he had Plaintiff prepare a written report detailing
her allegations that he then forwarded to Principal Collins, see ECF No. [58-13] at ¶ 4, but at his
deposition, Andrepont testified that he did not have Plaintiff provide a written report, see ECF No. [52-1]
at Exh. N at 30-32.
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after the alleged sexual encounter on April 17, 2012, of a rumor told to him by a student that
Plaintiff and Martinez were involved in a relationship. Third would have been Martinez’s report,
also made shortly after the alleged sexual encounter on April 17, 2012, of a rumor told to him by
a student (a different student than the one that spoke with Hagler) that Martinez had “hooked
with a student.”
Of course, those three reports must also be viewed in light of both Plaintiff and
Martinez’s denial to Hauptner and Principal Collins of any inappropriate relationship between
them. However, given that the three reports to the contrary amount to “a series of related
allegations” and arguably suggest the possibility of “a pattern of sexual harassment[,]” Sch. Bd.
of Broward Cty., 604 F.3d at 1259, the Court does not take the view offered by G-Star School
that such denials—particularly Plaintiff’s—affirmatively establish that Hauptner and Principal
Collins could not possibly have had the requisite actual notice. Such a determination, in the
Court’s view, ought to be left for a jury to decide. See, e.g., Doe A v. Green, 298 F. Supp. 2d
1025, 1034 (D. Nev. 2004) (finding that a reasonable jury could conclude that actual notice of
sexual harassment was established despite the plaintiff’s denials about a relationship with the
teacher involved and reasoning that “[w]hile the complaints may be unsubstantiated by
corroborating evidence and denied by the allegedly offending teacher, whether such complaints
put the school district on notice of a substantial risk to students posed by a teacher is usually a
question for the jury”) (citation omitted). As the court in Green and other courts have noted, “a
complaint of harassment need not be undisputed . . . before it can be considered to fairly alert the
school district of the potential for sexual harassment.” Id. at 1034 (citing Gordon v. Ottumwa
Cmty. Sch. Dist., 115 F. Supp. 2d 1077, 1082 (S.D. Iowa 2000); see also Gordon, 115 F. Supp.
2d at 1082 (explaining that the actual notice standard “does not set the bar so high that a school
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district is not put on notice until it receives a clearly credible report of sexual abuse from the
plaintiff-student. At some point . . . a supervisory school official knows . . . that a school
employee is a substantial risk to sexually abuse children”). Accordingly, the Court is satisfied
that Plaintiff has met her burden of raising a material issue of fact on the issue of actual notice.
B. Deliberate Indifference
In addition to requiring that an appropriate person have actual notice of the teacher's
misconduct, a Title IX plaintiff must show that the school official was deliberately indifferent to
that misconduct. Gebser, 524 U.S. at 277. “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.’” Sch.
Bd. of Broward Cty., 604 F.3d at 1259 (quoting Davis, 526 U.S. at 648). “In essence, Title IX's
premise ‘is an official decision by the recipient not to remedy the violation.’” Id. (quoting
Gebser, 524 U.S. at 290).
“Deliberate indifference” is more than a “mere reasonableness standard that transforms
every school disciplinary decision into a jury question,” Gant ex rel. Gant v. Wallingford Bd. of
Educ., 195 F.3d 134, 141 (2d Cir. 1999), and “describes a state of mind more blameworthy than
negligence[,]” Farmer v. Brennan, 511 U.S. 825, 835 (1994). “‘Deliberate indifference will
often be a fact-laden question,’ for which bright lines are ill-suited.” Tesoriero v. Syosset Cent.
Sch. Dist., 382 F. Supp. 2d 387, 398 (E.D.N.Y. 2005) (quoting Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443, 457 n. 12 (5th Cir.1994)); see also Green, 298 F. Supp. 2d at 1035-36 n. 4 (stating
that no bright line rule in Ninth Circuit cases defines “deliberate indifference,” and from review
of cases outside the Ninth Circuit, “it is clear that most courts have similarly not discovered such
a bright-line”).
That said, where an educational institution “takes timely and reasonable
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measures to end the harassment,” it is not deliberately indifferent. See Wills v. Brown Univ., 184
F.3d 20, 26 (1st Cir. 1999). Moreover, the measures do not have to ultimately prove effective in
preventing subsequent misconduct, so long as they were taken in good faith. See Sauls v. Pierce
County Sch. Dist., 399 F.3d 1279, 1285 (11th Cir. 2005) (citing Taylor Indep. Sch. Dist., 15 F.3d
at 456 n. 12). As an example, a principal receiving reports of possible teacher-to-student sexual
harassment does not act with deliberate indifference where he or she promptly investigates the
matter and, following that investigation, institutes corrective measures and continues to monitor
the situation. See id. However, a Title IX entity's response must be more than “minimalist,”
Vance v. Spencer County Public Sch. Dist., 231 F.3d 253, 260 (6th Cir.2000), and where an
educational institution “either fails to act, or acts in a way which could not have reasonably been
expected to remedy the violation, then the institution is liable for what amounts to an official
decision not to end discrimination.” Green, 298 F. Supp. 2d at 1035.
Here, the investigation Hauptner and Principal Collins initiated upon becoming informed
of the rumors that Plaintiff and Martinez were involved in a relationship and that Martinez had
“hooked with a student” was undeniably prompt and certainly conclusive. That investigation
involved meeting with Plaintiff immediately, during which time Plaintiff denied any involvement
with Martinez and signed a memorialized statement to that effect. As G-Star School describes,
Plaintiff chose “not to volunteer any information” and also “chose to vehemently discredit the
rumor. . . .” ECF No. [52] at 15. Following that meeting, the investigation continued, as
Hauptner and Principal Collins spoke with Martinez, who also denied any inappropriate
involvement with Plaintiff. Before coming to the ultimate conclusion that there was “a complete
lack of any evidence that the rumor is true” and deeming “[t]he matter concerning the teacher
[as] dropped” accordingly, ECF No. [52-1] at Exh. K, Hauptner and Principal Collins had
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Martinez and other teachers with classrooms in the same building as Martinez detail their
schedules during the week of the alleged sexual encounter. Those efforts confirmed that Plaintiff
did stay late in Martinez’s classroom on April 17, 2012 in order to make up a test. As reflected
in Hauptner and Principal Collin’s final report, those efforts also confirmed that two other
students were in the classroom when that test was administered—a detail that appears to have
been influential in Hauptner and Principal Collin’s final conclusion.
See id. (“There is a
complete lack of any evidence that the rumor is true that [Plaintiff] and the teacher had any
inappropriate contact. . . . The test was administered and made up that day while two other
students were in the room. There was no inappropriate contact between the teacher and
[Plaintiff].”).6
Notwithstanding the above, the Court is far from convinced that there exists no genuine
issue whatsoever as to whether Hauptner and Principal Collin’s response was unreasonable in
light of the known circumstances. First and foremost, as is the case with the issue of actual
notice, the circumstances that were known to Hauptner and Principal Collin and the response
relative to that knowlege are not without dispute. As discussed, there is conflicting evidence as
to whether Hauptner and Principal Collins ever received a report from Andrepont concerning
Plaintiff and Martinez prior to the alleged sexual encounter on April 17, 2012 and the ensuing
investigation.
G-Star School’s position, consistent with Hauptner and Principal Collin’s
testimony, is that no such report was ever made, and so naturally the record is without any
evidence or representations that G-Star School undertook any remedial efforts prior to the
alleged sexual encounter. If such a report was made, as Plaintiff and Andrepont have testified to,
than that report would undoubtedly inform the inquiry as to the reasonableness of Hauptner and
6
The Court notes, however, that according to Martinez’s report, the two other students were only in the
classroom for “10 mins” beginning at “3: pm approx[,]” whereas Plaintiff’s presence in the classroom is
documented as follows: “make up Homework 30 mins 3:30 pm approx.” ECF No. [58-18].
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Principal Collin’s investigation. See Sch. Bd. of Broward Cty., 604 F.3d at 1260-61 (“If we were
examining the School Board's response to the K.F. incident alone, it is unlikely that this
investigation, though imperfect, could be viewed as ‘clearly unreasonable in light of the known
circumstances.’ . . . However, the ‘known circumstances’ from which we evaluate the
reasonableness of a School Board's response changed significantly once S.W. filed her
complaint. . . . Once Scavella had actual notice of a second complaint, his failure to institute any
corrective measures aimed at ferreting out the possibility of Hoever’s sexual harassment of his
students could constitute deliberate indifference.”). This in and of itself presents a genuine issue
of fact precluding summary judgment on the issue of deliberate indifference.
In a similar vein, another conflict in the evidence bears noting. Hauptner and Principal
Collin’s April 23, 2012 note indicates that they had spoken with Plaintiff’s parents regarding
“rumors concerning their daughter and [] ask[ing] [Plaintiff] about any inappropriate activity
between her, any teacher, any staff member or students.” ECF No. [52-1] at Exh. H. But that
note is at odds with what Plaintiff’s parents testified to at their respective depositions. See ECF
No. [58-7] at 3-4 (“Q. Okay. Is it your testimony that Mr. Hauptner and Mrs. Collins never asked
you whether [Plaintiff] had ever said anything to you about an inappropriate relationship with a
teacher? A. No. . . . They were never – I was never made aware of anything to that extent.”);
ECF No. [58-8] at 3 (“Q. Did they tell you that they had been hearing any rumors concerning
your daughter of any inappropriate activity between her, any teacher, any staff member or any
student? A. Absolutely not.”).
This dispute is certainly material to the inquiry into the
reasonableness of Hauptner and Principal Collin’s investigation. As reflected on the April 23,
2012 note, part of that investigation purportedly involved Hauptner and Principal Collins
enlisting the assistance of Plaintiff’s parents. See ECF No. [52-1] at Exh. H (“We asked her
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parents to talk to [Plaintiff] at home to determine if there is anything she may not be telling us. . .
. We asked them to call us immediately if [Plaintiff] gave them any more information about the
rumors.”).
Furthermore, the Court finds that there are aspects of Hauptner and Principal Collins’
investigation—primarily in the form of certain inactions—that support the conclusion that there
is a triable issue as to whether Hauptner and Principal Collins were deliberately indifferent
toward Plaintiff, especially when considered in light of the above mentioned disputes. Looking
only at the alleged sexual encounter for a moment, this is not a case where the victim him or
herself directly reports a sexual assault to school officials. Rather, this is a case where, allegedly,
the victim was involved in an ongoing inappropriate relationship with the assaulting teacher
when the sexual assault occurred and, importantly, where school officials were notified as to the
possibility of such not by the victim, but by reports attributable to other students in the school.
G-Star School recognizes as much. See ECF No. [63] at 6 (“The subsequent steps that G-Star
took in investigating the rumor were guided by Plaintiff’s statement that the rumor was created
by other girls at G-Star—this was the known circumstances.”) (emphasis added). Those students
were Nordarse, who spoke with Hagler, and Elkins, who spoke with Martinez—information of
which Hauptner and Principal Collins were aware. It should not be overlooked that had neither
Nordarse nor Elkins ever come forward with their reports—whatever their intentions may have
been—it is quite possible that no school official at G-Star School would have been alerted to the
possibility of a sexual assault having occurred in Martinez’s classroom on April 17, 2012.
Recognizing such, a reasonable jury might believe it necessary for an investigation under these
circumstances to include interviews with the students who actually reported the rumors in the
first place. Here, however, Hauptner and Principal Collins interviewed neither Nordarse nor
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Elkins. Cf. Davis v. Dekalb County Sch. Dist., 233 F.3d 1367, 1373-75 (11th Cir. 2000) (finding
no deliberate indifference in high school principal’s investigation of a complaint that a teacher
inappropriately touched a student and tried to touch her again shortly afterwards where that
investigation involved “interviewing the alleged victim and other students”).
The decision not to interview Nordarse is particularly compelling, as her report to Hagler
was based on communications she had with Plaintiff personally. It is not out of the realm of
possibility that a minor student might tell a classmate one thing but a school official just the
opposite upon confrontation, especially where the thing being told is potentially of a sexual
nature. See Davis, 451 F.3d at 763 (explaining that a court is to draw all reasonable inferences in
the non-moving party’s favor). Nordarse could have shed light on the circumstances surrounding
Plaintiff’s hinting to her that she was in a relationship with Martinez. Relatedly, although
Plaintiff’s denial of the subject matter of the rumors are well-documented throughout Hauptner
and Principal Collins’ notes, there is no indication that Plaintiff was ever asked if she in fact
hinted or stated to Nordarse that she was involved in a relationship with Martinez—as Nordarse
reported to Hagler. A reasonable jury might think this a critical omission, because had Hauptner
and Principal Collins confirmed that Plaintiff herself had at one point stated to a fellow student
that which she was denying to them, they may have looked at her “vehement[]” denials, ECF No.
[52] at 15, through a more skeptical lens, which in turn may have influenced their investigative
methods.
Other relevant inactions include Hauptner and Principal Collin’s “failure to institute
any corrective measures aimed at ferreting out the possibility of [Martinez’s] sexual harassment
of [Plaintiff or] his students . . . .” Sch. Bd. of Broward Cty., 604 F.3d at 1261 (emphasis added).
For example, there is no evidence that Hauptner and Principal Collins made arrangements to
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minimize in-school contact between Plaintiff and Martinez or even advised Martinez regarding
future interactions with Plaintiff, or other female students for that matter. Cf. Davis, 233 F.3d at
1373-74 (finding determinative the high school principal’s corrective measures, which included
removing an alleged student victim who had previously complained of inappropriate contact with
a teacher from the teacher’s class and directing the teacher to avoid out-of-class contact with the
alleged victim and being alone with any female students). To the contrary, Plaintiff was enrolled
in Martinez’s psychology class her junior year. Pl. Additional Facts at ¶ 26. Additionally,
though Hauptner and Principal Collins found reason to continue to monitor the situation
involving the potential bullying of Plaintiff by four of her fellow students, see ECF No. [52-1] at
Exh. K, they apparently found no reason to continue to monitor the situation involving Plaintiff
and Martinez, such as by following up with Plaintiff or taking efforts to monitor Martinez’s
behavior, cf. Davis, 233 F.3d at 1374 (observing that the principal followed up with the alleged
victim several times and monitored the teacher at issue); Sauls, 399 F.3d at 1285-87 (analogizing
the defendant school district’s investigation to the investigation in Davis and noting that
“[s]chool officials also consistently monitored [the teacher’s] conduct[,] [] warned her about her
interactions with students[,]” and also questioned the student involved—who had denied any
relationship between him and the teacher—about his purpose and destination whenever he was
seen near the teacher’s classroom). Finally, Hauptner and Principal Collins did not contact either
the police or the Florida Department of Children and Families at any point during their
investigation. Pl. Additional Facts at ¶ 25; cf. Sauls, 399 F.3d at 1286-87 (noting that the
superintendent, upon receiving an anonymous phone call alleging that the student’s and teacher’s
cars had been seen parked in the woods, contacted the Professional Standards Commission and
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requested that it investigate the teacher, and notified both the county Board of Education and the
local police department).
Overall, in light of all of these facts and the disputed issues identified, the Court finds that
there is certainly a triable issue as to whether Hauptner and Principal Collins acted with
deliberate indifference to Martinez’s alleged misconduct toward Plaintiff.
IV.
CONCLUSION
For all of the reasons stated herein, it is ORDERED AND ADJUDGED that
Defendant’s Motion for Summary Judgment, ECF No. [52], is DENIED.
DONE AND ORDERED in Miami, Florida this 16th day of May, 2017.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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