Doe v. Tippecanoe School Corporation et al
Filing
99
OPINION AND ORDER: Defendants' 44 motion for summary judgment is GRANTED. Plaintiff's 68 motion for partial summary judgment is DENIED AS MOOT. Defendants' 78 motion to strike evidence is DENIED. Defendants' 80 motion to limit or exclude Plaintiff's expert witnesses is DENIED AS MOOT. Plaintiff's 92 motion for leave to supplement is DENIED AS MOOT. Plaintiff's claims for violations of 42 USC §1983 and Title IX of the Education Amendments of 1972, 20 USC § 1681(a) are DISMISSED. The Clerk is directed to REMAND this case to Tippecanoe Circuit Court for further proceedings. Signed by Judge Rudy Lozano on 12/14/2017. (cc: cert. copy of order and docket sheet to Tippecanoe Circuit Court) (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
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JANE DOE, as mother and
natural guardian of JANE
DOE 2,
Plaintiff,
vs.
TIPPECANOE SCHOOL
CORPORATION, JOHN BEEKER
and FRED ROOP
Defendants.
NO. 4:15–CV-00056
OPINION AND ORDER
This matter is before the Court on: Defendants’ Motion to
Summary Judgment, filed on October 27, 2016 (DE #44); Plaintiff’s
Motion for Partial Summary Judgment against Defendant Tippecanoe
School Corporation, filed on March 6, 2017 (DE #68); Defendants’
Motion to Strike Certain Evidence Designated by Plaintiffs [sic]
Regarding
Summary
Judgment,
filed
on
May
4,
2017
(DE
#78);
Defendants’ Motion to Limit or Exclude the Testimony of Plaintiffs’
[sic]
Expert
Witnesses,
filed
on
May
4,
2017
(DE
#80);
and
Plaintiff’s Motion for Leave to Supplement Qualifications of Dr.
Kristine Chapleau, filed on June 19, 2017 (DE #92).
For the
reasons set forth below, Defendants’ motion for summary judgment
‐1‐
(DE #44) is GRANTED.
Plaintiff’s motion for partial summary
judgment (DE #68) is DENIED AS MOOT.
evidence (DE #78) is DENIED.
Defendants’ motion to strike
Defendants’ motion to limit or
exclude Plaintiff’s expert witnesses (DE #80) is DENIED AS MOOT.
Plaintiff’s motion for leave to supplement (DE #92) is DENIED AS
MOOT.
Plaintiff’s claims for violations of 42 U.S.C. § 1983 and
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a),
are DISMISSED.
The Clerk is directed to REMAND this case to
Tippecanoe Circuit Court for further proceedings.
BACKGROUND
Jane
Doe
Defendant
2
(“Doe”)
Tippecanoe
was
School
a
fourteen
District
year
old
student
Corporation’s
at
(“TSC”)
McCutcheon High School when she first met teacher Jakob Robinson
(“Robinson”) during the second semester of her freshman year. Over
time, Robinson became Doe’s mentor, and Doe worked as Robinson’s
teacher’s assistant.
counselors
and
Doe’s mother Jane Doe (“Plaintiff”), school
others
raised
concerns
about
Robinson’s
relationship with Doe with school administrators.
close
Beginning in
late 2014, during Doe’s junior year of high school, Robinson and
Doe engaged in a sexual relationship for approximately three
months.
During that time, Robinson and Doe kept their sexual
relationship
a
secret
from
Plaintiff,
‐2‐
teachers
and
school
administrators.
Doe eventually confessed the sexual relationship.
Robinson pled guilty to child seduction and is in prison.
In July 2015, Plaintiff, as natural guardian of Doe, filed a
lawsuit in Tippecanoe Circuit Court against TSC and high school
administrators John Beeker and Fred Roop (together, “Defendants”).
Defendants removed the case to the United States District Court
for
the
Northern
District
of
Indiana,
Lafayette
Division.
Plaintiff’s Amended Complaint (“Complaint”) alleges a state law
claim of negligence, and violations of 42 U.S.C. § 1983 and Title
IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C.
§1681(a).
Defendants filed a motion for summary judgment on all
of Plaintiff’s claims (DE #44).
Plaintiff filed a motion for
partial summary judgment on the issue of contributory negligence
(DE
#68).
Defendants
filed
a
motion
to
strike
portions
of
Plaintiff’s evidence (DE #78), and a motion to limit or exclude
Plaintiff’s expert witnesses (DE #80).
Plaintiff filed a motion
for leave to supplement an expert’s qualifications (DE #92).
All
five motions have been fully briefed and are ripe for adjudication.
DISCUSSION
Motion to Strike Plaintiff’s Evidence
Defendants move to strike certain portions of Plaintiff’s
Statement
of
Material
Facts
as
being
impermissible
conclusions, irrelevant, and based on speculation.
‐3‐
legal
“Motions to
strike
are
heavily
disfavored,
and
usually
only
granted
in
circumstances where the contested evidence causes prejudice to the
moving party.”
The Cincinnati Ins. Co. v. Lennox Industs., Inc.,
No. 3:14–CV–1731, 2016 WL 495600, at *4 (N.D. Ind. Feb. 9, 2016)
(citing Kuntzman v. Wal–Mart, 673 F. Supp. 2d 690, 695 (N.D. Ind.
2009), and Gaskin v. Sharp Elec. Corp., No. 2:05–CV–303, 2007 WL
2228594, at *1 (N.D. Ind. July 30, 2007)).
Furthermore, “[i]t is
the function of the Court, with or without a motion to strike, to
carefully review the evidence and to eliminate from consideration
any
argument,
conclusions,
and
assertions
unsupported
by
the
documented evidence of record offered in support of the statement.”
Davis v. Munster Med. Research Found., Inc., 213 F. Supp. 3d 1074,
1083 (N.D. Ind. 2016) (citations omitted).
The Court has sifted
through the voluminous evidence and has considered it under the
applicable federal rules, giving each piece the credit to which it
is due.
Accordingly, the Court denies the motion to strike (DE
#78) as unnecessary.
Undisputed Facts
TSC
Defendant
operates
John
McCutcheon
Beeker
McCutcheon since 2002.
High
(“Beeker”)
has
School
been
(“McCutcheon”).
the
principal
at
Beeker considers himself to be in a
“[f]raternity” with the teachers at McCutcheon.
(DE #70-2 at 3-
4.) During the time period at issue, McCutcheon had four assistant
‐4‐
principals,
(“Lowrey”),
including
and
Jake
Defendant
Burton
Fred
(“Burton”),
Roop
Michael
(“Roop”).
administrators are in charge of evaluating teachers.
Lowrey
These
TSC has a
sexual harassment policy, and expects its administrators to look
into improper teacher-student relationships.
Doe began attending McCutcheon as a freshman in 2012-13.
At
that time, Robinson was a physical education (“PE”) teacher and
assistant football coach at McCutcheon.
Doe met Robinson during
the second semester of her freshman year, when he taught her PE
class.
Doe testified that she and Robinson “would talk a lot and
. . . joke around” while in Robinson’s class.
(DE #45-7 at 2.)
Doe confided to Robinson about family problems at home, after which
he gave her a hug and told her that “he was always going to be
there” for her.
(Id.)
According to Doe, she knew at that point
that “he cared for me.”
(Id.)
At that time, Doe thought of
Robinson only as a “mentor” and “father figure.”
(Id. at 3.)
He
encouraged Doe in sports and wanted her to do her best in school.
During her freshman year, Doe once went to Robinson’s house to
watch a football game on television, and Plaintiff knew that she
Doe was going to do so.
At that time, Plaintiff knew that Doe
considered Robinson to be a “mentor/father figure,” and “probably
had a crush” on Robinson.
(DE #45-6 at 2, 9.)
Plaintiff saw Doe
and Robinson interact, but never noticed Robinson ever act in a
‐5‐
way that seemed affectionate in any way, or put her on guard,
during Doe’s freshman or sophomore years.
(DE #45-6 at 9.)
During the first semester of Doe’s sophomore year, Doe worked
as a teacher’s assistant (“TA”) for Robinson.
Robinson and she
began hugging almost daily, but always when the two were alone,
because they “didn’t want anybody to see it.”
(DE #45-7 at 5.)
Doe began eating lunch in the office of McCutcheon’s head football
coach, Ken Frauhiger (“Frauhiger”), where Frauhiger or Robinson
would help her with homework.
(Id.)
Beeker was aware that
Robinson and Doe had eaten lunch together, but did not know they
did so with regularity.
During passing periods, Doe would visit
Robinson in the hallway where he stood with Frauhiger and Scott
Muncy (“Muncy”), who was an assistant football coach and PE
teacher.
According
Frauhinger and Muncy.
to
Muncy,
Doe
interacted
(DE #45-9 at 2.)
with
Robinson,
Robinson and Doe would
engage in “silly play,” in that Robinson would occasionally mess
Doe’s hair, punch her in the arm, or give her a “wet willy.”
#45-7 at 8; see DE #70-12 at 6).
with other students.
(DE
Robinson would also act this way
(DE #70-12 at 6.)
Frauhiger “never saw
anything,” though he noted that Doe came to talk with Robinson,
Muncy and Frauhiger between every passing period.
(Id. at 4.)
Frauhiger spoke to Robinson about the time he spent with Doe
because another teacher thought Doe was spending an excessive
amount of time at PE.
Frauhiger asked Robinson if he was “doing
‐6‐
everything right and . . . being the person you're supposed to
be,” to which Robinson responded, “Absolutely, she's my daughter
and you know that.”
(DE #45-5 at 6.)
When Doe’s friends would
ask Doe “what are you and Robinson,” she would say, “he’s like a
dad to me.”
(DE #45-7 at 5.)
Burton saw Doe talking to all three PE teachers, but “didn't
see anything that [he] thought was out of ordinary.”
3.)
(DE #45-3 at
Burton noted that “kids would go to different staff member's
offices and eat lunch with them all the time so that wasn’t
anything unusual in my mind.”
(Id. at 7.)
Burton testified that
during Doe’s sophomore year, he heard that Robinson and Doe “were
seeing each other more than a student/teacher relationship,” that
“they are together all the time,” and that their relationship was
“[t]oo close,” “unusual” or “odd.”
(Id. at 2-3.)
Burton believes
that he discussed the matter with Beeker two or three times during
Doe’s sophomore year.
(Id. at 3.)
Beeker told Burton that he had
talked to Doe’s mother, and that she said there was nothing to it.
(Id.)
Robinson and Doe spoke over the phone and texted each other
during her sophomore year.
During one phone call, Robinson told
Doe that he loved her, but she understood this to be fatherly love,
and she told him that she loved him like a father.
7-8.)
(DE #45-7 at
Doe described his texts as “flirtatious” (such as using a
winky face) but not sexual.
(Id. at 13.)
‐7‐
At the end of her
sophomore year and into her junior year, Robinson began to tell
Doe about problems in his marriage.
(Id. at 15.)
Plaintiff testified that during Doe’s sophomore year, she
told Beeker that Doe “talks about [Robinson] a lot, more than an
average student, I think, should talk about a teacher. But on one
hand, I knew that – she liked him. You could tell that she liked
him” and that he was her mentor.
(DE #45-6 at 7.)
She also told
Beeker that Doe and Robinson were talking about Robinson’s divorce.
(Id. at 8.)
At this point, Plaintiff did not have a concern that
“there was anything going on.”
(Id.)
Beeker testified that
Plaintiff called him to ask about Doe’s role as a TA.
at 2.)
(DE #70-2
In response to Plaintiff’s call, Beeker asked Frauhiger if
he had seen Doe being late for class or “hanging around down
there.”
(Id.)
TA position.
Beeker wanted to make sure Doe was not abusing her
(Id.)
During the second semester of Doe’s sophomore year, Doe met
with school counselor Stephanie Rodgers (“Rodgers”).
at 2.)
(DE #70-16
Doe told Rodgers that she and her mother had been arguing
a great deal regarding her contact with Robinson, and that she and
Robinson texted each other outside of school. (Id.) Rodgers asked
Doe if her conversations with Robinson ever became inappropriate,
“[d]id you have a sexual conversation, or were you intimate with
him in any way,” and Doe responded no.
(Id.)
Thereafter, Rodgers
spoke to another school counselor and Burton about her conversation
‐8‐
with Doe.
Burton asked her if she thought if there was any sexual
contact between Robinson and Doe, and she responded that she did
not believe that was happening.
that
he
would
speak
with
basically step back.”
(Id. at 3.)
Robinson,
and
Burton told Rodgers
that
Rodgers
“could
(Id.)
In the fall of 2014 (Doe’s junior year), Jennifer Smith
(“Smith”) became Doe’s school counselor.
Smith testified that
another school counselor told her that there was “talk of [Doe’s]
relationship with Jake [Robinson]” but she did not provide Smith
with any specifics.
(DE #45-11 at 4.)
Doe told Smith that her
mother was concerned about her relationship with Robinson, and
explained that that Robinson was like a father figure to her.
(Id.)
Smith
did
not
ask
relationship with Robinson.
Doe
for
any
specifics
(DE #70-18 at 5.)
about
her
Smith told Burton
that she had some sense of “crossing the line” in the relationship
between Robinson and Doe, but did not discuss the details with
him.
(DE #45-3 at 6.)
Burton told her that it was “I don’t know
how many times, let’s say twentieth time I’ve heard this stuff.
Take it to Beeker because he’s involved in it and he knows.
talked to the mom.
The mom says it’s ok.”
this information along to Beeker.
(Id.)
He’s
Smith passed
Beeker asked Smith if she
thought “anything is going on, and at that point [she] said no.”
(DE #45-11 at 4.)
‐9‐
Plaintiff contacted Beeker twice during Doe’s junior year
regarding Doe’s relationship with Robinson.
She told Beeker that
Robinson had discussed his marital problems with Doe, and had asked
her to go to King’s Island with Robinson “to help with one of his
daughters;” Plaintiff had denied this request.
(DE #45-6 at 11.)
Beeker responded that he did not know why Robinson had asked Doe
to go to King’s Island, but noted that Robinson was Doe’s mentor.
(Id. at 12.)
In a separate conversation, Plaintiff told Beeker
that Robinson and Doe were having lunch together in the football
office, and she wanted it to stop.
“he would keep an eye on it.”
(Id.)
(Id. at 13.)
Beeker told her that
At some point months
before January 2015, Beeker told Frauhiger that Plaintiff was
concerned about Robinson and Doe “spending an inordinate amount of
time together.”
(DE #45-5 at 2.)
Frauhiger testified that Beeker
“asked me if there was anything inappropriate going on and I said
absolutely not.”
(Id. at 3.)
Frauhiger told Robinson, “[d]on’t
do anything to get yourself in trouble,” because Beeker had called
him.
(DE #70-12 at 6.)
At the beginning of Doe’s junior year, Robinson was one of
Doe’s teachers and she was his TA.
see him after every class period.
(DE #45-7 at 15.)
(Id.)
She would
According to Doe, their
hugs became more like “a boyfriend/girlfriend hug,” but were
hidden, “[u]sually in the weight room.”
(Id.)
In early October
2014, Robinson was absent from school for a week.
‐10‐
After learning
that Robinson was getting a divorce, Doe texted him.
Robinson
told her that he loved her and she was the only person he wanted
to talk to.
(Id. at 17.)
On October 5, 2014, Doe had a friend
drive her to Robinson’s house.
When she arrived, Robinson hugged
her and cried about the breakdown of his marriage.
Doe had not
told Plaintiff where she was going, and left because Plaintiff
kept calling her.
She later returned to Robinson’s house after he
texted that he “needed” her, where they kissed.
(Id. at 20).
Robinson and Doe first had sexual intercourse in mid-October at
Robinson’s residence.
that time.
(Id. at 21.)
Doe was sixteen years old at
They had sexual encounters at school while behind
closed doors, including in the training room, the locker room,
weight room, the head coach’s office, the girls basketball coach’s
office, and the outside football office.
(Id. at 21, 23, 24.)
All instances of sexual intercourse occurred off of school grounds,
mostly at Robinson’s parents’ home.
(Id. at 22-24.)
In December 2014, the mother of one of Doe's friends, Brandy
Burger (“Burger”), spoke to Roop about the relationship between
Robinson and Doe.
Burger told Roop that Robinson and Doe “had
gone to lunch together, that he showed favoritism to her in class,
and . . . she was allowed to use her phone.”
(DE #45-2 at 4.)
She testified that she told Roop her concerns that Robinson and
Doe “were inappropriate and that I needed that to be checked to
make sure nothing more was going on.” (Id. at 2.) Burger suspected
‐11‐
that the relationship was sexual, but “never said anything about
[her] suspicion” to Roop.
(Id.)
Roop told Burger that he would
let Beeker know, and later called to tell her that Beeker was aware
of the situation and that it had been looked into.
(Id. at 3.)
Roop testified that the week before finals, a parent called
to say that she had heard that Robinson and Doe had dinner
somewhere together, and wanted to know if the school was aware of
this.
(DE #45-10 at 4.)
He could not recall who the parent was
with certainty.1
Roop told the parent that he would find out what
the school knew.
According to Roop, Beeker told Roop that he had
spoken to Plaintiff and that Robinson was “more of a family
friend.”
(Id. at 5.)
Roop returned the parent’s call to tell her
what Beeker had told him.
On December 18, 2014, Robinson and Doe decided to leave
McCutcheon during the school day to have sexual intercourse at
Robinson’s parents’ home.
(De #45-7 at 25.)
That morning, Doe
suggested that Robinson purchase drinks at McDonald’s, so that
they could claim that they had gone to lunch there.
(Id.)
Roop
saw Robinson and Doe leaving the school building, and radioed
Beeker to let him know.
(DE #45-1 at 9.)
Roop and Lowrey followed
1
Defendants contend that Roop’s telephone conversation with the parent was his
call with Burger, rather than a separate call with the parent identified by
Roop, because the identified parent categorically denies having a conversation
with Roop about having seen Robinson and Doe eating dinner together in December
2014. (DE #45-13 (Affidavit of Debra Weideman); see DE #45-1 at 7 (Beeker’s
testimony that “it was Mrs. Burger not Weideman”).) This is an issue of fact
that the Court must consider in the light most favorable to Plaintiff, and thus,
will not infer that Roop only spoke with Burger.
‐12‐
them because they wondered where they were going.
6.)
(DE #45-10 at
Beeker had not directed Roop to follow them, and did not think
of contacting Robinson by cell phone.
(DE #45-7 at 10, 11.)
While
Robinson and Doe were still away from school, Beeker called
Plaintiff to let her know that Robinson had taken Doe off of school
property, and asked if she knew why they left.
#45-6 at 13.)
(DE #70-2 at 5; DE
Plaintiff told Beeker that she did not know, and
suggested that they were leaving to go have sex.
(DE #70-2 at 5.)
Beeker told her that there “was no evidence or premise that that’s
happening.”
(Id.)
Beeker told Plaintiff that they had somebody
following them, and asked her not to call or text Doe because he
wanted to see where they went, and that he would call her when
they returned to school.
(DE #45-6 at 13-14.)
Beeker had an
opportunity to tell Roop and Lowrey to stop Robinson and Doe and
tell them to return to school, but chose not to do so.
(DE #70-2
at 5.)
Roop and Lowrey followed Robinson and Doe, and watched them
pull into a driveway and go into a house.
(#45-10 at 7.)
Roop
and Lowrey then returned to McCutcheon and told Beeker what they
observed.
(Id. at 8.)
Roop and Lowrey determined that the house
was owned by someone named “Robinson.”
(Id. at 9.)
Roop and
Lowrey accessed Doe's school email account, and while they did not
see any inappropriate messages, they noticed that Robinson and Doe
had emailed each other late at night.
‐13‐
(Id.)
One of Doe’s emails
to Robinson stated, ”My Kind of Love, by Emeli Sande, it’s exactly
how I feel lately, I just haven’t had any way to talk to you about
things.”
(DE #70-17 at 9.)
Roop did not recall seeing this email;
Lowrey was also unfamiliar with this email.
#70-13 at 4.)
(DE #70-17 at 8; DE
They were not familiar with, and did not look up,
the lyrics to the song referenced in the email.
(DE #70-17 at 8-
9; DE #70-13 at 4.)
Robinson and Doe had violated school rules by leaving the
school without the requisite permission.
(DE #70-13 at 8.)
Upon
their return to school, Beeker called Doe to his office.
She
carried a McDonald’s cup into Beeker’s office for the purpose of
lying to Beeker about her whereabouts.
(DE #45-7 at 25.)
Beeker
did not ask Doe if she was having a sexual relationship with
Robinson, but Doe asked Beeker if he was thinking that was going
on.
(DE #70-2 at 7.)
Doe told Beeker that she and Robinson went
to the house to get money and change laundry over, and then went
to McDonald’s.
(DE #45-7 at 25.)
Beeker believed her lies, and
Doe believed that Beeker believed her.
(Id.)
Beeker testified
that Robinson and Doe’s going to the house did not cause him to
suspect inappropriate conduct.
(DE #45-1 at 11.)
Roop that the two had gone to lunch.
Beeker told
(DE #45-10 at 10.)
Beeker called Plaintiff and told her that he had talked to
Doe, that she had a McDonald’s cup, that she said they had gone to
the house to pick something up, and then went to McDonald’s.
‐14‐
(DE
#45-6 at 14.)
According to Plaintiff, the time period between
Beeker and Plaintiff’s first and second calls was 20-30 minutes.
(Id.)
Plaintiff testified that Beeker said that the school
“overreacted.”
(DE #45-6 at 14.)
Doe told Plaintiff the same
lies she told Beeker, and Plaintiff believed her. (Id.) Plaintiff
thought Beeker was justified in trusting Doe at that time, and did
not feel at all that Robinson and Doe were having a sexual
relationship.
(Id.)
Beeker also met with Robinson.
According to Beeker, Robinson
told him a very similar story as Doe, but longer.
7.)
(DE #70-2 at
According to Robinson, Beeker met with Robinson the next day
and told him that Doe’s mother had called and that Beeker had told
her there was nothing to worry about.
(DE #70-15 at 6.)
noted that Doe “had the cup; verified where [they] were.”
4.)
(Id. at
Beeker also told Robinson that he thought that Plaintiff was
jealous of Robinson’s relationship with Doe.
(Id.)
Beeker did
not ask Robinson if he was sexually involved with Doe.
6.)
Beeker
(Id. at
Robinson testified that this was Beeker’s only conversation
with him about his relationship with Doe.
(Id.)
Burton, Roop and
Lowrey never questioned Robinson about his relationship with Doe.
(Id. at 5-6.)
Robinson and Doe did their best to hide their relationship
from everybody.
(DE #45-7 at 21.)
When Doe was with Robinson,
Doe would text Plaintiff pictures of the mall to show that she was
‐15‐
there, but the photos had been taken on earlier trips to the mall.
(Id. at 4.)
She and Robinson developed a code where she would
start texts to him with “105” so that Robinson would know it was
Doe texting (and not Plaintiff).
(Id. at 34.)
Doe testified that
no one ever saw them doing anything sexual on school grounds. (Id.
at 24.)
She testified that they became more publicly “touchy”
with each other during her junior year, but says this consisted of
each resting his or her hand on the other’s shoulder.
believed
that
they
were
successful
activities a secret from everyone.
in
keeping
(Id. at 21.)
(Id.)
their
Doe
sexual
Doe testified
that Robinson “was freaking out” about them getting caught, but
Doe would tell him to “calm down,” “relax,” “it’ll be fine.”
(Id.
at 32.)
During winter break, Plaintiff allowed Doe to go with Robinson
to restaurants in order to observe the two of them together, but
she did not see anything that concerned her.
(DE #45-6 at 6.)
She had no problem with Robinson and Doe spending time together
when working on classwork.
school
had
assured
relationship.
her
“it
(Id.)
was
Plaintiff maintains that the
more
or
less
just
Nothing I should be concerned about.”
a
mentor
(Id.)
She
never checked Doe’s phone to see how often she was communicating
with
Robinson
relationship.
because
she
(Id. at 15.)
never
thought
there
was
a
sexual
Plaintiff is aware of no adult who
‐16‐
had any information about the fact that Robinson and Doe were
having a sexual relationship.
(Id. at 10.)
Robinson was arrested at McCutcheon on January 9, 2015, the
first day of school after winter break.
Doe initially lied to the
police about her relationship with Robinson, but admitted it after
learning the police had evidence of the communications between the
two of them.
(DE #45-7 at 27.)
seduction and is in prison.
Robinson pled guilty to child
(DE #4 at 9.)
Doe attended McCutcheon
through the end of the 2014-15 school year, and enrolled in a
different school for her senior year.
Defendants’ Motion for Summary Judgment
Defendants move for summary judgment on all claims against
them.
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L.Ed. 2d 202 (1986).
Not every dispute between the
parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing
law
will
properly
preclude
the
entry
of
summary
judgment.” Id. To determine whether a genuine dispute of material
‐17‐
fact exists, the Court must construe all facts in the light most
favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.
See Ogden v. Atterholt, 606 F.3d 355, 358
(7th Cir. 2010).
A party opposing a properly supported summary judgment motion
may not rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence she contends will
prove her case.”
651,
654
(7th
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
Cir.
2010).
“[I]nferences
relying
on
mere
speculation or conjecture will not suffice.” Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009) (citation omitted).
If the
nonmoving party fails to establish the existence of an essential
element on which he bears the burden of proof at trial, summary
judgment is proper.
See Massey v. Johnson, 457 F.3d 711, 716 (7th
Cir. 2006).
A.
42 U.S.C. § 1983 Claims
Defendants argue that they are entitled to summary judgment
on Plaintiff’s 42 U.S.C. § 1983 claims against all Defendants,
including any retaliation claims.
Plaintiff does not respond to
these arguments, and therefore waives any argument that these
claims are valid.
See Johnson v. Gen. Bd. of Pension & Health
Benefits of United Methodist Church, 733 F.3d 722, 729 (7th Cir.
2013) (holding that arguments not raised in opposition to a motion
for summary judgment are waived); Palmer v. Marion County, 327
‐18‐
F.3d 588, 597–98 (7th Cir. 2003) (holding that a party abandoned
his claim where he failed to delineate the claim in opposition to
a motion for summary judgment); Laborers' Int'l Union of N. Am. v.
Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that arguments
not presented in response to a summary judgment motion are waived).
Therefore, the Section 1983 claims are dismissed.
B.
Title IX Claim
“Title IX prohibits discrimination on the basis of sex in
educational programs or activities that are supported by federal
financial assistance.”
Hansen v. Bd. of Trustees of Hamilton Se.
Sch. Corp., 551 F.3d 599, 604 (7th Cir. 2008) (citing 20 U.S.C. §
1681(a)). “[A] teacher's sexual harassment of a student may render
a school district liable for sex discrimination under Title IX.”
Id. at 605 (citation omitted).
A school district's liability
cannot, however, be premised on the ground of respondeat superior.
Doe v. St. Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012)
(citation omitted).
To survive summary judgment, Plaintiff must
establish a genuine issue of fact as to whether an appropriate
official
at
TSC
“had
(1)
actual
knowledge
of
misconduct
by
[Robinson] that created a serious risk to its students, and (2)
responded
with
deliberate
indifference
to
the
misconduct.”
Hansen, 551 F.3d at 606; see Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 141 L.Ed. 2d 277 (1998).
‐19‐
1.
Actual Knowledge
“[A] school district is subject to a private damages action
only
where
it
is
deliberately
discrimination or harassment.”
indifferent
to
known
acts
of
Hansen, 551 F.3d at 605 (emphasis
in original; citations omitted).
“[U]nder Gebser, a plaintiff in
a Title IX damages suit based on a teacher’s behavior must prove
both actual knowledge of misconduct, not just actual knowledge of
the risk of misconduct, and . . . that the officials having that
knowledge decided not to act on it.”
Id. (citation omitted); see
St. Francis, 694 F.3d at 871 (citing Hansen, 551 F.3d at 605);
Gebser, 524 U.S. at 290 (“[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.”).2
2
Plaintiff argues that the standard is notice of Robinson’s “misconduct,” not
notice that Robinson was having sexual intercourse with Doe. She cites TSC’s
sexual harassment policy for the proposition that sexual harassment does not
require sexual intercourse. (DE #69 at 9.) But Plaintiff's claim arises under
Title IX, not school policy. “[I]n determining whether conduct is sexual
harassment under Title IX, the question is whether the conduct altered the
conditions of the student’s education, regardless how a particular school
defines sexual harassment.” Doe v. Madison Metro. Sch. Dist., 218 F. Supp. 3d
826, 834 (W.D. Wis. 2016) (W.D. Wis. Feb. 9, 2017) (rejecting argument that
teacher’s conduct was sexual harassment because it violated school policies).
TSC does not dispute that sexual conduct rises to the level of severe and
pervasive contact under Title IX, but disputes that anything short of that
conduct was severe and pervasive. (DE #75 at 7.) The Court agrees. Plaintiff
does not proffer evidence of misconduct by Robinson that occurred prior to his
sexual encounters with Doe that rises to the level of sexual harassment under
Title IX.
‐20‐
Plaintiff cites Delgado v. Stegall, 367 F.3d 668 (7th Cir.
2004),
for
the
proposition
that
“it
ought
to
be
enough
for
liability under Title IX that when there are ‘known’ or ‘obvious’
risks that makes a failure to take steps against it reckless.”
(DE #69 at 10-11 (citing Delgado, 367 F.3d at 672).)
The Seventh
Circuit has rejected a plaintiff’s reliance on Delgado to argue
that something less than actual knowledge of a teacher’s misconduct
will suffice as a predicate to Title IX liability.
551 F.3d at 605.
See Hansen,
Hansen reiterated the requirement of “actual
knowledge of misconduct, not just actual knowledge of the risk of
misconduct,” and emphasized that Delgado “noted that a school
district need not possess actual knowledge of a teacher’s acts
directed at a particular plaintiff, but it must still have actual
knowledge of misconduct that it would create risks ‘so great that
they are almost certain to materialize if nothing is done.’”
at
605-06
original).
(quoting
Delgado,
367
F.3d
at
672)
(emphasis
Id.
in
Here, Plaintiff presents no evidence that Defendants
had actual knowledge of Robinson’s misconduct directed at other
students.
Cf. id. at 606 (noting that “if a teacher had been known
to be a ‘serial harasser,’ a school district might be found to
have actual knowledge of that teacher’s misconduct.”).
In Smith v. Metropolitan School District Perry Township, 128
F.3d 1014 (7th Cir. 1997), the Seventh Circuit addressed the issue
of actual knowledge, coming down on the same side of the issue as
‐21‐
the Supreme Court’s subsequent decision in Gebser.
There, a
teacher began a sexual relationship with a student during her
senior year of high school. The student, Smith, later filed action
against the teacher, school district, school board, and school
officials, alleging sex discrimination in violation of Title IX,
among
other
claims.
“Smith
told
no
one
about
the
sexual
relationship with [the teacher] Rager until it was over and no one
ever saw them having sex together.
During the school year, Rager
and Smith concealed the relationship by engaging in sex quietly in
locations where they would not be observed.”
Id. at 1017.
The
dissenting opinion of Judge Rovner elaborated on the facts of the
case:
No one at Southport High School ever saw Rager and
Heather having sex, but the two were frequently seen
together on school grounds. For example, they frequently
left the school together during the lunch hour, and they
once had lunch off school grounds with another teacher.
On that occasion, Rager placed his arm around Heather
and hugged her in a joking manner. In addition, Rager
frequently walked Heather toward her next class after
their time together, and he once personally explained to
the teacher of that class that he had held Heather over
fifteen minutes. On other occasions, Rager simply gave
Heather a note for the teacher when he caused her to be
late. Rager once also indicated in the presence of an
assistant school principal that he wanted to be twenty
years younger so that he could marry Heather. That same
assistant principal later excused Heather early from the
lunchroom so that she could meet Rager at his office,
but not without first asking her in a joking manner what
was going on down there.
Finally, Rager was a constant presence at school swim
meets in which Heather participated. In the presence of
Heather's coaches and teammates, Rager would rub down
‐22‐
Heather's shoulders. He also would work individually
with Heather after practice on her swimming strokes.
Some members of the swim team wondered, and discussed
amongst themselves, why Rager and Smith spent so much
time together.
Id. at 1043-44.
The Seventh Circuit held that Smith did “not
contend that defendants actually knew of the relationship and
failed to respond. . . . Nor do the facts support any such
inference.”
Id. at 1034.
“[T]here is no evidence that anyone had
actual knowledge of the alleged relationship between Smith and
Rager.
On
the
contrary,
it
appears
successfully hid their conduct.”
Id.
that
Rager
and
Smith
The Seventh Circuit held
that the school district was entitled to summary judgment in its
favor.
Id.
In Doe v. St. Francis School District, the defendant school
district knew about concerns from other teachers that a teacher
named Kelly Sweet (“Sweet”) and one of her eighth grade students
“had
something
like
an
eighth
relationship, like a crush.”
marks omitted).
evidence
to
grade
girlfriend/boyfriend
694 F.3d at 872 (internal quotation
The teachers acknowledged that they had no
confirm
their
suspicions.
Id.
The
district
superintendent interviewed Sweet and concluded that her denials of
any
impropriety
were
sincere.
Id.
The
student’s
mother
subsequently discovered the sexual relationship between Sweet and
the student and reported it to the school, whereupon Sweet’s
employment was terminated.
Id.
The student and his parents filed
‐23‐
a lawsuit against the school district alleging violations of Title
IX and a state law claim.
Id. at 870.
The district court granted
summary judgment in favor of the school district.
Id.
In
addressing the actual knowledge requirement of a Title IX claim,
the Seventh Circuit reiterated that “the plaintiff must prove
‘actual knowledge of misconduct, not just actual knowledge of the
risk of misconduct.’”
605).
The
court
Id. at 871 (quoting Hansen, 551 F.3d at
noted
that
the
superintendent
“must
have
considered the possibility that Sweet and the [student] were
romantically involved when she asked [another teacher] whether she
suspected that Sweet was doing anything ‘illegal,’” but the teacher
said
that
she
improprieties.
didn’t
suspect
Id. at 872.
that,
and
Sweet
denied
any
The court found that neither the
superintendent nor the principal knew about the relationship until
after the student’s mother discovered it. Id. “What the principal
and the superintendent knew was that Sweet's colleagues . . .
suspected
[student].
an
improper
relationship
between
Sweet
and
the
But to know that someone suspects something is not to
know the something and does not mean the something is obvious.”
Id.
(emphasis
added).
The
Seventh
Circuit
judgment in favor of the school district.
affirmed
summary
Id. at 873.
As in St. Francis, here Plaintiff and others suspected an
improper relationship between Robinson and Doe.
While Doe’s
counselors and other parents raised concerns about the close
‐24‐
relationship between Robinson and Doe, none of them indicated to
Defendants that the relationship was sexual.
Defendants knew that
Robinson and Doe ate lunch together, and spent time together
between class periods and outside of school.
But they also knew
that Robinson was Doe’s teacher and mentor, and Doe was Robinson’s
TA for a time.
Doe told Plaintiff and Smith that her relationship
with
was
Robinson
a
father-daughter
relationship.
Moreover,
Robinson and Doe hid the sexual nature of their relationship.
See
Hansen, 551 F.3d at 606 (plaintiffs presented no evidence from
which a reasonable juror could infer that any school district
official had actual knowledge of the teacher’s misconduct where
the student hid the relationship from school officials, her parents
and boyfriend).
students
and
Plaintiff disputes what was known and observed by
teachers
in
the
school
hallways,
specifically,
“flirtatious behavior, them placing hands on each other and being
‘touchy.’” (DE #69 at 9.) Doe explained that being “touchy” meant
resting his or her hand on the other’s shoulder.
24.)
(DE #45-7 at
Robinson also interacted with other students, by, for
example, messing up their hair.
inappropriate
conduct
toward
harassment under Title IX.”
(DE #70-12 at 6.)
a
student
qualifies
“[N]ot all
as
sexual
Madison Metro. Sch. Dist., 218 F.
Supp. 3d at 833 (citations omitted) (finding that a teacher giving
a student shoulder rubs was not sexual harassment where plaintiff
did not allege anything sexual or erotic about the conduct, the
‐25‐
teacher did not single out the student, and the conduct took place
in public with no attempt to hide it).
Robinson and Doe only
hugged, kissed or engaged in sexual activity in private.
were never seen by anyone engaging in such conduct.
They
Plaintiff is
aware of no adult who had any information about the fact that
Robinson and Doe were having a sexual relationship.
Plaintiff also cites Doe v. Galster, 768 F.3d 611 (7th Cir.
2014),
in
which
the
Seventh
Circuit
noted
that
“[s]chool
administrators certainly cannot escape liability by putting their
heads in the sand.”
Id. at 617.
But the court also emphasized
that “[t]he standard is ‘actual knowledge,’” and thus, “is not
satisfied by knowledge that something might be happening and could
be uncovered by further investigation.”
Id. at 617-18.
There,
the court found that there was no evidence that any school official
willfully avoided learning of serious threats to Doe’s safety or
ability to obtain an education.
Id. at 617.
Here, the evidence does not suggest that Defendants willfully
avoided learning of serious threats to Doe’s safety.
When school
counselor Smith raised concerns with Beeker, he asked Smith if she
thought anything was going on between Robinson and Doe. Similarly,
when
Plaintiff
raised
concerns
with
Beeker,
he
asked
Coach
Frauhiger if anything was going on between Robinson and Doe.
Similar to St. Francis, neither Smith nor Frauhiger believed that
anything was going on between Robinson and Doe.
‐26‐
While Plaintiff
believes
that
Defendants
should
have
done
more,
the
“actual
knowledge” standard “is not satisfied by knowledge that something
might
be
happening
investigation.”
Plaintiff
and
could
be
uncovered
by
further
2014,
incident
Galster, 768 F.3d at 617-18.
argues
that
the
December
18,
evidences Defendants’ willful avoidance of a serious threat to
Doe’s safety.
The Court disagrees.
When Defendants learned that
Doe had left the school with Robinson, they acted.
Beeker called
Doe to tell her about it, and ask her if she knew where they were
going.
When Plaintiff voiced her concern that Robinson and Doe
going somewhere to have sex, Beeker responded that they had no
evidence of this, but he did not end Defendants’ investigation.
Roop and Lowrey followed Doe and Robinson to Robinson’s parents’
home, and when Roop and Lowrey returned to school, they searched
Doe’s school email account.
They did not find any inappropriate
messages, though they noted that Robinson and Doe had emailed each
other late at night.3
After Doe and Robinson returned to school,
Beeker questioned them separately.
It is undisputed that Beeker
believed Doe and Robinson when they lied about only stopping by
Robinson’s parents’ house before going to McDonald’s for lunch.
Beeker believed them in part because Doe carried a McDonald’s cup,
3
Plaintiff maintains that Doe’s email to Robinson referencing the song, “My
Kind of Love,” expressed her romantic love for Robinson, but there is no evidence
that Roop or Lowrey saw this email.
‐27‐
something she and Robinson had planned in order to give credence
to their lies.
Plaintiff believed Doe’s lies as well.
Plaintiff relies upon Mary M. v. North Lawrence Community
School Corp., 131 F.3d 1220 (7th Cir. 1997), in which a cafeteria
worker had a sexual relationship with a thirteen-year old student.
There, the Seventh Circuit held that the principal had actual
knowledge of sexual harassment and failed to respond where the
principal knew that the worker and student were planning to skip
school/work the day before they actually did, and failed to act on
that information.
Id. at 1225.
distinguishable on the facts.
The Court finds Mary M. to be
Here, Beeker was not aware that
Robinson and Doe were planning to leave school grounds on December
18, 2014.
Moreover, unlike the situation in Mary M., where the
expected interaction between a student and cafeteria worker would
have been limited to lunch in the cafeteria, here Robinson was
Doe’s teacher and known mentor, and she worked as his TA.
In Mary
M.,
dancing
the
together.
cafeteria
worker
and
the
student
were
seen
Here, the observed interactions between Robinson and
Doe were consistent with a mentor relationship.
For these reasons, the Court finds that Defendants did not
have actual knowledge of misconduct by Robinson that created a
serious risk to Doe, and did not willfully avoid learning of a
serious threat to Doe’s safety.
‐28‐
2.
Deliberate Indifference
Even if Plaintiff had raised a genuine issue of material fact
regarding whether Defendants had actual knowledge of Robinson’s
misconduct, the undisputed evidence demonstrates that Defendants
were not deliberately indifferent to Robinson’s misconduct.
“The
standard of deliberate indifference sets a high bar for plaintiffs
under . . . Title IX.”
Galster, 768 F.3d at 619.
Deliberate
indifference occurs when the “response to the harassment or lack
thereof
is
clearly
circumstances.”
unreasonable
in
light
of
the
known
Davis Next Friend LaShonda D. v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 648, 119 S. Ct. 1661, 143 L.Ed. 2d 839
(1999) (addressing student-on-student harassment under Title IX).
“This is not a mere ‘reasonableness’ standard.”
Id. at 649.
Deliberate indifference can be shown where school officials “made
no effort whatsoever either to investigate or to put an end to the
harassment.” Id. at 654; see Delgado, 367 F.3d at 671 (“Deliberate
indifference means shutting one’s eyes to a risk one knows about
but would prefer to ignore.”). “[A]s long as the school’s response
is not ‘clearly unreasonable,’ it cannot have acted with the
requisite deliberate indifference to incur Title IX liability.”
Gabrielle M. v. Park Forest-Chicago Heights, Ill. Sch. Dist. 163,
315 F.3d 817, 824 (7th Cir. 2003) (internal citation omitted).
Plaintiff argues that Defendants did nothing to investigate
or put an end to Robinson’s harassment of Doe.
‐29‐
The evidence
demonstrates otherwise.
When counselor Smith raised her concerns
about Robinson and Doe’s relationship, Beeker asked Smith if she
thought the relationship was sexual, she said no.
Beeker also
asked Frauhiger, who saw Robinson and Doe interact regularly, if
there was anything inappropriate going on, and Frauhiger said
absolutely not.
On December 18, 2014, when Beeker learned that
Doe had left the school with Robinson, he called Doe to tell her
about it.
“Courts applying the deliberate indifference standard
from Davis have regarded the involvement of parents as evidence
that a school district is responding to harassment in a reasonable
manner.”
to
known
Galster, 768 F.3d at 620 (finding defendant’s responses
acts
of
student-on-student
harassment
were
not
deliberately indifferent where defendant engaged in a pattern of
active responses include communicating with parents) (citation
omitted).
Roop and Lowrey followed Doe and Robinson to Robinson’s
parents’ home, and when they returned to school, they searched
Doe’s school email account.
After Doe and Robinson returned to
school, Beeker questioned them separately about where they were
and what they were doing.
Beeker believed them when they lied to
him, in part because Doe was carrying a McDonald’s cup in order to
support their lies.
Plaintiff maintains that Defendants did nothing because they
failed to question, admonish or counsel Robinson or Doe about the
rumors and concerns regarding their relationship, and failed to
‐30‐
stop Robinson and Doe from leaving school or entering the house on
December 18, 2014.
The Court does not suggest that reasonable
persons could not differ as to how this matter should have been
handled or that Defendants’ response was ideal.
But “this was not
a case, as it was in Davis, of a school making ‘no effort whatsoever
either to investigate or to put an end to harassment.’”
Chivers
v. Cent. Noble Cmty. Sch., 423 F. Supp. 2d 835, 850 (N.D. Ind.
2006) (quoting Davis, 526 U.S. at 654). Although Defendants “could
have arguably done more, the Defendants’ actions were not clearly
unreasonable in light of the known facts.” Id. (citation omitted).
The Court’s “role is to determine whether, based upon all of
the facts presented in this case, there is a genuine issue of
material fact regarding whether the [Defendants’] response was
clearly unreasonable.”
Id. (citing Davis, 526 U.S. at 648).
The
Seventh Circuit has admonished judges to “be sensitive to the
effects
on
education
school
disciplinary
of
heavy-handed
issues,
or
judicial
heavy-handed
intrusion
into
administrative
intrusion required by judges interpreting Title IX and other
statutes that, along with free-wheeling interpretations of the
speech and religion clauses of the First Amendment, have made
education one of the most heavily regulated American industries.
Let us not forget that one component of academic freedom is the
right of schools to a degree of autonomy in the management of their
internal affairs.”
St. Francis, 694 F.3d at 873 (citations
‐31‐
omitted); see Davis, 526 U.S. at 648 (admonishing that “courts
should refrain from second-guessing the disciplinary decisions
made by school administrators”).
Because Defendants’ response was
not
did
clearly
indifference.
unreasonable,
Therefore,
it
not
Defendants
are
amount
to
entitled
deliberate
to
summary
judgment on Plaintiff’s Title IX claim.
C.
Negligence Claim
Having dismissed the Section 1983 and Title IX claims, the
Court does not have original jurisdiction over the remaining
negligence claim in the Complaint.
Where a district court has
“dismissed all claims over which it has original jurisdiction,”
the court may decline to exercise supplemental jurisdiction over
remaining claims.
28 U.S.C. § 1367(c)(3).
The Court finds that
it would not be appropriate to exercise supplemental jurisdiction
over Plaintiff’s remaining claim.
to the Tippecanoe Circuit Court.
Therefore, it remands this case
See Whitely v. Moravec, 635 F.3d
308, 311 (7th Cir. 2011) (recognizing that “a district judge has
discretion to relinquish supplemental jurisdiction and remand once
the federal claim has dropped out” of a lawsuit).
Other Motions
The Court need not rule on the parties’ other motions because
they raise issues that are not material to the Court’s decision to
dismiss Plaintiff’s Section 1983 and Title IX claims.
‐32‐
Moreover,
Indiana state courts are better suited to decide the state law
issues raised in these motions.
Plaintiff’s motion for partial
summary
motion
judgment,
Defendants’
to
limit
or
exclude
Plaintiff’s expert witnesses, and Plaintiff’s motion for leave to
supplement are denied as moot.
CONCLUSION
For the reasons set forth above, Defendants’ motion for
summary judgment (DE #44) is GRANTED.
Plaintiff’s motion for
partial summary judgment (DE #68) is DENIED AS MOOT.
motion to strike evidence (DE #78) is DENIED.
Defendants’
Defendants’ motion
to limit or exclude Plaintiff’s expert witnesses (DE #80) is DENIED
AS MOOT.
Plaintiff’s motion for leave to supplement (DE #92) is
DENIED AS MOOT.
Plaintiff’s claims for violations of 42 U.S.C. §
1983 and Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681(a), are DISMISSED.
The Clerk is directed to REMAND this
case to Tippecanoe Circuit Court for further proceedings.
DATED:
December 14, 2017
/s/RUDY LOZANO, Judge
United States District Court
‐33‐
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