C.R. et al v. Novi Community School District et al

Filing 97

CONSOLIDATED ORDER Resolving 78 , 79 , 83 , 84 Cross-Motions for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
C.R. and J.R., individually and as
Next Friends of JOE R., a minor,
v.

Plaintiffs,

Case No. 14-14531
HON. TERRENCE G. BERG
HON. R. STEVEN WHALEN

NOVI COMMUNITY SCHOOL
DISTRICT, et al.,
Defendants.

/

CONSOLIDATED ORDER RESOLVING CROSS-MOTIONS FOR SUMMARY
JUDGMENT (Dkts. 78, 79, 83, 84)
This case is before the Court because one special-needs middle school
student, “J.J.,” allegedly sexually abused his classmate, “Joe R.,” also a male
special-needs student, while a third boy recorded the incident on his cell-phone.
The response of the school district, teachers and administrators, as well as their
conduct preceding the incident, caused Joe R.’s parents to file this lawsuit on his
behalf.
Plaintiffs—Joe R., his mother J.R. and his father C.R.—filed an eleven-count
Amended Complaint bringing claims against two Novi Middle School (NMS)
administrators, an NMS teacher, an NMS substitute teacher and her staffing
agency employer and the Novi Community School District (NCSD) and its
Superintendent under Title 20 U.S.C. § 1681, Title 42 U.S.C. § 1983, Title 42
U.S.C. § 12101 and several Michigan state statutes and common law causes of
action. (Dkt. 12).

Before the Court are cross-motions for summary judgment by both
Defendants and Plaintiffs. Defendants NCSD’s Superintendent Steven Matthews,
NMS Principal Stephanie Schriner, NMS Assistant Principal Andrew Comb, NMS
math teacher Vera Williams (Dkt. 83); NCSD (Dkt. 84); and Jean Solomon, a
substitute teacher, and EDUStaff, LLC, her employer staffing agency (Dkt. 78) are
all seeking summary judgment on all of Plaintiffs’ claims against them. Plaintiffs
are seeking summary judgment on two of their claims. (Dkt. 79). On October 17,
2016, the Court heard oral argument on all four motions in Flint, Michigan.
For the reasons stated below, the Court will GRANT IN PART AND DENY
IN PART Novi Community School District’s motion for summary judgment (Dkt.
84), GRANT IN PART AND DENY IN PART Andrew Comb, Steven Matthews,
Stephanie Schriner and Vera Williams’s motion for summary judgment (Dkt. 83),
DENY Plaintiffs’ motion for summary judgment (Dkt. 79), and GRANT IN PART
AND DENY IN PART Jean Solomon and EDUStaff’s motion for summary
judgment. (Dkt. 78).

I.

Background
NCSD and NMS Student Behavior Policies

In 2011, the U.S. Department of Education sent a letter apprising federal
funding recipients, including NCSD, of the need to train school staff on recognizing
sexual harassment and their responsibilities to prevent and respond to it under
Title IX, 20 U.S.C. § 1681. (Dkt. 79, Ex. 4). According to NCSD policy,

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Superintendent Steven Matthews had a duty to oversee this training. (Dkt. 79, Ex.
1 at 15). 1 Matthews testified that he is unsure whether NMS staff received such
training during the 2013-14 school year—i.e. the year J.J.’s alleged harassment of
Joe R. took place. (Dkt. 79, Ex. 1 at 15). According to NMS Principal Stephanie
Schriner, as of 2013 NMS had not offered its staff any training on sexual abuse
protocol, but the faculty had discussed the topic “informally.” (Dkt. 79, Ex. 2 at 28).
In addition to NCSD’s responsibilities under Title IX, the school district’s
internal policy requires the Superintendent to promulgate administrative
guidelines for providing intervention when students show warning signs of
troubling behaviors. (Dkt. 79, Ex. 1 at 29-30; Ex. 7). Superintendent Matthews
testified, however, that he had never promulgated such guidelines and did not know
whether his district has any. (Id.). Matthews further stated that he believed NCSD
has a system for transitioning students that teachers believe to be dangerous
between the elementary and middle schools, but added that he was unaware of the
system’s details because individual school principals administered it. (Id. at 30-32).
Principal Schriner, however, testified that NMS has no such transition system.
(Dkt. 79, Ex. 2 at 16). In addition, Assistant Principal Comb, in charge of discipline
at NMS, testified that it was the school’s practice not to check incoming or current
students’ past behavioral records. When asked whether he told Joe R.’s parents

To promote ease of reference, in this Order citations to page numbers in depositions refer
to the page numbers printed on the depositions, which contain four smaller pages on each
page of the electronic document. In all other materials, citations to page numbers refer to
the page numbers (but not the Page ID) that the Case Management/Electronic Case Filing
system assigns, which appear at the top of each page of the electronic document.

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that he gave all students a “clean slate,” Mr. Comb acknowledged that he may have
said something like that, and added, “we don’t go dig into what a student may have
done at a school before our school.” (Dkt. 79, Ex. 3 at 97-98).
J.J.’s Alleged Harassment of Joe R.
Plaintiffs allege that in or about September 2013, J.J. began sexually
harassing Joe R. (Dkt. 12 at 5). At that time, each boy was either twelve or thirteen
years old, 2 in seventh grade and received special education services. (Id. at 2, 4;
Dkt. 79 at 25). Joe R. qualified for special education support under the eligibility
category of Autism Spectrum Disorder. (Dkt. 79, Ex. 10 at 4). 3 J.J. qualified for
special education programming under the eligibility category of Emotionally

The only reference in the record to both J.J.’s and Joe R.’s ages at the time of the alleged
harassment appears in Plaintiffs’ motion for summary judgment, where it states that the
boys were “12-13” years old during the 2013-14 school year. (Dkt. 79). Plaintiffs’ amended
complaint, filed on December 22, 2014 states, “Joe R. is currently 13 years old.” The Court
thus does not know exactly how old each boy was in September 2013.
3 The American Psychiatric Association’s Diagnostic and Statistical Manual lists Diagnostic
Criteria for Autism Spectrum disorder as including persistent deficits in: social-emotional
reciprocity, non-verbal communication, and understanding relationships. THE DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS, § 299.00 (Am. Psychiatric Ass’n 5th ed.
(2013). A report accompanying Joe R.’s 2012 Individualized Education Plan (IEP) states,
among other things, “Joe experiences difficulty participating in reciprocal conversation. He
also has a difficult time interpreting and using social cues which impacts his ability to
interact in an age appropriate manner with his peers […] Joe … does not understand or use
rules governing social behavior. He has little or no ability to make or keep friends but does
express a desire to have them. He struggles with changing his behavior to match the
environment.” (Dkt. 79, Ex. 10 at 3). Similarly, a 2012 Speech and Language evaluation
notes Joe. R’s history of deficits in social reciprocity and communication, as well as his
difficulty “in responding to teasing, anger, failure, and disappointment” and reading and
interpreting non-verbal cues of others. (Id. at 4, 11).
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Impaired. (Dkt. 79, Ex. 11). 4 Vera Williams, the boys’ special education math
teacher, testified that she would “describe the emotional level of both children to be
similar to that of a child who is seven to eight years old.” (Dkt. 79, Ex. 21 at 34; Ex.
18 at 4).
Specifically, Plaintiffs allege that from September 2013 through February 26,
2014, J.J. touched Joe R.’s groin area and penis above and below his clothes and
engaged him in kissing and other sexually inappropriate behaviors. (Dkt. 12 at 7-8).
The incidents are alleged to have occurred (1) on a regular basis in a small, sideroom, adjoining a class room, in which teacher Vera Williams allegedly placed J.J.
and Joe R. during math class, 5 (2) once during an enrichment period called
“Academic 20,” (3) once in an empty classroom, (4) once in a bathroom stall and (5)
on February 26, 2014 during Stacey Becker’s special education English class. (Dkt.
79 at 27-28). According to Detective Bender, J.J. admitted to most of this conduct.
(Dkt. 79, Ex. 20 at 27-30). 6 At his deposition, Joe R. used the name “the beast” to

J.J.’s education records dating back to pre-school reflect a long history of serious
behavioral issues, including: mood swings and difficulties with boundaries (Dkt. 79, Ex. 11
at 37); violent, threatening, and intimidating behavior (including biting and hitting) toward
peers (Id. at 5, 11, 19, 48); and difficulty in respecting peers’ personal space, including acts
of unwanted affection such as hugging and kissing. (Dkt. 79, Ex. 11 at 2, 3, 5, 21, 24, 29, 30,
43).
5 Vera Williams testified that she never put J.J. and Joe. R in this room nor ever saw them
go in on their own. (Dkt. 79, Ex. 22 at 35). Detective Michael Bender of the Novi Police
Department (Novi PD), whose investigation of these incidents is discussed below, see infra
text accompanying notes 16-17, testified that the evidence indicated that the boys did go
into the room and touching occurred there. (Dkt. 79, Ex. 17 at 46-47). For pictures of the
room see Dkt. 79, Ex. 24 at 3-4.
6 The Court notes that while arguably hearsay, J.J.’s statements to Detective Bender have
not been objected to by any party and would most likely be admissible at trial if Plaintiffs
call J.J., who is on their witness list. (Dkt. 28 at 4). Under Federal Rule of Civil Procedure
56, the Court, therefore, may consider these statements, and others like them, on summary
judgment. See Fed. R. Civ. P. 56(c)(2); id. advisory committee’s note to 2010 amendment.
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describe J.J. and referred to the sexual harassment incidents as J.J. “conquering”
him. (Dkt. 79, Ex. 25 at 55-56). Additionally, Joe R. testified that he and J.J.
“always tried to hide” their behavior, and that on February 14, 2014 he asked J.J. to
be his valentine. (Id. at 36-37).
Regarding the February 26, 2014 incident in Ms. Becker’s English class,
another student, J.P., who was a classmate of J.J. and Joe R., admits to having
taken a cell phone video of J.J. touching Joe R., a short segment of which is in the
record and the Court has reviewed. (Dkt. 79, Ex. 28 at 11; Ex. 33). 7 In the video, J.J.
and J.P. are seated at desks to the right and left of Joe R.’s desk respectively,
forming a semicircle. (Dkt. 79, Ex. 33). J.J.’s hand is rested, under the desks, on Joe
R.’s upper right thigh. (Id.). J.P. testified that, while filming, the boys were all
reading and J.P. “kind of like put [his] head down” and put his cell phone “on [his]
lap so [he] could [film J.J. and Joe R.] and the teacher wouldn’t notice.” (Dkt. 79, Ex.
28 at 17). Neither the video nor any other non-testimonial evidence in the record
indicates how many other students were in the class. According to Ms. Becker, there
were, at most, three other students in the room in addition to J.J., J.P. and J.R.
(totaling six), but it may have been only the three boys involved in the incident.
(Dkt. 79, Ex. 22 at 11-13).
In addition, neither the video nor anything else in the record establishes with
certainty which teacher was present while J.P. filmed J.J. touching Joe R. in Ms.
The video in the record is a thirty-second recording, which yet another student made by
recording J.P.’s original video. J.P.’s original video has been destroyed. (Dkt. 79, Ex. 2 at
124-25). How and why J.P.’s original video was deleted is a point of controversy discussed
below. See infra text accompanying notes 14-15.

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Becker’s English classroom. There is evidence that both Ms. Becker and Ms. Jean
Solomon, a substitute teacher employed and placed at NMS by EDUStaff, a staffing
agency and Michigan Limited Liability Company, were in the school building that
day, but testimony conflicts on the question of which teacher was present when the
incident occurred. (Dkts. 85, Ex. 73; 78, Ex. C). J.P. testified that his “regular
teacher—” Ms. Becker—was in the classroom. (Dkt. 79, Ex. 28 at 15). Assistant
Principal Comb, who viewed the original four-minute cell phone video before it was
destroyed, testified that, although only the lower extremities of the teacher were
visible, they did not appear to him to belong to Ms. Becker. (Dkt. 79, Ex. 3 at 81,
140). Ms. Becker testified that she was in the NMS building on the date and during
the time period when the video would have been made, but that she was not then in
her classroom, as Ms. Solomon was covering for her. (Dkt. 79, Ex. 22 at 59-61). Ms.
Solomon admits to having been at NMS on the date and time in question, but
testified that she was not in Ms. Becker’s classroom when J.P. filmed J.J. touching
Joe R. (Dkt. 79, Ex. 34 at 15-16). NMS and NCSD records show only that on
February 26, 2014, Ms. Solomon was assigned to substitute at NMS for teacher
Sara Lieberman for the entire day. (Dkt. 78, Ex. C at 2; Dkt. 79, Ex. 36 at 2). 8

In their testimonies, Principal Schriner and Jean Solomon indicate that Sara Lieberman
taught in a different classroom from the one used by Stacey Becker. (Dkt. 79, Ex. 2 at 103;
Dkt. 79, Ex. 34 at 15-16). Consequently, if Ms. Solomon was in fact assigned to Ms.
Lieberman’s class room, she would not have interacted with J.J. or Joe R. because she
would not have been working in Ms. Becker’s classroom, where the incident occurred.

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The Discovery of J.J.’s Alleged Harassment of Joe R. and the NMS and Novi PD
Investigations
Before the incident on February 26, 2014 occurred, the evidentiary record
indicates that at least three NMS teachers had seen J.J. and Joe R. holding hands
or touching during classes on at least five occasions. Math teacher Ms. Vera
Williams testified that in September 2013 she saw J.J.’s hand on Joe R.’s leg, and
that on February 25, 2014 she also saw Joe R. put his hand on J.J.’s leg. (Dkt. 79,
Ex. 21 at 29-31). According to Detective Bender, Academic 20 teacher Ms. Margaret
Sheeran saw J.J. and Joe R. holding hands on one occasion during the 2013-14
school year. (Dkt. 79, Ex. 20 at 25). 9 Ms. Becker testified that she saw the boys
holding hands around December, 2013 or January, 2014 and again in February,
2014. (Dkt. 79, Ex. 22 at 32-34; Ex. 86). In addition, Ms. Becker testified that on
February 14, 2014 Joe R. entered her classroom crying and told her that he was
upset because he asked J.J. to be his valentine and J.J. said no. (Dkt. 79, Ex. 22 at
39). In response to these incidents, the teachers either physically separated or
verbally admonished the boys or ignored the behavior; 10 there were no formal

This statement too may be considered on summary judgment. See supra note 6.
Ms. Williams testified that when she observed J.J.’s hand on Joe. R’s leg in September
2013, she said “we don’t touch each other there” and told J.J. to remove his hand, and when
she saw Joe R. touch J.J.’s leg in February 2014 she similarly instructed him to stop doing
so. (Dkt. 79, Ex. 21 at 29-31). In her interview with Detective Bender, Ms. Sheeran stated
that when she saw the boys holding hands she asked them if “everything was OK,” and that
they then let go of each other. (Dkt. 79, Ex. 20 at 25). In a written incident report, Ms.
Becker stated that when she saw the boys holding hands in December 2013, they stopped
as soon as they noticed her looking at them; with respect to her January 2014 observation
of J.J. and Joe R. holding hands, she testified that she separated them to opposite ends of
the table. (Dkts. 87, Ex. 86 at 2; 79, Ex. 22 at 34).

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interventions, and no NMS administrators were ever apprised of the issue, nor were
either of the boys’ parents contacted.
On February 27, 2014, the day after J.P. filmed J.J. touching Joe R. in Ms.
Becker’s classroom, the incident came to the attention of NMS administrators. That
morning, NMS social worker Nicole Colone learned from students in her group
social work class that J.P. possessed a cell phone video recording of J.J. touching
Joe R. (Dkt. 79, Ex. 8 at 77-78; Ex. 30). At 12:30 p.m., she met with Assistant
Principal Comb to discuss this matter. (Dkt. 79, Ex. 3 at 59). Mr. Comb states that
he immediately interviewed J.P., confirmed the video’s existence and learned that
J.P. and two other classmates possessed copies of it; he testifies that he
immediately retrieved all three students’ cell phones. (Id. at 61-63). Mr. Comb then
interviewed J.J. and Joe R. (Id. at 67). Based upon the information he gathered, he
concluded that there was an “indication of a mutual relationship.” (Id. at 73). Later
that afternoon, Mr. Comb called Joe R.’s mother, J.R., to notify her of what
occurred; she agreed to meet him, together with her husband, C.R., at 8 a.m. the
following morning. (Id. at 80).
According to J.R., when Joe R. came home from school that evening, the two
spoke briefly about J.J. (Dkt. 79, Ex. 23 at 138). Later that evening, C.R., Joe R.’s
father, returned from work, and Lindsay Ludtke, an occupational therapist, came
over for her weekly appointment with Joe. R. (Id. at 147). At that time, J.R.
testified, she, C.R. and Lindsay Ludtke questioned Joe R. in detail about his

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relationship with J.J. (Id. at 148). 11 Joe R. testified that he spoke with his parents
and Lindsay Ludtke that night, but that he could not recall the questions they
asked him. (Dkt. 79, Ex. 25 at 67-68). After speaking with Joe R. about his
relationship with J.J., J.R. and C.R. decided to cancel the next morning’s meeting
with Mr. Comb, because they “knew [they] needed to file a police report.” (Dkt. 79,
Ex. 23 at 156).
On February 28, 2014, in light of what had occurred the day before, Principal
Schriner testified that she convened a meeting with Mr. Comb and social worker
Nicole Colone. (Dkt. 79, Ex. 2 at 121). 12 At the meeting, they discussed Mr. Comb’s
interviews with J.P., J.R. and Joe R. and watched J.P.’s original video recording of
the February 26, 2014 incident. (Id. at 121-22). Based on what Mr. Comb learned
from the interviews, and what they all saw in J.P.’s video, the group concluded that
the incident took place in Ms. Becker’s sixth period English class, that Joe R. was
“mutually participating” in the incident, and that the appropriate consequence for
both boys was a three-day out-of-school suspension. (Id. at 121-22; Dkt. 79, Ex.
26). 13

Defendant NCSD questions the reliability of this discussion, calling it an “inappropriate
forensic interview.” (Dkt. 86 at 12).
12 At his deposition, Mr. Comb could not remember the date on which the group met, but
testified that he recorded the date in an incident report, which corroborates that the group
met on February 28, 2014. (Dkt. 79, Ex. 3 at 28; Ex. 27). Ms. Colone testified, however, that
the group met on March 3, 2014 (Dkt. 79, Ex. 8 at 86). This inconsistency is relevant to the
issue of evidence spoliation. See discussion infra note 16 and accompanying text.
13 In May 2014, at C.R. and J.R.’s lawyer’s request, NMS removed Joe R.’s suspension from
his record. (Dkt. 79, Ex. 23 at 292-93).
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At an unspecified time later in the afternoon on February 28, 2014 Principal
Schriner, Mr. Comb and Ms. Colone summoned J.P. to Principal Schriner’s office.
(Dkt. 79, Ex. 2 at 124). Principal Schriner testified that during this meeting, with
J.P.’s father on speakerphone, they returned J.P.’s cell phone to him and, at their
suggestion, he deleted the video of J.J. touching Joe R. (Id. at 126). 14 Principal
Schriner explained that she, Mr. Comb, and Ms. Colone believed it would be in
J.P.’s best interest to delete the video because “it would be a form of bullying if he
were to show it to other students.” (Id.). 15 Principal Schriner further stated that
before the group encouraged J.P. to delete the video, she had conferred with
Detective Jonathan Zabick, a member of the Novi Police Department assigned to
NMS as the School Resource Officer. (Id. at 126). Detective Zabick testified that,
when he spoke with Principal Schriner about the video, he communicated to her
that it would be “OK” to recommend to J.P. that he delete it, because, according to
Zabick’s supervisor, the Novi Police Department determined that it had no right to
secure a video of a twelve or thirteen-year-old “touching the crotch,” “over the
clothes” of a peer. (Dkt. 79, Ex. 41 at 70-72).
Around the same time that Principal Schriner, Mr. Comb and Ms. Colone met
with J.P. on February 28, 2014, Joe R.’s parents, J.R. and C.R., were preparing to

As to the other two cell phones that Mr. Comb retrieved from J.P.’s classmates that also
contained copies of the video, Mr. Comb testifies that he does not “recall exactly . . . every
transfer of custody,” but that he “believes at some point those . . . kids’ parents were
contacted and . . . the parents’ could come pick up the phone.” (Id., Ex. 3 at 63). No efforts
were made to preserve those recordings.
15 At his deposition, J.P. was unable to remember whether he deleted the video at Schriner,
Comb, and Colone’s encouragement, or whether it was already deleted when they returned
his phone to him. (Dkt. 78, Ex. 28 at 19-20).
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file a report with the Novi Police Department, which they did at 4:30 p.m. that same
day. (Dkt. 79, Ex. 23 at 163; Dkt. 79, Ex. 20). 16 The case was assigned to Detective
Michael Bender, who, together with Detective Zabick, conducted an investigation.
(Dkt. 79, Ex. 17 at 124; Ex. 20). Detectives Bender and Zabick interviewed all
potential witnesses at NMS (Dkt. 79, Ex. 17 at 118; Ex. 20 at 15-28), reviewed the
thirty-second clip of J.P.’s original video (which they recovered from the cell phone
of one of the students with whom J.P. shared the video) (Dkt. 79, Ex. 17 at 168; Ex.
20 at 13) and had Joe. R forensically interviewed at a child advocacy center. (Dkt
79; Ex. 17 at 24-28; Ex. 20 at 23).
Based on his findings, Detective Bender concluded that touching occurred
between Joe R. and J.J. in all the locations Plaintiffs allege—i.e. Ms. Becker’s
English class, the Academic 20 period, the bathroom, an empty classroom and Ms.
Williams’s math class. (Dkt. 79, Ex. 17 at 32-47). Defendants do not contest this
finding. (Dkt. 86 at 11). Detective Bender also concluded that the acts between J.J.
and Joe R. were “mutual.” (Dkt. 79, Ex. 17 at 152). At the end of his investigation,
Detective Bender submitted his findings to the Oakland County Prosecuting
Attorney’s office. On April 24, 2014, he received an email from that office stating

Principal Schriner maintains that at the time she, Mr. Comb and Ms. Colone
recommended to J.P. that he delete the video, no one at NMS knew that a police report
regarding the incident had been filed (Dkt. 79, Ex. 2 at 222). It is on this point that the
inconsistency between the recollections of Principal Schriner/Mr. Comb, that the meeting
occurred on February 28, 2014, and that of Nicole Colone, that it took place on March 3,
2014, becomes germane. See supra note 12. All agree that during that meeting, J.P.’s video
was deleted. If that meeting took place on March 3, 2014, as Ms. Colone testified, there
would have been more time for Principal Schriner, Mr. Comb and Ms. Colone to have
become aware that a police report had already been filed on February 28, 2014.

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that all charges against J.J. were declined, and that the case was closed (Dkt. 79,
Ex. 17 at 180; Ex. 20 at 34).
According to Principal Schriner, when she learned of the police investigation
and the allegations of chronic abuse, she conducted her own internal investigation
at NMS, for which she admits there is no documentation. (Dkt. 79, Ex. 2 at 45).
Principal Schriner testified that her investigation consisted of speaking with Ms.
Williams and Ms. Sheeran, “scan[ing] through” NMS hallway security videos, and
reviewing J.J’s and Joe R.’s educational and behavioral records. (Id. at 47-68). She
explained that in her review of the videos she saw footage of J.J. and Joe R. walking
toward an empty classroom together, as well as footage of the boys walking in
tandem into a bathroom. (Dkt. Id. at 47-53). As Detective Bender testifies, Principal
Schriner provided him with the footage of the boys’ walk toward the empty
classroom, but not the footage of J.J. and Joe R. entering the bathroom. (Dkt. 79,
Ex. 17 at 17). 17 Based on Principal Schriner’s and Mr. Comb’s investigations, the
NMS administration concluded that they were “unable to find any conclusive
evidence establishing that any sexual contact . . . occurred other than the incident
captured on video by J.P., which appeared to be consensual.” (Dkt. 83 at 26; Dkt. 84
at 28).
After February 27, 2014, J.R. and C.R. never returned Joe. R to NMS. J.R.
testifies that NMS staff, including Principal Schriner, repeatedly pressured her to
According to Principal Schriner, though she was aware that there was an allegation of
touching between the boys in a bathroom, she did not provide this footage to Detective
Bender because, in her opinion, it “wasn’t in any way suggestive of anything happening.”
(Id. at 52-53).

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allow Joe R. to return to school, including to his classes with J.J. Because J.R. did
not believe Joe R. would be safe there, she withdrew her son from NMS. (Dkt. 79,
Ex. 23 at 178). Principal Schriner admits that her intention was for Joe R. to return
to his normal class schedule with J.J., because neither the police nor NMS
investigations “revealed that Joe. R had been subject to repeated molestations.” (Id.
at 170). Accordingly, Principal Schriner characterized C.R. and J.R.’s decision not to
return Joe R. to NMS as “voluntarily…keep[ing] him home.” (Dkt. 79, Ex. 2 at 168).
Plaintiffs state that Joe R. has been in therapy since the alleged abuse came to
light. (Dkt. 37 at 90).

II.

Summary Judgment

Summary judgment is proper where the record shows that 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 dispute is genuine only if “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). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met that burden, the non-moving party must
point to evidence supporting its position that is “significantly probative” and more
than “merely colorable.” Liberty Lobby, 477 U.S. at 249. “The mere existence of a
scintilla of evidence in support of the [non-movant’s] position will be insufficient” to

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defeat a motion for summary judgment. Id. at 252. In deciding whether a
reasonable jury could return a verdict for the nonmoving party, the Court must
view the evidence, and draw all reasonable inferences, in that party’s favor. Id. at
255.
III.

Plaintiffs’, the Individual Novi Defendants’, and NCSD’s
Motions for Summary Judgment (Dkts. 79, 83, 84)

Plaintiffs bring claims against Assistant Principal Comb, Superintendent
Matthews, Principal Schriner and Math teacher Vera Williams (“the Individual
Novi Defendants”), as well as NCSD. The Individual Novi Defendants and NCSD
each move for summary judgment on all of Plaintiffs’ claims against them. (Dkts.
83, 84) and Plaintiffs move for summary judgment on two of their claims. (Dkt. 79).
The Court will resolve these claims in the order that they appear in the
Amended Complaint. (Dkt. 12). As to Counts I and II, alleging violations of Title
IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. and for Title IX
Retaliation against NCSD, Defendant NCSD moves for summary judgment on both
of these counts, while Plaintiffs move for summary judgment on Count I. With
respect to Counts III and IV, which allege violations of 42 U.S.C. § 1983 against
NCSD and the Individual Novi Defendants, those Defendants seek summary
judgment on those two counts; Plaintiffs seek it as to Count III only. NCSD moves
for summary judgment as to Count V, charging a violation of § 504 of the
Rehabilitation Act of 1973 and the Americans with Disability Act of 1990 (ADA), 42
U.S.C. 12101, et seq. As to Counts VI and VII, which charge violations of the
Michigan Elliot-Larsen Civil Rights Act (Michigan ELCRA) and the Michigan
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Persons With Disabilities Civil Rights Act (Michigan PWDCRA), both NCSD and
the Individual Novi Defendants seek summary judgment. The Individual Novi
Defendants move for summary judgment on Count VIII, seeking damages for
Intentional Infliction of Emotional Distress (IIED), while Defendant Vera Williams
asks for the same as to Count IX, charging her with Gross Negligence. Finally,
Defendants Jean Solomon and EDUStaff move for summary judgment on Plaintiffs’
negligence and respondeat superior claims in Counts X and XI.
A.

NCSD’s and Plaintiffs’ Motions for Summary Judgment on
Plaintiffs’ Title IX Claims (Counts I and II)

Plaintiffs bring a claim under 20 U.S.C. § 1681 (Title IX) against NCSD for
J.J.’s alleged sexual harassment and abuse of Joe R. (Count I). In addition,
Plaintiffs bring a claim under Title IX for retaliation against NCSD. (Count II).
NCSD moves for summary judgment on both claims. (Dkt. 84 at 29-37). In
response, Plaintiffs filed a cross-motion for summary judgment on their sexual
harassment claim only. (Count I). (Dkt. 79 at 47-54). The Court will address these
claims in the following order: NCSD’s motion for summary judgment on Plaintiffs’
sexual harassment claim (Count I), Plaintiffs’ cross-motion for summary judgment
on this claim, and then Defendants’ motion for summary judgment on Plaintiffs’
retaliation claim. (Count II).
Title IX provides that “no person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial

16

assistance.” 20 U.S.C. § 1681(a). In Davis v. Monroe County Board of Education,
the Supreme Court held that a federal funding recipient may be liable under Title
IX for deliberate indifference to student-on-student sexual harassment. 526 U.S.
629, 643 (1999). To establish a prima facie case of student-on-student sexual
harassment under Title IX, a plaintiff must produce evidence demonstrating the
following: (1) sexual harassment so severe, pervasive, and objectively offensive that
it could be said to deprive plaintiff of access to the educational opportunities or
benefits provided by the school, (2) the funding recipient had actual knowledge of
the sexual harassment, and (3) the funding recipient was deliberately indifferent to
the harassment. Stiles ex rel. D.S. v. Grainger County, Tenn., 819 F.3d 834, 848
(6th Cir. 2016) (citing Davis, 526 U.S. at 650; Patterson v. Hudson Area Schs., 551
F.3d 438, 444-45 (6th Cir. 2009)). 18
The Court turns first to NCSD’s motion for summary judgment on Plaintiffs’
Title IX sexual harassment claim. (Count I). With respect to the first element,
Plaintiffs have created a genuine issue of material fact as to whether J.J.’s alleged
harassment and abuse of Joe R. was sufficiently severe, pervasive, and objectively
In their motion for summary judgment, Plaintiffs argue that “Title IX liability can flow
from two harassment time periods: (a) when a school exhibits deliberate indifference before
a harassing attack . . . or (b) when a school exhibits deliberate indifference after a harassing
attack…” (Dkt. 79 at 47 (citing Lopez v. Metro. Gov’t of Nashville, 646 F. Supp.2d 891, 91718 (M.D. Tenn. 2009))). Some commentators and circuits have recognized “before-the-fact”
deliberate indifference in the Title IX context. See Catherina A. Mackinnon, In Their
Hands: Restoring Institutional Liability for Sexual Harassment in Education. 125 Yale L.J.
2038, 2076-77 (2016) (citing Williams v. Bd. Of Regents of the Univ. Sys. Of Ga., 477 F.3d
1282, 1296 (11th Cir. 2007); Simpson v. University of Colorado, 500 F.3d 1170, 1173 (10th
Cir. 2007)). The Sixth Circuit, however, has not recognized Title IX liability on the basis of
deliberate indifference to an individual’s propensity to harass before an attack has
occurred. The Court, therefore, declines to analyze Plaintiffs’ claim according to the “before
and after” scheme they propose.

18

17

offensive for Title IX purposes: Plaintiffs have provided evidence indicating that
over the course of one year J.J. subjected Joe R. to repeated over and under the
clothes genital touching, and hugging and kissing. In addition, in recounting these
experiences, Joe. R described J.J. as “the beast” and characterized J.J.’s actions as
“conquering him.” Ultimately, C.R. and J.R. removed Joe R. from NMS because
they felt that it was unsafe to allow Joe R. to be near J.J. As such, Plaintiffs have
presented evidence upon which a reasonable jury could conclude that J.J.’s alleged
harassment of Joe R. was severe, pervasive, and objectively offensive.
The record is also sufficient to raise a genuine issue of fact as to the second
element of the Davis test—that is, whether or not NCSD had actual knowledge of
J.J.’s harassment of Joe R. Actual knowledge requires only that a single school
administrator with authority to take corrective action knew of the sexual
harassment. Stiles, 819 F.3d 834, 848 (citing Gebser v. Lago Vista Indep Sch. Dist.
524 U.S. 274, 290 (1998)). Plaintiffs meet this threshold because the evidence
shows that on February 27, 2014 Principal Schriner and Mr. Comb watched a fourminute video of J.J. petting Joe R. in his groin region while in Ms. Becker’s classroom. In addition, Principal Schriner testified that Detective Zabick told her about
the police report that C.R. and J.R. filed on the day that they filed it—February 28,
2014—and Mr. Comb testified that Schriner told him about the police report by
March 3, 2014 at the latest. (Dkt. 79, Ex. 2 at 85; Ex. 4 at 91). Plaintiffs have thus
presented sufficient evidence to demonstrate that Principal Schriner and Mr. Comb
knew that J.J. was touching Joe R. inappropriately.

18

The third prong of the Davis test requires Plaintiffs to show that school
officials were deliberately indifferent to peer-on-peer sexual harassment. School
administrators will be liable under the deliberate indifference standard only if
their response was “clearly unreasonable in light of the known circumstances.”
Stiles, 819 F.3d at 848 (quoting Davis, 526 U.S. at 648). Additionally, the
deliberate indifference must “at a minimum cause students to undergo harassment
or make them liable or vulnerable to it.” Vance v. Spencer County Public School
Dist. 231 F.3d 253, 260 (6th Cir. 2000) (quoting Davis, 526 U.S. at 645).
The Court finds that Plaintiffs have produced evidence upon which a
reasonable jury could conclude that Principal Schriner and Mr. Comb were
deliberately indifferent to J.J.’s alleged harassment of Joe R: when Principal
Schriner and Mr. Comb discovered J.P.’s video of J.J. touching Joe R., they
responded by encouraging J.P. to delete the video (possibly, according to Nicole
Colone’s testimony, after being in a position to know that Joe R.’s parents had filed
a police report in regard to the incident), suspending Joe R., and pressuring C.R.
and J.R. to return their son to school, including all of his classes with J.J.,
according to their view that the boys’ behavior was “mutual” and Joe R. was
therefore in no danger. In addition, Principal Schriner admits to deleting hallway
video footage showing the boys entering a bathroom together, even as she knew of
Detective Bender’s ongoing investigation into Joe R.’s allegations of chronic abuse
by J.J. Indeed, their course of deleting material evidence, adopting a theory of
mutuality to explain away the boys’ behavior, and insisting that Joe R. be returned

19

to his normal class schedule, including all classes with J.J., could reasonably be
described as clearly unreasonable in light of the circumstances—including the fact
that they had seen a video of highly inappropriate touching between J.J. and Joe R.
and that the situation was serious enough for Joe R.’s parents to have filed a police
report. Moreover, a reasonable jury could conclude that Principal Schriner and Mr.
Comb’s clearly unreasonable response left Joe R. vulnerable to further abuse at the
hands of J.J.; but for C.R. and J.R. keeping Joe R. from returning to NMS,
Principal Schriner would have immediately placed him back in all of his classes
with J.J., exposing him to the same risk for abuse which was demonstrated on the
video and had been previously observed on several occasions by both teachers and
students.
Plaintiffs have created issues of fact for trial with respect to every element of
their Title IX sexual harassment claim against NCSD. (Count I). A reasonable jury
could conclude that Joe R. was subject to severe, pervasive and objectively offensive
harassment at the hands of J.J., and that when Principal Schriner and Mr. Comb
discovered this harassment their response was clearly unreasonable, such that it
left Joe R. vulnerable to future abuse. Accordingly, NCSD’s motion for summary
judgment on Plaintiffs’ Title IX sexual harassment claim (Count I) against it is
DENIED.
With respect to Plaintiffs’ cross-motion for summary judgment on their Title
IX sexual harassment claim against NCSD (Count I), the Court applies the same
law to the same facts, but must view the evidence in a light most favorable to the

20

non-moving party, NCSD. So viewed, the school district has presented evidence
sufficient to create issues of fact for trial on Plaintiffs’ Title IX sexual harassment
claim against it. (Count I). With respect to the severity of J.J.’s alleged harassment,
NCSD admits only to the incidents of above-the-clothes touching and hand-holding
that appear in J.P’s cell phone video and that Ms. Williams and Ms. Becker
testified to have personally observed. If a jury were to find that these were the only
incidents that occurred, it might reasonably conclude that the nature of the
harassment Joe R. suffered at the hands of J.J. was not sufficiently severe or
pervasive for NCSD to be liable on a Title IX sexual harassment claim. Moreover,
NCSD contends that upon learning of Joe R.’s allegations of chronic abuse,
Principal Schriner and Mr. Comb each conducted thorough investigations,
recommended that Joe R. return to school because they genuinely believed J.J. did
not present a threat to him, and only recommended that J.P. delete his cell phone
video because Officer Zabick told them the Novi Police Department had no use for
it. Viewing the evidence in the light most favorable to Defendants, a reasonable
jury could find that Principal Schriner’s and Mr. Comb’s responses to Joe R.’s
allegations were not clearly unreasonable in light of the nature of the harassment
and the fact that the police officer communicated to NMS that there was no need
for J.P.’s cell phone video.
Because issues of fact remain as to the severity and pervasiveness of J.J.’s
alleged harassment of Joe. R, and, relatedly, the reasonableness of Principal
Schriner’s and Mr. Comb’s responses to the situation, Plaintiffs’ motion for

21

summary judgment on their Title IX sexual harassment claim against NCSD
(Count I) is DENIED.
In addition to a claim for sexual harassment, Plaintiffs also bring a Title IX
claim for retaliation against NCSD. (Count II). A plaintiff can establish a
retaliation claim either through direct evidence or through circumstantial evidence
that supports the inference of retaliation. Fuhr v. Hazel Park Sch. Dist., 710 F.3d
668, 673 (6th Cir. 2013), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr.
v. Nassar, ___U.S. ___133 S. Ct. 2517 (2013). Here, Plaintiffs do not present direct
evidence that NCSD retaliated against Joe R. because he complained of sexual
harassment. Instead, Plaintiffs argue that retaliation can be inferred based on
circumstantial evidence. In evaluating retaliation arguments based on such
evidence, courts must apply the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Spengler v. Worthington
Cylinders, 615 F.3d 481, 491 (6th Cir. 2010). According to the McDonnell Douglas
framework, a plaintiff has the initial burden of demonstrating a prima facie case of
retaliation by establishing: 1) the plaintiff engaged in activity protected under Title
IX; (2) plaintiff's exercise of her protected rights was known to defendant; (3) an
adverse [educational] action was subsequently taken against the student or the
student was subjected to severe or pervasive retaliatory harassment by a teacher
or administrator; and (4) there was a causal connection between the protected
activity and the adverse [educational] action. Fuhr, 710 F.3d at 674. Should a
plaintiff succeed in establishing a prima facie case, a presumption of unlawful

22

retaliation arises and the defendant is then faced with the burden to produce
evidence that rebuts the presumption by “articulating some legitimate,
nondiscriminatory reason for its action.” Id. (quoting Spengler, 615 F.3d at 542).
Viewing the evidence in Plaintiffs’ favor, it is sufficient to establish a prima
facie case of retaliation based on circumstantial evidence. Defendants dispute
neither that Plaintiffs’ complaints to NMS and the Novi Police were protected
activity nor that NMS employees knew about Plaintiffs’ complaints. The crux of the
analysis is thus whether Joe R. suffered any adverse actions as a result of
complaining of J.J’s harassment and whether there was a causal connection
between Joe R.’s complaints and the adverse actions. After Principal Schriner and
Mr. Comb viewed J.P.’s video and learned of the Novi Police report filed by C.R.
and J.R., they made the decision to suspend Joe R. from school. (Both Joe R. and
J.J. were suspended.) Defendants argue that because the suspension was
eventually “removed” from Joe R.’s record after C.R. and J.R. hired a lawyer who
advocated for its removal, it no longer qualifies as an adverse action. Defendants
provide no support for this proposition. Moreover, Joe R.’s record still reflects the
incident and includes a characterization of Joe R.’s conduct as “allowing another
student to touch his privates.” (Dkt. 87, Ex. 41 at 5). Further, in addition to the
suspension, Joe R. was marked absent, and his work was marked incomplete,
during the period that his parents kept him from returning to NMS because
Principal Schriner had decided that Joe R. would be returned to his normal class
schedule, including all his classes with J.J. (Dkts. 83, Ex. 44; 87, Ex. 99). Plaintiffs

23

have thus presented sufficient evidence to raise a jury question as to whether
adverse actions were taken against Joe R. subsequent to his complaints of sexual
harassment to NMS and the Novi PD.
The next issue for the Court with respect to Plaintiffs’ Title IX retaliation
claim is whether Plaintiffs have produced sufficient circumstantial evidence to
create a fact issue as to whether Joe R.’s complaints of sexual abuse caused the
adverse actions taken against him. Plaintiffs meet this burden. Viewing the
evidence in the light most favorable to Plaintiffs, the record allows an inference
that in response to allegations of sexual abuse at their school, Principal Schriner
and Mr. Comb took action to suppress any evidence that the abuse had actually
occurred: they deleted evidence, suspended Joe R. and marked his educational
record with an incident report, absences, and notes of incomplete work, and told his
parents that it was safe for Joe R. to return to school, J.J. and Joe R.’s relationship
was mutual, and that no remedial action was needed. From this evidence, a
reasonable jury could conclude that had Joe. R and his parents never complained of
sexual harassment—Joe R. would not have suffered a suspension, nor the
absences, incomplete assignments, or incident report annotations that now appear
in his permanent record.
Because Plaintiffs have produced evidence sufficient to demonstrate that Joe
R. suffered adverse educational actions for complaining about J.J.’s alleged sexual
harassment, they have succeeded in establishing a prima facie case of Title IX
retaliation. The burden now shifts to Defendants to rebut a presumption of

24

unlawful retaliation by articulating a legitimate reason for the adverse actions Joe
R. suffered. Defendants’ efforts to meet this burden are insufficient to remove the
question from the jury. In response to Plaintiffs’ retaliation claim, Defendants
argue simply that there is no evidence Joe R. was subjected to an adverse action
because his suspension was revoked. (Dkt. 84 at 36-37). Defendants provide no
authority for the proposition that the revocation of a suspension operates to nullify
that suspension as an adverse action. While Defendants proffer a reason for the
suspension, Joe R.’s alleged complicity in the touching incident, the validity of this
reason as legitimate is very much a question of fact. Moreover, even if the
suspension’s revocation mitigated its effect as an adverse action, there is still a
question of fact as to whether the reasons given justified the negative annotations
that were placed on Joe. R’s student record.
Accordingly, because Plaintiffs have established a prima facie case of
unlawful retaliation under Title IX, and because Defendants have failed to rebut
the presumption of unlawful retaliation sufficiently to remove any question of
material fact, NCSD’s motion for summary judgment on Plaintiffs’ retaliation claim
against it (Count II) is DENIED.
B.

The Individual Novi Defendants’, NCSD’s, and Plaintiffs’
Motions for Summary Judgment on Plaintiffs’ § 1983 Claims
(Counts III and IV)

Under 42 U.S.C. § 1983, Plaintiffs allege that the Individual Novi
Defendants deprived Joe R. of his constitutional rights to equal protection and
substantive due process, including the right to personal security and bodily
25

integrity, and that NCSD’s customs, policies, and practices caused these
deprivations. (Counts III and IV). (Dkt. 12 at 29-35, 26-29). 19 The Individual Novi
Defendants and NCSD each move for summary judgment on these claims. (Dkts.
83 at 27-31; 84 at 37-41). 20 Plaintiffs move for summary judgment only on their
failure to train § 1983 claim against NCSD (Count III). (Dkt. 79 at 43-47). Since a
school district cannot be liable under § 1983 if a plaintiff fails to show that at least
one of its employees inflicted a constitutional harm, McQueen v. Beecher Cmty.
Sch., 433 F.3d 460, 471 (6th Cir. 2006), the Court turns first to the Individual Novi
Defendants’ motion for summary judgment, then addresses NCSD’s and Plaintiffs’
motions.
In their Amended Complaint, Plaintiffs allege that the Individual Novi
Defendants and NCSD deprived Joe R. of his Fourteenth Amendment rights to
equal protection, due to intentional discrimination against Joe R. based on the fact
that he suffers from Autism Spectrum Disorder, and his Fourteenth Amendment
due process right to liberty, including the right to bodily integrity. (Dkt. 12 at 26).
In their responses, however, Plaintiffs fail to articulate clear theories of an equal
In their Amended Complaint, Plaintiffs also allege that the Individual Novi Defendants
and NCSD deprived Joe R. of “his constitutional right to a safe, public education in a nonhostile learning environment.” (Dkt. 12 at 26, 29). Plaintiffs fail to explain, however, where
in the Constitution this right is found. In its motion for summary judgment, NCSD
characterizes this claim as duplicative of Plaintiffs’ substantive due process claim. (Dkt.
84). In their subsequent filings, Plaintiffs neither object to this characterization nor make
any other mention of Joe R.’s right to a safe, public education in a non-hostile learning
environment. The Court, therefore, will treat this claim as a part of Plaintiffs’ substantive
due process claim.
20 The Court notes that the Individual Novi Defendants, although state actors, have not
raised qualified immunity in their responses as an affirmative defense to any of these
claims. Evans-Marshall v. Board of Educ. Of Tipp City Exempted Village School Dist., 428
F.3d 223, 232 (6th Cir. 2005).
19

26

protection and due process violation and instead present a generalized medley of
arguments regarding the Individual Novi Defendants’ and NCSD’s alleged § 1983
violations. (Dkt. 87 at 75-81). The Court, therefore, will independently analyze the
equal protection and due process claims that Plaintiffs present in their Amended
Complaint according to controlling Sixth Circuit and Supreme Court precedent.
The sine qua non of an equal protection claim is state discrimination against
a plaintiff based on her membership in a certain class of persons. Nordlinger v.
Hahn, 505 U.S. 1, 10 (1992). The Sixth Circuit recognizes two ways to prove an
equal protection violation based on a school official’s response to peer-on-peer
harassment: (1) disparate treatment of one class of students who complain about
peer mistreatment, and (2) deliberate indifference to discriminatory peer
harassment. Stiles ex rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 841 (6th Cir.
2016) (citing Soper v. Hoben, 195 F.3d 845, 852 (6th Cir. 1999); Shively v. Green
Local Sch. Dist Bd. Of Educ., 579 Fed. Appx 348, 356-57 (6th Cir. 2014); Williams
v. Por Huron Sch. Dist 455 Fed. Appx. 612, 620 (6th Cir. 2012)).
To succeed on a disparate treatment theory, Joe. R must present evidence
tending to show that NMS officials treated his complaints of peer harassment
differently than they would have treated the complaints of a similarly situated,
non-disabled student. Stiles, 819 F.3d at 852; Gohl v. Livonia Pub. Sch. Sch. Dist.,
836 F.3d 672, 684 (6th Cir. 2016). Here, Plaintiffs proffer no evidence
demonstrating how NMS officials responded to any other similarly situated, nondisabled student. To succeed on a deliberate indifference theory, Plaintiffs must

27

present evidence indicating both that Joe R. was subjected to peer-harassment
because of his disability and that school officials responded to it in a manner that
was clearly unreasonable in the light of known circumstances. Stiles, 819 F.3d at
852. Within the context of their equal protection argument, Plaintiffs present no
evidence that J.J. targeted Joe R. because of his disability. 21 Accordingly, because
Plaintiffs have not presented evidence upon which a reasonable jury could conclude
that the Individual Novi Defendants violated Joe R.’s equal protection rights under
a disparate treatment or deliberate indifference theory, the Individual Novi
Defendants’ motion for summary judgment on Plaintiffs’ § 1983 equal protection
claim (Count IV) is GRANTED.
Plaintiffs’ second theory of the Individual Novi Defendants’ liability under §
1983 is that they violated Joe R.’s Fourteenth Amendment right to substantive Due
Process, including his right to bodily integrity. The Due Process Clause of the
Fourteenth Amendment protects against state actions which deprive a person of
life, liberty, or property without due process of law; it does not protect persons
against such deprivations caused by other private actors. Stiles, 819 F.3d at 853
(citing U.S. Const. amend. XIV, § 1; Deshaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189 (1989)). There are, however, two exceptions to this rule: (1)
when a person is in state custody and therefore in a “special relationship” with the
state and (2) when the state creates or increases the risk of harm to a person—that
is, when a “state-created danger” caused a plaintiff’s injury. Stiles, 819 F.3d at 853.
Plaintiffs do make such a claim, however, within the context of their § 504/ADA
argument. See supra Part III.C.

21

28

In their complaint, Plaintiffs allege that the present case fits into both
exceptions, thereby requiring NMS, under the Due Process Clause, to protect Joe
R. from J.J.’s harassment. In their briefing however, Plaintiffs only develop the
state-created danger theory. With respect to the special relationship exception,
Plaintiffs’ argument fails. A special relationship “arises not from the State’s
knowledge of the individual’s predicament or from its expressions of intent to help
him, but from the limitation which it has imposed on his freedom to act on his own
behalf.” Stiles, 819 F.3d at 853 (citing Deshaney, 489 U.S. at 200). NMS imposed no
limitations on Joe R.’s freedom to act. Moreover, the Sixth Circuit has “consistently
rejected” the existence of a special relationship based on a school’s knowledge of a
student’s special vulnerability. Id. at 854. Plaintiffs, therefore, cannot establish
that NMS stood in a special relationship to Joe. R., comparable to, for example, the
relationship between a state run psychiatric ward and an involuntarily committed
mental patient. See Jones v. Union County, TN, 296 F.3d 417, 428 (citing
Youngberg v. Romeo, 457 U.S. 307, 319 (1982)).
With respect to the second exception, Plaintiffs have, however, presented
evidence which raises a genuine issue of material fact as to whether some of Joe
R.’s injuries were the product of a state-created danger. To succeed on a statecreated danger theory, plaintiffs must establish: “(1) an affirmative act that creates
or increases the risk to the plaintiff, (2) a special danger to the plaintiff as
distinguished from the public at large, and (3) the requisite degree of state

29

culpability.” Id. at 854 (citing McQueen v. Beecher Cmty. Schs. 433 F.3d 460, 464
(6th Cir. 2006)).
As to the first element, the word “affirmative” is interpreted strictly;
“omissions,” such as “failing to enforce school policy,” do not qualify as affirmative
acts that create or increase the risk to the plaintiff. Stiles, 819 F.3d at 854-55
(citing Morrow v. Balaski, 719 F.3d 160, 178 (3d Cir. 2013) (failing to expel a bully
was not an affirmative act); McQueen, 433 F.3d at 465-66 (teacher leaving students
unsupervised did not create or increase the risk of peer-on-peer shooting)). To
determine whether an affirmative state action increased danger to an individual, a
court must ask “whether the individual was safer before the state action than after
it.” Id. (citing Jasinski v. Tyler, 729 F.3d 531, 539 (6th Cir. 2013)). Plaintiffs argue
that NCSD increased Joe R.’s risk of harassment by failing to properly train its
staff about sexual harassment issues; that the Individual Novi Defendants
increased Joe R.’s risk of harassment by failing to properly respond to J.J.’s and
Joe R.’s conduct; and that Vera Williams increased Joe. R’s risk of harassment by
repeatedly placing him in a “seclusion room” with J.J. Because NCSD’s alleged
failure to train its staff, and the Individual Novi Defendants’ alleged failure to
properly respond to the boys’ behavior, are omissions, they do not meet the strictly
interpreted element of “affirmative acts” under a state-created danger theory of
liability. The alleged conduct by special education Math teacher Vera Williams,
however, is an affirmative act. Williams testified that she saw the boys touch each
other in a manner that she considered inappropriate in September 2013. According

30

to Joe R.’s testimony, throughout the 2013-14 school year, she “put” him and J.J. in
a small separate room, which Plaintiffs call a “seclusion room,” adjacent to their
regular math classroom, “a lot.” (Dkt. 79, Ex. 25 at 71). In corroboration of Joe R.’s
account, J.J. stated to Detective Bender that Vera Williams “always allowed” the
boys to go into this room together. (Dkt. 79, Ex. 20 at 29). If true, placing Joe R. in,
or allowing him to remain in, a small separate room with J.J., a much larger boy—
who she had previously seen touch Joe R. inappropriately—is conduct that made
Joe R. considerably more vulnerable to harassment than he would otherwise have
been. Thus, although Ms. Williams denies that she ever allowed—let alone
placed—the boys together by themselves in this separate room, Joe R. and J.J.’s
statements create an issue of fact as to whether Ms. Williams committed an
affirmative act which exposed Joe R. to a greater risk of being sexually harassed by
J.J.
The second element the Court must consider is whether by placing Joe. R
into this separate room with J.J., Ms. Williams created a special danger to Joe R. A
“special danger exists where the state’s actions place the victim specifically at risk,
as distinguished from a risk that affects the public at large.” McQueen, F.3d at 46768. The facts adduced by Plaintiffs clearly create a jury issue regarding this prong:
as established, before allegedly placing J.J. and Joe R. in the separate room with
one another, Ms. Williams had already seen J.J. inappropriately touch Joe R., and,
as she testified, at the time of the alleged harassment her belief was that each boy
functioned at the level of a seven or eight-year-old. In addition, it is undisputed

31

that when the harassment is said to have occurred J.J. physically towered over Joe
R., so that the possibility of physical intimidation would have been apparent. Thus,
if Ms. Williams did repeatedly place J.J. and Joe R. in a separate room, alone with
one another, a jury could reasonably conclude that this act created a danger for Joe
R. that a member of the general public would not have experienced.
The third and final element of a state-created danger theory requires
Plaintiffs to demonstrate that when Ms. Williams placed the boys in the separate
room, she had the “requisite degree of culpability.” In cases, as here, where the
state actor had time for deliberation and reflection, the requisite degree of
culpability is subjective recklessness, or an “aware[ness] of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and [the
actor] must also draw that inference.” McQueen, F.3d at 469. Subjective
recklessness can be proven “circumstantially by evidence showing that the risk was
so obvious that the official had to have known about it.” Id. As discussed, Vera
Williams testified that she had seen the boys inappropriately touching in
September 2013 and that she believed they functioned like seven or eight-yearolds. The difference in their physical size was also patently evident to her.
Accordingly, a reasonable jury could conclude that Ms. Williams had to know that
repeatedly secluding J.J. and Joe. R in a room with one another placed Joe R. at a
greater risk of further inappropriate touching by J.J.
Because Plaintiffs have presented sufficient evidence to create genuine
issues of material fact regarding whether Ms. Williams, with the requisite

32

awareness, took affirmative acts that endangered Joe R. in particular, Defendants’
motion for summary judgment on Plaintiffs’ § 1983 state-created danger,
substantive due process claim against Ms. Williams (Count IV) is DENIED.
As Plaintiffs have created a fact issue regarding whether Ms. Williams acted
in violation of Joe R.’s substantive due process right to bodily integrity, the Court
will now consider whether there also exist issues of fact for trial with respect to
Plaintiffs’ § 1983 supervisory liability claims against Superintendent Matthews,
Principal Schriner, and Assistant Principal Comb, and Plaintiffs’ municipal
liability claim against NCSD. (Count IV).
To establish supervisory liability, a § 1983 plaintiff must, at minimum,
show that a supervisor knowingly acquiesced in unconstitutional conduct; as part
of this inquiry, a court must consider whether an official’s “execution of his or her
job function” caused plaintiff’s injury. Peatross v. City of Memphis, 818 F.3d 233,
241 (6th Cir. 2016). As a second part of the inquiry in a § 1983 supervisory liability
claim, a court must also consider whether there is a causal connection between the
defendant’s wrongful conduct and the violation alleged. Id. at 242. Peatross and
Coley v. Lucas Cty., 799 F. 3d 530 (6th Cir. 2015) illustrate conduct that the Sixth
Circuit has considered “knowing acquiescence.” In Coley, the Court found that
plaintiff stated a claim for § 1983 supervisory liability under a knowing
acquiescence theory against a sheriff where one of the officers supervised by the
sheriff used excessive force against plaintiff and the sheriff allegedly: (1) failed to
train his staff regarding the use of excessive force (2) failed to properly investigate

33

plaintiffs’ allegations of the officer’s use of excessive force and (3) made false
statements to officials regarding the incident. Coley, 799 F. 3d at 541-42. Similarly,
in Peatross, the court found that a supervising officer knowingly acquiesced in the
unconstitutional conduct of one of his subordinates where a subordinate used
excessive force against plaintiff and the supervisor allegedly: (1) failed to train his
charges in the use of excessive force (2) failed to properly investigate plaintiff’s
allegations and (3) attempted to cover-up the unconstitutional conduct of his
subordinates by exonerating the officers. Peatross, 818 F.3d at 242-43.
Here, Plaintiffs have presented sufficient evidence to create a genuine issue
of material fact as to whether Principal Schriner knowingly acquiesced in Ms.
Williams’s violation of Joe R.’s Constitutional right to bodily integrity. As Principal
Schriner testified, NMS had no transition system for students who the district
considered to present behavioral issues; indeed, according to Mr. Comb, it was
NMS policy to eschew examining its students’ behavioral records. Moreover, as
Principal Schriner further stated, NMS, in contravention of the Department of
Education’s 2011 Dear Colleague letter, had not offered its faculty any training for
how to detect or respond to sexual harassment. In addition, Principal Schriner
admits that on March 7, 2013, she, along with other NMS administrators including
Superintendent Matthews, received an email from C.R. and J.R. alleging, among
other things, that Joe R. had been subject to sexual abuse by a peer on a daily basis
in a separate room during math class. (Dkt. 79, Ex. 2 at 152; Ex. 37). Upon
receiving this letter, Superintendent Matthews asked Principal Schriner to “help

34

him understand the context.” (Id. Ex. 38). Despite already having viewed J.P.’s
video and learning of the report J.R. and C.R. filed with the Novi Police
Department, Principal Schriner’s investigation of the allegations consisted of
having a single conversation with Ms. Williams “about the opportunity for students
to be alone” in the separate room, which Ms. Williams states never occurred. (Id.
Ex. 2 at 41-42). Then, after speaking with Ms. Williams, Principal Schriner
pressured C.R. and J.R. to return their son to school, including all of his classes
with J.J., according to her view that the boys’ behavior was “mutual” and Joe R.
was therefore in no danger. Principal Schriner’s conduct arguably falls within the
pattern of supervisory behavior that the Sixth Circuit considered knowing
acquiescence in Peatross and Coley: that is, she failed to train and supervise her
employees with respect to sexual harassment and when she learned of allegations
of J.J. harassing Joe R. in a separate room that Ms. Williams placed them in she
conducted a perfunctory investigation and took acts such as failing to retain video
that could be considered an attempt to suppress evidence. She also took a
defensive posture seemingly to prevent any suggestion of impropriety, including by
advancing the view that the boys’ behavior was mutual and insisting to J.R. and

35

C.R. that Joe R. return to NMS and all his classes with J.J. 22 A reasonable jury
could therefore conclude that Principal Schriner knowingly acquiesced in Ms.
Williams’s decision to repeatedly place, or allow, J.J. and Joe R. to spend time
together in a separate room where J.J. allegedly sexually harassed Joe R. a number
of times.
Additionally, a reasonable jury could certainly find that there is a causal
link between Principal Schriner’s acts and omissions and Joe R.’s injury, because
failing to have a transition system for troubled students, failing to check students’
behavioral records, and failing to offer teachers sexual harassment training, could
clearly increase the likelihood that a teacher might place a student with a history
of peer aggression alone in a separate room with a student with a history of
vulnerability, whom she had previously seen touching one another inappropriately.
Peatross, 818 F.3d at 244 (citing Campbell v. City of Springboro, 700 F.3d 779 (6th
Cir. 2012)).

Indeed, at her deposition, Principal Schriner was equivocal as to whether she was even
aware of the math class allegations. See Dkt 79, Ex. 2 at 38-41:
“Q: So to your knowledge, none of the students in the math class, other than Joe/JJ,
were interviewed; correct?
A: I don’t know what math class you are talking about.
Q: So we are talking about Ms. Williams’s special education math class that involves
Joe R./JJ
A: I don’t have anything related or regarding a math class […]
Q: Are you unaware that the Plaintiffs and Joe R. allege that JJ/Joe R. were placed
in the math office, and that there were numerous sexual touching incidents in the
math office?
A: I am aware of that only based on being interviewed by the police.
Q: You were never in any other way put on notice of that allegation?
A: From the specifics in the [March 7th] e-mail, when C.R./J.R. state that thing
happened in class, they talked about math. When we spoke to Ms. Williams about
allegations along that line, she stated that they were not alone in the math class, in
that math lab room.

22

36

Accordingly, because a reasonable jury could find that Principal Schriner
knowingly acquiesced in Ms. Williams placing J.J. and Joe R. in the separate room,
and that this knowing acquiescence had a causal relationship to Joe R.’s injury, the
Individual Novi Defendants’ motion for summary judgment as to Principal
Schriner’s supervisory liability under § 1983 as alleged in Count IV is DENIED.
The next issue for the Court to consider is whether there is a genuine issue
of material fact as to whether NCSD is liable as a municipality for failing to train
its staff members on sexual abuse issues. To succeed against a municipality on a
failure to train claim, a plaintiff must demonstrate: “(1) that a training program is
inadequate to the tasks that the [teachers] must perform; (2) that the inadequacy
is the result of the [municipality’s] deliberate indifference; and (3) that the
inadequacy is closely related to or actually caused the plaintiff's injury.” Brown v.
Chapman, 814 F.3d 447, 463 (6th Cir. 2016).
With respect to the first element, the evidence is sufficient to raise a genuine
issue of fact; Superintendent Matthews admits that he had never promulgated any
guidelines concerning sexual harassment and Principal Schriner admits that NMS
never offered its teachers any training on the subject. The facts thus support
Plaintiffs’ claim that NCSD’s training on sexual harassment issues was
inadequate.
As to the second element, inadequate training can be found to be the result
of deliberate indifference where there is a “failure to provide adequate training in
light of foreseeable consequences that could result from the lack of instruction.” Id.

37

(quoting Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003)). In 2011, NCSD
received the Department of Education’s Dear Colleague letter, outlining the
prevalence of sexual harassment in schools and making recommendations
regarding how to proactively train staff to prevent and respond to it. (Dkt. 79,
Ex.4). Peer-on-peer sexual harassment is clearly a foreseeable consequence of
failing to provide teachers training on sexual harassment. Consequently, the
inadequacy of NCSD’s training could be said to be the result of the district’s
deliberate indifference because this harmful foreseeable consequence could result
from a lack of instruction.
As to the third prong, that is, whether NCSD’s inadequate training is closely
related to Joe R.’s injuries, a genuine issue of fact has been raised. Certainly, a jury
would be within the bounds of reason in deciding that, had Ms. Williams been
properly trained in recognizing and responding to signs of sexual harassment, she
would have substantively intervened when she first saw the boys touching in
September 2013 and decided against placing J.J. and Joe R. in a separate room
with one another.
Accordingly, because Plaintiffs have produced sufficient evidence to raise a
genuine issue of fact as to whether NCSD was deliberately indifferent in failing to
offer its teachers any training on sexual harassment, and that Joe R.’s injuries
were closely related to this failure to train, NCSD’s motion for summary judgment
on Plaintiffs’ § 1983 municipal liability claim as alleged in Count IV is DENIED.

38

The last issue for the Court to address with respect to Plaintiffs’ § 1983
claims is Plaintiffs’ motion for summary judgment on their failure to train claim
against NCSD. (Dkt. 79 at 43-47). To succeed against a municipality on a § 1983
failure to train claim, a plaintiff must first prove that there was an underlying
constitutional violation. Stiles ex rel. D.S. v. Grainger County, Tenn., 819 F.3d 834,
856 (6th Cir. 2016). 23 Although the evidence does raise a genuine issue of material
fact as to whether Ms. Williams violated Joe R.’s Fourteenth Amendment right to
substantive due process, this claim has not been proven. Because the underlying
constitutional violation on which Plaintiffs base their § 1983 failure to train claim
against NCSD has not been proven, Plaintiffs’ motion for summary judgment on
Count III is DENIED.
C.

NCSD’s Motion for Summary Judgment on Plaintiffs’ §
504/ADA Claims (Count V)

The next issue for the Court to address is whether NCSD is entitled to
summary judgment on Plaintiffs’ claims against it for disability discrimination
under § 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities
Act of 1990, 42 U.S.C. 12101, et seq. (Count V). Title II of the ADA provides that
“no qualified individual with a disability shall, by reason of such disability, be

Plaintiffs cite to two unpublished, district court cases from other jurisdictions where the
Court awarded judgment to Plaintiffs on § 1983 failure to train claims against a school
district without specifically awarding judgment on the underlying constitutional violation.
Doe v. Forest Hills Sch. Dist., 2015 U.S. Dist. Lexis 175321 (W.D. Mich) (Dkt. 79, Ex. 60);
Belcher v. Robertson Cty., 2014 U.S. Dist. Lexis 165238 (M.D. Tenn) (Dkt. 79, Ex. 61). In
Forest Hills, however, the perpetrator had already plead guilty to Plaintiff’s allegations in
the related criminal case and Belcher was a bench trial. Forest Hills and Belcher are
therefore inapposite.

23

39

excluded from participation in or be denied benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. Section 504 of the Rehabilitation Act similarly provides, “no
otherwise qualified individual with a disability in the United States…shall, solely
by reason of her or his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). Other than § 504’s
“limitation to denials of benefits ‘solely’ by reasons of disability and its reach of
only federal funded entities, the reach and requirements of both statutes are
precisely the same.” S.S. v. Eastern Kentucky, 532 F.3d 445, 452-53 (6th Cir. 2008).
If neither of these differences are at issue in a given case, courts analyze ADA and
§ 504 claims together. Id. at 453 (citing Thompson v. Williamson County, 219 F.3d
555, 557 n.3 (6th Cir. 2000); Maddox v. Univ of Tenn., 62 F.3d 843, 846 n.2 (6th
Cir. 1995)). Here, Plaintiffs present their ADA and § 504 claims together, with
identical elements. (Dkt. 87 at 81-83). The Court will thus analyze them as one.
A plaintiff can establish a disability claim under the ADA and § 504 in one of
two ways. First, a plaintiff can establish (1) that he is disabled under the statute,
(2) otherwise qualified for participation in an educational program, and (3) being
excluded from participation in, denied the benefits of, or subjected to
discrimination under the education program by reason of his disability. S.S. v.
Eastern Kentucky, 532 F.3d at 453 (citing Maddox 62 F.3d 843). Second, a claimant
may seek to satisfy the Davis test used in cases of peer-to-peer sexual

40

harassment 24—i.e. that plaintiff is (1) a disabled individual, who was (2) subject to
severe and pervasive harassment based on that disability, and (3) the educational
institution was aware of and deliberately indifferent to the harassment. Id. at 454.
Plaintiffs argue that NCSD is liable under both tests. With respect to the
first, it is uncontested that Joe R. is a disabled individual and that he is qualified
for NMS’s educational program. The critical issue is thus whether NMS excluded
him from participation in or denied him the benefits of their educational program
based on his disability. Plaintiffs argue that Joe R. was denied the benefits of
NMS’s educational program and discriminated against on the basis of his disability
when (1) Ms. Williams repeatedly placed him in a separate room, (2) Principal
Schriner and Mr. Comb suspended him, (3) Mr. Comb interviewed Joe. R. after the
incident with no awareness of his impairments, and (4) Principal Schriner told J.R.
and C.R. that Joe R. was “no different than any middle school student” and that his
disability provided no reason to contact his parents about prior hand-holding and
improper touching incidents. (Dkt 87 at 81-82). Plaintiffs fail to present any
evidence, however, indicating that these decisions and statements were made
because of Joe R.’s disability of autism. In other words, Plaintiffs have not
demonstrated that Ms. Williams, Mr. Comb, or Principal Schriner would have made
different decisions had they been dealing with a similarly situated, non-disabled
student.

24

See discussion supra Part I.A.
41

With respect to Plaintiffs’ argument that NCSD is liable for disability
discrimination under the Davis peer-on-peer harassment framework, Plaintiffs also
fail to present evidence sufficient to create an issue of fact for trial: they have not
presented facts that would enable a jury to conclude that J.J. subjected Joe R. to
harassment because of his disability. Plaintiffs have presented evidence indicating
that J.J. subjected Joe R. to a disturbing series of domineering physical advances,
but nothing in the record indicates that J.J.—who has a history of indiscriminately
harassing many of his peers—knew that Joe R. was disabled, let alone targeted him
because of it.
Accordingly, because Plaintiffs have failed to present evidence that any of
Joe R.’s teachers or J.J. acted in a discriminatory fashion toward Joe R. because of
his disability, Plaintiffs’ claims against NCSD for disability discrimination must
fail. NCSD’s motion for summary judgment on Plaintiffs’ ADA/§504 claims under
Count V is therefore GRANTED.
D.

The Individual Novi Defendants’, and NCSD’s, Motions for
Summary Judgment on Plaintiffs’ Michigan ELCRA Claims
(Count VI)

Plaintiffs bring claims alleging that the Individual Novi Defendants and
NCSD created a hostile sexual environment in violation of the Michigan ElliotLarsen Civil Rights Act (ELCRA). M.C.L. § 37.2402(a). (Count VI). (Dkt. 12 at 3839). The Individual Novi Defendants and NCSD move for summary judgment on
these claims. To establish a prima facie cause of action for creating a hostile sexual
environment under the Michigan ELCRA, a plaintiff must demonstrate that: (1) he

42

belonged to a protected group, (2) he was subjected to communication or conduct on
the basis of sex, (3) he was subject to unwelcome sexual conduct or communication,
and (4) the unwelcome sexual conduct or communication was intended to or in fact
did substantially interfere with his education or employment or create an
intimidating, hostile, or offensive educational or work environment. Radtke v.
Everett, 442 Mich. 368 (1993).
While the Michigan Supreme Court has not ruled on the issue of whether
same-gender harassment is actionable under ELCRA, the Michigan Court of
Appeals has. To establish a hostile-environment claim based on same-gender
harassment, a plaintiff must present evidence showing that the harasser’s conduct
constituted discrimination because of sex. Evidentiary routes that allow male
Plaintiffs to establish hostile-environment claims based on same-sex harassment
include: (1) showing that the harasser was making advances out of sexual desire,
(2) showing that the harasser was motivated by a general hostility towards the
gender of plaintiff, and (3) offering direct comparative evidence about how the
alleged harasser treated members of both sexes. Robinson v. Ford Motor Co., 277
Mich. App. 146 (2007) (quoting Onacle v. Sundower Offshore Services, Inc., 523
U.S. 75, 80-81 (1998)), cited with approval in Wask v. Arrow Energy Services, Inc.,
682 F.3d 463 (6th Cir. 2012).
In reviewing the record, the Court can find no evidence that J.J.’s
harassment of Joe R. was on the basis of sex; Plaintiffs do not allege that J.J. was
acting out of homosexual desire—to the contrary, Plaintiffs vehemently contend

43

that no element of amorousness should be read into the boys’ interactions;
Plaintiffs do not indicate that J.J. had a general hostility towards men; and provide
no comparative evidence regarding how J.J. treated female students (nothing in
J.J.’s behavioral record indicates that his prior acts of invading peers’ physical
space were specifically directed at males). Because Plaintiffs have not presented
sufficient evidence to create a factual issue as to whether J.J.’s conduct was
directed toward Joe. R on the basis of sex, Plaintiffs’ ELCRA claims against the
Individual Novi Defendants and NCSD must fail and the Individual Novi
Defendants’ and NCSD’s motions for summary judgment on Count VI are
GRANTED.
E.

The Individual Novi Defendants’, and NCSD’s, Motions for
Summary Judgment on Plaintiffs’ Michigan PWDCRA Claims
(Count VII)

Plaintiffs bring claims against the Individual Novi Defendants and NCSD
under the Michigan Persons with Disabilities Civil Rights Act (PWDCRA) (Count
VII). (Dkt. 12 at 39-40). To succeed on a disability discrimination claim under the
PWDCRA, a plaintiff must establish that (1) he is a person with a disability within
the meaning of the statute, (2) he is qualified for the educational opportunity he
seeks despite his disability, and (3) in spite of these qualifications, he has not been
given an equal opportunity to secure a similar education as other persons.
Fernandez v. Univ. of Michigan Bd. of Regents, 2007 WL 3357348, at *6 (Mich. Ct.
App. 2007) (citing Peden v. Detroit, 470 Mich. 195, 204 (2004); Crancer v. Board of
Regents, 156 Mich. App 790, 795 (1986)). Assuming that Joe R. qualifies as disabled
44

within the meaning of the statute, and that he is qualified for a public, middle
school education, the critical question is whether NMS denied him an equal
opportunity to secure an education similar to that made available to other persons.
Plaintiffs provide no evidence that the Individual Novi Defendants or NCSD either
“directly discriminated” against Joe R. because of his disability, or “failed to
accommodate” his disability. Penden, 470 Mich. at 205. Plaintiffs argue that when
Ms. Williams placed Joe R. in the separate room, she denied him an equal
opportunity to secure a similar education as other persons; but Plaintiffs fail to
show how or whether this action specifically denied Joe R. an equal opportunity to a
middle school education or how Ms. Williams’s actions constitute direct
discrimination against Joe R. because of his disability or a failure to accommodate
his disability. Plaintiffs’ PWDCRA claims against the Individual Novi Defendants
and NCSD must therefore fail and the Individual Novi Defendants’ and NCSD’s
motions for summary judgment on Count VII are GRANTED. 25
F.

The Individual Novi Defendants’ Motion for Summary
Judgment on Plaintiffs’ Claim for Intentional Infliction of
Emotional Distress (Count VIII)

Against the Individual Novi Defendants, Plaintiffs bring a Michigan common
law claim for Intentional Infliction of Emotional Distress (IIED). (Count VIII).
(Dkt. 12 at 40-42). In order to succeed on an IIED claim, a plaintiff must show (1)
extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4)

Because the Defendants’ motions for summary judgment were granted on other grounds,
the Court need not reach NCSD’s argument that Plaintiffs’ PWDCRA claim is preempted by
the Michigan Mandatory Special Education Act (MMSEA).

25

45

severe emotional distress. Lewis v. Le Grow, 258, Mich. App. 175, 196 (2003).
Liability will attach only where “a plaintiff can demonstrate that the defendant’s
conduct is so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.” Graham v. Ford, 237 Mich. App. 670, 674. The Michigan
Supreme Court has described the test as whether “the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’” Roberts v. Auto-Owners Ins. Co. 422 Mich.
594, 603 (1985). 26
Plaintiffs argue that Superintendent Matthews, Principal Schriner, Mr.
Comb, and social worker Colone are all liable for intentionally inflicting emotional
distress on Joe R.’s parents, J.R. and C.R. Regarding Superintendent Matthews
and Ms. Colone, Plaintiffs can point only to various statements that each made and
that are allegedly misleading or false. (Dkt. 87 at 86). No reasonable jury could
conclude that these statements of themselves rise to the level of extreme and
outrageous conduct. With respect to Principal Schriner and Mr. Comb, however,
Plaintiffs offer much more evidence. Viewing this evidence in Plaintiffs’ favor, it is

For examples of cases discussing the kinds of conduct that could be considered IIED,
compare Estate of Roush ex rel. Hardy v. Laurels of Carson City, L.L.C., 2014 WL 7004021,
at *3 (Mich. Ct. App. 2014) (genuine issue of material fact as to plaintiff’s IIED claim where
woman alleged she was illegally detained and refused treatment at a rehabilitation center);
Bhama v. Bhama, 169 Mich. App. 73 (1988) (genuine issue of material fact where divorced
psychiatrist used his professional skill set to turn his children against ex-wife), with Cassise
v. Walled Lake Consol. Schools, 2006 WL 445960 (Mich. Ct. App. 2006) (no genuine issue of
material fact where high school officials publicly revealed personal information about a
student athlete).

26

46

not unreasonable to conclude that upon seeing it a juror might well cry
“outrageous!” As discussed earlier within the context of Plaintiffs’ § 1983 failure to
train claim, 27 after discovering J.P’s video of J.J. touching Joe R., Principal
Schriner and Mr. Comb encouraged J.P. to delete the video; subsequently, they
worked together to explain the boys’ behavior by establishing a theory of mutuality
and, despite knowing of the ongoing Novi Police investigation, Principal Schriner
deleted the video footage of the boys entering a bathroom together. Finally, again
viewing the evidence in the light most favorable to Plaintiffs, Principal Schriner
and Mr. Comb decided to suspend Joe R. and advised C.R. and J.R. that their
autistic son, who had recently communicated to them that he had been chronically
sexually abused, should return to school, where he would immediately be placed
back into classes with his alleged abuser, because he was in no danger. Reasonable
minds could differ as to whether this conduct goes beyond all possible bounds of
decency, but the evidence is sufficient to raise the question.
Having established that there is a fact question on this issue of whether
Principal Schriner and Mr. Comb engaged in extreme and outrageous conduct
against C.R. and J.R., the Court must now determine whether they were at least
reckless in doing so and whether this conduct caused Joe R.’s parents severe
emotional distress. While there is no evidence indicating that Principal Schriner
and Mr. Comb intended to cause C.R. and J.R. emotional distress, a reasonable
jury could conclude that destroying evidence, crafting an explanatory theory of

27

See supra Part III.B.
47

romantic mutuality in response to allegations of sexual misconduct between two
developmentally disabled students, and then mandating that C.R. and J.R. return
their son to the same situation where the abuse occurred was reckless conduct for a
principal and assistant principal. And, given the fact that Principal Schriner and
Mr. Comb actually communicated to C.R. and J.R. that Joe. R was in no danger
and thus should be returned to class with J.J., a reasonable jury could conclude
that Joe. R.’s parents experienced severe distress both from the fact that their
concerns were dismissed and that they were being required to expose their child to
what they believed to be a known risk of harm. 28 C.R. and J.R. expressed these
concerns in response to NMS’s handling of Joe R.’s alleged abuse in a March 7,
2014 letter to Superintendent Matthews. (Dkt. 79, Ex. 37). In addition, their
distress is corroborated by J.R.’s testimony describing her trauma and a therapist’s
report of a session with C.R. which memorializes his agonized emotional state.
(Dkts. 87, Ex. 23 at 248-49; Ex. 90.). Considering all the evidence, there is a
genuine issue of fact as to whether a reasonable juror would find Principal
Schriner’s and Mr. Comb’s conduct outrageous, and whether their conduct was
reckless and caused severe emotional distress to J.R. and C.R. Accordingly, the
Individual Novi Defendants’ motion for summary judgment against Plaintiffs’ IIED
claims in Count VIII is DENIED as to Principal Schriner and Mr. Comb.

Neither bodily harm nor the seeking and receiving of medical treatment are conditions
precedent to satisfying the element of extreme emotional distress in an IIED claim. Warren
v. June’s Mobile Home Village & Sales, Inc., 66 Mich. App. 386, 239 (1976); McCahill v.
Commercial Union Ins. Co., 179 Mich. App. 761, (1989).

28

48

G.

The Individual Novi Defendants’ Motion for Summary
Judgment on Plaintiffs’ Gross Negligence Claim against Vera
Williams (Count IX)

Plaintiffs bring a common law claim for gross negligence against Vera
Williams (Count IX), Joe R.’s special education math teacher, and Ms. Williams
moves for summary judgment on this claim. (Dkt. 12 at 42; Dkt. 83 at 38-40).
Unlike the position Plaintiffs take with respect to their negligence claim against
the substitute teacher, Ms. Solomon, see discussion infra Part IV.A., Plaintiffs
concede that Ms. Williams is entitled to qualified immunity under § 691.1407(2) of
Michigan’s Governmental Liability for Negligence Act, because she was an
employee working on behalf of a governmental agency at the time of her alleged
negligence. (Dkt. 87 at 88-90). Accordingly, Plaintiffs concede that Ms. Williams
cannot be held liable unless her conduct (1) amounts to gross negligence—that is,
conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results 29–and (2) was the proximate cause of Joe. R’s injuries–that is, the
one, most immediate cause. (Id.); see M.C.L. §§ 691.1407(2), (8)(a); Robinson v. City
of Detroit, 462 Mich. 439, 462 (1999). Regarding § 691.1407(2)’s use of the term
“the proximate cause,” the Supreme Court of Michigan has interpreted it very
strictly; a defendant’s gross negligence must be “the one most immediate and
efficient direct cause of the injury, not ‘a proximate cause.’” Robinson, 462 Mich. at
446 (emphasis added) (fleeing suspect’s reckless driving, and not police officers’
The Michigan Court of Appeals has further characterized § 691.1407(2)’s gross negligence
standard as “a willful disregard of safety measures and a singular disregard for substantial
risks.” Oliver v. Smith, 290 Mich. App. 678, 685, 810 N.W.2d 57, 62 (2010) (citing Tarlea v.
Crabtree, 263 Mich.App. 80, 90, 687 N.W.2d 333 (2004)).

29

49

chase, constituted the proximate cause of the injuries suspect suffered in crash);
accord Beals v. Michigan 497 Mich. 363, 366 (2015) (unknown reason why decedent
remained submerged, and not public lifeguard’s failure to intervene, was the
proximate cause of decedent’s death by drowning); Miller v. Lord, 262 Mich. App.
640, 643-44 (2004) (male student’s actions, and not teachers’ decision to leave male
and female students unattended, was the proximate cause of sexual assault against
female student).
Even viewing the evidence in the light most favorable to Plaintiffs, it does
not raise a genuine issue of material fact as to whether Ms. Williams’s conduct
meets the high standards of gross negligence and proximate cause required to
impose liability under M.C.L. § 691.1407(2). Accepting as true the allegation that
Ms. Williams repeatedly placed J.J. and Joe R. in a separate room after having
seen them inappropriately touch in September 2013, and that this conduct
demonstrated a substantial lack of concern for whether Joe R. was injured, the
evidence nevertheless does not permit any reasonable inference that Ms. Williams’s
conduct was the single most immediate cause of Joe R.’s harm. Rather, the
evidence shows that J.J.’s conduct was the single most immediate cause of Joe R.’s
harm. Plaintiffs protest that the strict proximate cause standard the Michigan
courts use in interpreting § 691.1407 make it so that a teacher can never be held
liable when one students harms another. (Dkt. 88 at 90). Given the clarity of
Michigan law on this point, however, this argument is more properly addressed to
the Supreme Court of Michigan, or the Michigan legislature. With respect to state

50

claims, this Court is bound by substantive state law. Erie R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). Thus, because no reasonable jury could conclude that Ms.
Williams’s conduct was the one proximate cause of Joe R.’s injury, as it must under
M.C.L. § 691.1407(2), Plaintiffs’ gross negligence claim against Ms. Williams fails
and her motion for summary judgment on Count IX is therefore GRANTED.
IV.

Defendants Jean Solomon and EDUStaff’s Motion for
Summary Judgment on Counts X and XI (Dkt. 78)

Plaintiffs bring a Michigan common law negligence claim against substitute
teacher Jean Solomon (Count X) and a Michigan common law claim for vicarious
liability against EDUStaff, the private staffing agency that placed Ms. Solomon at
NMS. (Count XI). (Dkt. 12 at 43-44). Plaintiffs argue that Defendant Solomon,
while substitute teaching for Ms. Becker’s English class on February 26, 2014, was
negligent in failing to intervene while J.P. filmed J.J. touching Joe R., and that
EDUStaff is liable for her omission. (Id.) In response, Defendants Solomon and
EDUStaff filed a joint motion for summary judgment. (Dkt. 79). The Court will
address Defendant Solomon’s arguments first, then EDUStaff’s.
A.

Defendant Jean Solomon’s Alleged Negligence

As a threshold matter, the Court must determine whether Defendant
Solomon is entitled to qualified immunity under Michigan’s Governmental
Liability for Negligence Act. M.C.L. § 691.1407(2). As discussed above, if Ms.
Solomon is covered under the Act, she cannot be held liable unless her conduct (1)
amounts to gross negligence and (2) was the proximate cause of Joe. R’s injuries.

51

In pertinent part, § 691.1407(2) provides:
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer
and employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused
by the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer's, employee's, member's, or volunteer's conduct does not
amount to gross negligence that is the proximate cause of the injury or
damage. Id.
It is well settled that public school teachers are eligible for immunity under §
691.1407(2), because public schools are governmental agencies engaged in the
discharge of a governmental function and teachers are government employees. See,
e.g., Miller ex rel. Miller v. Lord, 262 Mich. App. 640, 643, 686 N.W.2d 800, 801
(2004); Backus v. Kaufman, 238 Mich. App. 605 N.W.2D 641 (1999). The agreement
between EDUStaff and NMS provides, however, that all “Supplied Staff”—
including Defendant Solomon—are employees of EDUStaff, not the public schools
they work within. (Dkt 85 at 28; Ex. 69 at 2-4; Ex. 73 at 10). This factual
circumstance presents a question of first impression; the Court finds no reported
Michigan opinion that addresses whether a substitute teacher, working at a public

52

school but employed and placed at that school by a private staffing agency, is
entitled to immunity under § 691.1407(2).
In arguing that Defendant Solomon is not immune from tort liability,
Plaintiffs rely on Vargo v. Sauer, 457 Mich. 49, 576 N.W.2d 656 (1998), which is the
sole opinion from the Supreme Court of Michigan to address whether § 691.1407(2)
applies to an individual who is associated with both governmental and private
entities at the time of an allegedly negligent act. (Dkt. 85 at 19-22). In Vargo,
Plaintiff was the estate of Lois Vargo, who died at the privately-owned St. Lawrence
Hospital after receiving medical care provided by Defendant Dr. Harold Sauer, a
physician and associate professor at Michigan State University (MSU). Vargo, 457
Mich. at 53. At the time of his alleged negligent treatment of Ms. Vargo, Dr. Sauer
was “on call” at St. Lawrence, pursuant to an agreement between MSU and the
hospital, whereby St. Lawrence housed the university’s medical residency program
and, in exchange, MSU physicians provided services to the hospital’s patients on a
rotational basis. Id.
The question before the Vargo Court was whether Dr. Sauer, a professor at a
state university (thus, a state employee) treating a private patient at a private
hospital, was entitled to immunity as an employee of a governmental agency under
§ 691.1407(2). Agreeing with the trial court and the Court of Appeals, the Court
held that Dr. Sauer was an employee of a governmental agency in his capacity as an
MSU professor, but, departing from the lower courts, opined that § 691.1407(2)’s
definition of governmental agency “does not include, or remotely contemplate, joint

53

ventures, partnerships, arrangements between governmental agencies and private
entities.” Id. at 68. Accordingly, the Court remanded the case, holding that there
remained an issue of fact for trial as to whether Dr. Sauer was operating as an
agent of St. Lawrence–a private entity–at the time of his alleged negligent
treatment of Ms. Vargo. Id. at 72. If a jury found that he was, the Court concluded,
he would not be entitled to immunity under § 691.1407(2), as the statute protects
only “employee[s] of a governmental agency…while in the course of employment.”
Id. at 67-68.
Plaintiffs argue that Vargo requires a finding that Defendant Solomon
cannot claim qualified immunity under Michigan’s statute. Defendant Solomon is
clearly not immune from tort liability under § 691.1407(2), Plaintiffs contend,
because she was undisputedly an employee of EDUStaff—a private entity—at the
time she allegedly was negligent in failing to protect Joe R. from being sexually
touched by J.J. in Ms. Becker’s class on February 26, 2014. (Dkt. 85 at 19-22). For
the reasons set forth below, the Court finds that Vargo’s reasoning does not support
this contention. There is no binding precedent in Michigan on the issue of whether
a substitute teacher, employed by a private staffing agency but working at a public
school at the time of an allegedly negligent act, is entitled to immunity under §
691.1407(2). Considering the facts here, for reasons explained below, the Court
concludes that Defendant Solomon falls within the statute’s grant of qualified
immunity.

54

Two contrasting, unpublished cases from the Michigan Court of Appeals—
which are the only cases that cite to Vargo on issues relevant to Defendant
Solomon’s motion—help to elucidate why Vargo is inapposite and Defendant
Solomon is entitled to immunity under § 691.1407(2). The first case, Ryan v.
Lamphere Pub. Sch. Sys., 2010 WL 934243 (Mich. Ct. App. Mar. 16, 2010),
illustrates well the type of factual scenario that Vargo controls. In Ryan, a child
drowned at a practice swim session for the Special Olympics, a private entity, that
was held at a public school. Ryan, 2010 WL at *1. The child’s estate brought suit
against the two public school teachers and a public school student who were
overseeing the fatal practice session on behalf of the Special Olympics. Id. The
Court agreed with the trial court that the two teachers and student were,
respectively, employees of and a volunteer for a governmental agency (i.e. the
public school) within the meaning of § 691.1407(2). 30 Citing Vargo, however, the
Court admonished the trial court for failing to engage in an analysis of whether
defendants were “serving…a private entity—”i.e. the Special Olympics—at the time
they were alleged to have negligently failed to prevent decedent from drowning. As
in Vargo, the Court remanded the case for a jury to decide this issue. Id. at *9.

Notably, one of the teachers was, like Defendant Solomon, a substitute teacher. Id. at
10. Likewise, in Parent v. Lapeer Cmty. Sch., 2011 WL 2555719, at *2-3 (Mich. Ct. App.
June 28, 2011), another unpublished decision from the Michigan Court of Appeals, the
Court adopted the trial court’s conclusion that a substitute teacher was an employee of a
governmental agency for the purposes of § 691.1407(2). It is unclear in Ryan and Parent,
however, whether private staffing agencies placed the substitute teachers at the public
schools where they were working at the time of their allegedly negligent acts. These
unpublished decisions are thus of little value to this Court in determining whether
Defendant Solomon, who was employed and placed at NMS by EDUStaff, can be
considered an employee of a governmental agency under § 691.1407(2).

30

55

In contrast to Ryan and Vargo, in Nguyen v. Prof'l Code Inspections of
Michigan, Inc., 2004 WL 1586991, (Mich. Ct. App. July 15, 2004), rev'd in part, 472
Mich. 885, 695 (2005), the court of appeals held as a matter of law that Defendant
was immune from tort liability under § 691.1407(2). Nguyen, 2004 WL at *8. In
Nguyen, Plaintiff sought to build and operate a nail salon in the City of Grandville,
Michigan. He sued, among other parties, Defendant Charles Dyk and his employer,
Professional Code Inspections of Michigan (PCI), a private entity. Id. at *1. PCI
contracted with Grandville to assist the City in complying with state and local
construction codes, and Grandville appointed Dyk to the municipal position of
Building Official. Id. Plaintiff claimed that Dyk was negligent in allowing him to
begin constructing the nail salon, because halfway through the construction a
different Grandville official discovered that the salon violated a zoning ordinance
and placed a stop-work order on the project, which resulted in a monetary loss for
Plaintiff. Id. In his defense, Dyk argued that he was immune from tort liability
under § 691.1407(2), because, although then employed by the private entity PCI,
when he permitted Plaintiff to begin building the nail salon, he was acting in his
capacity as the City of Grandville’s Building Official. Id. At *8. Citing Vargo,
Plaintiff countered that an employee of a private entity is ipso facto ineligible for
immunity under § 691.1407(2). Id.
The Nguyen Court concluded that Vargo did not apply to the issues before
the Court, because Vargo held only that § 691.1407(2) does not immunize a
governmental employee for a negligent act that occurs while that employee is

56

working on behalf of a private entity, while in Nguyen, Dyk was a private employee
seeking immunity for an allegedly negligent act committed while he was serving
the public. Id. at *8. As the Court pointed out, § 691.1407(2) provides that “each
officer or employee of a governmental agency…is immune from tort liability for an
injury to a person or damage to property caused by the officer [or] employee…
while in the course of employment or service.” Looking to the statute’s plain
meaning, with the aid of a dictionary, 31 the Court defined officer as “a person
appointed…to some position of responsibility or authority in some organization,”
and defined service as “the providing…of accommodation and activities required by
the public.” Id at *9. The Court then held that Dyk was immune from tort liability
under § 691.1407(2), notwithstanding the fact that he was an employee of PCI,
because he was serving in his capacity as Grandville’s appointed Building Official
when he permitted Plaintiff to begin constructing the nail salon. Id. 32
As unpublished decisions, Nguyen and Ryan are of limited precedential
value. See Mich. Ct. R. 7.215(c)(1) (“An unpublished opinion is not precedentially
As the Nguyen Court noted, in Michigan, if a statute is unambiguous, and does not
provide definitions for the words in question, a court must construe the statute according to
its plain meaning, and may use a dictionary to do so. See Sun Valley Foods Co v. Ward, 460
Mich. 230, 236, 596 N.W.2d 119 (1999); People v. Stone, 463, Mich. 558, 563, 621 N.W.2d
702 (2001).
32 In addition to holding that Dyk was entitled to immunity under § 691.1407(2), the Court
held further that he was not grossly negligent as a matter of law and, accordingly, that
Plaintiff could not hold PCI vicariously liable, because “vicarious liability is derivative.” Id.
at 11. In light of subsequent controlling Michigan Supreme Court authority, this Court
does not follow this part of the Nguyen Court’s holding. In denying EDUStaff’s motion for
summary judgment, this Court concludes that EDUStaff could be held vicariously liable for
Defendant Solomon’s actions, in accordance with the Michigan Supreme Court’s holding in
Al-Shimmari v. Detroit Med. Center, 731 N.W.2d 29 (Mich. 2007) (“nothing in the nature of
vicarious liability requires that a judgment be rendered against the negligent agent.”). See
supra Part IV.B.
31

57

binding under the rule of stare decisis.”). However, Nguyen’s reasoning is
nevertheless persuasive, and the factual scenario it dealt with is on all fours with
the present matter. Unlike in Vargo and Ryan, the issue before this Court is not
whether a public employee was serving a private entity when she was negligent, as
Plaintiffs allege Ms. Solomon was in failing to intervene as J.P. filmed J.J.
touching Joe R. at NMS. Rather, as in Nguyen, the question is whether, at the
time of her allegedly negligent acts, Defendant Solomon was fulfilling
responsibilities assigned to her by a governmental agency. Stated differently, in
Vargo, the Court held that a governmental employee is not entitled to claim
immunity for acts committed in private endeavors, but in the present case, as it
was in Nguyen, the question is whether a private employee may claim immunity
for acts occurring in the course of her public service. The Court holds that she may.
NMS, a governmental agency, appointed Defendant Solomon to the government
position of substitute teacher, and she was serving in that capacity at the time she
allegedly failed to prevent J.J. from touching Joe R. Therefore, according to the
plain language of § 691.1407(2), Defendant Solomon is immune from tort liability,

58

because she was acting as an officer of a governmental agency in the course of
service at the time of her alleged negligence. 33
Having held that as a substitute teacher, Defendant Solomon may invoke
the grant of qualified immunity under § 691.1407(2), the Court must also address
the other factors of the statute. See § 691.1407(2)(a)-(c). There can be no dispute
that, as a substitute teacher working for a public middle school, Ms. Solomon meets
the first two elements—i.e. that she was acting within the scope of her authority
while teaching, and that the school district was engaged in the exercise or
discharge of a governmental function. § 691.1407(2)(a)-(b). The last factor
however—that her conduct did not amount to gross negligence that was the
proximate cause of the injury or damage—requires more careful analysis. See §
691.1407(2)(c).
The issue is whether, on the record adduced by the parties, a reasonable jury
could conclude that Ms. Solomon’s conduct was grossly negligent, and that this
gross negligence was the proximate cause of Joe. R’s injury. As discussed in the
In addition to the fact that § 691.1407(2)’s plain language requires this result, the Court’s
decision to extend immunity to Defendant Solomon furthers longstanding policy rationales
behind governmental immunity, including “ensuring that talented candidates [are] not
deterred by the threat of damages from entering public service,” Wyatt v. Cole, 504 U.S.
158, 168, 112 S. Ct. 1827, 1833, 118 L. Ed. 2d 504 (1992), and “encouraging the vigorous
exercise of official authority” Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57
L.Ed.2d 895 (1978). Public schools depend on a reliable supply of substitute teachers,
professionals who perform the same important governmental function as their permanent
colleagues. Common sense counsels that substitute teachers should be treated similarly to
full-time teachers when performing their public duties. Though not heavily litigated, the
issue has caused some state courts and legislatures to extend immunity from tort liability
to substitute teachers. See, e.g., Tex. Educ. Code Ann. §§ 22.051, 22.0511 (West) (listing
“substitute teacher” as among actors who qualify under Texas immunity statute); Moon v.
Trotwood Madison City Sch., 2014-Ohio-1110, ¶ 19, 9 N.E.3d 541, 547 (holding that
substitute teachers are immune from tort liability under Ohio immunity statute).

33

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context of Plaintiffs’ gross negligence claims against Ms. Williams (Count IX), see
supra Part III.G., in order to be liable for gross negligence under § 691.1407(2), a
Defendant’s conduct must be so reckless as to demonstrate a substantial lack of
concern for whether an injury results,” and the “one most immediate cause of
plaintiff’s injury.” Robinson v. City of Detroit, 462 Mich. 439, 462 (1999). In light of
these legal standards, as applied to the facts adduced by the parties, the Court
holds that it might be possible for a reasonable jury to find that Defendant
Solomon’s conduct was grossly negligent, but impossible for a reasonable jury to
find that it was the proximate cause of Joe R.’s injury. Viewing the evidence in the
light most favorable to Plaintiffs, a task that asks the Court to assume the
disputed fact that Defendant Solomon was even in the room (which she generally
denies but admits for the purposes of this motion only (Dkt. 78 at 21, n.4)), a
reasonable jury might conclude that failing to intervene while J.P. filmed J.J.
touching Joe. R for four minutes—where these boys were seated directly in front of
Ms. Solomon and were the only (or some of the few) students she was charged with
overseeing—demonstrated a substantial lack of concern for whether an injury
resulted. A jury could reasonably conclude on these facts that only willful disregard
would explain a teacher’s failure to intervene and stop such behavior.
Nevertheless, reasonable minds could not differ as to whether Defendant Solomon’s
alleged omission was the one, most immediate and efficient direct cause of Joe. R’s
injury—it clearly was not, J.J.’s actions were. Therefore, because Defendant
Solomon qualifies for immunity under § 691.1407(2), and because no reasonable

60

jury could find that her conduct as alleged was the proximate cause of Joe. R’s
injury, her motion for summary judgment on Plaintiffs’ negligence claim against
Defendant Solomon in Count X must be GRANTED.
Defendant EDUStaff also moves for summary judgment on Plaintiffs’ claim
in Count XI that the company is vicariously liable for Defendant Solomon’s alleged
negligence. Under the common-law doctrine of vicarious liability, an employer is
liable for negligent acts that employees commit within the scope of their
employment. Rogers v. J.B. Hunt Transp., Inc., 466 Mich. 645, 650–51, (2002).
Neither party disputes that, at the time of her alleged negligence, Defendant
Solomon was an EDUStaff employee acting within the scope of her employment.
EDUStaff argues, however, that because Defendant Solomon should be entitled to
summary judgment, there is no underlying tort, and the company cannot therefore
be held vicariously liable and would be equally entitled to summary judgment as a
matter of law. (Dkt. 78 at 33).
EDUStaff’s argument is incorrect. As the Supreme Court of Michigan held in
Al-Shimmari v. Detroit Med. Center, 731 N.W.2d 29 (Mich. 2007), “nothing in the
nature of vicarious liability requires that a judgment be rendered against the
negligent agent.” Al-Shimmari, 731 N.W.2d at 36. In other words, in Michigan, it is
the employee-tortfeasor’s actions, not their liability, that determine whether or not
their employer might be held liable for torts they commit while in the course of

61

employment. 34 Thus, the fact that Defendant Solomon has been granted summary
judgment does not necessarily mean that EDUStaff is off the hook: the Court has
concluded that Defendant Solomon is immune from tort liability under §
691.1407(2), but that conclusion does not foreclose the possibility that a reasonable
jury might find that her conduct was negligent. And negligence is the claim
Plaintiffs bring against her. (Dkt. 12 at 42). If a reasonable jury could conclude that
Defendant Solomon acted negligently in failing to prevent J.J. from touching Joe
R., then EDUStaff would not be entitled to summary judgment, and Plaintiffs’
claim for vicarious liability against the company would be allowed to proceed. 35 As
the final step in resolving Defendants Solomon and EDUStaff’s joint motion for
summary judgment, the Court now turns to this analysis.
To establish a prima facie case of negligence, “a plaintiff must introduce
evidence sufficient to establish that (1) the defendant owed a duty to the plaintiff,
(2) the defendant breached that duty, (3) the defendant's breach was a proximate

In some jurisdictions, if the employee is immune from liability, then the employer is also
necessarily so, as it is the tortfeasor’s liability, not their actions, that is imputed to the
employer in a claim for vicarious liability. See, e.g., Hollis v. City of Brighton, 885 So. 2d
135 (Ala. 2004)); see generally 53 Causes of Action 2d 281, § 21 (2012) (“Defenses available
to an employee—immunity”). This is the theory of “derivative” vicarious liability that the
Court advanced in Nguyen. See supra Part IV.A. Nguyen, however, was decided by the
Michigan Court of Appeals in 2004 and is flatly contradicted on this point by the Michigan
Supreme Court’s 2007 decision in Al-Shimmari.
35 As EDUStaff correctly notes, Al-Shimmari made clear that once there has been an
adjudication on the merits on a claim against an employee, the claim cannot continue to be
litigated, or be relitigated, to determine whether an employer is vicariously liable. AlShimmari, 731 N.W.2d at 36. (Dkt.78 at 32). Contrary to EDUStaff’s argument, however,
granting Defendant Solomon’s motion for summary judgment on the grounds that she was
immune from tort liability under § 691.1407(2) is not an adjudication on the merits of
Plaintiffs’ claim against her. (Dkt. 78 at 33). As stated, Plaintiffs’ claim is that Defendant
Solomon was negligent, and the Court has not yet addressed whether an issue of fact exists
on this claim. (Dkt. 12 at 43).
34

62

cause of the plaintiff’s injuries, and (4) the plaintiff suffered damages.” Black v.
Shafer, 499 Mich. 950, 950 (2016) (quoting Latham v. Nat'l Car Rental Sys., Inc.,
239 Mich.App. 330, 340 (2000)). In the present matter, the question of whether Joe.
R suffered damages is not in dispute.
Whether a defendant owes a duty to a plaintiff is a question of law for the
court to decide. Beaty v. Hertzberg & Golden, PC, 456 Mich. 247, 262 (1997).
Defendants Solomon and EDUStaff concede, as a general matter, that Defendant
Solomon, as Joe R.’s teacher, owed him a duty of reasonable care, which means the
level of care that a reasonably careful person would use under the circumstances.
Thompson v. Rochester Cmty. Sch., 2006 WL 3040137, at *10 (Mich. Ct. App. Oct.
26, 2006) (citing Gaincott v. Davis, 281 Mich. 515, 519 (1937); Cook v. Bennett, 94
Mich. App. 93, 98 (1980)).
Defendants point out, however, that in Michigan, “there is no duty to protect
against the criminal acts of a third person,” as criminal acts are inherently
unforeseeable. (Dkt. 78 at 21-25) (citing Brown v. Brown, 739 N.W.2d 313 (Mich.
2007); Smith v. Bronson Lifestyle Improvement and Research Center Co., 2015 WL
8932816 (Mich. Ct. App. 2015); Babula v. Robertson, 536 N.W.2d 834, 837 (Mich.
Ct. App. 1995)). 36 Thus, Defendants contend, because J.J.’s sexual contacts against

As discussed later in this Part with respect to proximate cause, to succeed on a negligence
claim a plaintiff must, among other things, prove that his injury was a foreseeable
consequence of a defendant’s conduct. Because Michigan courts consider criminal acts
inherently unforeseeable, no injury can be a foreseeable consequence of failing to prevent a
criminal act, as it is a logical contradiction to say that there are foreseeable consequences
for failing to prevent what one cannot foresee. As such, Michigan courts have ruled that
defendants simply have no duty to prevent third party criminal acts.

36

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Joe R. were “criminal,” Defendant Solomon had no duty to protect Joe R. from
them. If it were clear as a matter of law that J.J.’s behavior included all of the
elements necessary to be recognized as a criminal offense, Defendants’
foreseeability argument would be persuasive. But here, the Oakland County
Prosecutor’s decision to decline charges against J.J. casts considerable doubt on
whether J.J.’s conduct met the definition of criminal sexual conduct. Moreover, in
the three cases Defendants cite in support of the proposition that defendants do not
owe plaintiffs a duty to prevent criminal acts of third parties, the courts held that
an employer had no duty to prevent an employee from raping another employee, a
babysitter had no duty to prevent her husband from secretly molesting the child
she was caring for, and a summer camp had no duty to prevent a counselor from
secretly molesting a camper. (Brown, 739 N.W.2d 313; Babula, 536 N.W.2d 834;
Smith, 2015 WL 8932816). Rape and child molestation are obviously criminal acts.
The conduct at issue here—one middle school boy rubbing his hand on the crotch of
another boy over his clothing, while clearly inappropriate and abusive—is much
less clear-cut as a crime; it is much more akin to a tort. On the record before the
Court, there is insufficient evidence to permit the conclusion that J.J.’s behavior
constituted a crime and therefore could not have been foreseeable. Consequently,
the Court rejects Defendants’ argument, and holds as a matter of law that
Defendant Solomon, as Joe R.’s teacher, owed him a duty of reasonable care.
Because Defendant Solomon owed Joe R. a duty of care, the next question is
if there are any genuine issues of material fact as to whether Defendant Solomon

64

breached this duty. The answer to this question is yes; the evidentiary record on
this issue is replete with questions of fact for trial. Before it can be determined
whether or not Defendant Solomon acted as a reasonably careful person would
have under the circumstances, a jury would need to determine several factual
questions, for example: was Defendant Solomon even present in Ms. Becker’s room
when J.P. used his cell phone to record J.J. touching Joe R.? If so, where was she
was in relation to them? Did she have an unobstructed view of the boys and of what
they were doing? How exactly was J.P. positioned while recording J.J. touching Joe
R, and would such a position have caused a reasonable teacher to take notice and
intervene? For how long did the touching go on? How many students in total were
present in the classroom, and what instruction or other activity was taking place at
the time? All of these questions would bear on whether Ms. Solomon breached a
duty of reasonable care in failing to discover or prevent the touching conduct.
Depending on how these questions are answered, a reasonable jury could go either
way. It is therefore clear that a number of genuine issues of material fact exist as
to whether Defendant Solomon breached the duty of care she owed to Joe. R.
Having established that Defendant Solomon owed Joe. R a duty of care, and
that there is a jury question as to whether Defendant Solomon breached this duty,
the Court must assess whether there is a genuine issue of fact on the question of
whether Defendant Solomon’s failure to intervene was a proximate cause of Joe.
R’s injury. In Michigan, it is well-settled that “in order to be a proximate cause, the
negligent conduct must have been a cause of the plaintiff’s injury and the plaintiff’s

65

injury must have been a natural and probable result of the negligent conduct.”
O'Neal v. St. John Hosp. & Med. Ctr., 487 Mich. 485, 496 (2010). In other words, to
be a proximate cause, negligent conduct must be a ‘but-for’ cause of an injury and
the injury must have been a foreseeable consequence of the conduct. Id.
Here, taking Plaintiffs’ version of events as true, it is clear that a reasonable
jury could find that but for Defendant Solomon’s negligence, J.J. would not have
been capable of touching Joe. R for four minutes while being recorded on J.P.’s cell
phone. If Defendant Solomon had seen the boys engaged in this behavior, the
exercise of reasonable care would have meant intervening to stop the conduct. In
addition, a reasonable jury could certainly conclude that inappropriate touching
and improper use of a cell phone by middle school students during class are natural
and probable consequences of a teacher’s failure to properly manage and supervise
the class. Here too, the question of whether Defendant Solomon’s alleged
negligence was a proximate cause of Joe R.’s injuries is a question of fact for the
jury to resolve.
To summarize, assuming Defendant Solomon was in the room when J.J. was
inappropriately touching Joe R. and being recorded by J.P., the Court holds that
Defendant Solomon owed Joe. R a duty of reasonable care, and that there are
genuine issues of material fact as to whether she breached this duty, and whether
this breach was a proximate cause of Joe. R’s injuries. Consequently, because a
reasonable jury could hold EDUStaff vicariously liable for the negligence of its
employee if it were to find that Defendant Solomon was negligent, EDUStaff’s

66

motion for summary judgment on Count XI must be DENIED, and Plaintiffs’
negligence claim against Defendant Solomon must be allowed to proceed, for the
purpose of determining EDUStaff’s liability.

VI.

Summary
The Court has reached the following dispositions on the four cross-motions

for summary judgment before it. The summary of the Court’s dispositions below is
organized according to the order that Plaintiffs present their claims in their
Amended Complaint and followed by a list of Plaintiffs’ claims that will proceed to
trial.
Count I: Title IX Sexual Harassment against NCSD
•

NCSD’s motion for summary judgment (Dkt. 84) is DENIED.

•

Plaintiffs’ motion for summary judgment (Dkt. 79) is DENIED.

Count II: Title IX Retaliation against NCSD
•

NCSD’s motion for summary judgment (Dkt. 84) is DENIED.

Count III: § 1983 Municipal Liability against NCSD
•

NCSD’s motion for summary judgment (Dkt. 84) is DENIED.

•

Plaintiffs’ motion for summary judgment (Dkt, 79) is DENIED.

Count IV: § 1983 against the Individual Novi Defendants
•

The Individual Novi Defendants’ motion for summary judgment
(Dkt. 83) is GRANTED with respect to Plaintiffs’ equal protection
claim, DENIED with respect to Plaintiffs’ substantive due process

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claim on a state-created danger theory as against Vera Williams,
and DENIED with respect to Plaintiffs’ supervisory liability claim
as against Principal Schriner.
Count V: § 504/ADA against NCSD
•

NCSD’s motion for summary judgment (Dkt. 84) is GRANTED.

Count VI: Michigan ELCRA against NCSD and the Individual Novi
Defendants
•

NCSD’s motion for summary judgment (Dkt. 84) is GRANTED.

•

The Individual Novi Defendants’ motion for summary judgment
(Dkt. 83) is GRANTED.

Count VII: Michigan PWDCRA against NCSD and the Individual Novi
Defendants
•

NCSD’s motion for summary judgment (Dkt. 84) is GRANTED.

•

The Individual Novi Defendants’ motion for summary judgment
(Dkt. 83) is GRANTED.

Count VIII: Intentional Infliction of Emotional Distress against the
Individual Novi Defendants:
•

The Individual Novi Defendants’ motion for summary judgment
(Dkt. 83) is DENIED as against Principal Schriner and Mr. Comb.

Count IX: Gross Negligence against Vera Williams
•

The Individual Novi Defendants’ motion for summary judgment
(Dkt. 83) is GRANTED.

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Count X: Negligence against Jean Solomon
•

Jean Solomon’s motion for summary judgment (Dkt. 78) is
GRANTED.

Count XI: Respondeat Superior against EDUStaff
•

EDUStaff’s motion for summary judgment (Dkt. 78) is DENIED.

Accordingly, the following seven of Plaintiffs’ claims survive the various
Defendants’ motions for summary judgment and shall proceed to trial:
1. Plaintiffs’ Title IX claim against NCSD for peer-on-peer sexual
harassment (Count I);
2. Plaintiffs’ Title IX claim against NCSD for retaliation (Count II);
3. Plaintiffs’ § 1983 municipal liability claim against NCSD based on its
failure to train (Count III);
4. Plaintiffs’ § 1983 substantive due process claim against Vera Williams
based on a state-created danger theory (Count IV);
5. Plaintiffs’ § 1983 supervisory liability claim as against Principal
Schriner (Count IV);
6. Plaintiffs’ Michigan common law claim of Intentional Infliction of
Emotional Distress as against Principal Schriner and Mr. Comb
(Count VIII); and
7. Plaintiffs’ Michigan common law claim of Respondeat Superior
against EDUStaff based on Jean Solomon’s alleged negligence (Count
XI).

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VII.

Conclusion
For the reasons stated above, Novi Community School District’s motion for

summary judgment (Dkt. 84) is GRANTED IN PART AND DENIED IN PART,
Andrew Comb, Steven Matthews, Stephanie Schriner and Vera Williams’s motion
for summary judgment (Dkt. 83) is GRANTED IN PART AND DENIED IN
PART, Plaintiffs’ motion for summary judgment (Dkt. 79) is DENIED, and Jean
Solomon and EDUStaff’s motion for summary judgment (Dkt. 78) is GRANTED IN
PART AND DENIED IN PART.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: February 9, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted on February 9, 2017,
using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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