Petty et al v. Garden City Public Schools et al

Filing 183

OPINION AND ORDER granting 112 , 113 Motions for summary judgment. Signed by District Judge Judith E. Levy. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Danica Petty, et al.,
Plaintiffs,
v.
Garden City Public Schools, et al.,
Defendants.

Case No. 21-cv-11328
Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti

________________________________/
OPINION AND ORDER GRANTING GARDEN CITY PUBLIC
SCHOOLS, DEREK FISHER, AND JAMES BOHNWAGNER’S
MOTION FOR SUMMARY JUDGMENT AND WAYNE
WESTLAND COMMUNITY SCHOOL DISTRICT, JILL
SIMMONS, KIMBERLY DOMAN, JOHN DIGNAN, MATTHEW
PROVOST, AND EMILY HAWTHORNE’S MOTION FOR
SUMMARY JUDGMENT [112, 113]
This case involves disturbing allegations of sexual abuse by James
Baird, who was employed to work with students with visual impairments
at public schools in Michigan. “School should be a safe, nurturing, and
positive environment for [all] children.” Campbell v. Dundee Cmty. Schs.,
No. 12-cv-12327, 2015 WL 4040743, at *1 (E.D. Mich. July 1, 2015) aff’d
661 F. App’x 884 (6th Cir. 2016). Plaintiffs allege that the five minor
children subject to Baird’s abuse were denied the school environment

they deserve. In addition to asserting claims against Baird, Plaintiffs
assert claims against the school districts and school administrators who
worked at the schools where Baird worked.
Before the Court are Defendants Garden City Public Schools
(“GCPS”), Derek Fisher, and James Bohnwagner’s Motion for Summary
Judgment (“the GCPS Motion”), (ECF No. 112), and Defendants Wayne
Westland Community School District (“WWCSD”), Jill Simmons,
Kimberly

Doman,

John

Dignan,

Matthew Provost,

and Emily

Hawthorne’s Motion for Summary Judgment (“the WWCSD Motion”).
(ECF No. 113.)
For the reasons set forth below, the GCPS Motion and the WWCSD
Motion are GRANTED with respect to Plaintiffs’ federal-law claims. The
Court declines to exercise supplemental jurisdiction over Plaintiffs’ statelaw claims and therefore dismisses them without prejudice.
I.

Background

This litigation involves several cases that have been consolidated
for pretrial purposes only. (ECF Nos. 50, 77.) The consolidated cases
include:

2

• Danica Petty, as Next Friend of Z.F. Doe v. Livonia Public Schools,
Garden City Public Schools, James Baird, Derek Fisher, Andrea
Oquist, and James Bohnwagner (5:21-cv-11328) (“Petty”);
• Gabrielle Washington, as Next Friend of P.H. Doe v. Livonia Public
Schools, Garden City Public Schools, James Baird, Derek Fisher,
Andrea

Oquist,

and

James

Bohnwagner

(5:22-cv-12402)

(“Washington”);
• Sarah Doe, as Next Friend of F.A. Doe v. Livonia Public Schools,
Garden City Public Schools, and James Baird (5:23-cv-10372)
(“Doe”);
• Amanda Wilhelm, as Next Friend of M.S. Doe v. Livonia Public
Schools, James Baird, Andrea Oquist, Wayne Westland Community
Schools, John Dignan, Matthew Provost, and Emily Hawthorne
(5:22-cv-10809) (“Wilhelm”); and
• Lona and Kendrick Blank, as Next Friends of K.B. Doe v. Livonia
Public Schools, Wayne Westland Community School District, James
Baird, Andrea Oquist, Jill Simmons, and Kimberly A. Doman (5:22cv-12404) (“Blank”).

3

Id. Petty is the lead case, and all filings must be made on that case docket.
Id.
The consolidated cases arise out of allegations that James Baird
sexually abused minor children, all of whom were students with visual
impairments. Baird worked as an employee of Livonia Public Schools
(“LPS”) and was contracted out by agreement to GCPS and WWCSD.
(ECF No. 40, PageID.462; No. 22-cv-10809, ECF No. 1, PageID.6.)
Baird previously worked for the Allegan Public Schools, starting in
2004. (ECF No. 124-2, PageID.1953.) On August 1, 2007, Baird received
a written warning from an administrator regarding “inappropriate,
unwelcome comments to a female student” that “crossed the line in
regards to an appropriate student-teacher relationship and could be
interpreted as sexual harassment.” (Id. at PageID.1960.) It admonished
him to “be professional at all times” and “[w]hen working with female
students in the future, you must be certain to never work alone and
always have someone else on-deck or in the vicinity.” (Id.) A different
administrator asked Baird if “had asked a student about dating him,”
which he initially denied “but later admitted to [in part].” (Id. at
PageID.1978–1979.)
4

A March 24, 2010 letter terminating Baird’s employment with
Allegan

Public

Schools

describes

“documented

incidents

of

unprofessional conduct involving a minor child, and insubordination.”
(Id. at PageID.1962.) Baird had been permitted to ride with swim team
members to a state swim meet in a limousine. (Id. at PageID.1979.)
During the ride, a photographer took three photos of Baird with a female
student. (Id.) One included him slouched over with his head on her
shoulder, another included them staring at each other, and a third
featured them “engaged in a stretching demonstration.” (Id.)
Baird sued Allegan Public Schools over his termination. The
Allegan County News requested information about the lawsuit through
the Michigan Freedom of Information Act and published an article
reporting that Baird settled “out of court” after his termination for
“unspecified unprofessional behavior.” (Id. at PageID.1983.) The article
quoted a district official saying that the matter had “nothing to do with
any illegal activity or student safety.” (Id.) It also noted “one previous
undisclosed disciplinary issue . . . approximately two years prior to his
dismissal.” (Id.) The settlement between Baird and Allegan Public
Schools included an agreement to “expunge” portions of Baird’s personnel
5

record, including certain documents related to disciplinary actions, to
provide Baird a neutral letter of recommendation, and not to discuss the
events related to Baird’s termination. (Id. at PageID.1953–1954.) The
settlement notes that certain documents and other matters related to
discipline may be subject to disclosure under state law. (Id. at
PageID.1954.) At his deposition, a principal from Allegan Public Schools
testified that he would have shared specifics about Baird’s misconduct if
someone from another school district had contacted him to inquire about
it. (ECF No. 126-7, PageID.2912.)
After being terminated from Allegan Public Schools, Baird took a
position with Durand Area Schools. However, pursuant to a Michigan
statute, Mich. Comp. Laws § 380.1230b, Durand Area Schools requested
and received documents related to Baird’s conduct from Allegan Public
Schools, after which they terminated Baird. (ECF No. 125-10,
PageID.2385–2386.)
In 2013, Baird applied to work for LPS in the job from which he was
contracted out to GCPS and WWCSD. (ECF No. 125-3, PageID.2254.) He
did not reveal that he had been terminated from positions at Allegan
Public Schools or Durand Area Schools and stated that he had not been
6

discharged or had an employer request that he resign from a position.
(Id. at PageID.2255; ECF No. 125-10, PageID.2392, 2398.) There was a
multi-year gap in his resume during that period, which ran from 2003 to
2008. (ECF No. 125-3; ECF No. 125-16, PageID.2533.) He did, however,
include that he had been a student teacher in Allegan Public Schools in
2003. (ECF No. 125-3, PageID.2258; ECF No. 125-10, PageID.2400.)
Baird also included a more recent position at St. Joseph County
Intermediate School District. (ECF No. 125-3, PageID.2257.) Pursuant to
Mich. Comp. Laws § 380.1230b, LPS requested disclosure of any
unprofessional conduct by Baird from St. Joseph County Intermediate
School District. (ECF No. 156-21, PageID.6571.) Baird began working at
LPS in 2013, during which time he also worked with students in GCPS
and WWCSD, including the minor children who Plaintiffs allege Baird
abused.
The GCPS Motion and the WWCSD Motion were filed by different
Defendants and involve different cases in this consolidated action. 1

1 Livonia Public Schools and Andrea Oquist have filed a motion for summary

judgment, (ECF No. 156), which will be addressed in a separate opinion.

7

The GCPS Motion was filed by GCPS, a public school district in
Michigan; Derek Fisher, GCPS Superintendent; and James Bohnwagner,
the principal of Douglas Elementary 3-4 Campus (“Douglas Elementary
School”), a school in GCPS (collectively “the GCPS Defendants”). (ECF
No. 40, PageID.459–461.) It involves three of the consolidated cases: Doe,
Petty, and Washington. (ECF No. 112, PageID.1325.)
The WWCSD Motion was filed by WWCSD, a public school district
in Michigan; John Dignan, Superintendent of WWCSD; Matthew
Provost, co-principal of Marshall Upper Elementary School (a school in
WWCSD); Emily Hawthorne, co-principal of Marshall Upper Elementary
School; Jill Simmons, interim superintendent of WWCSD; and Kimberly
Doman, principal of Stevenson Middle School (a school in WWCSD)
(collectively “the WWCSD Defendants”). (No. 22-cv-10809, ECF No. 1,
PageID.2–5; No. 22-cv-12404, ECF No. 1, PageID.2–5.) It involves two of
the consolidated cases: Wilhelm and Blank. (ECF No. 113, PageID.1642–
1643.)
Plaintiffs from each of the consolidated cases responded to oppose
the GCPS Motion, (ECF No. 124 (Doe); ECF No. 125 (Petty and

8

Washington 2)), and to the WWCSD Motion (ECF No. 126 (Blank); ECF
No. 127 (Wilhelm)). Defendants replied. (ECF Nos. 147, 148, 149, 150.)
Plaintiffs provide reports from proposed expert witnesses Anthony
T. Marasco and Prof. Charol Shakeshaft. Marasco, an educational
administrator, opines that LPS had a deficient hiring process that
enabled Baird to obtain employment with LPS and commit sexual
assaults. (ECF No. 125-23, PageID.2649.) He states that LPS, GCPS, and
WWCSD could have done an internet search and discovered the lawsuit
Baird filed against Allegan Public Schools. (Id. at PageID.2651–2652.)
Marasco opines that GCPS and WWCSD should have independently
vetted Baird before allowing him to work with their students. (Id. at
PageID.2652.) He also states that “teachers such as Mr. Baird” should
not have been allowed to work with children in “a closed and isolated
environment without any outside intervention.” (Id. at PageID.2653.)
Prof. Shakeshaft is a professor of educational leadership at Virginia
Commonwealth University who studies how to prevent sexual abuse in
schools. (ECF No. 125-24, PageID.2660.) She reviewed the policies LPS

2 Sarah Doe, Plaintiff in Doe, filed a concurrence with the response related to

the Petty and Washington cases. (ECF No. 131.)

9

had in place and found a variety of deficiencies with respect to sexual
misconduct prevention, hiring, and management of personnel. (Id. at
PageID.2709, 2717, 2722.) Based on her review of the evidence, she
contends that GCPS did not follow appropriate procedures with respect
to retention, management, training, reporting, and supervision in
response to the foreseeable risk of sexual abuse in schools. (Id. at
PageID.2722, 2748–2752, 2755–2756.) Prof. Shakeshaft agrees with
Marasco that GCPS should have independently vetted Baird and should
not have allowed him to be in a closed or isolated environment with
students. (Id. at PageID.2722–2723.)
The Court briefly summarizes each of the five lawsuits below.
A.

Washington

Gabrielle Washington (“the Washington Plaintiff”) brings suit on
behalf of her minor daughter, P.H. Doe, who is visually impaired and was
supposed to receive services from Baird as a student at Douglas
Elementary in GCPS. (No. 22-cv-12402, ECF No. 1, PageID.5.) Baird
provided “vision specialty services” sessions to P.H. Doe in a windowless
room with the door closed, according to the Washington Plaintiff. (Id. at
PageID.5.) During a session on October 9, 2018, Baird allegedly fondled
10

P.H. Doe’s chest. (Id. at PageID.5–6; see also ECF No. 126-12,
PageID.3004 (P.H. Doe stating in a deposition that Baird touched her
chest in a hallway).) On October 16, 2018, during another session, he
allegedly placed his penis in P.H. Doe’s hand while her eyes were covered
with a device called “eye occluders,” which obscured her vision. (No. 22cv-12402, ECF No. 1, PageID.6; see also ECF No. 126-12, PageID.3009.)
When she expressed her discomfort and took the occluders off, she saw
Baird “pulling up and zipping up his pants.” (No. 22-cv-12402, ECF No.
1, PageID.6.)
P.H. Doe reported the incidents to her mother on December 25,
2020, after which her mother contacted the police. (Id. at PageID.7.)
The Washington Plaintiff asserts federal-law claims against GCPS,
Fisher, and Bohnwagner for municipal/supervisory liability. (Id. at
PageID.19–27.) She also asserts state-law claims against them for gross
negligence/willful and wanton misconduct, violations of the ElliottLarsen Civil Rights Act (“ELCRA”), and failure to report child abuse. (Id.
at PageID.27–30, 36–44.)

11

B.

Petty

Danica Petty (“the Petty Plaintiff”) brings suit on behalf of her
minor daughter, Z.F. Doe, who is visually impaired and was supposed to
receive services from Baird as a student at Douglas Elementary in GCPS.
(ECF No. 40, PageID.462.) She alleges that Baird sexually assaulted Z.F.
Doe at school on December 9, 2019 in a windowless room with the door
closed. (Id. at PageID.462–463.) That day, Baird allegedly placed eye
occluders on Z.F. Doe during the session, after which he “proceeded to
place his penis in Z.F. Doe’s hand and around her mouth.” (Id. at
PageID.463.) When she expressed her discomfort and took the occluders
off, she saw Baird “pulling up and zipping up his pants.” (Id.)
Z.F. Doe immediately reported what happened to her mother. (Id.)
That led to a GCPS investigation, after which GCPS no longer permitted
Baird to provide services to students. (Id. at PageID.463–464.)
The Petty Plaintiff asserts federal-law claims against GCPS, Fisher,
and Bohnwagner for municipal/supervisory liability. (Id. at PageID.477–
484.) She also asserts state-law claims against them for gross
negligence/willful and wanton misconduct, violations of ELCRA, and
failure to report child abuse. (Id. at PageID.484–487, 493–501.)
12

C.

Doe

Sarah Doe (“the Doe Plaintiff”) brings suit on behalf of her minor
daughter, F.A. Doe, who is visually impaired and was supposed to receive
services from Baird as a student at Douglas Elementary in GCPS. (No.
23-cv-10372, ECF No. 1, PageID.11.) She alleges that Baird sexually
assaulted F.A. Doe at school in 2019 during what was supposed to be an
eye exam. (Id. at PageID.10–11.) The alleged assault took place in an
empty classroom with the door and windows covered. (Id. at PageID.3,
11.) Baird allegedly blindfolded F.A. Doe as part of the purported eye
exam, but she was able to see him expose his penis and then put her hand
on it. (Id. at PageID.11–12.) He then allegedly took F.A. Doe on a walk
without signing her out of school and threatened her with punishment if
she revealed his conduct. (Id. at PageID.12.)
F.A. Doe reported the incident in the fall of 2021 to a teacher in a
different school district. (Id. at PageID.12–13.)
The Doe Plaintiff asserts federal-law claims against GCPS for
violations of Title IX, gender discrimination, disability discrimination,
and failure to train and supervise. (Id. at PageID.13–26.) She also asserts
state-law claims for gross negligence, negligence, vicarious liability,
13

express/implied agency, negligent supervision, negligent failure to warn
or protect, negligent failure to train or educate, negligent retention,
intentional infliction of emotional distress, fraud and misrepresentation,
violations of ELCRA, and failure to report child abuse. (Id. at PageID.26–
40, 42–43, 51–58.)
D.

Wilhelm

Amanda Wilhelm (“the Wilhelm Plaintiff”) brings suit on behalf of
her minor daughter, M.S. Doe, who is visually impaired and was
supposed to receive services from Baird as a student at Marshall Upper
Elementary in WWCSD. (No. 22-cv-10809, ECF No. 1, PageID.6.) She
alleges that Baird sexually assaulted M.S. Doe at school between 2017
and 2019: “Defendant Baird would play a game with M.S. Doe that he
called the ‘sucker game’ and involved oral sex and touching of genitals. It
involved the promise of a sucker.” (Id.) In her deposition, M.S. Doe also
reported that Baird urinated in her mouth. (ECF No. 134-1,
PageID.4242.)
Despite M.S. Doe reporting Baird’s conduct to her teacher, nothing
was done. (No. 22-cv-10809, ECF No. 1, PageID.6.) M.S. Doe later

14

reported what happened to her mother, as well as the police. (Id. at
PageID.7.)
The Wilhelm Plaintiff asserts federal-law claims against WWCSD,
Dignan, Provost, and Hawthorne for municipal/supervisory liability. (Id.
at PageID.19–26.) She also asserts state-law claims against them for
gross negligence/willful and wanton misconduct, violations of ELCRA,
and failure to report child abuse. (Id. at PageID.26–29, 35–44.)
E.

Blank

Lona and Kendrick Blank (“the Blank Plaintiffs”) bring suit on
behalf of their minor daughter, K.B. Doe, who is visually impaired and
was supposed to receive services from Baird as a student at Stevenson
Middle School in WWCSD. (No. 22-cv-12404, ECF No. 1, PageID.5–6.)
They allege that Baird sexually assaulted K.B. Doe at school in February
of 2020 during what was supposed to be an eye exam. (Id. at PageID.7.)
While alone with K.B. Doe “without any supervision,” Baird allegedly
“covered K.B. Doe’s eyes . . .[,] fondled her, and placed his penis in her
hand and her mouth.” (Id. at PageID.6–7.) During K.B. Doe’s deposition,
she also alleged that Baird urinated in her mouth during the assault.
(ECF No. 126-20, PageID.3140.)
15

The day of the alleged assault, “K.B. Doe returned to her class and
told her teacher . . . that Mr. Baird made her uncomfortable and that she
did want to work with Defendant Baird again.” (No. 22-cv-12404, ECF
No. 1, PageID.7.) On February 11, 2022, K.B. Doe reported what
happened to her parents. (Id. at PageID.7–8.)
The Blank Plaintiffs assert federal-law claims against WWCSD,
Simmons, and Doman for municipal/supervisory liability. (Id. at
PageID.20–27.) She also asserts state-law claims against them for gross
negligence/willful and wanton misconduct, violations of ELCRA, and
failure to report child abuse. (Id. at PageID.27–30, 36–45.)
II.

Legal Standard

Summary judgment is proper when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may not
grant summary judgment 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 (1986). The Court “views the evidence, all
facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
16

Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. Analysis
A.

Rule 56(d) Affidavits

Plaintiffs filed Rule 56(d) affidavits in response to the GCPS and
WWCSD Motions. (ECF Nos. 125-19, 126-19, 135-11.) Both motions for
summary judgment were filed before the close of fact discovery. (See ECF
No. 104, PageID.1184.)
Federal Rule of Civil Procedure 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify
its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
Rule 56(d) affidavits must “indicate to the district court [a party’s]
need for discovery, what material facts it hopes to uncover, and why it
has not previously discovered the information.” Cacevic v. City of Hazel
17

Park, 226 F.3d 483, 488 (6th Cir. 2000). 3 Rule 56(d) “provides the
mechanism for a plaintiff and the courts to give effect to the wellestablished principle that the plaintiff must receive a full opportunity to
conduct discovery to be able to successfully defeat a motion for summary
judgment.” Cardinal v. Metrish, 564 F.3d 794, 797 (6th Cir. 2009)
(cleaned up). The Sixth Circuit considers the following factors when
determining the propriety of a request under Rule 56(d):
(1) when the [party seeking more discovery] learned of the
issue that is the subject of the desired discovery; (2) whether
the desired discovery would have changed the ruling []; (3)
how long the discovery period had lasted; (4) whether the
[party seeking more discovery] was dilatory in its discovery
efforts; and (5) whether the [party opposing more discovery]
was responsive to discovery requests.
Centra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008).
After the close of discovery, Plaintiffs’ counsel submitted notices
updating the Court on the discovery it conducted and stating that they
did not intend to supplement their responses to the GCPS and WWCSD

3 Prior to the 2010 amendment of the Federal Rules of Civil Procedure, Rule

56(d) was contained in Rule 56(f). Case law before 2010 therefore refers to Rule 56(f),
but “precedent prior to 2010 citing Rule 56(f) is fully applicable to current Rule 56(d).”
10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2740
(4th ed. 2024).

18

Motions. (ECF No. 179, PageID.9500–9501; ECF No. 180, PageID.9505.)
Plaintiffs therefore received a full opportunity to conduct discovery. They
determined that the discovery conducted after they filed their responses
to the motion for summary judgment would not impact the Court’s
ultimate determination and chose not to supplement what had already
been submitted to the Court. Therefore, none of the factors support
disposing of the GCPS and WWCSD Motions under Rule 56(d).
B.

The GCPS Motion

The GCPS Defendants ask the Court to grant summary judgment
in the cases against them: Petty, Washington, and Doe. (ECF No. 112.)
i.

The Title IX Claim in Doe

GCPS asks the Court to dismiss the Title IX claim against it in Doe,
because the actual notice and deliberate indifference requirements for
such a claim were not met. (ECF No. 112, PageID.1334–1335.) In the Doe
Plaintiff’s response, she stipulates to dismiss that claim. (ECF No. 124,
PageID.1940.) Accordingly, the Title IX claim in Doe is dismissed.
ii.

The Federal-Law Claims Against GCPS

GCPS asks the Court to dismiss the gender discrimination, failure
to train and supervise claims, and disability discrimination claims
19

against it in Doe and the municipal liability claims against it in Petty and
Washington, all of which are brought under 42 U.S.C. § 1983. (ECF No.
112, PageID.1335, 1338.)

a.

Legal Standard

To bring such claims against a school district, a plaintiff must
“establish that an officially executed policy, or the toleration of a custom
within the school district leads to, causes, or results in the deprivation of
a constitutionally protected right.” Doe v. Claiborne Cnty. ex rel.
Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 507 (6th Cir. 1996) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)). It is not
enough to demonstrate that a municipality employs someone who has
violated a plaintiff’s rights. Monell, 436 U.S. at 691 (“[A] municipality
cannot be held liable under § 1983 on a respondeat superior theory.”).
To establish municipal liability under Monell, a plaintiff must
establish the existence of a policy or custom based on “(1) the
municipality’s legislative enactments or official agency policies; (2)
actions taken by officials with final decision-making authority; (3) a
policy of inadequate training or supervision; or (4) a custom of tolerance
or acquiescence of federal rights violations.” Franklin v. Franklin Cnty.,
20

115 F.4th 461, 470 (6th Cir. 2024) (quoting Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). Plaintiffs must also
demonstrate a “direct causal link” between the policy or custom and “the
constitutional deprivation.” Claiborne Cnty., 103 F.3d at 508.

b.

The Municipal Liability Claims Against GCPS in
Doe

The Doe Plaintiff brings three municipal liability claims under
federal law against GCPS: gender discrimination, failure to train and
supervise, and disability discrimination. She asserts a gender
discrimination claim based on the Equal Protection Clause. (No. 23-cv10372, No. 1, PageID.17–20.) She also includes a separate count alleging
that GCPS violated her daughter’s rights by failing to train and supervise
faculty and staff. (Id. at PageID.23–26.) She describes GCPS as
“deliberately indifferent . . . by failing to supervise or otherwise take
action to prevent the constitutional violations” despite knowledge of
“what Defendant Baird did.” (Id. at PageID.25.) The Doe Plaintiff also
alleges that GCPS is liable for disability discrimination. (Id. at
PageID.21–23.)
The Doe Plaintiff points to two policies or customs that she asserts
directly caused the alleged constitutional violations: failing to
21

independently vet educators and allowing educators to be alone with
children.
First, the Doe Plaintiff asserts that GCPS “relied on Livonia Public
Schools to vet Baird, creating a de facto policy of deliberate indifference
by failing to independently verify his suitability.” (ECF No. 124,
PageID.1942.) Because GCPS did not run its own background check
before it let Baird interact with its students, it did not “identify the public
record of Baird’s prior sexual abuse to [sic] students in Allegan County,”
Plaintiff argues. (Id.) Plaintiff asserts that this failure to vet Baird, who
constituted a “known risk,” in combination with GCPS permitting Baird
to work with students without supervision, “constitutes a policy of
deliberate indifference” and caused the alleged constitutional violations.
(Id.)
GCPS makes several arguments in response. It argues that failure
to conduct an independent investigation of Baird is not a custom. (ECF
No. 147, PageID.5672.) In Claiborne County, the Department of Human
Services (“DHS”) informed a school board that allegations of child abuse
against a teacher were “founded.” 103 F.3d at 502. After that report, the
teacher reached an agreement with DHS and the board approved the
22

rehiring of the teacher who went on to commit further acts of abuse. Id.
at 502–03. The Sixth Circuit held that even if the board was arguably
reckless in failing to do more investigation, such a failure did not
constitute a board action, custom, or policy. See id. at 508–09.
Unlike in Claiborne County, here a GCPS employee acknowledges
the existence of the custom or policy Plaintiffs allege. As set forth above,
in Claiborne County, the school board chose not to act in a particular
instance, while the Doe Plaintiff alleges that when GCPS contracted with
educators from other districts they had a custom of relying on the other
district to vet those educators and not to independently conduct their own
background checks. (ECF No. 124, PageID.1942.) The associate
superintendent of GCPS who was responsible for human resources
acknowledged in a deposition that GCPS had such a custom. (ECF No.
125-22, PageID.2602 (stating that the “custom and practice [for vetting
an educator coming to GCPS from another district] was to entrust that
to the employing district”).) In light of this testimony, the Doe Plaintiff
has established that GCPS had a custom of not independently vetting
educators coming from other districts.

23

Although the Doe Plaintiff points to a custom in support of her
claims against GCPS, she does not state clearly which theory of
municipal liability she relies upon. See Franklin, 115 F.4th at 470. The
Court therefore considers the theories she appears to rely upon, despite
her failure to provide the basis of these claims against GCPS.
The Doe Plaintiff cannot assert municipal liability based on GCPS’s
“legislative enactments or official agency policies.” Id. GCPS has no
affirmative policy “condoning sexual abuse” and, as the Sixth Circuit has
asserted, “no municipality could have such a policy.” Claiborne Cnty., 103
F.3d at 508.
Insofar as the Doe Plaintiff intends to argue for liability based on a
single hiring decision, “[s]imply choosing not to inquire into an
applicant’s background does not amount to deliberate indifference.”
Kovalchuk v. City of Decherd, 95 F.4th 1035, 1039 (6th Cir. 2024). To
bring a claim for failure to screen, a plaintiff must show that “a municipal
actor disregarded a known or obvious consequence of his action.” Bd. of
Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). “Only
where adequate scrutiny of an applicant’s background would lead a
reasonable policymaker to conclude that the plainly obvious consequence
24

of the decision to hire the applicant would be the deprivation of a third
party’s federally protected right can the official’s failure to adequately
scrutinize

the

applicant’s

background

constitute

‘deliberate

indifference.’” Id. at 411.
GCPS objects that Baird’s alleged conduct in this litigation is
insufficiently similar to his conduct at Allegan Public Schools to
demonstrate that it is liable for “failure to screen.” (See ECF No. 147,
PageID.5672–5673.) The Supreme Court has held that, to bring a claim
based on a failure to screen, a court must make “a finding that this
[individual] was highly likely to inflict the particular injury suffered by
the plaintiff.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 412. For
instance, “a record of driving infractions” and having “pleaded guilty to
various driving-related and other misdemeanors, including assault and
battery, resisting arrest, and public drunkenness” is not enough to make
it likely that an officer will violate individuals’ constitutional rights by
using excessive force against them. Id. at 401, 414. In a case where a city
deliberately chose not to investigate a prospective hire’s background, the
Sixth Circuit held there was not a sufficient causal link between concerns
about an officer’s demeanor and professionalism, failure to complete
25

training, and “predisposition to violence” and holding people at gunpoint
during an unconstitutional stop. Kovalchuk, 95 F.4th at 1041. By
contrast, one court has held that hiring a police officer with a history of
“numerous instances of official insubordination, defiance, unlawful
arrests, and violations of safety policies” constituted deliberate
indifference to the high likelihood he would engage in the fatal use of
excessive force. Thompson v. City of Lebanon, No. 3:11-cv-00392, 2014
WL 12677063, at *15 (M.D. Tenn. June 10, 2014). However, the Eighth
Circuit has commented that “prior complaints in an applicant’s
background must be nearly identical to the type of [] misconduct that
caused the constitutional deprivation allegedly suffered by a plaintiff.”
Morris v. Crawford Cnty., 299 F.3d 919, 923 (8th Cir. 2002) (collecting
cases).
GCPS argues that Baird’s previous conduct was not as egregious as
what is alleged here. (ECF No. 147, PageID.5672–5673.) The 2010
photographs Baird took with students in Allegan Public Schools on the
way to an athletic event, which raised concerns about his conduct, indeed
differ greatly from the sexual abuse alleged by Plaintiffs. (ECF No. 1242, PageID.1973.) Files from Allegan Public Schools also include earlier
26

reports of Baird making physical contact with students, trying to seduce
a student and telling her he wanted to kiss her, calling her repeatedly to
discuss his relationships, and soliciting other students’ phone numbers.
(Id. at PageID.2018–2020.) The corresponding written warning to Baird
from 2007 referred to conduct as “cross[ing] the line in regards to an
appropriate student-teacher relationship and could be interpreted as
sexual harassment.” (Id. at PageID.1960.) Public comments about Baird’s
conduct denied that it involved “student safety” or “any illegal activity.”
(Id. at PageID.1983.)
Even if the Court assumes that GCPS had an inadequate screening
procedure, under binding precedent, this prior conduct does not rise to
the level necessary to establish that Baird’s alleged sexual abuse of
students was a known or obvious consequence of hiring him, such that
doing so constituted deliberate indifference to Plaintiffs’ rights. It is not
enough to show that Baird was a “poor candidate” or that more extensive
review would have led to the decision not to hire him. Bd. of Cnty.
Comm’rs of Bryan Cnty., 520 U.S. at 414. Instead, the alleged rights
violations must have been a “plainly obvious consequence of the hiring
decision.” Id. While the record of Baird’s conduct in Allegan Public
27

Schools is troubling, it does not include conduct comparable to the
pattern of sexual abuse and assault alleged in this litigation. The
significant differences between the prior accusations against Baird and
the allegations in these lawsuits, in combination with public comments
from an Allegan Public Schools administrator denying any threat to
student safety, undermines Plaintiff’s claim that this conduct put GCPS
on notice that there was a high likelihood of the specific constitutional
violations alleged here. Kovalchuk, 95 F.4th at 1041. As a result, the Doe
Plaintiff cannot rely on a theory of failure to screen to establish municipal
liability.
As GCPS notes, the Doe Plaintiff’s claims against GCPS can also be
construed as relying upon a “theory of inaction.” (ECF No. 112,
PageID.1337–1338.) When a plaintiff alleges municipal liability based on
a failure to act (also known as an “inaction theory” or “theory of
inaction”), they must demonstrate:
(1) the existence of a clear and persistent pattern of sexual
abuse by school employees;
(2) notice or constructive notice on the part of the [s]chool
[district];
(3) the [s]chool [district]’s tacit approval of the
unconstitutional conduct, such that their deliberate
28

indifference in their failure to act can be said to amount to an
official policy of inaction; and
(4) that the [s]chool [district]’s custom was the “moving force”
or direct causal link in the constitutional deprivation.
Claiborne Cnty., 103 F.3d at 508 (citing City of Canton v. Harris, 489 U.S.
378, 388–89 (1989); Thelma D. v. Bd. of Educ. of City of St. Louis, 934
F.2d 929, 932–33 (8th Cir. 1991)).
The Doe Plaintiff does not demonstrate that the custom of not
independently vetting educators from other districts “reflected []
deliberate, intentional indifference to the sexual abuse of [GCPS]
students.” Id. In fact, she does not address the relevant factors set forth
in Claiborne County. For instance, she does not establish that the policy
at issue constitutes “tacit approval” of unconstitutional conduct or
deliberate indifference in GCPS’s “failure to act.” Id. Such a contention
“typically requires proof that the municipality was aware of prior
unconstitutional actions by its employees and failed to take corrective
measures.” Miller v. Calhoun Cnty., 408 F.3d 803, 815 (6th Cir. 2005)
(citing Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997)); see
also Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 407 (“If a program
does not prevent constitutional violations, municipal decisionmakers
29

may eventually be put on notice that a new program is called for. Their
continued adherence to an approach that they know or should know has
failed to prevent tortious conduct by employees may establish [] conscious
disregard for the consequences of their action[.]”).
The Doe Plaintiff argues that relying on LPS’s vetting policy left
students vulnerable and, in this case, led to a failure to discover Baird’s
past conduct. (ECF No. 124, PageID.1942.) She does not establish that
GCPS knew of Baird’s past conduct and maintained an inadequate policy,
nor does she argue that the policy of relying on other districts’ vetting
procedures caused any similar failures in the past. Instead, she argues
that GCPS could have discovered Baird’s past misconduct. (Id. at
PageID.1943.) That does not rise to the level of deliberate indifference.
Claiborne Cnty., 103 F.3d at 508 (“‘Deliberate indifference’ in this context
does not mean a collection of sloppy, or even reckless, oversights; it means
evidence showing an obvious, deliberate indifference to sexual abuse.”)
As a result, the Doe Plaintiff cannot succeed on an inaction theory based
on the record she presents. Her federal-law claims against GCPS cannot
survive based on GCPS’s custom or policy of relying on other school

30

districts for vetting, because that practice cannot support any theory of
municipal liability.
Second, the Doe Plaintiff briefly refers to another custom or policy:
GCPS allowing Baird to be alone with students and to take them off
school grounds alone. (ECF No. 124, PageID.1943.) Again, she does not
specify which theory of municipal liability this policy supports, so the
Court considers several possible theories suggested by the briefing.
First is whether the Doe Plaintiff can establish municipal liability
based on the existence of an affirmative policy. In Franklin, a plaintiff
brought municipal liability claims, asserting that she was sexually
abused due to a jail’s “practice of permitting one male officer to transport
a lone female inmate.” 115 F.4th at 470. The Sixth Circuit held that
[the plaintiff’s] argument shows only that the Jail’s
transportation custom provided the opportunity for [the
officer’s] unlawful behavior. Opportunity alone, however, fails
to show that the Jail’s custom “direct[ly]” caused [the] assault.
See Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th
Cir. 2004). Indeed, Franklin must “show that the particular
injury was incurred because of the execution of that policy [or
custom].” See Doe v. Claiborne Cnty. ex rel. Claiborne Cnty.
Bd. of Educ., 103 F.3d 495, 508 (6th Cir. 1996) (emphasis in
original) (quoting Garner, 8 F.3d at 364).

31

Id. at 471. Assuming that a policy or custom of allowing teachers to be
alone with students or taking them off school grounds exists—the Doe
Plaintiff has only asserted that this policy or custom gave Baird an
opportunity to commit acts of sexual abuse. As Franklin instructs, such
an opportunity is insufficient to constitute a direct cause of sexual abuse.
Therefore, the Doe Plaintiff cannot bring these claims based on an alleged
policy of allowing teachers to be alone with students or to take them off
school grounds.
To the extent the Doe Plaintiff intends to argue that allowing Baird
to be alone with students makes GCPS liable based on a theory of
inaction, she does not refer to or cite evidence responsive to the factors
set forth in Claiborne County. 103 F.3d at 508.
If the Doe Plaintiff intends to establish municipal liability based on
inadequate supervision or training, she “must prove the following: (1) the
training or supervision was inadequate for the tasks performed; (2) the
inadequacy was the result of the municipality’s deliberate indifference;
and (3) the inadequacy was closely related to or actually caused the
injury.” Franklin, 115 F.4th at 474. To demonstrate deliberate
indifference with respect to such claims, a plaintiff must show that the
32

failure to train or supervise was either in a situation where the
consequences from lack of training or supervision were foreseeable or
where a municipality failed to address repeated constitutional violations
by its employees. See id. The evidence provided by the Doe Plaintiff,
including the reports from Marasco and Dr. Shakeshaft, do not meet this
standard.
The Doe Plaintiff cannot establish deliberate indifference by
arguing that GCPS ignored foreseeable consequences by allowing Baird
to be alone with students, giving him the opportunity to engage in abuse,
because the Sixth Circuit has held that such arguments must be rejected.
Mize v. Tedford, 375 F. App’x 497, 501 (6th Cir. 2010) (rejecting the
argument that a municipality was deliberately indifferent, because its
police department “did not supervise [an officer] closely and that, had the
department given him less free rein, he might not have had the
opportunity to rape [the plaintiff]”). She also does not cite evidence of a
pattern of constitutional violations that GCPS ignored. A failure to train
or supervise claim based on the policy of allowing Baird to be alone with
students therefore cannot succeed.

33

The Doe Plaintiff fails to point to a custom or policy—either related
to vetting educators or allowing educators to be alone with students—
that supports any theory of municipal liability.
Not only that, but GCPS adds a further reason why the Doe
Plaintiff’s disability discrimination claim under 42 U.S.C. § 1983 fails.
That “count fails to allege any conduct by GCPS,” in addition to failing
under Monell for the reasons set forth above. (ECF No. 112,
PageID.1338.) The disability discrimination alleged by the Doe Plaintiff
only refers to Baird’s conduct, though it mentions GCPS in the heading
of the count and in the description of damages. (No. 23-cv-10372, ECF
No. 1, PageID.21–22.) The Doe Plaintiff’s response brief does not address
GCPS’s arguments regarding her disability discrimination claim. As set
forth above, GCPS’s policies and customs related to vetting and allowing
educators to be alone with students do not support municipal liability.
The Doe Plaintiff does not point to any other GCPS policies or customs to
support her disability discrimination claim, nor does she explain any
other way in which GCPS is liable for disability discrimination.

34

Accordingly, her gender discrimination, failure to train and
supervise, and disability discrimination claims against GCPS must be
dismissed.

c.

The Municipal Liability Claims Against GCPS in
Petty and Washington

The Petty and Washington Plaintiffs allege municipal liability
claims against GCPS that are similar to the claims asserted in Doe, but
they group their claims together as a single count in their complaints.
(ECF No. 40, PageID.477; No. 22-cv-12402, ECF No. 1, PageID.19.) GCPS
argues that the municipal liability claims brought by the Petty and
Washington Plaintiffs must be dismissed.
The Petty and Washington Plaintiffs do not put forward evidence or
arguments that are substantially different from the Doe Plaintiff. They
contend that GCPS’s response to Baird’s alleged conduct does not
undermine municipal liability and cite to the “custom” of not
independently vetting educators from other districts. (ECF No. 125,
PageID.2231.) They refer to the opinion of their proposed experts,
Anthony Marasco and Dr. Charol Shakeshaft, who opine that GCPS
should have independently vetted Baird. (Id. at PageID.2232; see also
ECF No. 125-23, PageID.2652; ECF No. 125-24, PageID.2755–2756.)
35

The Petty and Washington Plaintiffs do not show that GCPS
exhibited “obvious, deliberate indifference to sexual abuse” by having
this policy, however. Claiborne Cnty., 103 F.3d at 508. They do not
demonstrate that there were any incidents at GCPS that made Baird’s
alleged conduct the product of a policy of inaction “in the face of repeated
constitutional violations.” Id. at 509; see also Leach v. Shelby Cnty.
Sheriff, 891 F.2d 1241, 1247 (6th Cir. 1989) (discussing a record of 14
other episodes of similar mistreatment as evidence of deliberate
indifference). Dr. Shakeshaft asserts that in the early 2010s, there were
two allegations of misconduct by GCPS teachers. (ECF No. 125-24,
PageID.2748; ECF No. 125-22, PageID.2621–2622.) The Petty and
Washington Plaintiffs are unable to provide detail about these past
incidents or whether they arose out of a policy of not independently
vetting educators from outside GCPS. The Petty and Washington
Plaintiffs therefore do not succeed in demonstrating that GCPS’s
approach to vetting educators from outside the district amounts to
deliberate indifference. Nor do they provide arguments or evidence that
this policy or custom could support a theory of municipal liability by
GCPS.
36

Like the Doe Plaintiff, the Petty and Washington Plaintiffs also
argue that there was a custom or policy of letting Baird be alone and
isolated with vulnerable students. (ECF No. 125, PageID.2232.) They
rely on their experts’ opinion that such a policy is inadequate. (Id. at
PageID.2233.) They also cite comments from a GCPS official about
expectations related to whether employees should keep doors open
during one-on-one instruction. (Id. at PageID.2232.) He stated that no
policy forbade working one-on-one with a student in a closed room
without someone being able to see inside, though his “general
expectation” was that the door should be open in that situation. (ECF No.
125-22, PageID.2608–2609.) As with the arguments offered by the Doe
Plaintiff, these Plaintiffs do not meet the rule established in Franklin,
which holds that—to support municipal liability—an affirmative custom
or policy must cause the alleged injury rather than providing the
opportunity for unlawful behavior. 115 F.4th at 471. They also do not
establish liability for a failure to train or supervise or a theory of
inaction—nor do they establish liability based on any other theory.

37

Accordingly, because the arguments the Petty and Washington
Plaintiffs make for municipal liability fail, their federal-law claims
against GCPS must be dismissed.
iii.

The Federal-Law Claims Against Fisher and
Bohnwagner

Under 42 U.S.C § 1983, the Petty and Washington Plaintiffs allege
that Fisher and Bohnwagner, in their individual and official capacities,
are subject to supervisory liability. (ECF No. 40, PageID.477; No. 22-cv12402, ECF No. 1, PageID.19.) Fisher and Bohnwagner argue that,
insofar as claims against GCPS are dismissed, supervisory liability
claims against them in their official capacities should be dismissed as
well. (ECF No. 112, PageID.1339.) They also argue for dismissal of the
supervisory liability claims against them in their individual capacities,
claiming an entitlement to qualified immunity and asserting that they
did not engage in any unconstitutional conduct. (Id. at PageID.1339,
1341.)
As to the supervisory liability claims against Fisher and
Bohnwagner in their official capacities, “a suit against an official of the
state is treated as a suit against the municipality.” Claiborne Cnty., 103
F.3d at 509 (citing Kentucky v. Graham, 473 U.S. 159, 165–66 (1985))
38

(affirming dismissal of official capacity claims in light of the proper
dismissal of claims against the relevant municipal entity). Although the
Sixth Circuit does not require dismissal of official-capacity claims simply
because they are duplicative of claims against municipal entities,
Troutman v. Louisville Metro Dep’t of Corr., No. 3:16-cv-742, 2018 WL
6413201, at *3 (W.D. Ky. Dec. 6, 2018), it has “approved the dismissal of
official-capacity claims against individual defendants where the
government entity is a party and the plaintiff fails to demonstrate that a
policy or custom of the defendant government entity played a part in the
violation.” Baar v. Jefferson Cnty. Bd. of Educ., 476 F. App’x 621, 635 (6th
Cir. 2012) (table opinion) (collecting cases). As set forth in the previous
section, the Petty and Washington Plaintiffs failed to demonstrate that
GCPS had a policy or custom that caused the alleged violations.
Accordingly,

their

official-capacity

claims

against

Fisher

and

Bohnwagner are dismissed.
As to the supervisory liability claims against Fisher and
Bohnwagner in their individual capacity, they argue for dismissal based
on qualified immunity and a lack of evidence that they were actively
involved in Baird’s conduct. (ECF No. 112, PageID.1339, 1341.)
39

Qualified immunity means that “government officials performing
discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
doctrine protects “all but the plainly incompetent or those who knowingly
violate the law.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008).
Courts must determine “(1) whether, considering the allegations in
a light most favorable to the party injured, a constitutional right has been
violated, and (2) whether that right was clearly established.” Id. Courts
have discretion to analyze the two prongs of the qualified immunity
analysis in either order. Pearson v. Callahan, 555 U.S. 223, 242–43
(2009). “[I]f the facts alleged and evidence produced, viewed in the light
most favorable to the plaintiff, would permit a reasonable juror to find
that the [defendant] violated a clearly established constitutional right,
dismissal by summary judgment is inappropriate.” Barton v. Martin, 949
F.3d 938, 947 (6th Cir. 2020).
To be held liable for a constitutional violation, a defendant must
have committed the violation through their “own individual actions” and
40

cannot be held liable based on “proximity” to wrongdoing or respondeat
superior. Pineda v. Hamilton Cnty., 977 F.3d 483, 490 (6th Cir. 2020)
(citations omitted). Plaintiffs have the burden of demonstrating
Defendants are not entitled to qualified immunity. Bell v. City of
Southfield, 37 F.4th 362, 367 (6th Cir. 2022).
To bring a supervisory liability claim, a plaintiff must demonstrate
that the supervisor was actively involved in the relevant conduct,
meaning that “a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the
offending subordinate.” Crawford v. Tilley, 15 F.4th 752, 761 (6th Cir.
2021) (quoting Garza v. Lansing Sch. Dist., 972 F.3d 853, 865 (6th Cir.
2020)). A supervisor’s failure to act—even if they are negligent or
reckless—is not sufficient to support a liability claim against them, nor
may courts impose liability on a supervisor based on respondeat superior.
Id. A plaintiff seeking to allege supervisory liability must also establish
that a supervisor’s “execution of his job functions” was the cause in fact
and proximate cause of the plaintiff’s injuries. Id. at 762.
The Petty and Washington Plaintiffs argue that Fisher and
Bohnwagner “failed to enact proper precautions (in the face of foreseeable
41

risks) where there was no interview process relative to Baird and where
he was permitted to be in closed rooms alone with individual student.”
(ECF No. 125, PageID.2235.) “Supervisory liability is generally limited
to times when the supervisor had existing knowledge of the specific type
of conduct that led to a plaintiff’s injuries.” Crawford, 15 F.4th at 767
(collecting cases). For instance, “where a defendant has knowledge that
the methods she has used to address instances of abuse are ineffective,
she does not take adequate precautions by simply continuing to use those
methods.” Garza, 972 F.3d at 866. The Petty and Washington Plaintiffs
do not demonstrate that Fisher and Bohnwagner had any knowledge of
past instances of abuse by Baird or any knowledge that GCPS policies
were ineffective in preventing abuse. They also do not establish that
Fisher and Bohnwagner were confronted by a “widespread pattern of
constitutional violations” to which they were deliberately indifferent by
encouraging, participating, authorizing, approving, or knowingly
acquiescing in Baird’s alleged conduct. Doe ex rel. Doe v. City of Roseville,
296 F.3d 431, 440–41 (6th Cir. 2002). Fisher and Bohnwagner are unlike
the defendant in Garza who took no action “despite receiving multiple
complaints that made her aware of . . . misconduct.” 972 F.3d at 869; see
42

also Troutman v. Louisville Metro Dep’t of Corr., 979 F.3d 472, 488 (6th
Cir. 2020) (describing cases involving supervisory liability where
defendants were personally responsible for violations in part based on
their actual knowledge of institutional failures, as opposed to merely
“inadequately perform[ing their] responsibilities”). The Petty and
Washington Plaintiffs therefore fail to establish that Fisher and
Bohnwagner were actively involved in the relevant conduct by Baird.
Accordingly, these supervisory liability claims against Fisher and
Bohnwagner in their individual capacities must be dismissed.
iv.

The State-Law Claims Against the GCPS
Defendants

Given that no federal claims remain against the GCPS Defendants,
the Court declines to exercise supplemental jurisdiction over Plaintiffs’
remaining state-law claims against these Defendants. The Sixth Circuit
instructs that “[a] federal court that has dismissed a plaintiff’s federallaw claims should not ordinarily reach the plaintiff’s state-law claims.”
Burnett v. Griffith, 33 F.4th 907, 915 (6th Cir. 2022) (quoting Rouster v.
Cnty. of Saginaw, 749 F.3d 437, 454 (6th Cir. 2014)); see also 28 U.S.C. §
1367(c)(3). Accordingly, the Petty and Washington Plaintiffs’ claims
arising under state law are dismissed without prejudice.
43

C.

The WWCSD Motion

The WWCSD Defendants also ask the Court to grant them
summary judgment in the cases against them: Blank and Wilhelm. (ECF
No. 113, PageID.1642–1643.)
i.

The Federal-Law Claims Against WWCSD

WWCSD asks the Court to dismiss the municipal liability claims
against it in Blank and Wilhelm that were brought under 42 U.S.C. §
1983. (Id. at PageID.1654–1656.) In response, the Blank and Wilhelm
Plaintiffs argue that WWCSD is liable, because it failed to properly vet
Baird and it allowed him to interact with students alone, including in
closed-door settings. (ECF No. 126, PageID.2783–2784; ECF No. 127,
PageID.3313–3315.)
The Wilhelm Plaintiff describes WWCSD’s vetting policy as a “clear
pattern of inaction.” (ECF No. 127, PageID.3314; see also ECF No. 126,
PageID.2783 (the Blank Plaintiffs asserting that WWCSD “did nothing”
and “failed to take the simplest steps” to vet Baird).)
As set forth above in Section III.B.ii, to establish municipal liability
claims based on a policy of inaction, a plaintiff must demonstrate a clear
and persistent pattern of sexual abuse by school employees, notice or
44

constructive notice of the abuse, deliberate indifference amounting to “an
official policy of inaction,” and that the policy or custom caused the
violation. Claiborne Cnty. 103 F.3d at 508. The Sixth Circuit also
instructs that “[t]he evidence must show that the need to act is so obvious
that the [defendant’s] ‘conscious’ decision not to act can be said to amount
to a ‘policy’ of deliberate indifference to [the plaintiff’s] constitutional
rights.” Id.; see also Miller, 408 F.3d at 815–16 (holding that lack of
“evidence of similar incidents having previously occurred at the
Correctional Facility [meant] that the [defendant was not] on notice of
the danger of constitutional violations”).
The Wilhelm Plaintiff’s claims relate to Baird’s alleged abuse of
M.S. Doe between 2017 and 2019. (No. 22-cv-10809, ECF No. 1,
PageID.6.) In a deposition, M.S. Doe stated that after an incident of
abuse, she reported aspects of what occurred to a teacher who did not do
anything in response. (ECF No. 135-3, PageID.4813 (explaining that she
informed a teacher that Baird pulled his pants down in her presence).)
She also reported that she told a classmate. (Id. at PageID.4814.) M.S.
Doe reported her allegations to her mother in 2022, after which the police
were informed. (ECF No. 127, PageID.3300.)
45

The Blank Plaintiffs’ claims relate to Baird’s alleged abuse of K.B.
Doe on February 11, 2020. That day K.B. Doe reported to her teacher that
she was uncomfortable with Baird and did not want to see him again.
(ECF No. 126-20, PageID.3137, 3141–3142.) She reported her allegations
against Baird to her parents and to WWCSD employees on February 11,
2022. (Id. at PageID.3137.)
This evidence does not demonstrate that there was a “clear and
persistent pattern” of abuse about which WWCSD had notice and tacitly
approved. Claiborne Cnty. 103 F.3d at 508. Construing the evidence in a
light most favorable to Plaintiffs, during the period when the abuse might
have been prevented, one student made allegations of abuse against
Baird and another expressed discomfort about working with Baird. LPS
never informed WWCSD about the allegations from GCPS students. (No.
22-cv-10809, ECF No. 1, PageID.7.) The Sixth Circuit has held that
awareness of this number of violations does not constitute notice of
“habitually unconstitutional conduct.” D’ambrosio v. Marino, 774 F.3d
378, 388 (6th Cir. 2014) (discussing awareness of three or four prior
violations as insufficient to constitute notice). WWCSD received two
reports from students, only one of which was a specific allegation of abuse
46

as opposed to an expression of discomfort. WWCSD did not have notice
that its vetting policies—or any other policy—had to change to avoid
constitutional violations. Id. Even if WWCSD employees were “recklessly
passive in the performance of their duties” in failing to investigate two
students’ concerns, that would not be enough to establish WWCSD’s
“obvious, deliberate indifference to sexual abuse.” Claiborne Cnty. 103
F.3d at 508. The Blank and Wilhelm Plaintiffs do not establish that
GCPS is liable under any theory of municipal liability, as they do not
provide arguments or evidence that overcome the obstacles discussed in
Section III.B.ii.
Insofar as the Blank and Wilhelm Plaintiffs allege constitutional
violations based on a policy of allowing teachers to be alone with
students, (ECF No. 127, PageID.3314–3315), that argument fails for the
reasons set forth above in Section III.B.ii. Franklin holds that a custom
or policy must cause the alleged injury rather than provide the
opportunity for unlawful behavior. 115 F.4th at 471. The policy of
allowing teachers to be alone with students does not meet that standard.
Further, this custom or policy does not support municipal liability for a
failure to train or supervise, because it does not constitute deliberate
47

indifference to constitutional violations, as set forth in Section III.B.ii.
The fact that two children reported Baird to their teachers does not show
that WWCSD was on notice of repeated claims of constitutional
violations, because the Sixth Circuit has held that two reports is
insufficient to establish deliberate indifference. Ellis ex rel. Pendergrass
v. Cleveland Mun. School Dist., 455 F.3d 690, 701 (6th Cir. 2006). There
is therefore no basis to hold WWCSD liable based on the custom or policy
of allowing educators to be alone with students.
Because the alleged WWCSD customs or policies the Blank and
Wilhelm Plaintiffs rely upon do not establish WWCSD’s liability under
42 U.S.C. § 1983, their federal-law claims against WWCSD must be
dismissed.
ii.

The Federal-Law Claims Against Simmons, Doman,
Dignan, Provost, and Hawthorne

Plaintiffs sue Simmons, Doman, Dignan, Provost, and Hawthorne
in their individual and official capacities. (No. 22-cv-10809, ECF No. 1,
PageID.1; No. 22-cv-12404, ECF No. 1, PageID.1.) Simmons, Doman,
Dignan, Provost, and Hawthorne seek dismissal of both types of claims,
which allege supervisory liability against them. (ECF No. 113,
PageID.1657.)
48

As set forth above in Section III.B.iii, the Court must dismiss
supervisory liability claims brought against someone in their official
capacity when claims against the corresponding municipality are
properly dismissed. As set forth above in Section III.C.i, the federal-law
claims against WWCSD are properly dismissed. Accordingly, the Court
dismisses the federal-law claims against Simmons, Doman, Dignan,
Provost, and Hawthorne in their official capacities.
Simmons, Doman, Dignan, Provost, and Hawthorne also seek
dismissal of the supervisory liability claims brought against them in their
individual capacities. They argue for dismissal based on qualified
immunity and a lack of evidence that they were actively involved in
Baird’s conduct. (ECF No. 113, PageID.1657–1659.) The applicable legal
standards are set forth above in Section III.B.iii.
The Blank Plaintiffs, who assert supervisory liability claims
against Simmons and Doman, assert that “Defendant [sic] failed to enact
proper precautions (in the face of foreseeable risks) where there was no
interview process relative to Baird and where he was permitted to be in
closed rooms alone with individual students.” (ECF No. 126,
PageID.2786.) They refer to their arguments about municipal liability in
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support of this assertion. (Id.) This argument is identical to those that
the Court rejected above in Section III.B.iii. It fails for the same reasons
that those arguments fail. The Blank Plaintiffs do not cite any evidence
that Simmons and Doman knew about Baird’s conduct or knew that the
policies in place were ineffective. They do not cite any evidence specific
to Simmons and Doman that would otherwise establish their active
involvement in the underlying conduct. The Wilhelm Plaintiff also fails
to cite any evidence related to the supervisory liability claims against
Dignan, Provost, and Hawthorne. 4 Accordingly, the federal-law claims
against Simmons, Doman, Dignan, Provost, and Hawthorne in their
individual capacities must be dismissed.
iii.

The State-Law Claims Against the WWCSD
Defendants

Given that no federal claims remain against the WWCSD
Defendants, the Court declines to exercise supplemental jurisdiction over
Plaintiffs’ remaining claims against them arising under state law. The

4 The Wilhelm Plaintiff refers to Rule 56(d) in her discussion of supervisory

liability. (ECF No. 127, PageID.3316.) Having now had a full opportunity to conduct
discovery, she has chosen not to supplement the record. (See ECF No. 180.) For the
reasons set forth above in Section III.A, the Court will consider the WWCSD Motion
based on the record before it.

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Sixth Circuit instructs that “[a] federal court that has dismissed a
plaintiff’s federal-law claims should not ordinarily reach the plaintiff’s
state-law claims.” Burnett v. Griffith, 33 F.4th 907, 915 (6th Cir. 2022)
(quoting Rouster v. Cnty. of Saginaw, 749 F.3d 437, 454 (6th Cir. 2014));
see also 28 U.S.C. § 1367(c)(3). Accordingly, the Petty and Washington
Plaintiffs’ claims arising under state law are dismissed without
prejudice.
IV.

Conclusion

For the reasons set forth above, the Court GRANTS the GCPS
Motion for Summary Judgment, (ECF No. 112), as to the federal-law
claims against GCPS, Fisher, and Bohnwagner, and GRANTS the
WWCSD Motion for Summary Judgment, (ECF No. 113), as to the
federal-law claims against WWCSD, Simmons, Doman, Dignan, Provost,
and Hawthorne. These federal-law claims are therefore dismissed with
prejudice. The Court declines to exercise supplemental jurisdiction over
Plaintiffs’ state-law claims and dismisses those claims without prejudice.
IT IS SO ORDERED.
Dated: March 6, 2025
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 6, 2025.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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