KD, et al vs. Douglas County Public School District No. 001, et al

Filing 170

MEMORANDUM AND ORDER - The Motions for Summary Judgment filed by Defendant Douglas County Public School District No. 001, a/k/a Omaha Public Schools (OPS), ECF No. 124 , and Defendant Daniel Bartels, ECF No. 132 , are granted. All claims against th e Doe Defendants, OPS, and Daniel Bartels are dismissed, with prejudice. All other pending motions and objections are denied as moot. The Clerk of Court is directed to remove the Doe Defendants, OPS, and Bartels from the case caption. Ordered by Senior Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KD, PARENT, NATURAL GUARDIAN
AND NEXT FRIEND OF LD; AND JD,
PARENT, NATURAL GUARDIAN AND
NEXT FRIEND OF LD;

8:17CV285
MEMORANDUM AND ORDER

Plaintiffs,
vs.
DOUGLAS COUNTY SCHOOL DISTRICT
NO. 001, DANIEL BARTELS, BRIAN
ROBESON, JOE DOE, and JANE DOE,
Defendants.

This matter is before the Court on the Motions for Summary Judgment filed by
Defendant Douglas County Public School District No. 001, a/k/a Omaha Public Schools
(OPS), ECF No. 124, and Defendant Daniel Bartels, ECF No. 132. Also before the Court
are Plaintiffs’ Motion in Limine, ECF No. 148, and Defendants’ Joint Objection to the
Magistrate Judge’s Preliminary Pretrial Order, ECF No. 167. The Motions for Summary
Judgment will be granted and the Motion in Limine and Objection will be denied as moot.
BACKGROUND
The following facts are those stated in the parties’ briefs, supported by pinpoint
citations to admissible evidence in the record, in compliance with NECivR 56.11 and

1

See NECivR 56.1(b)(1):

The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should address
each numbered paragraph in the movant’s statement and, in the case of any disagreement,
contain pinpoint references to affidavits, pleadings, discovery responses, deposition
testimony (by page and line), or other materials upon which the opposing party relies.
Properly referenced material facts in the movant’s statement are considered admitted
unless controverted in the opposing party’s response.

Federal Rule of Civil Procedure 56. The Court has also drawn from the parties’ joint
statement of uncontroverted facts.
I. The Parties
Plaintiff LD was a student in her 7th and 8th Grade years in OPS at Alfonza Davis
Middle School (“Davis Middle School”) from August 14, 2013, through May 22, 2015. The
2013-14 school year was the first year that Davis Middle School was open. LD attended
Marian High School beginning in the fall semester 2015 as a freshman and graduated
with honors in May 2019. At Marian High School, LD was a member of the National Honor
Society, Mu Alpha Theta Math Society, the Quill & Scroll journalism honorary society, and
participated in various clubs and sports. Plaintiffs KD and JD are LD’s parents. MD is
LD’s older sister and was three grades ahead of LD in school. ND is LD’s younger sister.
OPS is a political subdivision and school district. Daniel Bartels is an administrator
employed by OPS and during the relevant time was Principal of Davis Middle School.
Defendant Brian Robeson was formerly employed by OPS and taught at Davis
Middle School. OPS interviewed Robeson and received satisfactory written references
for him before he was hired. Robeson disclosed on his application that he had a DUI,
which did not disqualify him from teaching, because he was not being hired to drive
students.2 Before hiring Robeson, OPS checked the child abuse registry, which showed
no entries for Robeson, and checked for criminal background through a private agency.

2

At OPS, criminal convictions were not a bar to employment, but were considered only in relation
to specific job requirements. A DUI was not an automatic basis for termination of a teacher as long as he
or she fulfilled the duties of the job.

2

By 2006, Robeson had a Master of Science Degree in Elementary Education with a
concentration in math and science.
Robeson taught from August 2003 to 2013 at OPS’s Prairie Wind Elementary
School and received satisfactory evaluations. He taught sixth grade for several years. In
2013, he transferred from Prairie Wind Elementary to Davis Middle School, because
Prairie Wind Elementary was eliminating its 6th Grade. After transferring, Robeson taught
7th Grade pre-algebra and algebra, and a “Take Flight Class.” Bartels did not know
Robeson until he was assigned to teach at Davis Middle School. Robeson’s classroom
was Room 150, which was the first classroom in the 7th Grade wing of the school. In
2013-14, Robeson taught algebra to LD. She was also in Robeson’s “Take Flight Class.”
Robeson was not LD’s teacher in 2014-15 when she was in 8th Grade.
II. Overview of OPS Policies
The OPS Board of Education (BOE) has the power to hire, suspend and terminate
teachers. Neb. Rev. Stat. §79-827. In order to exercise its rights and duties, the BOE
prepared and published policies and regulations covering organization, policies, and
procedures of the school system. OPS had policies in effect for the 2013-15 school years
which prohibited sexual harassment and provided a complaint system for the reporting of
sexual harassment.
During the relevant time, no formal OPS policies prohibited teachers from hugging
students or being alone in a classroom with a student. Yet OPS had specific policies
related to employee-to-student harassment, teacher boundaries, reporting of suspected
child abuse, and educator misconduct. These policies were included in several
publications distributed to principals, teachers, and other employees.
3

OPS had a specific policy regarding teacher boundaries, independent of the
employee-to-student

harassment

policy,

including

guidelines

for

electronic

communication, romantic relationships, gift giving, special treatment, and other signs of
grooming. The policy made clear that students cannot consent to such conduct. In the
2013-14 school year, OPS implemented district-wide training for all staff regarding
prevention of adult sexual misconduct and reporting of child abuse and neglect. OPS
refreshed the training annually.
The OPS Department of Student and Community Services periodically issued
“Intercommunications Memos” to Principals, Assistant Principals, Deans of Students,
Counselors, and others regarding “Reporting of Abuse and Neglect,” which also included
procedures for reporting harassment and abuse. Recipients were instructed to review the
reporting procedures with all staff. For the 2014-15 and 2015-16 school years, OPS
distributed a “Principal Packet” to all district principals. The Principal Packet included a
memo with flow charts for the reporting of harassment. Principals were to review the
procedures in a staff meeting at the beginning of each school year.
The Davis Middle School Student Handbooks for 2013-14 and 2014-15 included a
definition of sexual harassment. The Handbooks also described the process for reporting
sexual harassment by an employee or visitor, the options and process for reporting abuse
and neglect, and the phone number for the Assistant Superintendent for Student and
Family Services. The policies applied to all school-sponsored activities on or off campus,
and included an explanation of confidentiality, a prohibition of retaliation, and an appeal
process.

4

The parties agree that the OPS superintendent had primary responsibility for
enforcing school policies for teachers. The superintendent delegated that responsibility
to OPS Human Resources and school principals, depending on the situation and the
context. Principals enforced policies with the support of Human Resources. Bartels
considered it his job to investigate reports of misconduct and to use his discretion and
skills as a principal to determine whether reports were substantiated.
III. Reports of Robeson’s Behavior During the 2013-14 School Year
In August 2013, Counselor Jen Walker reported to Bartels that staff members,
herself included, witnessed Robeson hugging many students, male and female. Bartels
Dep. 57:24–58:16, 58:20–62:1, ECF No. 128-1. Bartels responded by coaching Robeson
on proper interactions with students, including a physical demonstration of how to use a
side hug and high five. Bartels Dep. 40:19 – 41:5, ECF No. 128-1.
Later in the 2013-14 school year, teacher Christine Jurgens spoke to Bartels about
Robeson giving prolonged hugs to students, not including LD. Jurgens stated that she
and Bartels together once observed Robeson give a prolonged hug. Jurgens Dep. 50:24–
53:7, ECF No. 128-5. Bartels responded by having a discussion with Robeson which
stopped the hugging for a few days.
LD transferred from the Westside School District to OPS for her 7th Grade year.
She had been reluctant to attend Davis Middle School because she would miss her
friends. She was randomly assigned to Robeson’s “Take Flight Class” in 7th Grade and
was transferred from pre-algebra to algebra as a result of placement testing and her
parents’ request. Robeson was the only algebra teacher at Davis Middle School.
Robeson knew LD and her family because they attended the same church.
5

On April 23, 2014, Bartels was informed that Robeson was mentoring LD in his
classroom.

Bartels told Robeson to stop immediately and explained that Robeson

needed to seek permission from LD’s parents. Robeson told Bartels that LD’s parents
wanted Robeson to mentor her. At some point, LD’s parents gave permission for Robeson
to have lunchtime meetings with LD outside the classroom. The lunches were to take
place somewhere in the administrative office area.
IV. Reports of Robeson’s Behavior During the 2014-15 School Year
Early in September 2014, Instructional Facilitator Jennie Meyer reported that LD,
now in 8th Grade, and several of her friends were going to the 7th Grade floor. Later in
the fall of 2014, Meyer reported that she saw LD in Robeson’s classroom with the door
open. Because LD was crying, Assistant Principal Amy Ellis went to the classroom and
inquired why LD was at that location and why she was crying. Robeson responded that
LD was okay and on her way to class. Ellis suggested that LD see a counselor, but LD
went on to her class.
On October 20, 2014, LD spoke to Walker about the way counselor Chris Johnson
looked at her. Later, Walker spoke to Bartels and to LD’s mother to address the situation.
Bartels visited with Johnson.
In November 2014, Bartels walked by Robeson’s classroom and observed
Robeson and LD eating lunch in his classroom with the door open. Bartels asked them
what they were doing, and both responded they were having lunch and doing their
mentoring. Bartels reminded them that mentoring needed to take place in the
administrative office. Later that day, Bartels met with Robeson and reminded him that it
was his responsibility as a mentor to make sure mentoring occurred in the office, and not
6

his classroom. Later that semester, Bartels gave permission for the mentoring to take
place in the conference room next to the principal’s office, provided that the door was
open and both Robeson and LD could be viewed from the hallway.
Sometime in late winter of the 2014-15 school year, likely February 2015, Walker,
informed Bartels that a coach3 saw Robeson tie LD’s shoe in the hallway by the girl’s
locker room when other athletes and coaches were present. Bartels asked Robeson
about the incident and he denied it happened.
On March 4, 2015, an unsigned handwritten note was left in Bartels’s mailbox. It
said, paraphrased, “I find it curious that LD is absent on the same day as Mr. Robeson.”
Bartels Dep. 82:25–83:18, ECF No. 128-1. Bartels discussed the note with Assistant
Principal Amy Ellis but they could not identify the author from the handwriting. The note
was discarded. On the same day, Bartels called LD’s father to verify LD’s absence. LD’s
father informed Bartels that LD was home ill.
In April 2015, paraprofessional Chantalle Galbraith reported that she saw Robeson
grab LD’s phone from her back pocket. Galbraith was concerned because staff had just
received training about possessing student property. Bartels asked Robeson to explain
what happened. Robeson’s report was consistent with Galbraith’s. Bartels warned
Robeson not to engage in that type of conduct.
Later in the spring of 2015, Galbraith saw Robeson hug4 LD in the hallway and
saw him eating lunch with LD in his classroom, with the door closed and lights dim. In

3

The coach did not want to be identified and Walker did not give the coach’s name.

Plaintiffs’ statement of this incident implies that Gailbraith saw LD and Robeson hugging in
Robeson’s darkened classroom. Defendants do not dispute this account in their joint reply but the Plaintiffs’
4

7

response, Bartels instructed the security guard to walk by Robeson’s classroom. The
security guard reported that no one was in the classroom. Nevertheless, Bartels advised
Robeson that his conduct was inappropriate and counseled him about proper interactions
with students.
On May 1, 2015, Rebecca Stichler, special education resource teacher, emailed
Walker, stating: “I am concerned with [LD] and the amount of time that she is spending
with Mr. Robeson, her mentor. I am thinking if she needs this much support from him, she
should be receiving support or help beside what he can offer her. I meant to catch you
earlier.”

ECF No. 127-21; Bartels Dep. 253:24 – 254:7, ECF No. 128-1.

Walker

responded later that day, stating: “I agree that is a concern. I have worked with her a little
bit on some friendship issues but have not seen her lately. I will call [LD’s] family and offer
some additional resources.” ECF No. 127-21. Bartels was copied on Walker’s response.
Walker also informed Bartels that she had noticed LD in Robeson’s classroom and in the
hallway outside that room very frequently in the week before May 1, 2015. Bartels
understood that Walker contacted LD’s parents to discuss the activity. Bartels Dep.
22:12–23:1, 42:14–19, ECF No. 128-1.
Friday, May 22, 2015, was the last day of school for students and the day before
Memorial Day weekend. On that day, Stichler observed Robeson touch female students
and saw him give a “full frontal” hug, chest to chest, with both arms around a female
student’s body, for approximately 60 seconds. Robeson also kissed a female student on
her head. Stichler reported her observations to Bartels. That night, Bartels emailed
description is unsupported. The lone reference to this fact is “SOF 127” but Statement of Fact 127 is
inconsistent with Plaintiffs’ characterization. It states that Gailbraith witnessed a hug outside the classroom.
Gailbrath’s deposition does not support Plaintiffs’ statement.

8

Stichler, thanking her for sharing her concerns and stated “In addition, if you believe there
is wrong doing you probably need to call cps [Child Protective Services] let me know if
you do so I can do what I need to do with the information. ECF Nos. 127-23, 127-24.
Stichler contacted CPS about the hug and also reported “other behaviors I have seen this
school year between [Robeson] and one female student in particular, [LD]. . . . I have
observed him poking her in the stomach in a hallway as well as touching her shoulder as
if he was giving her a massage. The two spend quite a bit of time together.” ECF No.
127-28. CPS told Stichler they would forward her report to the Omaha Police Department
(OPD).
On May 26, 2015, Bartels spoke to Robeson and informed him that he had a
picture of him hugging a student taken on May 22, 2015. Robeson said he was going to
talk to Stichler about it. Bartels advised Robeson not to talk to Stichler. Robeson told
Bartels that the student was crying, and she wanted a hug from him after school. Bartels
told him that was inappropriate, and he needed to give a side hug if any hug at all. Later
that day, Bartels notified Robeson that the incident had been reported to OPS Human
Resources. Bartels also admonished Robeson for attempting to confront Stichler.
OPS Human Resources investigated Robeson for the May 2015 hugging incident.
That department concluded that Robeson showed inappropriate behavior and needed to
have expectations set for him. OPS did not contact the student involved or any parents.
OPD and CPS decided not to investigate the incident. OPS Human Resources instructed
Bartels to complete an employee consultation conference with Robeson and set specific
expectations. Bartels conducted the conference on June 2, 2015.
V. Reports During the 2015 School Year and Robeson’s Arrest
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On December 5, 2015, Jurgens reported to Bartels that Robeson appeared to be
sending excessive emails to a former student, MB, a current 9th grader at Northwest High
School, using OPS email. Bartels called Shawn Hall at OPS Human Resources and
reported that a teacher had seen many emails between Robeson and a former student.
On December 7, 2015, Shawn Hall had the OPS IT department pull emails between
Robeson and the former student and reviewed them.

On December 8, 2015, Hall

informed Bartels there would be an HR response to the emails and that he would be
working with Chief Human Resources Officer Charles Wakefield.
Hall reviewed over 100 emails between Robeson and MB from August 18 through
November 17, 2015. The emails were sent during the school day. Most were mundane,
but Robeson used several terms that Human Resources deemed inappropriate including
“sweetheart” or “atta baby.” Robeson also stated that he missed MB, and said, “I am here
for you whenever and however you need me to be… always” and “[y]ou need more
entertainment in your life.” On or about December 11, 2015, Hall and Kevin Johnson met
with Robeson and his union representative to discuss the emails as a violation of Board
Policy. Robeson was instructed to cease sending such emails.
The second quarter of the 2015-16 school year ended December 18, 2015, and
the winter break began on December 21, 2015. OPS Human Resources was in the
process of considering further disciplinary action against Robeson when, on December
29, 2015, OPS was notified of Robeson’s arrest for sexual assault of LD. On or about
December 30, 2015, OPS cancelled Robeson’s teaching contract. On the same day,
OPS hand-delivered a letter informing Robeson of the recommendation of cancellation

10

and informing him of his rights. After the arrest, OPS deferred its investigation of Robeson
to OPD and supported them in their investigation.
On January 1, 2016, Bartels printed an email dated April 21, 2014, from Robeson.
When printing out the email, Bartels discovered five pages of dialogue between Robeson
and LD. Bartels did not notice the dialogue at the time he initially received the email
because he viewed it on his phone and thought it contained only two pictures from a field
trip Robeson took with students on Saturday, April 21, 2014. Bartels received the email
from Robeson in response to Bartels’s request for pictures of the field trip.
VI. Robeson’s Sexual Harassment of LD
LD hid her relationship with Robeson and was not aware of anyone else having
any knowledge of their sexual relationship. LD did not report Robeson to anyone at Davis
Middle School. Neither LD nor her parents ever contacted Bartels regarding any concerns
about Robeson.
The physical relationship between Robeson and LD began in September 2014
when they had their first kiss at a creek near LD’s home on a teacher work day when
students were out of school. Most of the sexual activity between Robeson and LD
occurred during LD’s 8th Grade year. The two would meet during lunch several times a
week in Robeson’s classroom. Much of the activity occurred in a corner of the classroom
near a cupboard that was tall enough to obscure LD if someone came into the classroom.
The sexual activity continued into the summer between LD’s 8th Grade year and
her high school freshman year, and into fall of 2015, after she entered high school. To
hide her relationship with Robeson, LD used multiple email addresses and often changed

11

passwords so her mother did not know them. LD deleted messages right after she sent
them. LD hid her relationship with Robeson from her sisters and from people at school.
Robeson’s conduct toward LD was discovered on December 27, 2015, when he
was caught inside the residence of KD and JD. This led to Robeson’s arrest and
conviction for first degree sexual assault. Robeson is presently serving a 40-year
sentence of incarceration in the Nebraska Penal and Correctional Complex.
STANDARD OF REVIEW
“Summary judgment is proper ‘if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.’” Cottrell v. Am. Family
Mut. Ins. Co., S.I., 930 F.3d 969, 971 (8th Cir. 2019) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)); see also Fed. R. Civ. P. 56(c)
(“A party asserting the fact cannot be or is genuinely disputed must support the assertion
by: citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations[,] . . . admissions,
interrogatory answers, or other materials . . . .’”). A genuine issue of material fact arises
“if each party has supplied some evidence that is sufficient for a reasonable jury to return
a verdict for the nonmoving party”. Cottrell, at 930 F.3d at 971 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
“The moving party bears the burden of showing ‘that there is no genuine dispute
as to any material fact and [it] is entitled to judgment as a matter of law.’” Vandewarker
v. Cont'l Res., Inc., 917 F.3d 626, 629 (8th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). The
moving party can satisfy its burden in two ways: (1) by producing evidence negating an
12

essential element of the nonparty’s case; or (2) “by ‘showing’ . . . that there is an absence
of evidence to support the nonmoving party’s case.” Bedford v. Doe, 880 F.3d 993, 996
(8th Cir. 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
In response to the moving party’s showing, the nonmoving party must produce
evidentiary materials of “specific facts showing the presence of a genuine issue for trial.”
Id. (quoting Torgerson, 643 F.3d at 1042). “The nonmoving party must do more than
raise some metaphysical doubt about the material facts and cannot rest on mere denials
or allegations.” Id. (citing Torgerson, 643 F.3d at 1042; Gibson v. Am. Greetings Corp.,
670 F.3d 844, 853 (8th Cir. 2012)); see also Dick v. Dickinson State Univ., 826 F.3d 1054,
1061 (8th Cir. 2016) (“[T]here must be more than ‘the mere existence of some alleged
factual dispute’ between the parties in order to overcome summary judgment.”) (emphasis
in original) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir.
1989)).
“At summary judgment, the court's function is not to weigh the evidence and
determine the truth of the matter itself, but to determine whether there is a genuine issue
for trial.” Smith v. Kilgore, 926 F.3d 479, 483 (8th Cir. 2019) (quoting Schilf v. Eli Lilly &
Co., 687 F.3d 947, 948 (8th Cir. 2012)); see also Bedford, 880 F.3d at 996 (“A principal
purpose of the summary-judgment procedure ‘is to isolate and dispose of factually
unsupported claims or defenses . . . .’”) (quoting Celotex, 477 U.S. at 323–24).
Accordingly, in reviewing a motion for summary judgment, the Court will “view[] the record
in the light most favorable to [the nonmoving party] and draw[] all reasonable inferences
in [that party’s] favor.” Hanson ex rel. Layton v. Best, 915 F.3d 543, 547 (8th Cir. 2019)
(quoting Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)). “‘Where the record taken
13

as a whole could not lead a rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial,’ and summary judgment is appropriate.” Vandewarker, 917
F.3d at 629 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
DISCUSSION
Plaintiffs assert six claims for relief: (1) violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. §1681 et. seq. (“Title IX”) against OPS; (2) violation of
constitutional rights under 42 U.S.C. § 1983 against Bartels and Robeson; (3) negligence
against OPS and Bartels under the Nebraska Political Subdivisions Tort Claims Act
(“NPSTCA”), Neb. Rev. Stat. §13-901 et. seq.; (4) battery against Robeson; (5) intentional
infliction of emotional distress against Robeson; and (6) aiding and abetting intentional
infliction of emotional distress against Bartels. The matters before the Court are the Title
IX claim against OPS; the § 1983 claims against Bartels; the negligence claim against
OPS and Bartels; and the aiding and abetting claim against Bartels.5
I. Title IX
The Supreme Court has recognized an implied private right of action under Title
IX and “a school district can be held liable in damages in cases involving a teacher's
sexual harassment of a student.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
280-81 (1998) (citation omitted). Title IX provides that “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or activity receiving federal

Plaintiffs’ claims against the Doe Defendants will be dismissed because Plaintiffs have not filed
an amended complaint identifying the Doe Defendants. Robeson has not entered an appearance.
5

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financial assistance.” 20 U.S.C. § 1681(a). To succeed on their Title IX claim, Plaintiffs
must prove that OPS was “(1) deliberately indifferent (2) to known acts of discrimination
(3) which occur[red] under its control.” K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057
(8th Cir. 2017) (citing Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 2003)). Here, the third
element is met because a teacher who sexually harasses a student is deemed to be under
the school district’s control. See Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 643 (1999). However, a school district is not liable for “damages
under Title IX for a teacher’s sexual harassment of a student absent actual notice and
deliberate indifference.” Gebser, 524 U.S. at 292-293. Plaintiffs have not produced
enough evidence to raise a genuine issue of material fact as to the elements of actual
knowledge and deliberate indifference.
A. Actual Knowledge of Acts of Harassment
The “actual knowledge” element has a “credibility component” and a “severity
component.” See Thomas v. Bd. of Trustees of the Nebraska State Colleges, No. 8:12CV-412, 2015 WL 4546712, at *10 (D. Neb. July 28, 2015), aff’d, 667 F. App’x 560 (8th
Cir. 2016). Under the credibility component, actual knowledge of harassment cannot be
established by rumors, familiar behavior, prior investigations, and vague complaints. See
Doe v. Flaherty, 623 F.3d 577, 585 (8th Cir. 2010); Plamp v. Mitchell Sch. Dist. No. 17-2,
565 F.3d 450, 457 (8th Cir. 2009); Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 780 (8th
Cir. 2001).
In Doe v. Flaherty, the Eighth Circuit granted summary judgment to the school,
finding insufficient evidence of actual knowledge of a sexual relationship between a
teacher and student. 623 F.3d at 585-586. A minor student (Doe) engaged in a sexual
15

relationship with the school’s basketball coach (Smith). Id. at 580. School administrators
knew of previous parental complaints that Smith sent inappropriate text messages to
female students and that he specifically sent messages to Doe.6 Id. at 585.

The

superintendent also learned that Doe may have had a crush on Smith and spent time with
Smith in the gym. Id. at 581, 585. The school principal also was told that “something was
going on” with Doe and Smith. Id. at 585.
The court concluded that this evidence was insufficient to suggest a substantial
risk of sexual misconduct. Id. The content of the messages did not suggest sexual
conduct or sexual abuse. Id. The “vague inquiry” about “something” going on was
insufficient to give actual notice to the principal of Smith’s sexual abuse. Id. None of the
evidence implied physical contact between Smith and Doe, and a reasonable
investigation uncovered no evidence to substantiate the suspicions. Id. Thus, the court
concluded that “[g]iven the stringent standard for supervisory liability in this context, we
conclude that no reasonable jury could find actual notice on those alleged facts.” Id.; see
also Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 780 (8th Cir. 2001) (no actual knowledge
where school district “was aware of rumors, investigations, and student statements, but
did not possess any conclusive proof” of actual molestation while employed).
Similarly, in P.H. v. Sch. Dist. of Kansas City, Missouri, 265 F.3d 653, 662 (8th Cir.
2001), a teacher (Hopkins) and minor student (P.H.) had a two-year sexual relationship,
both on and off school grounds. Id. at 662. Other teachers complained to school

The text messages included the statements “Are you drunk yet?” and “OMG you look good today.”
Id. at 585. Even though there was some dispute as to whether the teacher, Smith, sent the messages at
issue, the court concluded that even the most suggestive texts failed to provide notice of sexual conduct or
abuse. Id.
6

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administrators that Hopkins was spending an inordinate amount of time with P.H.,
resulting in absences, tardiness, and failing grades. Id. at 659, 662. The school also
received complaints that Hopkins showed favoritism to some students, including P.H. Id.
at 662-63. When the principal confronted Hopkins about the complaints, Hopkins
explained that P.H. was involved in many of the activities he oversaw, so he naturally
spent more time with her than other students. Id. P.H. also hid the relationship and did
not complain about sexual misconduct until the relationship ended. Id. at 660. The court
found that, while Hopkins’s actions and excessive time spent with P.H. were “cause for
concern,” id. at 659, the evidence was insufficient to establish actual knowledge of sexual
misconduct under Title IX. Id. at 663.
Here, Plaintiffs claim Bartels and OPS had actual knowledge of Robeson’s sexual
misconduct based on 14 individual complaints. Some of those complaints, however, did
not involve LD. For example, Plaintiffs allege that in 2013 and 2014, several teachers
observed Robeson hugging male and female students, some for prolonged periods of
time; and in February 2015, paraprofessional Keri McCoy reported to Bartels that she
saw girls congregating near Robeson’s classroom. None of these reports involved LD
and they were not sufficient to give actual notice of sexual harassment. Other complaints
were not reported to Bartels or OPS. For example, in April 2014, Robeson participated
in a Saturday field trip to the Millard Airport with his Take Flight Class students. There,
he kissed LD’s forehead while they were participating in a group hug with several female
students. LD Dep. 168:3-17, ECF No. 127-2. At a Glo Run activity in May 2014, LD’s
mother witnessed Robeson pick LD up, throw her onto his shoulder, and cross a finish
line. KD Dep. 87:14-88:6, ECF No. 127-33. These complaints did not provide actual notice
17

of sexual harassment because there is no evidence they were reported to Bartels or any
other OPS official.
According to Plaintiffs, Bartels received specific reports about the following
instances of Robeson’s behavior toward LD.
•

In April 2014, Bartels learned Robeson was mentoring LD in his classroom during
lunch breaks.

•

On several occasions in September 2014, instructional facilitator Jennie Meyer
observed LD leave the 8th Grade floor to meet Robeson in his classroom during
passing periods.

•

In February 2015, staff reported to Bartels that Robeson tied LD’s shoelace in the
hallway near the girl’s locker room.

•

On March 4, 2015, Bartels received an unsigned, handwritten note that read, “I
find it curious that LD is absent on the same day as Mr. Robeson.”

•

On May 1, 2015, special education resource teacher Rebecca Stichler emailed
school counselor Jennifer Walker stating she was concerned with the amount of
time LD spent with Robeson.
None of these reports or complaints gave actual notice of sexual abuse. Like the

evidence in Flaherty and P.H., these complaints did not suggest there was physical
contact between Robeson and LD. Like the “vague inquiry” in Flaherty, the unsigned,
unsubstantiated note about a curious observation was insufficient to confer actual notice.
Like the facts in P.H., complaints about excessive amounts of time or favoritism are
insufficient to confer actual notice. And like the victim in P.H., LD hid her relationship
about Robeson and did not report sexual misconduct until Robeson was arrested. While
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Robeson’s actions and excessive attention were cause for concern, the evidence was
insufficient to establish actual knowledge of sexual misconduct for purposes of Title IX.
Plaintiffs also suggest that Bartels had notice of the relationship between LD and
Robeson due to Robeson’s email of April 21, 2014. Bartels asked Robeson to send
photos of a field trip, and Robeson complied. Attached to the photos were several pages
of text messages between Robeson and LD. In the messages, Robeson lamented that
he would not move grades with LD; he spoke of their “relationship;” and he told her that
he planned to see her at least once a week in the next school year. While Bartels admitted
that the messages would be cause for alarm, it is undisputed that Bartels did not see the
messages when Robeson sent the email and did not read them until after Robeson had
been arrested. Moreover, although the messages were highly inappropriate, like the
inappropriate messages in Flaherty, the content of the messages did not describe sexual
conduct or abuse. Accordingly, the unread messages were insufficient to convey actual
knowledge.
B. Deliberate Indifference
A response to reports of actual harassment demonstrates deliberate indifference
only when the response is clearly unreasonable. Davis, 526 U.S. at 648; see also Gebser,
524 U.S. at 290 (equating deliberate indifference standard under Title IX to deliberate
indifference standard under 28 U.S.C. § 1983). Deliberate indifference is “stringent
standard of fault that cannot be predicated upon mere negligence.” Flaherty, 623 F.3d at
584 (citing Shrum, 249 F.3d at 780) (internal quotation marks omitted).
When assessing deliberate indifference under Title IX, courts must examine the
adequacy of the response in light of the “seriousness and credibility of the compliant that
19

puts school officials on notice.” Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000).
“Actions and decisions by officials that are merely inept, erroneous, ineffective, or
negligent do not amount to deliberate indifference.” Doe on Behalf of Doe v. Dallas Indep.
Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). A response is not deliberately indifferent
unless it amounts to “an official decision by [school officials] not to remedy the violation.”
Gebser, 524 U.S. at 290. For example, in Kinman v. Omaha Pub. Sch. Dist., 171 F.3d
607, 610 (8th Cir. 1999), OPS, through one of its principals, became aware of a sexual
relationship between a teacher and student. The court concluded that OPS and the
principal did not act with deliberate indifference because they did not “turn a blind eye
and do nothing.” Id. Instead, they investigated the allegations and initiated termination
proceedings “once they obtained conclusive proof of that relationship.” Id. Accordingly,
OPS and the principal were entitled to judgment as a matter of law. Id.
Similarly, in this case, OPS and Bartels did not turn a blind eye to the allegations
against Robeson. When Galbraith reported that she saw Robeson grab LD’s phone from
her back pocket, Bartels responded by investigating and warning Robeson not to engage
in that type of conduct. Bartels Dep. 105:6–107:3, ECF No. 128-1. When Galbraith
witnessed Robeson hug7 LD in the hallway and saw Robeson eating lunch with LD in his
classroom, with the door closed and lights dim, Bartels responded by investigating
whether LD and Robeson were in the classroom. Although no one was in the classroom

7
Plaintiffs’ statement of this incident implies that Gailbraith saw LD and Robeson hugging in
Robeson’s darkened classroom. Defendants do not dispute this account in their joint reply but the Plaintiffs’
description is unsupported. The lone factual reference to this fact is “SOF 127” but Statement of Fact 127
is inconsistent with Plaintiffs’ characterization. It states that Gailbraith witnessed a hug outside the
classroom. Gailbrath’s deposition does not support Plaintiffs’ statement.

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at the time of the security check, Bartels advised Robeson that such conduct was
inappropriate. In light of the facts he knew at the time, Bartels’s response was not
deliberately indifferent.
Bartels also did not act with deliberate indifference to generalized reports of
Robeson’s relationship with LD. When Stichler expressed concern via email to Walker
about the amount of time Robeson spent with LD, Bartels was copied on Walker’s
response that she would contact LD’s parents to discuss the activity. Bartels Dep. 22:12
– 23:1, 42:14–19, ECF No. 128-1. Bartels received notice of Stichler and Walker’s
concerns and of their plans to resolve them.
When Stichler observed Robeson inappropriately touching female students and
giving a hug to a female student, Bartels advised Stichler to consider contacting child
protective services. Stichler contacted CPS, and CPS declined to investigate. OPS
responded by requiring Robeson to go through counseling and discipline. Based on facts
known at the time, the response was not deliberately indifferent.
In sum, there is no evidence that Bartels or OPS knew the nature of Robeson’s
misconduct or responded with deliberate indifference. Accordingly, OPS is entitled to
judgment as a matter of law on Plaintiffs’ Title IX claims.
II. Claims Against Bartels Under § 1983
Suits against school officials in their official capacity are treated as suits against
the school district itself. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 609 (8th Cir.
1999). “[I]n order to sue a public official in his or her individual capacity, a plaintiff must
expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that
the defendant is sued only in his or her official capacity." Alexander v. Hedback, 718 F.3d
21

762, 766 n.4 (8th Cir. 2013) (citing Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir.1999)).
Plaintiffs’ § 1983 claims no not expressly or unambiguously state that Bartels is
sued in his individual capacity. Plaintiffs' second claim alleges Bartels violated LD's
constitutional rights to due process, including the “right to be free from deliberate
indifference” of Bartels and others “about reports of sexual harassment by a public school
teacher against a student based on her gender.” Complaint ¶¶ 20.4, 50, ECF No. 1. In
paragraph 52, Plaintiffs “request relief as authorized by 42 U.S.C. §§1983, 1988” and
“seek general and special damages against the individuals sued.” However, Plaintiffs fail
to expressly indicate, in either the caption or elsewhere, whether Bartels is being sued in
his individual capacity.
Even if the Complaint could be construed as a suit against Bartels in his individual
capacity, the § 1983 claim must be dismissed. Under Eighth Circuit precedent, “[a]
supervisory school official may not be sued in his individual capacity, either directly under
Title IX or under § 1983 based upon a violation of Title IX.” Cox v. Sugg, 484 F.3d 1062,
1066 (8th Cir.2007); see also Jenkins v. Univ. of Minnesota, 131 F. Supp. 3d 860, 878
(D. Minn. 2015), aff'd, 838 F.3d 938 (8th Cir. 2016). Although pled under § 1983, the
Complaint relies expressly on Title IX’s standard of proof. See Complaint ¶¶ 20.1, 20.4,
23, ECF No. 1 (alleging violations under § 1983 based on “deliberate indifference by
public school administrators about reports of sexual harassment.”). Further, because
Plaintiffs’ § 1983 claims are based on the alleged Title IX violations, they must be
examined under the same standard as Title IX. See Doe v. Flaherty, 623 F.3d 577, 583

22

(8th Cir. 2010). Thus, Plaintiffs’ § 1983 claims must be dismissed for the same reasons
that their Title IX claims will be dismissed.
III. Political Subdivisions Tort Claims Act
The Nebraska Political Subdivisions Tort Claims Act (NPSTCA), Neb. Rev. St. §
13-901 et seq., waives immunity of political subdivisions, in part, for negligent acts of their
employees. Doe v. Omaha Pub. Sch. Dist., 727 N.W.2d 447, 453 (Neb. 2007). Political
subdivisions retain their sovereign immunity with respect to several listed exceptions in §
13-910. “If a political subdivision proves that a plaintiff's claim comes within an exception
pursuant to § 13-910, then the claim fails based on sovereign immunity, and the political
subdivision is not liable. Omaha Pub. Sch. Dist., 727 N.W.2d at 454. Two exceptions bar
Plaintiffs’ claims in this case: the intentional torts exception and the discretionary function
exception.
A. Intentional Torts Exception
Public employers do not waive immunity for claims “arising out of” intentional torts,
including assault or battery. See § 13-910(7). Plaintiffs seek to avoid the intentional tort
exception by pleading their negligence claims as claims for negligent supervision and
retention. In analyzing statutory language from the Nebraska State Tort Claims Act, Neb.
Rev. Stat. § 81-8,219, materially identical to § 13-910(7), the Nebraska Supreme Court
stated that “[w]here the plaintiff's tort claim is based on the mere fact of government
employment (such as a respondeat superior claim) or on the employment relationship
between the intentional tort-feasor and the government (such as a negligent supervision
or negligent hiring claim), the exception . . . applies and the State is immune from suit.”
Johnson v. State, 700 N.W.2d 620, 625 (Neb. 2005) (internal citation omitted). To permit
23

otherwise, would “frustrate the purposes of the exception.” Id. (quoting Sheridan v. United
States, 487 U.S. 392, 406–07 (1988) (Kennedy, J., concurring in judgment)).
Although pled as claims for negligent supervision and retention, Plaintiffs’
negligence claims arise out of Robeson’s sexual assault. Plaintiffs’ primary allegations
are that OPS failed to recognize signs that Robeson was a sexual predator, and his
continued employment allowed him to engage in a sexual relationship with a minor
student. OPS’s liability in this matter is based on the employment relationship between
Robeson and OPS. Plaintiffs’ claims regarding LD’s sexual assault therefore arise out of
the employment relationship between Robeson and OPS and are barred by the NPSTCA.
B. Discretionary Function Exception
Under the discretionary function exception, “a plaintiff may not recover for a claim
‘based upon the exercise or performance of or the failure to exercise or perform a
discretionary function or duty on the part of the political subdivision or an employee of the
political subdivision, whether or not the discretion is abused.’” Larson by Larson v. Miller,
76 F.3d 1446, 1456 (8th Cir. 1996) (quoting Neb. Rev. Stat. § 13–910(2)). “The purpose
of the discretionary function exception is to prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.” Doe v. Omaha Public School Dist., 727 N.W.2d
447, 456-57 (Neb. 2007). The discretionary function exception applies to “basic policy
decisions made in governmental activity, and not to ministerial activities implementing
such policy decisions.” Id. at 457.

Nebraska courts use a two-step analysis when

determining the applicability of the discretionary function exception. Id. at 457. The court
first must consider whether the action is a matter of choice for the employee. Id. If the
24

court concludes the action involves an element of judgment, the court then determines
“whether that judgment is of the kind that the discretionary function exception was
designed to shield.” Id.
Applying Nebraska law, the court in Larson concluded that decisions to
“investigate, hire, fire, and retain” employees are generally discretionary decisions, and
held a school district's decision to relocate and then terminate an employee that allegedly
sexually abused a student fell within the discretionary function exception to the PSTCA.
76 F.3d at 1457. The Eighth Circuit recognized that an official’s duty to report under the
Nebraska child abuse-reporting statute was discretionary, not ministerial. Id. The court
reasoned that whether “‘reasonable cause’ exists within the meaning of the statute
requires an exercise of discretion and personal judgment, which takes the matter out of
the realm of a ministerial act.” Id. (quoting Neb. Rev. Stat. § 28-711); see also K.B. v.
Waddle, 764 F.3d 821, 825 (8th Cir. 2014) (stating that duty under child abuse-reporting
statute was discretionary and noting an official's exercise of poor judgment still does not
negate discretionary nature of act).
The decisions of OPS and Bartels that led to Plaintiffs’ claims were discretionary
functions. The undisputed facts show that OPS delegated responsibility for enforcing
school policies to principals, depending on the situation and context. Bartels used his
discretion to evaluate each situation reported, to decide what investigation would occur,
and to respond with any discipline warranted. He and other OPS administrators were
required to make choices, using their judgment, and such discretionary functions are not
to be second guessed through the medium of tort under the NPSTCA.
IV. Aiding and Abetting Intentional Infliction of Emotional Distress
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Plaintiffs allege that Bartels aided and abetted Robeson in intentionally inflicting
emotional distress on LD. To the extent such a claim is not barred by the NPSTCA,
Plaintiffs have failed to show that Bartels aided or abetted Robeson’s actions. Under
Nebraska law, the standard for civil aiding and abetting is the same as the standard for
criminal aiding and abetting. Generally, “one who counsels, commands, directs, advises,
assists, or aids and abets another individual in the commission of a wrongful act or tort is
responsible to the injured party for the entire loss or damage.” Bergman v. Anderson, 411
N.W.2d 336, 340 (Neb. 1987) (approving civil aiding and abetting jury instructions
adapted from jury instructions meant for criminal aiding and abetting).

“Aiding and

abetting involves some participation in the criminal act or involves some conscious
sharing in the criminal act, as in something that the accused wishes to bring about, in
furtherance of a common design, either before or at the time the criminal act is committed,
and it is necessary that he seeks by his action to make it succeed.” State v. Foster, 242
N.W.2d 876, 879 (Neb. 1976).
Here, no facts suggest that Bartels ever intentionally encouraged or intentionally
helped Robeson inflict emotional distress on LD. Accordingly, the claim for aiding and
abetting intentional infliction of emotional distress will be dismissed.
CONCLUSION
The Plaintiffs have not come forward with evidence raising any genuine issues of
material fact as to whether Bartels or OPS were aware of the nature of Robeson’s sexual
misconduct. Nor have Plaintiffs presented evidence that Bartels or OPS were indifferent
to what they knew. Finally, OPS and Bartels are not liable under Nebraska tort law.
IT IS ORDERED:
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1.

The Motions for Summary Judgment filed by Defendant Douglas County
Public School District No. 001, a/k/a Omaha Public Schools (OPS), ECF
No. 124, and Defendant Daniel Bartels, ECF No. 132, are granted;

2.

All claims against the Doe Defendants, OPS, and Daniel Bartels are
dismissed, with prejudice,

3.

All other pending motions and objections are denied as moot; and

4.

The Clerk of Court is directed to remove the Doe Defendants, OPS, and
Bartels from the case caption.

Dated this 1st day of November 2019.

BY THE COURT:
s/Laurie Smith Camp
Senior United States District Judge

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