Logan et al v. Sycamore Community School Board of Education et al
Filing
109
OPINION AND ORDER granting in part and denying in part 79 Sealed Motion for Summary Judgment, such that Plaintiffs' federal claims remain, while their state law claim is dismissed. The Court further sets this matter for a final pretrial conference on 7/17/2012 at 2:00 PM and for a four-day jury trial to commence on 8/14/2012, on an on-deck basis. Signed by Judge S Arthur Spiegel on 6/5/2012. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CYNTHIA A. LOGAN, et al.,
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Plaintiffs,
v.
SYCAMORE COMMUNITY SCHOOL
BOARD OF EDUCATION,
Defendant.
NO. 1:09-CV-00885
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for
Summary Judgment (doc. 79), Plaintiffs’ Response in Opposition
(doc. 98), and Defendants’ Reply (doc. 107).
For the reasons
indicated herein, the Court DENIES in part and GRANTS in part
Defendant’s
I.
Motion for Summary Judgment.
Background
Plaintiffs
are
parents
of
decedent
Jessica
Logan,
(“Logan”), who committed suicide on July 3, 2008, after allegedly
suffering harassment from other high school students who were
allegedly “sexting”1 a nude picture of Logan among themselves (doc.
1).
Logan was a senior at Sycamore High School (“SHS”) during the
2007-2008 school year (doc. 98).
Plaintiffs
brought
suit
against
the
students
who
allegedly harassed decedent; against Sycamore Community School
District Board of Education for failing to protect Logan from
1
“Sexting” is the act of sending sexually explicit messages
or photographs, primarily between mobile phones.
harassment; and against School Resource Officer Paul Payne as well
as Payne’s employer, the City of Montgomery.
since settled with Plaintiffs (doc. 66).
The students have
This court granted
Defendants’ Officer Payne and the City of Montgomery’s Motion for
Summary Judgment and found that Officer Payne was entitled to
qualified immunity (doc. 70).
In the instant motion, Defendant Sycamore Community
School District Board of Education (“Sycamore”) moves for summary
judgment on all of plaintiff’s claims (doc. 79).
Sycamore argues
that no Sycamore employees or Board members had knowledge of the
harassment, and thus there is no evidence to support plaintiff’s
claims of unconstitutional treatment, discrimination, or negligence
(Id.).
Plaintiffs oppose Defendant’s motion, arguing that there
are material facts in dispute that preclude summary judgment from
being granted (doc. 98).
Defendant has replied (doc. 107), such
that this matter is ripe for consideration.
II. Applicable Legal Standard
Although a grant of summary judgment is not a substitute
for trial, it is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
Fed. R. Civ. P. 56; see also, e.g.,
2
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per
curiam).
In reviewing the instant motion, “this Court must
determine whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.”
Patton v. Bearden, 8
F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks
omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.
First, “a party
seeking summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact [.]”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,
980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).
The movant may do so by
merely identifying that the non-moving party lacks evidence to
support an essential element of its case. See Barnhart v. Pickrel,
3
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced
with
such
a
motion,
the
non-movant,
after
completion of sufficient discovery, must submit evidence in support
of any material element of a claim or defense at issue in the
motion on which it would bear the burden of proof at trial, even if
the moving party has not submitted evidence to negate the existence
of that material fact.
See Celotex, 477 U.S. at 317; Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986).
As the “requirement [of
the Rule] is that there be no genuine issue of material fact,” an
“alleged factual dispute between the parties” as to some ancillary
matter “will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-248 (emphasis added);
see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d
1304,
1310
(6th
Cir.
1989).
Furthermore,
“[t]he
mere
existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,
784 (6th Cir. 1994).
Accordingly, the non-movant must present
“significant probative evidence” demonstrating that “there is [more
than] some metaphysical doubt as to the material facts” to survive
summary judgment and proceed to trial on the merits.
Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see
4
also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, “the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts
upon which the non-moving party relies.” Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989) (internal quotation marks omitted).
In contrast, mere
conclusory allegations are patently insufficient to defeat a motion
for summary judgment.
See McDonald v. Union Camp Corp., 898 F.2d
1155, 1162 (6th Cir. 1990).
evidence,
facts,
and
The Court must view all submitted
reasonable
inferences
in
a
light
most
favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,
369 U.S. 654 (1962). Furthermore, the district court may not weigh
evidence or assess the credibility of witnesses in deciding the
motion.
See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating
that no material facts are in dispute. See Matsushita, 475 U.S. at
587.
The fact that the non-moving party fails to respond to the
motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate.
See
Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455
5
(6th Cir. 1991).
III. Analysis
Plaintiff
Sycamore
School
maintains
District:
1)
three
claims
that
Sycamore
against
was
Defendant
deliberately
indifferent to the sexual harassment of Logan in violation of Title
IX; 2) that Sycamore violated Logan’s due process and equal
protection rights under 42 U.S.C. § 1983 by responding to Logan’s
complaints of harassment differently than those of other students;
and,
3)
that
Sycamore
negligently
inflicted
severe
emotional
distress on Logan and her parents (doc. 98). Taking all inferences
in the light most favorable to the non-moving party, as the Court
is required to do upon a summary judgment motion, Matsushita Elec.
Indus. Co., 475 U.S. 574, 587,the Court concludes the evidence on
the first two claims presents a sufficient disagreement to require
submission to a jury. Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.
1993).
For the reasons discussed below, the Court finds the
evidence is not so one-sided that Defendant must prevail as a
matter of law.
Id.
However, the Court finds that Sycamore is
entitled to immunity as a political subdivision of the state of
Ohio with regard to the negligent infliction of emotional distress
claim.
In the interest of efficiency and clarity, the Court will
address the parties’ arguments by claim after a brief overview of
relevant factual contentions.
6
A. Factual Background
Plaintiffs allege that on or around May 5, 2008, Jessica
Logan and her friend Lauren Taylor, (“Taylor”), went to the
counselor’s office where they informed student counselors that a
nude photo of Logan was circulating around the school (doc. 98).
According to Plaintiffs, Logan and Taylor spoke with counselor
intern Elizabeth Vorholt, who referred Logan to another counselor,
Brenda Fisher (Id.).
Plaintiffs allege the Logan and Taylor told
counselor Fisher a nude photo of Logan was being sent around school
and they wanted it to stop (Id.). Fisher then gave them a pass to
see the School Resource Officer, a City of Montgomery Police
Officer, Paul Payne (Id.).
While Fisher testified she did not
remember if she met with Logan, there was a note in her planner on
May 7, 2008 with Logan’s name (Id.). Counselor Canter testified he
met with two girls on May 6, 2008 who asked about how to stop
someone from texting private information. Since he was unavailable
to meet with them, he told them to talk to Officer Payne who
happened to be nearby (doc. 79).
On May 7, Logan and Taylor went
back to the counselor’s office to meet with a counselor, but
counselor Susan Warm was not able to meet with Logan that day (doc.
98, doc. 107).
On May 5, 2008, Logan informed Officer Payne that her
nude photograph had been sent to students at SHS by students at
Loveland High School (“LHS”) (doc. 98).
7
Payne documented this
conversation in a police incidence report stating that the photo
was sent “to several students at Loveland and Sycamore HS during
school” (doc. 98).
Payne testified that Logan was upset and angry
about the photo being out at SHS and text messages she received
about the photograph (Id.).
However, neither Taylor nor Logan
identified any student at SHS who had circulated the photo (doc.
79).
On May 6, 2008, after speaking with the LHS students
identified by Logan, Payne spoke with some SHS principals about
what had happened at LHS (doc. 79).
Taylor testified that she had seen students in her
ceramics class hold up their cell phones, presumably looking at
Logan’s photo, and overheard students calling Logan a “whore” and
saying “what does she think she is, a porn star?” (doc. 79).
Taylor stated in her deposition that she told Payne the names of
the girls in her ceramics class who had the photo on their phones
and that Payne told her he would have them delete the photo from
their phones (doc. 98).
Sycamore also notes that Michael Anderson, an Academic or
Comprehensive Counselor at SHS, met with Logan during her senior
year about meeting her graduation requirements (doc. 79). Anderson
contends no one reported to him that Logan was having trouble with
bullying about the photograph or about sexting (Id.).
Similarly,
SHS Teacher Tom Beschler spoke with Mrs. Cynthia Logan about
Jessica Logan’s truancy sometime between May 6, 2008 and SHS
8
graduation (doc. 79).
Mrs. Logan testified that she told Beschler
that Jessica Logan was being “extremely harassed” but did not
mention the photo, or describe the harassment.
Beschler testified
he was not aware of the naked photograph at that time, and that
Jessica Logan never mentioned she did not like going to school
because of harassment (doc. 79).
Jessica Logan participated in a television interview on
the subject of “sexting” (doc. 1). Plaintiffs allege that after the
interview aired, Logan’s harassment became worse (Id.).
Students
allegedly chastised her with epithets and derogatory remarks, threw
things at her while she was at school and at school-sponsored
events, harassed her by phone and online, and even threw things at
her during her graduation ceremony (Id.).
Plaintiff contends that Associate Principal Skoog also
knew the photo was being circulated at SHS (doc. 98).
Plaintiff
further contends that several administrators saw the television
interview about sexting with Jessica Logan and knew the crying
student was Jessica Logan despite her disguised voice and covered
face (doc. 98).
Plaintiffs argue that Superintendent James saw
Jessica Logan cry in the television interview, knew she was upset
about the photo being circulated and related harassment, but
assumed none of this occurred at SHS and so failed to ask anyone to
investigate whether harassment was occurring at SHS (doc. 98).
As a result of the above incidents, Plaintiffs contend
9
that SHS officials knew a naked photograph of Jessica Logan was
circulating among the students at SHS (doc. 98).
Officer Payne
informed all five principals at SHS about the photo and Jennifer
Ulland, the Dean of Students, testified that she learned from
Officer Payne that the photo was circulating around SHS (doc. 98).
Sycamore contends that since neither Payne or Taylor saw
the photograph, Plaintiffs’ statement that the photograph was sent
to Sycamore students is pure speculation (doc. 107). As a result,
Defendant contends that school officials could not have had notice
that Logan’s picture was circulating at SHS or that Logan was
facing harassment from SHS students (doc. 79).
B. Title IX
Title IX provides:
“No person in the United States shall, on the
basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected
to discrimination under any education program
or activity receiving Federal financial
assistance . . . .”
20 U.S.C. §1681 (a).
To establish a claim of recipient misconduct
under Title IX, the plaintiff must demonstrate:
(1) the sexual harassment was so severe, pervasive, and
objectively offensive that it could be said to deprive the
plaintiff of access to the educational opportunities or
benefits provided by the school,
(2) the funding recipient had actual knowledge of the sexual
harassment, and
(3) the funding recipient was deliberately indifferent to the
harassment.
Patterson v. Hudson Area Schools, 551 F.3d 438, 444-45 (6th Cir.
10
2009) (citing Vance v. Spencer County Public Sch. Dist., 231 F.3d
253, 258-59 (6th Cir. 2000).
Furthermore, a “damages remedy will
not lie under Title IX unless an official who at a minimum has
authority to address the alleged discrimination and to institute
corrective measures on the recipient's behalf has actual knowledge
of discrimination in the recipient's programs and fails adequately
to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
290 (1998).
Defendant contends reasonable minds could not conclude
that the Board or any of its employees possessed knowledge that SHS
students had subjected Logan to sexual harassment (doc. 79).
Defendant argues there is no evidence that Jessica Logan or her
friend Lauren Taylor made a report of sexual harassment to anyone.
Defendant points out that Officer Payne was not a Board employee
and contends that Payne did not tell SHS administrators that any
SHS students had
received the photo or were harassing Logan (doc.
79).
Defendant also contends that Mrs. Logan’s statements to
teacher Beschler do not establish knowledge of “sexual harassment”
as nothing sexual or gender-related was conveyed to Beschler (doc.
79). Defendant argues the alleged communications between Logan and
Taylor and the three non-employees Payne, Fisher, and Vorholt did
not involve a report of sexual harassment and did not result in
notice to any Board employee of sexual harassment.
11
According to
Defendant,
the
evidence
does
not
demonstrate
the
Board
was
deliberately indifferent to any student-on-student harassment of
Logan,
and
therefore
Plaintiffs
cannot
establish
any
of
the
elements of a Title IX claim (doc. 79).
On the other hand, Plaintiffs insist they have submitted
sufficient facts for this Court to deny summary judgment on the
Title IX claim, and, viewing all submitted evidence, facts, and
reasonable inferences in a light most favorable to the non-moving
party, See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), this Court agrees.
The names (“porn queen,”
“slut,” “whore,” etc.,) that Logan was allegedly called after the
photo began circulating support Plaintiff’s contention that Logan
was sexually harassed (doc. 98).
Davis,
Dean
Ulland,
and
the
Plaintiff contends Principal
Associate
Principals
are
all
appropriate persons as they each had authority and responsibility
under school district policies to investigate sexual harassment
complaints and enforce sexual harassment and bullying policies
(doc. 98).
Plaintiff also contends these individuals either knew
Logan’s photograph was circulating at SHS or viewed the television
interview where Logan described the harassment she faced at school
(Id.).
While
the
Sixth
Circuit
has
not
addressed
what
constitutes notice in a Title IX case, several district courts in
the circuit have held that the appropriate persons do not need to
12
be aware of the exact details of a plaintiff’s experience to have
notice, as long as they “reasonably could have responded with
remedial measures to address the kind of harassment” that was
reported.
Johnson v. Galen Health Institutes, 267 F. Supp.2d 679,
687 (W.D. Ky. 2003), see also Massey v. Akron City Bd. of Educ., 82
F. Supp.2d 735, 744 (N.D. Ohio 2000).
Applying this standard,
Plaintiff has demonstrated that material facts are in dispute as to
whether
appropriate
harassment,
whether
persons
the
had
school
actual
district
notice
was
of
Logan’s
deliberately
indifferent to the harassment, and whether Logan was deprived of
access to education as a result of the harassment (doc. 98).
C. 42 U.S.C. § 1983
Plaintiffs allege Sycamore violated Logan’s due process
and equal protection rights pursuant to 42 U.S.C. § 1983. Sycamore
responds that Plaintiffs cannot establish municipal liability upon
the Board, and therefore cannot establish a claim under Section
1983, which requires Plaintiffs to “identify a right secured by the
United States Constitution and deprivation of that right by a
person acting under color of state law.”
Russo v. City of
Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992) citing West v.
Atkins, 487 U.S. 42, 48 (1988). This Court must consider: (1)
whether Plaintiff have asserted the deprivation of a constitutional
right
and
deprivation.
(2)
whether
the
Board
is
responsible
for
that
Doe v. Claiborne County, 103 F.3d 495, 505-06 (6th
13
Cir. 1996) (overruled on other grounds).
To establish the Board’s
liability, Plaintiff must demonstrate “that an officially executed
policy, or the toleration of a custom within the school district”
led
to,
caused,
constitutionally
or
resulted
protected
in
right.”
the
Doe,
deprivation
103
F.3d
at
of
a
507.
Defendant argues there is no evidence establishing the existence of
such a policy or custom at Sycamore (doc. 79).
Plaintiffs have submitted sufficient facts for this Court
to deny summary judgment on the Section 1983 claim.
Specifically,
Plaintiffs assert deprivation of Logan’s constitutional right to
equal
protection
by
treating
her
complaints
of
differently from the complaints of others (doc. 98).
harassment
In addition,
Plaintiffs allege Principal Davis is the final policymaker for
implementing the sexual harassment policy at SHS and his actions in
implementing the policy bind the Board (doc. 98).
The Court has
determined that there are material facts in dispute regarding
whether a final policymaker executed a policy that resulted in the
deprivation of Logan’s rights, including questions of which school
officials were aware of the harassment, which preclude granting
Defendant’s motion for summary judgment on this claim.
D. Negligent Infliction of Emotional Distress
Plaintiffs allege that Sycamore negligently inflicted
severe emotional distress on Jessica Logan and Mr. And Mrs. Logan
(doc. 1).
Defendant contends that Sycamore is immune from this
14
tort liability under Ohio Revised Code Chapter 2744 (doc. 79). The
Court agrees.
A school district is a political subdivision, and Chapter
2744 of the Ohio Revised Code codifies tort liability for political
subdivisions.
R.C. §2744.01(F).
Determining whether a political
subdivision is immune from tort liability under Ohio involves a
well-established three-tiered analysis. See, e.g., O'Toole v.
Denihan, 118 Ohio St. 3d 374, 381 n.2 (Ohio 2008).
“The first tier
is the general rule that a political subdivision is immune from
liability incurred in performing either a governmental function or
proprietary function.” Cramer v. Auglaize Acres, 865 N.E.2d 9, 13
(Ohio
2007),
quoting
783_(Ohio 2003).
Colbert
v.
Cleveland,
790
N.E.2d
781,
In this case, Defendant Sycamore qualifies for
immunity under the first tier as it was performing the governmental
function of operating a public school.
R.C. §2744.01(C)(2)(c).
However, the “second tier of the analysis requires a court to
determine whether any of the five exceptions to immunity listed in
R.C. §2744.02(B) apply to expose the political subdivision to
liability.” Cramer, 865 N.E.2d at13, quoting Colbert, 790 N.E.2d at
783. The five exceptions listed in R.C. §2744.02(B) are aptly
summarized by the Defendant as follows:
1. Negligent operation of a motor vehicle by a governmental
employee;
2. Negligent performance of a proprietary function;
15
3. Negligent failure to keep the public roads open and in repair;
4. Negligence of employees that occurs in the buildings or on the
grounds of the political subdivision and is due to physical defects
within or on the grounds;
5. Express imposition of liability by statute.
(doc. 79).
Defendant contends plaintiffs have put forth no
evidence that Sycamore falls within one of these exceptions of
immunity (doc. 79).
(doc. 107).
Therefore, the immunity analysis is at an end
Plaintiffs counter that the Defendant’s analysis
ignores the third tier of the Chapter 2744 analysis, which, in the
Plaintiffs’ view provides the school district is not immune if the
injury resulted from an act or omission that was reckless (doc. 98,
citing R.C. § 2744.03(A)(5)).
The
Court,
after
carefully
reviewing
Ohio
political subdivision immunity, agrees with the Defendant.
law
on
Since
the Plaintiffs have failed to demonstrate, or even claim, that
Sycamore’s actions fall within one of the five exceptions to
immunity in R.C. §2744.02(B), Sycamore is entitled to immunity and
the analysis is at an end.
See O'Toole v. Denihan, 118 Ohio St. 3d
374, 386 (Ohio 2008) (“[A] political subdivision's immunity can be
removed only through one of the enumerated exceptions found in R.C.
2744.02(B)(1) through (5)”); Fincham v. Geauga County Bd. of
Health, 2011 Ohio 5338, P49 (Ohio Ct. App. Oct. 14, 2011) (“Under
the three-tier analysis, the end of inquiry is reached when the
16
acts or omissions of a political subdivision do not fit under any
of the five exceptions enumerated in R.C. 2744.02(B). In other
words,
the
courts
do
not
engage
in
the
third-tier
analysis
regarding available defenses provided in R.C. 2744.03, if no
exception under R.C. 2744.02(B) can be found to remove the general
grant of immunity.”); Roberts v. Columbus City Police Impound
Div.,958 N.E.2d 970, 975 (Ohio Ct. App. 2011) (“Without any grounds
for liability under R.C. 2744.02(B), there is no occasion to even
consider R.C. 2744.03.”).
While
Plaintiffs
attempt
to
establish
Sycamore’s
liability through R.C. § 2744.03(A)(5), Ohio courts have held that
“the defenses and immunities under R.C. 2477.03 are only available
as a defense to liability, not as a direct way to establish
liability.”
Wright v. Mahoning County Bd. of Comm'rs, 2009 Ohio
561, P32 (Ohio Ct. App., Mahoning County Feb. 5, 2009). Therefore,
the Court finds that Defendant Sycamore is entitled to summary
judgment on this claim.
IV.
Conclusion
In summary, the Court concludes that genuine issues of
material fact preclude summary judgment for Sycamore on Plaintiffs
claims under Title IX and Section 1983.
However, the Court finds
that Sycamore is entitled to immunity on the negligent infliction
of emotional distress claim. Accordingly, the Court GRANTS in part
and DENIES in part Defendant’s
Motion for Summary Judgment (doc.
17
79), such that Plaintiffs’ federal claims remain, while their state
law claim is dismissed.
The Court further sets this matter for
final pretrial conference on July 17, 2012 at 2:00 P.M., and for
four-day jury trial to commence August 14, 2012, on an on-deck
basis.
SO ORDERED.
Dated: June 5, 2012
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
18
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