Nave v. LeFlore School District 20 et al

Filing 119

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 79 Motion for Summary Judgment and granting in part and denying in part 80 Motion for Summary Judgment. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SHELBY NAVE,
Plaintiff,
v.
INDEPENDENT SCHOOL DISTRICT
NO. 20 OF LEFLORE COUNTY a/k/a
PANAMA PUBLIC SCHOOLS;
RYAN ENGLAND, individually
and in his official capacity;
and GRANT RALLS, individually
and in his official capacity,
Defendants.

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Case No. CIV-17-096-KEW

OPINION AND ORDER
This

matter

comes

before

the

Court

on

Defendant

School

District’s Motion for Summary Judgment (Docket Entry #79) and
Defendant Grant Ralls’ Motion for Summary Judgment (Docket Entry
#80).
Facts Relevant to All Claims
Defendant Ryan England (“England”) began his employment with
Defendant Independent School District No. 20 of LeFlore County
a/k/a Panama Public Schools (“School District”) during the 2012-13
school year. During his application process, Defendant Grant Ralls
(“Ralls”), the then superintendent of the School District, inquired
of England’s prior employer, the Byng School District.
problems,

Ralls

recommended

agriculture teacher.

that

England

be

Finding no

hired

as

the

The School District’s Board of Education

voted to hire England in that capacity.

England served as Plaintiff Shelby Nave’s (“Nave”) agriculture
teacher and Future Farmers of America (“FFA”) advisor during her
time in high school.

Nave served as president of the School

District’s FFA chapter during her sophomore, junior, and senior
years and was active in FFA activities, including showing livestock
and judging plants.
Nave stated that England gave hugs to who were considered his
favorite students which consisted of about twelve students - ten
boys and two girls, including Nave.

During Nave’s sophomore year,

England began “flirty talk” or making dirty jokes with his favorite
students.

An example of such jokes would include talking about

“banging students’ moms.
. .”

Like having sex with students’ moms . .

These comments were made by England in front of students,

some of the students’ parents, Ronnie Oschlager, an assistant in
the agricultural class Nave’s junior year, and Tyler Spencer
(“Spencer”), an assistant in the class Nave’s senior year.

The

comments were also made in front of one of the school board members
for the School District, Carlus Call (“Call”), who was also a
parent of an agricultural student in England’s class.
At

the

beginning

of

Nave’s

junior

year,

however,

the

communications between Nave and England became more sexual in
nature.

England became more “flirty” with Nave and talked “like

you would flirt with somebody that you wanted to date or, like, be
with.”

Nave believed similar communications were occurring with

2

another female student identified as “MA”.

These communications

were done exclusively in front of students.
On or about October 7, 2014, however, England told Nave that
he “got bored last night, so I took a dick pic and it’s just on my
phone.”

He then put his cell phone down and told Nave it was

unlocked and all she had to do was swipe left.

Nave swiped the

phone and observed a picture of England’s penis on the cell phone.
Nave told MA of the picture in November or December of 2015.
On or about October 10, 2014, England drove Nave to a football
game in Foyil, Oklahoma.

When England drove Nave to the football

game, he was alone with her.

While at the game, England visited

with Richard Haynes, principal of Panama High School (“Haynes”),
Ralls, and Call.
also present.

All of the band members and their parents were
Nave testified that all of these individuals

observed her getting out of England’s truck before the game and
getting into his truck after the game.
When

the

game

concluded,

Nave

and

England

agricultural building to drop off a trailer.
Nave around before taking her home.

went

to

the

He offered to drive

He offered to give Nave a back

rub to which she agreed. While massaging Nave, England grabbed her
butt.
Nave states that she liked England and did not want to get him
in trouble so she did not tell anyone of the back rub.

She was

interested in him in a sexual nature because she “thought he was

3

hot.”

However, she did not expect the relationship to proceed

further.
Nave and England began Snapchatting with one another. England
asked Nave to send him a nude picture of herself.

Nave sent him a

picture of her bare breasts. In return, England sent Nave pictures
of his bare torso and his face.

No other pictures were exchanged

between the two but their Snapchat exchange continued through
“hundreds” of messages.
Nave

next

stayed

after

school

to

help

England.

After

mentioning “something about seeing (sic) naked person,” England
pulled out his penis and Nave removed her shirt.
oral sex on England.

Nave performed

During this time, Nave only informed MA of

her sexual relationship with England.

MA informed Nave that she

was also having relations with England and that he had communicated
that he had feelings for MA.
Nave performed oral sex on England once or twice a week in
various locations throughout the school, during off school property
FFA events, and in the ag truck and trailer.

However, during

Christmas break of that year, England again gave Nave a back rub
but then proceeded to have vaginal sex with her for the first time.
Thereafter, Nave and England had sexual intercourse once or twice
a month.

Half of the instances where Nave and England engaged in

either oral sex and sexual intercourse were done during the school
day and sometimes with students and teachers in the vicinity.

4

On one occasion, Nave and England were engaging in oral sex in
an ag room at the school when a bus mechanic, Ronnie Bell, walked
by the window.
room.

Nave and England covered up and walked out of the

Bell came back and was hiding behind a door and jumped out

and scared Nave.
through the window.

Nave believed Bell could see she and England
Bell is also England’s uncle and President of

the Ag Booster Club at the school.
In the spring and summer of 2015, Nave told several friends of
her relationship with England.

She asked that they keep it secret

because she did not want to get England in trouble and believed she
was in love with him.
In October of 2015, Nave told another girl identified as “SH”
of her relationship with England because SH told her she had heard
a rumor of the relationship.

SH was the daughter of Haynes.

expected SH to keep the relationship secret.

She

SH began watching

Nave and England but did not see anything inappropriate.

On three

occasions, Nave told SH and other members of the basketball team in
the locker room that “she had business to take care of when the bus
routes got done” and could not go with the other girls to eat.

SH

believed that Nave and England were going to have sex after he
completed his bus routes.
In the fall of Nave’s senior year, Nave perceived England
began acting hateful toward her, although the sex continued.

She

felt he was hateful to her around other people and was not treating

5

her as he had when the relationship began.
stopped giving her special privileges.
Kimberly

Maxwell

(“Maxwell”),

that

She stated that he

She informed her mother,
England

was

treating

differently but did not tell her of the sexual relationship.

her
Nave

believed she was going to fail a college class she was taking
because she missed her final. Maxwell “chewed her out.” Nave told
her mother that she had been contemplating suicide.

The next day

on December 16, 2015, Maxwell went to see Haynes at the high
school.
happy

The mother told Haynes that she believed Nave was not

because

she

was

not

getting

as

much

playing

time

in

basketball. She also told him that England was being awful to Nave
and that ag was not going well.
kind of like they broke up.”

She told Haynes that “it’s just

She stated that “ag was good and then

all of a sudden it wasn’t good.”

At the time, neither Haynes nor

Maxwell knew of Nave and England’s sexual relationship.
On the night of December 16, 2015, SH proceeded to tell her
youth sponsor at church who was married to the youth pastor at the
church of Nave’s relationship with England.

The sponsor told her

husband of the relationship and the youth pastor called the school
on December 17, 2015. Ralls and Haynes then began an investigation
of the allegations.

Ralls interviewed SH.

interviewed other students.

Ralls and Haynes

The interviews were recorded.

Ralls

telephoned Maxwell and told her that he had received a report that
Nave was involved with a teacher and asked if she wanted to be

6

present during Nave’s interview.
Ralls and Haynes interviewed Nave.
portions of the interview.

Maxwell was present for

Nave asked that her mother leave and

then denied that a relationship existed with England.

Nave

perceived that Ralls and Haynes were trying to figure out what was
going on.

They stated that they were going to move Nave out of

classes around England due to the allegations.

Nave did not want

to be moved out of the ag class because she needed it to get her
State degree.
Nave told Ralls and Haynes that it was actually another guy
who she was “hooking up with.”

Ralls and Haynes sent Nave home

with her mother after the interview.
Ralls and Haynes next interviewed England. England denied any
inappropriate behavior with Nave.

Ralls told England to go home

and not to come to work the next day.

England turned in his keys

to the school before leaving.
Ralls called the Panama Police Department and reported the
allegations of a sexual relationship between England and Nave. The
police contacted Maxwell and asked her to take Nave to the Child
Advocacy Center for a forensic interview.

During the interview,

Nave admitted to a sexual relationship with England.

Upon being

informed of Nave’s admission, Ralls notified England that he was
suspended from teaching with pay.

A criminal investigation by

police revealed England’s DNA in the various places Nave stated

7

that she had sex with him.
Nave testified that the School District and Ralls “treated me
like I was the one who was at fault.”

Before the relationship was

revealed, Nave stated that she saw Ralls in the hallway at the
school all the time and they would exchange “a little hey how are
you kind of thing.”

After the report, Ralls “wouldn’t make eye

contact with [her], he wouldn’t talk to [her], anything like that.”
Nave felt that she was treated differently by Haynes, Ralls, Ms.
Joy, Call, and his wife, and Ronnie Bell.
Nave stated that she felt like she was “dragged” into Ralls’
office, that Maxwell was going to be excluded from her interview,
and that she knew that, but for her mother’s intervention, England
was going to be permitted to return to the school to teach after
Christmas break.

In fact, Nave was asked to come into the office

to be interviewed, her mother was asked to leave by Nave herself,
and England was never permitted to return to the school to teach.
Nave also testified that she felt she had to “mind my Ps and
Qs” because if she “stepped one toe out of line”, Haynes would
discipline her.

She used as an example a situation where she was

working as an office aide at the school a couple of weeks after the
disclosure of her relationship with England and told a secretary of
a dream she had where she was naked on a beach and her basketball
coach was asking her to sit on his lap.

The dream was reported to

the administration and they, in turn, reported the incident to the

8

Child Advocacy Center, the police, the district attorney, and
England’s criminal defense attorney.

Nave was removed as a school

office aide.
Another

incident

of

alleged

retaliation

or

intimidation

occurred when at a Senior Night basketball game, Nave was called
and told that the School District, and specifically Ralls, had
given England permission to attend the game where Nave would be
present to watch his five year old daughter perform a cheer routine
at half time. Additionally, after the relationship between England
and Nave came to light, England’s wife was allowed to come to
Nave’s basketball practice and went around the gym talking to
teachers in Nave’s presence. England’s wife was also allowed to go
to ag shows to help students get ready for the show.

Call would

talk to her at the shows and was allegedly aware of her presence.
Spencer took over for England after his removal from the
school.

Nave testified that Spencer was not helpful and made her

feel she could not talk to him.

She stated she was President of

FFA her senior year and the state FFA had a recognition dinner for
Academic Excellence which she should have attended to receive an
award.

Spencer failed to tell Nave of the dinner, Nave missed the

event, and others asked why she did not attend.

Nave testified

that students talked about the investigation into the criminal case
against England in Spencer’s class without repercussions.

Maxwell

testified that a student heard Spencer tell a student “I would hug

9

you, but today, in this day and time, that would be considered
rape.”

Nave was upset by the incident.

The student was suspended

from competing in the ag shows until Maxwell intervened and asked
that he be reinstated.
Nave testified that the school counselor would not permit her
to go to private counseling for sexual molestation during school
hours.

The counselor stated that she had 200 students and could

not make an exception for one.
Nave testified that Call’s daughter began distancing herself
from Nave after the relationship with England was reported.

She

stated Call and his wife posted on social media that England was a
great teacher and “things like that.”
The School District’s student handbook addresses the policy
for reporting Title IX sexual harassment, intimidation, bullying
and threatening behavior by a student.
student

on

how

to

address

sexual

It does not direct a

harassment

by

a

teacher.

According to Haynes, it was not included because such a prohibition
would be “common sense upon the profession that you’re in.” Haynes
testified that he conducts an orientation at the beginning of the
school year and makes “a more general statement as far as teacher
conduct . . . and expectations.”

Haynes stated that he did not

learn of the allegations against England until December 17 and
stated he did not know if England actually molested Nave.
On July 8, 2016, second degree rape felony charges were filed

10

against England.

On August 1, 2016, the Oklahoma State Department

of Education notified England that it had suspended his teaching
certificate.

On August 8, 2017, a Judgment and Sentence was

entered in the criminal case after England plead “no contest” to
the charges.

England received a suspended sentence of five years

and was required to register as a sex offender.

England resigned

from employment with the School District.
Procedural Posture
This case was removed to this Court on March 10, 2017.

It was

originally initiated by Nave in the District Court in and for
LeFlore County, Oklahoma on February 1, 2017.

After subsequent

amendments in this Court, Nave alleged the following claims1: (1)
School District - (a) violation of Title IX of the Education
Amendments of 1972, (b) violation of Title IX in retaliating for
bringing a claim, (c) violation of Nave’s Fourteenth Amendment
rights under 42 U.S.C. § 1983 in failing to protect Nave from
sexual harassment so that her property interest in an education was
not protected and failing to have appropriate policies in place to
insure that protection, (d) violation of Nave’s First Amendment
rights under 42 U.S.C. § 1983 by retaliating against her after she
reported the sexual harassment, and (e) negligence ; (2) Ralls,
individually - (a) violation of Nave’s Fourteenth Amendment rights
1

Nave
capacity, and
United States
Order entered

originally brought claims against Ralls, in his official
for violation of Title IX in his individual capacity.
District Judge Ronald A. White dismissed those claims by
September 4, 2018.

11

under 42 U.S.C. § 1983 in failing to protect Nave from sexual
harassment so that her property interest in an education was not
protected and failing to have appropriate policies in place to
insure that protection, and (b) violation of Nave’s First Amendment
rights under 42 U.S.C. § 1983 by retaliating against her after she
reported the sexual harassment; and (3) England - (a) violation of
Title IX of the Education Amendments of 1972, (b) violation of
Nave’s Fourteenth Amendment rights under 42 U.S.C. § 1983 in
failing to protect Nave from sexual harassment so that her property
interest in an education was not protected and failing to have
appropriate policies in place to insure that protection, (c)
violation of Nave’s First Amendment rights under 42 U.S.C. § 1983
by

retaliating

against

her

after

she

reported

the

sexual

harassment, (d) assault and battery, and (e) intentional infliction
of emotional distress.
The School District filed for summary judgment on the claims
asserted against it contending (1) it has no Title IX liability
because it was not put on actual notice of England’s sexual contact
with Nave prior to December 17, 2015 through an appropriate person
to be put on notice and Nave was not deprived of access to an
education; (2) it cannot be held liable for Title IX retaliation
because it did not orchestrate or condone any such retaliation by
students or teachers; (3) the § 1983 claims must be denied because
no official custom, practice, or policy has been shown to deprive

12

Nave of her constitutional rights; and (4) Nave’s negligence claim
must be dismissed because England’s actions were not foreseeable.
Ralls contends he is entitled to summary judgment because (1)
on Nave’s Fourteenth Amendment claim, Nave cannot demonstrate Ralls
acted deliberately and intentionally to violate her constitutional
rights, he was not personally involved in harassment, and Nave has
not

shown

a

policy

which

harmed

her

for

which

Ralls

was

responsible; (2) on Nave’s First Amendment claim, Nave cannot show
Ralls personally retaliated against her and that a policy for which
Ralls was responsible lead to a violation of Nave’s constitutional
rights; and (3) Ralls is entitled to qualified immunity.
Standard on Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment 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 judgment
as a matter of law."

Universal Money Centers v. A.T. & T., 22 F.3d

1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655,
130 L.Ed.2d 558 (1994).

The moving party bears the initial burden

of showing that there is an absence of any issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 255354, 91 L.Ed.2d 265 (1986).

A genuine issue of material fact exists

when "there is sufficient evidence favoring the nonmoving party for

13

a jury to return a verdict for that party."

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed 2d
202 (1986).

In determining whether a genuine issue of a material

fact exists, the evidence is to be taken in the light most favorable
to the nonmoving party.

Adickes v. S.H. Kress & Co., 398 U.S. 144,

157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

Once the moving

party has met its burden, the opposing party must come forward with
specific evidence, not mere allegations or denials of the pleadings,
which demonstrates that there is a genuine issue for trial. Applied
Genetics v. Fist Affiliated Securities, 912 F.2d 1238, 1241 (10th
Cir. 1990); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.
1983).

Claims Against the School District
1) Title IX
Title IX of the Education Amendments of 1972 states that, “No
person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving
Federal financial assistance.”

20 U.S.C. § 1681(a).

Title IX

makes actionable sexual harassment of a student by a teacher when
the student can demonstrate that (1) an “appropriate person”; (2)
had actual notice of sexual harassment or discrimination; and (3)
acted with deliberated indifference in failing to respond to the
harassment.

Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274,

14

289-90 (1998).

An “appropriate person” is defined by the Court as

“at a minimum, an official of the recipient entity with authority
to take corrective action to end the discrimination.”

Id. at 290.

Further, clarification of the appropriate elements was set out by
the Supreme Court in Davis v. Monroe County Bd. of Educ., 526 U.S.
629 (1999).

The Court determined Title IX required a showing that

(1) an official is deliberately indifferent to sexual harassment
(2) of which there was actual knowledge; (3) and the harassment “is
so severe, pervasive, and objectively offensive that it can be said
to deprive the victims of access to the educational opportunities
or benefits provided by the school.”

Id. at 650.

Subsequent interpretation of these cases indicates that while
“actual notice requires more than a simple report of inappropriate
conduct by a teacher . . . the actual notice standard does not set
the bar so high that a school district is not put on notice until
it receives a clearly credible report of sexual abuse from the
plaintiff-student.”

Escue v. Northern OK College, 450 F.3d 1146,

1154 (10th Cir. 2006) citing Doe v. Sch. Admin. Dist. No. 19, 66
F.Supp.2d 57, 62 (D.Me. 1999). The Tenth Circuit acknowledged that
“the district courts that have examined the issue have required
that the school have ‘actual knowledge of a substantial risk of
abuse to students based on prior complaints by other students.’
Id. (citations omitted).

The Court further found that “[p]rior

instances need not be ‘clearly credible [because] . . . [a]t some

15

point . . . a supervisory school official knows . . . that a school
employee is a substantial risk to sexually abuse children.’”

Id.

(citations omitted).
Under the stated definition, Bell, a bus mechanic, England’s
uncle, and President of the school’s Ag Booster Club is not an
“appropriate person” under Title IX, as Nave urges, as it has not
been shown that he has the authority to take corrective action to
end the harassment.

More troubling is the conduct observed by a

school board member, Call which, taken in isolation, might be
innocuous but taken as a whole should have provided Call with
notice of England’s substantial risk to students.

Call, who is an

“appropriate person” under Title IX, was allegedly present when
England made “flirtatious” comments about having sex or wanting to
have sex with students’ mothers.

He also allegedly observed Nave

getting in and out of England’s vehicle alone at a school-sponsored
football game. Such activities place the issue of actual notice in
the appropriate purview of the jury as the finder of fact as to
whether Call had actual knowledge sufficient to have triggered
further inquiry into England’s activities.

J.M. ex rel Morris v.

Hilldale Ind. Sch. Dist. No. 1-29, 397 Fed. Appx. 445, 452-53 (10th
Cir. 2010).
The question of deliberate indifference turns on whether the
response “to the harassment or lack thereof is clearly unreasonable
in light of the known circumstances.”

16

Davis, 526 U.S. at 648.

In

light of the facts known by Call, a reasonable jury could conclude
that his lack of action in further investigating the incidents
cited was clearly inadequate and deliberately indifferent.
The final element of lack of access to education is somewhat
belied by Nave’s success in her educational pursuits at the school.
However, the standard is whether Nave was deprived of access to an
educational opportunity or benefit.

Davis, 526 U.S. at 633.

Nave

and Maxwell testified that Nave became depressed and suffered from
anxiety and PTSD.

She testified that Call and Ralls offered

support for England after the relationship was revealed.

Nave

testified of the alleged intimidation at her basketball game and
that she was not told of an ag banquet.

These allegations are

sufficient to submit to the jury for consideration of whether Nave
suffered an educational deprivation.
2) Title IX Retaliation
Title IX prohibits retaliation against individuals who have
complained of sex discrimination.

Hiatt v. Colo. Seminary, 858

F.3d 1307, 1315 (10th Cir. 2017) citing Jackson v. Birmingham Bd.
of Educ., 544 U.S. 167, 183 (2005). The School District emphasizes
that the retaliation must be orchestrated or knew of the harassment
and acquiesced or condoned it, citing Miles v. Washington, 2009 WL
259722 (E.D. Okla., Feb. 2, 2009).

As a result, the student

harassment is not actionable unless the School District acted in
concert with it.

17

For Nave to set out a prima facie case of retaliation under
Title IX, she must show (1) she engaged in protected activity, (2)
she suffered an adverse action, and (3) a causal connection existed
between the protected activity and the adverse action.
F.3d at 1316.

Hiatt, 858

Nave engaged in the protected activity of reporting

her relationship with England.

The acts of retaliation to which

Nave testified did not involve students but rather included actions
by Ralls, Haynes, and others in administration in permitting
England and his wife to attend events which the School District
knew Nave was also attending, actions by teachers in failing to
inform her of an honoring dinner, removing Nave as an office aide,
and their alleged ostracizing of her after the report of the
relationship.

The temporal proximity of the reporting and the

alleged retaliation presents evidence of a causal connection. This
is sufficient to present the issue of retaliation to the jury.
While

the

School

District

alleges

a

legitimate,

non-

discriminatory reason for removing her as an office aide, the
remainder of the alleged acts of retaliation have no such basis.
A reasonable jury could conclude that the retaliation was related
to Nave’s reporting of the sexual relationship with England.
3) Section 1983
Liability for constitutional violations by a municipality or
state institution can only be conferred if it is demonstrated that
an official policy or custom gave rise to a constitutional injury

18

to the plaintiff.

Murrell v. Sch. Dist. No. 1, Denver, Colo., 186

F.3d 1238, 1249-50 (10th Cir. 1999).

In order to prevail on a

claim of failing to investigate sexual harassment such that it
formed

a

custom,

“a

plaintiff

must

prove

(1)

a

continuing,

widespread, and persistent pattern of misconduct by the state; (2)
deliberate indifference to or tacit authorization of the conduct by
policy-making officials after notice of the conduct; and (3) a
resulting injury to the plaintiff.” Rost ex rel. K.C. v. Steamboat
Springs

RE-2

Sch.

Dist.,

2008)(citations omitted).

511

F.3d

1114,

1125

(10th

Cir.

With regard to Nave’s equal protection

claim, sufficient evidence exists in the record to indicate that a
policy maker, Call, had knowledge of repeated instances of conduct
by England which should have indicated an investigation of his
actions was warranted.
procedures

in

the

Moreover, none of the express policies and
School

District

addressed

reporting

or

investigating teacher on student sexual harassment, giving rise to
the suggestion that a custom or practice existed in the School
District to not investigate this activity.
With regard to Nave’s First Amendment claim, she is required
to demonstrate (1) that she engaged in constitutionally protected
activity; (2) the School District caused her to suffer an injury
that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) the School District’s adverse
action was substantially motivated by Nave’s constitutionally

19

protected conduct.
Cir. 2000).

Worrell v. Henry, 219 F.3d 1197, 1212 (10th

The evidence as to the nature and extent of Nave’s

injury stemming from the School District’s alleged retaliatory
actions as a result of her reporting the relationship with England
is subject to weighing and evaluation best left to a reasonable
jury.

Nave has presented sufficient evidence to overcome the

threshold requirements on summary judgment.
The School District asserts it is entitled to summary judgment
on Nave’s procedural due process claim.

While the Court agrees

Nave referenced such a right in the Second Amended Complaint, the
claim was not developed in this action and Nave did not address it
in her response to the School District’s summary judgment motion.
As a result, it is deemed abandoned, if it was in fact ever
asserted, in this action, entitling the School District to summary
judgment on that claim.
To prevail on the claim for substantive due process, the Tenth
Circuit has held that state officials can be liable for the acts of
third parties where those officials “created the danger” that
caused

the

harm.

Uhlrig

v.

Harder,

64

F.3d

Cir.1995), cert. denied, 516 U.S. 1118 (1996).

567,

572

(10th

However, a claim

brought under the “danger creation” theory must be predicated on
“reckless or intentional injury-causing state action which ‘shocks
the conscience.’”

Id. “‘[I]t is not enough to show that the state

increased the danger of harm from third persons; the [§] 1983

20

plaintiff must also show that the state acted with the requisite
degree of culpability in failing to protect the plaintiff.’”
at

573

(citation

omitted).

“That

is,

the

plaintiff

Id.
must

demonstrate a degree of outrageousness and a magnitude of potential
or actual harm that is truly conscience shocking.”

Id. at 574.

See Seamons v. Snow, 84 F.3d 1226, 1236 (10th Cir. 1996).
This Court cannot conclude that the School District created
the danger of England’s sexual contact with Nave.

While their

actions were arguably deficient and included allegations of post
reporting retaliation, the required “conscience shocking” conduct
by the School District is lacking in the record.

The School

District is entitled to summary judgment on this claim.
4) Negligence Claims
Nave

has

asserted

claims

for

negligent

retention

and

supervision of England, negligence per se, negligent investigation,
and

negligent

infliction

of

emotional

distress.

The

School

District asserts that the England’s actions were not foreseeable
and, therefore, could not be the subject of a negligence claim
against it.

Foreseeability is a question of fact for the jury and

only becomes a question of law when one reasonable conclusion can
be drawn from the facts.
(Okla. 1979).

Atherton v. Devine, 602 P.2d 634, 637

Different conclusions could be drawn from the

actions of the School District in order to prevent or ameliorate
the

sexual

contact

by

England

21

which

leaves

the

question

of

foreseeability best for the jury.
The School District also contends England was not acting
within the scope of his employment since he was not acting in good
faith as required by the Oklahoma Governmental Tort Claims Act.
Okla.

Stat.

liability

51

§§

152(11),

however,

negligence,

tit.

do

not

conferred

from

153.

arise

England’s

Nave’s

from

assertions

respondeat

actions.

The

of

superior
negligent

retention and supervision claim arises directly from the School
District’s actions or inactions.

The negligence per se claim

arises from the reporting of Nave’s dreams by other employees. The
negligent investigation claim stems from the School District’s
reaction to the observed activities of England toward Nave.

The

negligent infliction of emotional distress claim alleges that the
School District had a duty to protect Nave and failed in that duty.
As a result, the negligence claims will be maintained for trial.
Claims Against Ralls
1) Section 1983
Ralls’ liability under § 1983 cannot arise from respondeat
superior.

However, after the Supreme Court ruling in Ashcroft v.

Iqbal, 556 U.S. 662 (2009), the Tenth Circuit concluded that “[a]
plaintiff

may

therefore

defendant-supervisor

by

succeed

in

a

§

demonstrating:

1983

suit

(1)

the

against

a

defendant

promulgated, created, implemented or possessed responsibility for
the continued operation of a policy that (2) caused the complained

22

of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.
Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)(citation
omitted).

Arguably, Ralls maintained or failed to maintain a

policy that did not provide for the reporting of teacher on student
sexual harassment and that led to the constitutional harm against
Nave. The question is whether Ralls maintained the necessary state
of mind to confer supervisory liability. That state of mind as set
forth in both Iqbal and Dodds, is “purposeful discrimination.”
Dodds, 614 F.3d at 1198.

This Court must conclude that the

evidence is lacking for such a showing.

While Ralls may been

negligent in the maintaining of a policy for the School District,
nothing in the record indicates that his actions were motivated by
“purposeful discrimination” toward Nave.

Moreover, Nave has not

demonstrated that Ralls personally participated in any intentional
discrimination such as to confer personal liability.

As a result,

Ralls is entitled to summary judgment on Nave’s equal protection
claim.
The required elements for a First Amendment claim has already
been set forth above.

Ralls’ conduct consisted of allegedly

ostracizing Nave by not speaking to her in the hall, allowing
England to attend a basketball game, allowing England’s wife to
participate in ag events, and allegedly telling Maxwell that
England

would

be

allowed

to

return

23

to

school

pending

the

investigation, although he was never allowed to do so.

This

conduct could be objectively viewed as “chilling a person of
ordinary firmness” from engaging in the activity of reporting
sexual harassment.

The jury will be permitted to consider Ralls’

personal liability for the alleged retaliation in exercising Nave’s
First Amendment rights.
While Ralls seeks summary judgment on Fourteenth Amendment
procedural and substantive due process claims, Nave does not
respond to the assertions in her briefing. As a result, the claims
are deemed abandoned, entitling Ralls to summary judgment on those
claims.
In her responsive brief, Nave curiously raises three claims
for which summary judgment was not sought and which have not been
properly addressed in the filings to this point.

Nave contends

Ralls failed to train and supervise his subordinates in the
response.

She also contends that Ralls maintained a custom of

acquiescing in sexual harassment.

To the extent that these

responses were set out as a response for summary judgment on the
Fourteenth Amendment claim, this Court has found that Ralls lacked
the requisite state of mind to maintain these claims under the
prevailing authority.

Nave also sets out that she was subject to

hostile environment harassment.

This claim has not been raised in

the pleadings previously filed in this case and the inclusion in
the responsive brief is not responsive to the Motion.

24

As such,

this Court finds Nave has not adequately asserted this claim to
maintain it in this action.
2) Qualified Immunity
“Individual defendants named in a § 1983 action may raise a
defense of qualified immunity,”

Cillo v. City of Greenwood

Village, 739 F.3d 451, 459 (10th Cir. 2013), which “shields public
officials . . . from damages actions unless their conduct was
unreasonable in light of clearly established law,”
519

F.3d

Generally,
plaintiff

1090,

1092

“when

a

carries

(10th

defendant
a

two-part

Cir.

Gann v. Cline,

2008)(quotations

asserts
burden

omitted).

qualified

immunity,

the

to

(1)

the

show:

that

defendant's actions violated a federal constitutional or statutory
right, and, if so, (2) that the right was clearly established at
the time of the defendant's unlawful conduct.”

Cillo, 739 F.3d at

460.
The law is clearly established in the Tenth Circuit that
retaliation for exercising constitutionally protected rights under
the First Amendment to the Constitution which results in harm is
violative of § 1983.

Worrell, supra.

The evidence taken in a

light most favorable to Nave as the non-moving party indicates that
Ralls may have acted in retaliation for the reporting of the
relationship with England.

As a result, Ralls is not entitled to

qualified immunity at this stage of the proceedings.
IT IS THEREFORE ORDERED that the School District’s Motion for

25

Summary Judgment (Docket Entry #79) is hereby GRANTED, in relation
to Nave’s claims for violations of her Fourteenth Amendment rights
to procedural and substantive due process.

The remainder of the

School District’s Motion is DENIED.
IT IS FURTHER ORDERED that Ralls’ Motion for Summary Judgment
(Docket Entry #80) is hereby GRANTED, in relation to Nave’s claims
for violations of her Fourteenth Amendment rights equal protection
and to procedural and substantive due process.

The remainder of

Ralls’ Motion, including his claim for qualified immunity with
regard to Nave’s First Amendment retaliation claim, is DENIED.
IT IS SO ORDERED this 6th day of December, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

26