K.E. v. Dover Area School District et al
Filing
92
MEMORANDUM (Order to follow as separate docket entry) re: 61 MOTION for Summary Judgment filed by Dover Area School District & 64 First MOTION for Sanctions Summary Judgment filed by Lincoln Intermediate Unit 12. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 9/29/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
K.E.,
Plaintiff
v.
DOVER AREA SCHOOL
DISTRICT, et al.,
Defendants
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CIVIL ACTION NO. 1:15-CV-1634
(Chief Judge Conner)
MEMORANDUM
Plaintiff K.E. advances civil rights claims pursuant to 42 U.S.C. § 1983 and
Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.SC. § 1681(a),
against her former school district, intermediate unit, and teacher. K.E. additionally
asserts Pennsylvania state law claims for assault, battery, and intentional inflection
of emotional distress. Before the court are motions for summary judgment filed by
defendants Dover Area School District (“the District”)1 and Lincoln Intermediate
Unit 12 (“Lincoln”).2
1
2
Doc. 61.
Doc. 64.
I.
Factual Background & Procedural History3
The factual and procedural predicate of this litigation is well known to the
parties and the court. A truncated version of that history will suffice for purposes of
the instant motions. This matter is a civil rights action concerning allegations that a
male music teacher sexually assaulted a female student, K.E., over the course of
four years, causing her to become pregnant at the age of thirteen. K.E. is no longer
a minor.4 The court refers to K.E. by her initials due to the sensitive nature of the
claims and her status as a minor during the period of the alleged assaults.5
For purposes of these motions, the court credits K.E.’s testimony that the
sexual abuse took place while K.E. attended school in the District and at Lincoln.6
3
Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.
A party opposing a motion for summary judgment must file a separate statement
of material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issues to be tried. Id. Unless otherwise
noted, the factual background herein derives from the parties’ Rule 56.1 statements
of material facts. See Docs. 63, 65, 70, 72, 85, 87. To the extent the parties’
statements are undisputed or supported by uncontroverted record evidence, the
court cites directly to the statements of material facts. K.E. filed enumerated
responses to the District’s and Lincoln’s statements, see Docs. 70, 72, but included
66 additional paragraphs styled as “Plaintiff’s Statement of Additional Facts” in
each response. Neither Federal Rule of Civil Procedure 56 nor Local Rule 56.1
authorizes these filings, and K.E. did not request leave of court to file them. The
District also runs afoul of Local Rule 56.1 by merely summarizing the depositions
in this case. See Doc. 63. Notwithstanding these deficiencies, the court has
thoroughly reviewed the parties’ statements and has independently considered
the entire record.
4
Doc. 65 ¶ 1; Doc. 72 ¶ 1.
5
See Doc. 65 ¶ 6; Doc. 72 ¶ 6; see also LOCAL RULE OF COURT 5.2(d)(2).
6
See, e.g., Doc. 63 ¶ 192; Doc. 65 ¶ 8.
2
The District denies contemporaneous knowledge of the assaults. Lincoln contends
that its actions after learning of the assaults were adequate under the law.
K.E. reported to school staff on two separate occasions that defendant
Matthew Puterbaugh (“Puterbaugh”), a music teacher in the District, sexually
abused her.7 K.E. made the first report during the 2002-2003 school year when she
was in eighth grade at the District’s intermediate school.8 She informed two
teachers, Maria Ann Kann (“Kann”) and Barbara Ann Caroline Della-Croce
Eshenour (“Eshenour”), that Puterbaugh had kissed and touched her.9 These
teachers referred K.E. to a guidance counselor, Johanna Ruth Humphreys
(“Humphreys”).10 Both Eshenour and Kann felt that they had a duty to report
allegations of abuse to Humphreys, despite their lack of knowledge concerning a
policy on handling reports of abuse.11
Humphreys’ account of K.E.’s visit to her office conflicts with K.E.’s
description of what transpired. Humphreys testified that she met with K.E.
7
Doc. 63 ¶¶ 55, 78, 102-08, 127-29, 171-79; Doc. 65 ¶¶ 3, 20-27; Doc. 70 ¶¶ 55, 78,
102-08, 127-29, 171-79; Doc. 72 ¶¶ 3, 20-27; Doc. 84, K.E. Dep. 7:9-9:15, 28:14-29:21,
May 2, 2016 (“K.E. Dep.”).
8
Doc. 63 ¶¶ 53-55, 71, 78, 171; Doc. 70 ¶¶ 53-55, 71, 78, 171; K.E. Dep. 7:9-8:1.
9
Doc. 63 ¶¶ 55, 78, 171; Doc. 70 ¶¶ 55, 78, 171; Doc. 77, Kann Dep. 14:17-17:9,
June 15, 2016 (“Kann Dep.”); Doc. 78, Eshenour Dep. 30:20-31:14, 44:2-23, July 14,
2016 (“Eshenour Dep.”); K.E. Dep. 7:9-8:22.
10
Doc. 63 ¶¶ 59, 80, 172-73; Doc. 70 ¶¶ 59, 80, 172-73. The parties also refer to
Humphreys by her married surname, Pass. See Doc. 76, Humphreys Dep. 5:12-6:2,
Sept. 30, 2016 (“Humphreys Dep.”).
11
Doc. 63 ¶¶ 58, 81-83; Doc. 70 ¶¶ 58, 81-83; Eshenour Dep. 48:6-9; Kann Dep.
19:4-17. The court notes that the District had a formal written policy concerning
child abuse allegations at the time of K.E.’s report. Doc. 70-1 at 67-82. Kann and
Eshenour testified that they were unaware of the existence of such a policy.
Eshenour Dep. 16:19-17:9, 50:15-19; Kann Dep. 19:15-22.
3
following Eshenour and Kann’s report, but that K.E. did not tell Humphreys
anything about Puterbaugh’s inappropriate conduct.12 Humphreys also testified
that notwithstanding K.E.’s supposed refusal to speak with her, she reported the
allegations to the school principal, Ken Walter.13 Per contra, K.E. testified that she
provided Humphreys with the same information about Puterbaugh’s abusive
conduct that she had reported to Eshenour and Kann.14 K.E. also testified that
Humphreys responded that these allegations were serious, that Puterbaugh was a
“nice guy,” and that he could be terminated from his job.15 According to K.E.,
Humphreys warned her that no one would believe her and discouraged K.E. from
pursuing a report.16
K.E. again reported abuse by Puterbaugh during November 2004 when she
was in tenth grade and assigned to Lincoln’s emotional support classroom within
the District’s high school.17 K.E. approached her teacher, Grace Wesley (“Wesley”),
and conveyed that K.E. had a “relationship” with Puterbaugh.18 Wesley took K.E.
12
Doc. 63 ¶¶ 33-34, 42-43.
Doc. 63 ¶ 44.
14
Id. ¶ 173; Doc. 70 ¶ 173.
15
Doc. 63 ¶ 174; Doc. 70 ¶ 174; K.E. Dep. 13:22-14:12.
16
Doc. 63 ¶ 175; Doc. 70 ¶ 175; K.E. Dep. 14:13-15:5, 15:22-16:3, 74:6-77:20. The
District suggests that K.E. “changed her story” concerning her interaction with
Humphreys, claiming that “K.E. . . . later admitted that [Humphreys] did not tell
her that no one would believe her.” Doc. 63 ¶ 175. This assertion finds no support
in the record. Indeed, K.E.’s deposition testimony flatly contradicts this assertion.
K.E. Dep. 13:8-16:3, 76:7-77:20.
17
Doc. 65 ¶¶ 4-5, 10, 20; Doc. 72 ¶¶ 4-5, 10, 20; K.E. Dep. 28:14-23; see Doc. 81.
18
Doc. 63 ¶ 177; Doc. 70 ¶ 177; Doc. 81 at 4; see also Doc. 65 ¶ 20; Doc. 72 ¶ 20;
K.E. Dep. 28:14-29:5.
4
13
to see a guidance counselor, Lisa St. Clair (“St. Clair”).19 K.E. told St. Clair that
Puterbaugh had abused her during private music lessons.20 K.E. also told St. Clair
that she would deny her report if it would result in Puterbaugh losing his job.21 St.
Clair informed the principal of Dover High School of the report and called K.E.’s
mother.22 K.E.’s mother testified that neither the District’s nor Lincoln’s staff
contacted her.23
After meeting with St. Clair, K.E. returned to Wesley’s classroom.24 She
commented to Wesley that she was “going to hate her” and that K.E. “didn’t want
[Puterbaugh] to lose his job.”25 These statements concerned Wesley, who then
contacted Lincoln’s Assistant Director, Lynne Spangler (“Spangler”).26 Spangler
instructed Wesley to document her concerns and send them to Spangler directly.27
Wesley’s subsequent fax to Spangler states, in pertinent part:
Tuesday, 11/2/04
[K.E.] was upset. She called him (Mr. Puterbaugh) and
told him that she had told officials about their
relationship. She asked him what he thought. She said
his response was: “I think I better look for a new job.”
19
Doc. 63 ¶ 105; Doc. 65 ¶¶ 22-23; Doc. 70 ¶ 105; Doc. 72 ¶¶ 22-23. The parties
also refer to St. Clair by her maiden surname, DiSanto. See Doc. 80, St. Clair Dep.
5:7-13, Sept. 30, 2016 (“St. Clair Dep.”). K.E. does not recall speaking with St. Clair.
K.E. Dep. 141:19-142:7.
20
Doc. 63 ¶¶ 126-28; Doc. 65 ¶¶ 24-26; Doc. 70 ¶¶ 126-28; Doc. 72 ¶¶ 24-26.
21
Doc. 63 ¶ 129; Doc. 65 ¶ 27; Doc. 70 ¶ 129; Doc. 72 ¶ 27.
22
Doc. 63 ¶¶ 131-32; Doc. 65 ¶¶ 28-29; Doc. 70 ¶¶ 131-32; Doc. 72 ¶¶ 28-29; St.
Clair Dep. 15:10-12.
23
Doc. 83, S.E. Dep. 119:23-120:19, July 14, 2016.
24
Doc. 63 ¶ 107; Doc. 65 ¶ 30; Doc. 70 ¶ 107; Doc. 72 ¶ 30.
25
Doc. 63 ¶ 107; Doc. 65 ¶ 30; Doc. 70 ¶ 107; Doc. 72 ¶ 30.
26
Doc. 63 ¶ 112; Doc. 65 ¶¶ 31-32; Doc. 70 ¶ 112; Doc. 72 ¶¶ 31-32.
27
Doc. 63 ¶ 113; Doc. 65 ¶ 33; Doc. 70 ¶ 113; Doc. 72 ¶ 33.
5
She was contemplating lying about what happened—
saying nothing happened—because she didn’t want him
to leave.
I counselled her “to tell the truth,” no matter how painful.
Wednesday, 11/3/04
[K.E.] went to see Ms. [St. Clair] first period. When she
came to 3rd period, she asked me if I would hate her if she
told me something. I assured her that I wouldn’t. She
continued on and said that she told Mr. Miller, the
assistant principal, that she lied about the relationship. I
said, “Did you?” She said, “No, I don’t want him to have
to leave.”28
Spangler forwarded this statement to Dr. Richard Nilsen (“Nilsen”), the District’s
superintendent.29 Spangler also reported this information to Child and Youth
Services.30
There is no evidence that Child and Youth Services or Nilsen investigated
K.E.’s report.31 Law enforcement did not learn of Puterbaugh’s conduct until April,
2013.32 Following additional complaints against Puterbaugh and an ensuing
criminal investigation, Puterbaugh pled guilty to involuntary deviate sexual
intercourse arising from his abuse of K.E on June 30, 2015.33
28
Doc. 81 at 4-5. K.E. does not recall speaking with Assistant Principal Shane
Miller. K.E. Dep. 142:8-144:6.
29
Doc. 65 ¶ 36; Doc. 72 ¶ 36; see Doc. 81 at 2; see also Spangler Dep. 53:8-54:22.
Partial transcripts of Spangler’s deposition are filed by the parties at numerous,
separate docket entries. Unless otherwise noted, the court will cite to this
deposition passim as “Spangler Dep.” without docket entry citations.
30
Doc. 65 ¶ 37; Doc. 72 ¶ 37.
31
See Doc. 63 ¶¶ 114, 138-39; Doc. 65 ¶ 38; Doc. 70 ¶¶ 114, 138-39; Doc. 72 ¶¶ 3738.
32
Doc. 44 ¶ 26; Doc. 45 ¶ 26.
33
Doc. 44 ¶¶ 27-33; Doc. 45 ¶¶ 27-33; Doc. 46 ¶¶ 32-33.
6
K.E. commenced this action against the District, Lincoln, Nilsen, and
Puterbaugh on August 24, 2015,34 subsequently filing an amended complaint35 on
August 26, 2015. The District, Lincoln, and Nilsen filed motions to dismiss36 and the
court dismissed several of K.E.’s claims and dismissed Nielsen as a defendant.37
K.E. filed a second amended complaint38 on June 7, 2016. Therein, K.E. asserts the
following claims: first, that certain policies, customs, and practices maintained by
the District and Lincoln violated her Fourteenth Amendment rights to security of
person, due process, and equal protection pursuant to 42 U.S.C. § 1983 (Count I);
second, that the District and Lincoln violated her Fourteenth Amendment right to
due process by affirmatively placing her in a position of danger (Count II); and
third, that the District and Lincoln discriminated against her on the basis of gender
in violation of Title IX (Count III).39 She also reasserts her constitutional claims
under Section 1983 and state law claims for assault, battery, and intentional
infliction of emotional distress against Puterbaugh (Counts IV-VI).40 Lincoln and
the District now move for summary judgment on Counts I through III of the second
amended complaint.41 The motions are fully briefed and ripe for disposition.
34
Doc. 1.
Doc. 4.
36
Docs. 21, 22.
37
Docs. 39, 40.
38
Doc. 44.
39
Id. ¶¶ 37-50.
40
Id. ¶¶ 51-59.
41
Docs. 61, 64.
35
7
II.
Legal Standard
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality.42 The burden of proof tasks the nonmoving party to come forth with “affirmative evidence, beyond the allegations of
the pleadings,” in support of its right to relief.43 This evidence must be adequate, as
a matter of law, to sustain a judgment in favor of the non-moving party on the
claims.44 Only if this threshold is met may the cause of action proceed.45
III.
Discussion
A.
Statute of Limitations
As a threshold matter, defendants collectively argue that Pennsylvania’s
two-year statute of limitations for personal injury actions bars K.E.’s claims in the
instant matter.46 K.E. remonstrates that Pennsylvania law tolls the statute of
limitations for actions arising from childhood sexual abuse for twelve years after the
minor reaches the age of eighteen.47 K.E. was 26 when she commenced the instant
action.48
42
FED. R. CIV. P. 56(a).
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
44
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986).
45
See Pappas, 331 F. Supp. 2d at 315.
46
Doc. 62 at 3; Doc. 66 at 4; see 42 PA. STAT. & CONS. STAT. ANN. § 5524(7).
47
Doc. 71 at 3; Doc. 73 at 3; see 42 PA. STAT. & CONS. STAT. ANN. § 5533(b)(2).
48
K.E. Dep. 5:8-14; see Doc. 1.
8
43
The Pennsylvania infancy tolling statute provides:
(i) If an individual entitled to bring a civil action
arising from childhood sexual abuse is under 18
years of age at the time the cause of action accrues,
the individual shall have a period of 12 years after
attaining 18 years of age in which to commence an
action for damages regardless of whether the
individual files a criminal complaint regarding the
childhood sexual abuse.
(ii) For the purposes of this paragraph, the term
“childhood sexual abuse” shall include . . . sexual
activities between a minor and an adult, provided
that the individual bringing the civil action
engaged in such activities as a result of forcible
compulsion or by threat of forcible compulsion
which would prevent resistance by a person of
reasonable resolution[.]49
Defendants posit that the phrases “forcible compulsion” and “arising from
childhood sexual abuse” indicate that tolling applies only to claims against the
individuals who perpetrate abuse, not third parties who facilitate or fail to
intervene.50
We reject defendants’ argument. Section 5533 does not place a specific
limitation on the type of defendant against whom the tolling provision applies. 51 We
find Viney v. Jenkintown School District, 51 F. Supp. 3d 553 (E.D. Pa. 2014), to be
instructive. In Viney, a former student brought constitutional claims against a
school district based on its failure to investigate abuse she suffered while a minor.52
49
42 PA. STAT. & CONS. STAT. ANN. § 5533(b)(2)(i)-(ii).
Doc. 62 at 4-8; Doc. 66 at 6-8.
51
See 42 PA. STAT. & CONS. STAT. ANN. § 5533(b)(2)(i)-(ii).
52
Viney, 51 F. Supp. 3d at 554.
9
50
The perpetrator was an employee of the school district.53 The school district raised
the same defense the District submits herein, to wit: that the two-year statute of
limitations bars plaintiff’s claims because the infancy tolling statute does not apply
to third party defendants.54 The court rejected this defense, stating that the key
language in the infancy tolling statute describing claims that are tolled—“a civil
action arising from childhood sexual abuse”—merely identifies that a causal
connection must exist between the civil action and the childhood sexual abuse.55
We agree with our sister court’s ratio decidendi. There is an obvious casual
connection between the abuse K.E. suffered and her charges against the District
and Lincoln sub judice, qualifying her claims as “arising from childhood sexual
abuse.”56 K.E. filed suit prior to her thirtieth birthday.57 Therefore, her claims are
timely under Pennsylvania law.
B.
Merits
The District and Lincoln seek judgment on three of K.E.’s claims, namely:
Count I, a Fourteenth Amendment municipal liability claim under Monell v.
Department of Social Services, 436 U.S. 658 (1978), pursuant to Section 1983; Count
II, a Fourteenth Amendment claim under the state-created danger doctrine
pursuant to Section 1983; and Count III, a Title IX claim. The court will address
these claims seriatim.
53
Id.
See id. at 554-55.
55
Id. at 555-56.
56
See 42 PA. STAT. & CONS. STAT. ANN. § 5533(b)(2)(ii); see also Viney, 51 F.
Supp. 3d at 556.
57
K.E. Dep. 5:8-14; see Doc. 1.
10
54
1.
Section 1983 Claims
Section 1983 of Title 42 of the United States Code provides a cause of action
to redress violations of federal law committed by state officials.58 Section 1983 is not
a source of substantive rights, but merely a method for vindicating those rights
otherwise protected by federal law.59 To establish a claim under Section 1983,
plaintiff must show a deprivation of a “right secured by the Constitution and the
laws of the United States . . . by a person acting under color of state law.”60 There is
no dispute that the moving defendants are state actors within the purview of
Section 1983.
a.
Monell Policy or Custom Theory
Municipalities and other local government entities may not be held liable in a
Section 1983 suit for conduct of their employees under a theory of respondeat
superior or vicarious liability.61 Municipal liability only arises when a government
causes an employee to violate another’s constitutional rights by an official custom
or policy.62 To establish liability under Monell, a plaintiff must identify the
58
See 42 U.S.C. § 1983.
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996).
60
Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137,
1141 (3d Cir. 1995)).
61
Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) (citing
Monell, 436 U.S. at 692); see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027
(3d Cir. 1991).
62
Monell, 436 U.S. at 690-94; see also Montgomery v. De Simone, 159 F.3d
120, 126 (3d Cir. 1998).
11
59
challenged policy or custom, attribute it to the public entity itself, and show a causal
link between the execution of the policy or custom and the injury suffered. 63
A policy exists “when a decisionmaker possess[ing] final authority to
establish . . . [public] policy with respect to the action issues an official
proclamation, policy or edict.”64 A custom is “an act ‘that has not been formally
approved by an appropriate decisionmaker,’ but that is ‘so widespread as to have
the force of law.’”65 A plaintiff may also establish a policy or custom when a
policymaker has failed to take affirmative action despite an obvious need to correct
the “inadequacy of existing practice which is so likely to result in the violation of
constitutional rights” that inaction exhibits deliberate indifference to the need.66
The latter theory is relevant sub judice. K.E. asserted various Monell claims
in her first amended complaint, which the court categorized as failure-to-train and
failure-to-act theories of liability at the motion to dismiss stage.67 K.E. reasserts the
same claims in her second amended complaint.68 Specifically, K.E. contends that
the District and Lincoln were deliberately indifferent to the need, first, to train
63
See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003).
Id. at 584 (quoting Kneipp, 95 F.3d at 1212).
65
Id. (quoting Bryan Cty., 520 U.S. at 404).
66
Id. (quoting Bryan Cty., 520 U.S. at 417-18).
67
Doc. 39 at 12.
68
Doc. 44 ¶¶ 37-41. Defendants also argue against negligent retention and
failure to discipline theories, as well as an equal protection claim. Doc. 62 at 15 n.7,
16; Doc. 66 at 13-14. K.E. does not posit negligent retention and failure to discipline
theories in her second amended complaint, nor does she plead a traditional equal
protection claim. Doc. 44 ¶¶ 37-41, 45-50.
12
64
employees to detect and report sexual abuse, and second, to respond to reports of
abuse.69
A government entity exhibits deliberate indifference when it “disregard[s] a
known or obvious consequence of [its] . . . action.”70 Failure to train amounts to
deliberate indifference when it causes a pattern of cognate constitutional
violations.71 Under exceptional factual circumstances, a single incident which is the
“obvious consequence of failing to provide” training may also serve to demonstrate
deliberate indifference.72 Alleged training deficiencies must closely relate to the
constitutional injury.73 The failure-to-act theory of liability is also governed by the
foregoing principles.74
In cases involving student sexual assault, a school district’s failure to train its
employees to detect or report signs of abuse may constitute deliberate indifference
if the plaintiff establishes a pattern of causally-connected employee violations.75
Similarly, a school district’s inaction subsequent to one or more reports of sexual
69
Id. ¶¶ 39-40.
Connick v. Thompson, 563 U.S. 51, 61 (2011); see Vargas v. City of Phila.,
783 F.3d 962, 974 (3d Cir. 2015).
71
See Connick, 563 U.S. at 62; Kelly v. Borough of Carlisle, 622 F.3d 248, 265
(3d Cir. 2010).
72
Connick, 563 U.S. at 63; see Kelly, 622 F.3d at 265-66.
73
City of Canton v. Harris, 489 U.S. 378, 391 (1989); Beck v. City of Pittsburgh,
89 F.3d 966, 971-72 (3d Cir. 1996).
74
See Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000); M.S. ex rel.
Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412, 424-25 (M.D. Pa. 2014).
75
See Kline ex rel. Arndt v. Mansfield, 255 F. App’x 624, 629-30 (3d Cir. 2007)
(nonprecedential); Douglas v. Brookville Area Sch. Dist., 836 F. Supp. 2d 329, 364
(W.D. Pa. 2011).
13
70
abuse conveyed directly to school officials may also manifest deliberate
indifference.76
i.
The District
A reasonable jury could conclude that the District was deliberately
indifferent when handling K.E.’s reports of abuse. K.E. submits several instances
when school officials were made aware of inappropriate touching and abuse
allegations against Puterbaugh. In late 2000, a female student complained that
Puterbaugh made her and other female students uncomfortable by engaging in
conduct such as “rubbing their legs, rubbing their backs,” and “blocking
departure.”77 The District investigated and sent Puterbaugh a letter, indicating that
the matter was “resolved.”78 Then, twice between 2002 and 2004, K.E. reported
abuse to Humphreys and Wesley; both ultimately informed school officials of K.E.’s
statements concerning Puterbaugh’s abuse.79
Record evidence also indicates that the District failed to train teachers
regarding how to handle sexual abuse allegations.80 It is undisputed that, upon
learning of K.E.’s initial allegations, the District did not formally investigate
Puterbaugh.81 K.E. presents affirmative evidence that District policymakers were
76
See Kline, 255 F. App’x at 628 (quoting Black by Black v. Indiana Area Sch.
Dist., 985 F.2d 707, 712-13 (3d Cir. 1993)); Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720, 725 (3d Cir. 1989); e.g., Doe v. Boyertown Area Sch. Dist., 10 F. Supp. 3d
637, 650-51 (E.D. Pa. 2014); C.M. v. Se. Delco Sch. Dist., 828 F. Supp. 1179, 1184 (E.D.
Pa. 1993).
77
Doc. 70-1 at 60.
78
Id. at 65.
79
See Doc. 81; Humphreys Dep. 25:20-25:25; K.E. Dep. 7:9-16:3, 28:14-29:21.
80
Eshenour Dep. 16:6-17:9, 48:6-9; Kann Dep. 10:16-11:15, 19:4-17.
81
See, e.g., K.E. Dep. 24:6-24:25; St. Clair Dep. 36:6-37:1.
14
aware of multiple student reports concerning Puterbaugh’s abusive conduct. These
multiple reports were more than sufficient to put the District on notice of its need to
take action and train its employees to protect K.E. and others.
The District offers a divergent account. The District maintains that
policymakers were unaware of any “credible” reports of abuse against Puterbaugh,
discrediting both the 2000 investigation into Puterbaugh as well as K.E.’s reports.82
The District further avers that it had an appropriate policy for investigating sexual
abuse and that District staff followed this policy.83
Notwithstanding its litigation self-assessment, the District cannot ignore
testimony from its own employees—Humphreys, Eshenour, Kann, and Spangler.
K.E. reported abuse to Humphreys, Eshenour, and Kann, and her report to Wesley
reached Spangler. Humphreys testified that she informed the school principal, a
policymaker, of K.E.’s allegations.84 Kann and Eshenour testified that they were
never aware of an official District policy on reporting child abuse, nor did they
receive training anent child abuse investigations.85 Spangler faxed K.E.’s
allegations to the District’s superintendent, Nilsen, another policymaker.86 This
evidence flatly contradicts the District’s narrative.
82
Doc. 62 at 12-14. The court notes with interest that despite the District’s
remonstrations that K.E. was not a “credible” reporter of abuse, the District
nonetheless deemed her credible enough to ask Puterbaugh to stay away from K.E.
Id. at 24.
83
Id. at 13.
84
Humphreys Dep. 25:22-25.
85
Eshenour Dep. 16:6-17:9, 48:6-9; Kann Dep. 11:2-15, 19:4-17.
86
Doc. 81 at 2.
15
Moreover, K.E. testified that Humphreys pressured her to recant her report.87
The District predicates its defense on a blatantly inaccurate characterization of
K.E.’s testimony. The District baldly asserts that K.E. “changed her story” during
her deposition testimony and “admitted” that Humphreys “did not tell her that no
one was going to believe her.”88 K.E. testified in pertinent part:
Q.
Okay. I just want to make sure I understand.
During your conversation with [Humphreys], she never
said, because you’ve lied before about where you’ve been
while you skipped class, no one is going to believe you
about the allegations you’re making about Mr.
Puterbaugh?
A.
Not in those direct words.
Q.
Okay. Then tell me what the direct words were that
[Humphreys] said to you that made you believe that no
one would believe you about Mr. Puterbaugh.
A.
She had told me—and I don’t know word for word
[because] it’s been a while. But I do remember she had
told me that these are very serious allegations and
because I had made—I—that I got in a lot of trouble a
lot in school that it’s going to be hard for people to
believe me.89
It is simply erroneous to suggest that this testimony reflects that there is “no
evidence that Dover officials ever pressured K.E. to recant her allegations.”90 K.E.’s
87
K.E. Dep. 14:13-15:5, 15:22-16:3, 74:6-77:20.
Doc. 63 ¶ 175; see Doc. 62 at 12-15, 19 n.8.
89
K.E. Dep. 76:17-77:17 (emphasis added).
90
Doc. 62 at 13 n.4.
16
88
testimony that Humphreys convinced her that no one would believe her further
supports her failure-to-train and failure-to-act theories of liability.91
Multiple disputes of material fact exist, despite the District’s asseverations to
the contrary. K.E.’s testimony alone precludes Rule 56 judgment for the District.
K.E.’s Section 1983 claims based on Monell liability are for a jury, not the court, to
decide.92
ii.
Lincoln
The record evidence as pertains to Lincoln’s conduct compels a different
result. None of the staff at Lincoln convinced K.E. to recant her allegations against
Puterbaugh.93 To the contrary, staff members seriously considered her allegations,
called her mother, and reported their observations to both Child and Youth
Services and the District.94
K.E. rejoins that Lincoln did not follow up with the District and did not
initiate a formal investigation into Puterbaugh.95 K.E. also maintains that Lincoln’s
sexual abuse reporting policy during the relevant time period was out of compliance
with Pennsylvania law.96 K.E. contends that these circumstances give rise to a
91
K.E. and the District dispute whether K.E.’s interaction with Humphreys
alone could give rise to a single-incident deliberate indifference Monell claim. Doc.
62 at 15-16; Doc. 71 at 12-13. As K.E. demonstrates that her claim is based on at
least two, if not three, incidents, the court declines to comment on the sufficiency of
K.E.’s first report for a single-incident claim.
92
See Stoneking, 882 F.2d at 725.
93
See K.E. Dep. 28:14-29:21, 140:4-144:23.
94
Doc. 81; St. Clair Dep. 31:3-32:25; Spangler Dep. 53:8-24.
95
Doc. 73 at 6-8.
96
Id.
17
single-incident Monell claim.97 But Lincoln acted affirmatively to protect K.E. by
reporting the abuse to the District.98 Its policy was not so inadequate as to “likely []
result in the violation of constitutional rights.”99 K.E. also has not demonstrated
that Lincoln engaged in a pattern of inaction anent student reports of abuse.100
Even taking K.E.’s testimony as true, her evidence is insufficient to withstand
Lincoln’s Rule 56 challenge. The court will therefore grant summary judgment to
Lincoln on Count I.
b.
State-Created Danger Theory
When the affirmative exercise of state authority either causes injury to a
citizen or leaves a citizen more vulnerable to injury at the hands of a third party, the
government contravenes the substantive due process protections of the Fourteenth
Amendment.101 This principle of liability is commonly referred to as the “statecreated danger” theory.102 In order to establish a state-created danger claim, a
plaintiff must prove:
(1) that the harm ultimately caused to the plaintiff was
foreseeable and fairly direct; (2) the state actor acted in
willful disregard for the plaintiff’s safety; (3) there was
some relationship between the state and the plaintiff; and
(4) the state actor used his authority to create an
opportunity for danger that otherwise would not have
existed.103
97
Id. at 9-10.
See Doc. 81.
99
Natale, 318 F.3d at 584.
100
See Kline, 255 F. App’x at 629-30.
101
See Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006) (quoting
Schieber v. City of Phila., 320 F.3d 409, 416 (3d Cir. 2003)).
102
See id.
103
Rivas v. City of Passaic, 365 F.3d 181, 194 (3d Cir. 2004) (citing Kneipp, 95
F.3d at 1208).
18
98
An action undertaken with “willful disregard” for the safety of a student is one that
shocks the conscience.104 With respect to the fourth element, liability is “predicated
upon the state’s affirmative acts which work to [a plaintiff’s] detriment in terms of
exposure to danger.”105 This element is not satisfied unless a plaintiff proves “but
for” causation.106
i.
The District
The District submits, as it did at the Rule 12(b)(6) stage, that K.E. has not
specified any affirmative action by the District which would have caused K.E. to be
more vulnerable than she otherwise would have been.107 The District also argues
that K.E’s harm was unforeseeable and that the District did not willfully disregard
K.E.’s safety in a manner that shocks the conscience.108
The court notes that these arguments are grounded in the same inaccurate
interpretation of K.E.’s testimony discussed supra. K.E. avers that the District
engaged in an affirmative act—dissuading her from pursuing her report of abuse—
that increased her risk of harm.109 We noted in our previous opinion that this
alleged conduct augmented K.E.’s vulnerability to further harm from Puterbaugh.110
Assuming arguendo that K.E.’s testimony is true, depriving K.E. of recourse by
discouraging reporting demonstrates the District’s willful disregard for K.E.’s
104
Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006).
Bright, 443 F.3d at 282 n.6 (quoting D.R. by L.R v. Middle Bucks Area
Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d Cir. 1992)) (emphasis added).
106
Kaucher v. Cty. of Bucks, 455 F.3d 418, 433 (3d Cir. 2006).
107
Doc. 62 at 19.
108
Id. at 20-24.
109
Doc. 71 at 14-15; see K.E. Dep. 13:13-16:3.
110
See Doc. 39 at 17.
19
105
safety.111 Continued abuse was a foreseeable outcome,112 and improperly pressuring
a student to recant, if true, certainly shocks the conscience.113 Drawing all
inferences in favor of K.E., a jury could reasonably find that Humphreys took this
affirmative action as a direct result of the District’s failure to train employees on
handling sexual abuse allegations discussed supra. Humphreys contradicts K.E.’s
account, creating an impassable dispute of material fact.114 Hence, the court will
deny the District’s motion for summary judgment on Count II.
ii.
Lincoln
We again reach a different conclusion regarding Lincoln. The record does
not evince that Lincoln engaged in an “affirmative act” that put K.E. at risk. As
noted supra, no staff at Lincoln discouraged K.E. from reporting.115 Any failure on
Lincoln’s part to follow up with the District concerning K.E.’s allegations is not an
affirmative act.116 K.E. cannot prove the fourth element required for the statecreated danger theory of liability. The court will grant Lincoln summary judgment
on Count II.
2.
Title IX Claim
Title IX proscribes discrimination, exclusion, or denial of benefits on the
basis of sex in educational institutions or programs which receive federal funding.117
111
See K.E. Dep. 13:8-16:3, 74:6-77:20.
See Rivas, 365 F.3d at 194-95.
113
See Sanford, 456 F.3d at 309-11.
114
Humphreys Dep. 23:10-24:25; see also FED. R. CIV. P. 56(a).
115
See K.E. Dep. 28:14-29:21, 140:4-144:23.
116
See Bright, 443 F.3d at 282.
117
20 U.S.C. § 1681.
20
112
The Supreme Court has recognized an implied private right of action thereunder, 118
as well as a monetary damage remedy in such private actions.119 To succeed on a
Title IX sexual harassment claim, a plaintiff student must show: (1) quid pro quo
sexual harassment, or a sexually hostile educational environment; (2) actual notice
to an “appropriate person” who has the authority to institute corrective measures;
and (3) a response to the harassment that amounts to deliberate indifference.120
Under Title IX, an appropriate person “is, at a minimum an official of the
recipient entity with authority to take corrective action to end the
discrimination.”121 A school principal will ordinarily be an appropriate person for
purposes of Title IX notice.122 However, any official with “authority to supervise a
teacher and to investigate a complaint of misconduct” may qualify, even if he or she
is not permitted to terminate or suspend employees.123 The job responsibilities of
each purported appropriate person must be evaluated during the period relevant to
the claim.124
An appropriate person must have actual knowledge of the misconduct and
fail to respond.125 Knowledge of the mere possibility of harassment is insufficient,
118
See Cannon v. Univ. of Chi., 441 U.S. 677 (1979).
See Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75-76 (1992).
120
Bennett v. Pa. Hosp. Sch. of Nurse Anesthesia, No. 01-CV-4098, 2002 WL
32341792, at *3 (E.D. Pa. Oct. 29, 2002) (citing Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 291-92 (1998)); see Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 359 (3d
Cir. 2005).
121
Gebser, 524 U.S. at 290.
122
See Warren ex rel. Good v. Reading Sch. Dist., 278 F.3d 163, 171 (3d Cir.
2002).
123
Id. at 173.
124
See id. at 170, 172-73.
125
See Bostic, 418 F.3d at 362; Warren, 278 F.3d at 173-74.
21
119
but an appropriate person need not be absolutely certain that harassment has
occurred in order to satisfy the knowledge requirement.126 Actual knowledge exists
if the school was aware of underlying facts that indicated “sufficiently substantial
danger to students.”127
An official decision not to remedy any type of discrimination demonstrates
deliberate indifference.128 A clearly unreasonable response to actual notice of
harassment also amounts to deliberate indifference.129
a.
The District
The District contends that no “appropriate person” had “actual knowledge”
of K.E.’s exigent circumstances.130 The District notes that a guidance counselor is
not an “appropriate person” under Title IX.131 The District also avers that K.E.
cannot prove deliberate indifference as the District lacked knowledge of her
circumstances.132
Humphreys’ testimony gainsays these averments. She testified that she
related K.E.’s allegations to the District’s middle school principal.133 St. Clair also
testified that she related K.E.’s charges to the District’s high school principal.134
126
See Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 367
(W.D. Pa. 2008) (citing Bostic, 418 F.3d at 360).
127
Bostic, 418 F.3d at 361 (quoting 3C FED. JURY PRAC. & INSTR. § 177.36 (5th
ed. 2001)).
128
Id. at 360.
129
Chancellor v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 708 (E.D. Pa.
2007).
130
Doc. 62 at 25-26.
131
Id. at 25 n.12.
132
Id. at 26-27.
133
Humphreys Dep. 25:22-25.
134
St. Clair Dep. 34:11-36:23.
22
Documentary evidence demonstrates that Nilsen, the District’s superintendent,
likewise received notice of K.E.’s report.135 Two principals and a superintendent
are clearly “appropriate” people for purposes of Title IX, as all had supervisory
authority over Puterbaugh.136 K.E.’s allegations signaled that Puterbaugh was a
substantial danger to students.137 K.E. submits that the principals and Nilsen failed
to take any action in response to knowledge of Puterbaugh’s abusive conduct.138 A
jury could find on this record that the District’s answer to K.E.’s reports—to do
nothing—was “clearly unreasonable.”139 Viewed in the light most favorable to K.E.,
the probata fits squarely into the elements necessary for a Title IX claim. The court
will deny the District’s motion for summary judgment on Count III.
b.
Lincoln
Lincoln argues that it cannot be held liable under Title IX because no
“appropriate person” at Lincoln maintained supervisory authority over
Puterbaugh.140 K.E. does not respond to this argument in her briefing.141 Hence,
K.E. has effectively waived any objection to Lincoln’s argument that no
“appropriate person” existed at Lincoln.142 Even if K.E. had not waived her
opposition, the court would nevertheless agree with Lincoln. Title IX assumes the
existence of an “appropriate person” with supervisory authority over the employee
135
Doc. 81 at 2.
See Warren, 278 F.3d at 171, 173.
137
K.E. Dep. 7:9-9:9, 11:11-13:5, 28:14-29:21; see Bostic, 418 F.3d at 361.
138
Doc. 71 at 18-19.
139
Chancellor, 501 F. Supp. 2d at 708-09.
140
Doc. 66 at 19.
141
Doc. 73 at 13-15.
142
See D’Angio v. Borough of Nescopeck, 34 F. Supp. 2d 256, 265 (M.D. Pa.
136
1999).
23
against whom allegations have been levied.143 Puterbaugh was never affiliated with
Lincoln, only the District.144 K.E.’s Title IX claim against Lincoln necessarily fails.
The court will grant Lincoln summary judgment on Count III.
IV.
Conclusion
The court will deny the District’s motion145 for summary judgment and will
grant Lincoln’s motion146 for summary judgment. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:
143
September 29, 2017
See Warren, 278 F.3d at 171-73.
Doc. 65 ¶¶ 3-5; Doc. 72 ¶¶ 3-5.
145
Doc. 61.
146
Doc. 64.
144
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