DOUGLAS v. BROOKVILLE AREA SCHOOL DISTRICT et al
Filing
70
MEMORANDUM OPINION & ORDER OF COURT denying 55 Motion for Summary Judgment and granting 59 Motion for Summary Judgment. Counsel for Defendant Karin Hetrick is hereby ORDERED to respond to Plaintiff Lisa Douglas Motion for Summary Judgment on or before January 6, 2011. If Plaintiff Lisa Douglas wishes to file a responsive brief, she must do so on or before January 20, 2011. Signed by Judge Terrence F. McVerry on 12/8/2011. (kly)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LISA DOUGLAS, individually and as
)
the parent and natural guardian of K.E., )
a minor,
)
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Plaintiffs,
)
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v.
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BROOKVILLE AREA SCHOOL
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DISTRICT; SANDRA CRAFT,
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Superintendent of the Brookville Area
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School District; and KARIN HETRICK, )
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Defendants.
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Civil Action No. 10-1087
MEMORANDUM OPINION AND ORDER OF COURT
I.
Introduction
Before the Court for disposition are the Plaintiff‟s MOTION FOR SUMMARY
JUDGMENT (ECF No. 55), along with her supporting brief, supplement and exhibits (ECF Nos.
56-58), the Defendants‟ MOTION FOR SUMMARY JUDGMENT (ECF No. 59), along with
their supporting brief and exhibits (ECF No. 60), and the responsive filings presented by the
parties (ECF Nos. 61-69). For the reasons that follow, the Defendants‟ motion for summary
judgment will be granted, and the Plaintiff‟s motion for summary judgment will be denied in
part.
II.
Background
K.E.1 is a female who was born on April 13, 1994. ECF Nos. 59 & 68 at ¶ 6.2 She was
enrolled as a sophomore at Brookville High School (“Brookville”) during the 2009/2010 school
year. ECF Nos. 55 & 62 at ¶ 97. Shannon Shaffer (“Shaffer”), a senior at Brookville, became
acquainted with K.E. through band-related activities. Id. at ¶ 123. Karin Hetrick (“Hetrick”), a
female, was a mathematics teacher and girls‟ softball coach at Brookville. Id. at ¶ 97. Hetrick‟s
1
Federal Rule of Civil Procedure 5.2(a)(3) provides that references to “the name of an individual known to be a
minor” may normally include only “the minor‟s initials.” FED. R. CIV. P. 5.2(a)(3).
2
The parties combined their concise statements of material facts with their motions for summary judgment. ECF
Nos. 55 & 59. Unless otherwise indicated, the numerical citations to those documents refer to the paragraphs
contained in the concise statements of material facts, and the responses thereto, rather than to the paragraphs
contained in the motions for summary judgment.
1
daughter, Brynna Hetrick (“Brynna”), was a senior at Brookville and one of Shaffer‟s best
friends. Id. at ¶ 125.
K.E. was in a trigonometry class taught by Hetrick during the first semester of her
sophomore year. ECF No. 59-25 at 12. She was also a member of the Brookville girls‟ soccer
team. ECF Nos. 55 & 62 at ¶ 98. The team lost a playoff game to the Karns City girls‟ soccer
team in November 2009. Id. at ¶ 99. Shortly thereafter, Hetrick sent K.E. a text message
inquiring as to how the game had gone. Id. at ¶ 99. Hetrick used K.E.‟s cellular telephone
number to send the message. Id. The number had been given to Hetrick by Shaffer earlier that
day. Id. Hetrick asked Shaffer about K.E.‟s sexual orientation a few weeks after sending the
text message. Id. at ¶ 100.
Hetrick and K.E. were both members of a band preparing to play in a school musical.
ECF No. 55 at ¶ 102.3 Brookville had a policy prohibiting teachers from using their personal
vehicles to transport students except where specifically permitted by a policy promulgated by the
School Board. Id. at ¶ 111. Nevertheless, Hetrick sometimes transported K.E. to and from band
practice. Id. at ¶ 102. Hetrick also drove K.E. to and from the Young Men‟s Christian
Association (“YMCA”) in Brookville, where K.E. regularly exercised. Id. at ¶ 105. K.E.
frequently visited Hetrick in her classroom around this same period of time. Id. at ¶ 103. They
often played board games in Hetrick‟s classroom after classes had ended. Id. at ¶ 107. K.E. later
started to take piano lessons at Hetrick‟s residence. Id. at ¶ 106. Hetrick transported K.E. to and
from these lessons. Id.
Hetrick attended a basketball game on December 12, 2009. ECF No. 55-10 at 24.
During the game, K.E. sent a text message indicating that her mother was not home and asking
Hetrick to visit her house. Id. Hetrick proceeded to K.E.‟s residence. Id. When Hetrick entered
the residence, she was “embraced” by K.E. Id. K.E. proceeded to play music on her drums with
Hetrick present. Id. During the ensuing three and a half months, K.E. and Hetrick frequently
“embraced” and “kissed” each other in Hetrick‟s classroom. Id. at 24-25.
3
Local Rule 56(C)(1)(b) provides that a party denying factual assertions contained in another party‟s concise
statement of material facts must respond to those assertions by “setting forth the basis for the denial” of any fact that
“is not admitted in its entirety.” The Defendants have failed to comply with this requirement by denying that certain
facts are “undisputed” without identifying the specific statements that are disputed. ECF No. 62. To the extent that
the Plaintiff‟s factual allegations are not contradicted by the deposition testimony cited by the Defendants, they are
deemed to be “undisputed” despite the Defendants‟ vague suggestions to the contrary.
2
Between January and March of 2010, K.E. and Hetrick had several intimate encounters
inside of Hetrick‟s vehicle, Hetrick‟s house, and a storage room that was adjacent to a school
gymnasium. Id. at 26-27. In addition to “kissing” and “embracing,” some of these encounters
involved “fondling” and the “inappropriate penetration” of K.E.‟s vagina. Id. Hetrick
sometimes fondled K.E. underneath her clothes. Id. at 27. K.E. occasionally disrobed during the
encounters inside of Hetrick‟s vehicle. Id. K.E. and Hetrick engaged in intimate “kissing,”
“hugging” or “touching” on 50 to 60 different occasions. Id. at 29. They frequently exchanged
text messages and “inappropriate” photographs on their cellular telephones during this same
period of time. Id.
Brynna started to notice that K.E. was constantly in Hetrick‟s classroom during study
halls and after school. ECF No. 55 at ¶ 128(f). Brynna told Shaffer that she felt like K.E. was
“replacing” her as Hetrick‟s daughter. Id. Shaffer discussed the situation with Timothy F.
Stevenson (“Stevenson”), Brookville‟s music teacher and band director, on three separate
occasions. Id. at ¶ 128(c).
On March 22, 2010, Brynna went to Hetrick‟s classroom in order to get some money. Id.
at ¶ 132. Hetrick was not in the room, but her cellular telephone was sitting on her desk. Id.
Brynna accessed the text messages on the phone and observed that several sexually suggestive
messages had been exchanged between her mother and K.E. Id. At that time, Hetrick and K.E.
were inside of the storage room of the gymnasium. Id. Brynna proceeded to the gymnasium and
saw her mother and K.E. coming out of the storage room. Id. at ¶ 133. Having become aware of
the situation, Brynna “stormed” out of the school and showed one of the text messages to
Shaffer. ECF No. 55-12 at 32. The message, which had been sent by Hetrick to K.E., referred to
an individual who was “excited” and “wet.” ECF No. 59-70 at 13. Brynna then telephoned her
older sister, Tia Hetrick (“Tia”), and insisted that she speak with Shaffer. ECF No. 55-12 at 32.
At Brynna‟s request, Shaffer described the content of the text message to Tia. Id. After
speaking with Shaffer, Tia contacted Hetrick and confronted her about her relationship with K.E.
Id.
Brynna and Shaffer went to the residence of their friend, Logan Sneel (“Sneel”), to spend
the night. ECF No. 59-70 at 13. Hetrick sent a text message to Shaffer advising that her family
was aware of the relationship, that she was going to speak with K.E.‟s parents about the matter,
and that she was prepared to submit her resignation to Brookville. Id. at 14. Hetrick apparently
3
sent the text message to Shaffer after learning from her husband that Brynna was with Shaffer at
Sneel‟s residence. Id. K.E. did not know that Brynna had uncovered the relationship until a few
hours later, when Hetrick sent her a text message stating that the relationship would have to end.
ECF No. 62-2 at 42. Later that evening, Shaffer contacted K.E. and informed her that Brynna
had discovered the inappropriate text message on Hetrick‟s phone. Id.
At 7:40 A.M. on the morning of March 23, 2010, Shaffer met with Stevenson, described
the content of the text messages sent by Hetrick, and advised that Hetrick‟s relationship with
K.E. had been inappropriate. ECF No. 55 at ¶ 135. Shortly thereafter, K.E. spoke with Shaffer
and acknowledged that her relationship with Hetrick had been sexual in nature. Id. at ¶ 136.
Shaffer encouraged K.E. to speak with Stevenson and escorted her to his office. Id. K.E. met
with Stevenson at lunchtime and admitted that her relationship with Hetrick had involved handholding, kissing and touching. Id. at ¶ 137.
Stevenson reported the matter to Keith Wolfe (“Wolfe”), Brookville‟s principal, at 9:20
A.M. on the morning of March 24, 2010. Id. at ¶ 140. After meeting with Stevenson, Wolfe and
Sandra Craft (“Craft”), Brookville‟s superintendent, pulled Shaffer out of class and asked her
what she knew about K.E.‟s relationship with Hetrick. Id. at ¶ 142. Shaffer described the text
messages that Brynna had discovered on Hetrick‟s phone and stated that K.E. and Hetrick had
engaged in intimate activities. Id. at ¶ 143. Wolfe and Craft went to Hetrick‟s classroom and
advised that they would be speaking with her at 12:25 P.M. about her relationship with a student.
Id. at ¶ 145.
K.E. was in a class being taught by Amanda Carrico (“Carrico”). Id. at ¶ 147. Hetrick
telephoned Carrico and asked for an opportunity to speak with K.E. in a nearby hallway. Id.
Carrico honored the request and instructed K.E. to meet Hetrick in the hallway. Id. Hetrick and
K.E. proceeded to discuss the matter. Id. at ¶ 148. After speaking with K.E., Hetrick decided to
meet with Wolfe and Craft at 11:20 A.M. instead of waiting until 12:25 P.M. Id. at ¶ 150.
During the meeting, Hetrick acknowledged that her relationship with K.E. had been
inappropriate. Id. at ¶¶ 150-151. Craft informed Hetrick that she was being placed on
administrative leave. ECF No. 62 at ¶ 146.
That same day, Officer Vince Markle (“Markle”), a member of the Brookville Police
Department, stopped by the school and spoke with Wolfe. ECF No. 55 at ¶ 155. Wolfe
informed Markle that the school was conducting an investigation but did not provide any details.
4
Id. Wolfe and Craft discussed the situation with K.E. at approximately 1:50 P.M. Id. at ¶ 157.
K.E. confirmed that her relationship with Hetrick had been inappropriate. Id. Hetrick
telephoned K.E.‟s mother, Lisa Douglas (“Douglas”), and apologized for “hugging” her
daughter. ECF No. 62-1 at 41. After learning from her husband that K.E. needed a ride home,
Douglas drove to the school and found K.E. in a room with Wolfe and Craft. Id. at 42. K.E. left
the room at Douglas‟ request. Id. Shortly thereafter, Douglas was informed of the relationship
that had existed between K.E. and Hetrick. Id. Wolfe and Craft told Douglas that the
relationship had been confirmed to them by Hetrick, Brynna and Shaffer, but that K.E. had not
provided them with detailed information. Id. Douglas took K.E. home after conferring with
Wolfe and Craft. Id.
Hetrick presented Brookville with her letter of resignation on March 25, 2010. ECF No.
62 at ¶ 154. Her resignation was immediately accepted. Id. at ¶ 155. Douglas reported the
relationship to the Pennsylvania State Police (“PSP”) that same day. ECF No. 55 at ¶ 159. The
PSP referred the matter to Markle. ECF No. 55 at ¶ 160. Markle proceeded to conduct an
investigation. Id. at ¶ 162. According to an affidavit of probable cause prepared in support of
criminal charges later filed against Hetrick, Markle and Officer Mickey Stormer (“Stormer”)
went to Hetrick‟s residence on March 25, 2010, to conduct an interview. ECF No. 55-16 at 23.
After signing a statement acknowledging that she had been read her rights in accordance with
Miranda v. Arizona, 384 U.S. 436, 467-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Hetrick
agreed to speak with Markle and Stormer. Id. She admitted that she had inserted her fingers into
K.E.‟s vagina on at least one occasion. Id. Hetrick also stated that, on ten to twelve different
occasions, she had touched K.E.‟s breasts and vagina while K.E. was completely unclothed. Id.
Later that day, K.E. and Douglas met with Markle and Stormer at the Brookville Police
Station. Id. K.E. described incidents in which Hetrick had rubbed her vagina for five to ten
minutes at a time. Id. at 24. She stated that Hetrick had touched her breasts and buttocks near
the school gymnasium on March 22, 2010. Id. K.E. also provided Markle with a flash drive that
she had used to download four “nude or partially nude” photographs that had been forwarded to
her by Hetrick. Id. In addition, K.E. advised Markle and Stormer that she had forwarded ten
“nude or partially nude” photographs of herself to Hetrick‟s phone. Id. Hetrick was ultimately
charged with aggravated indecent assault,4 indecent assault,5 indecent exposure,6 corrupting the
4
18 PA. CONS. STAT. § 3125(a)(8).
5
morals of a minor,7 disseminating sexually explicit materials to a minor,8 possession of child
pornography,9 and having unlawful contact with a minor.10 ECF No. 55-16 at 18-24.
During his investigation, Markle obtained a warrant authorizing a search of Hetrick‟s
cellular telephone. ECF No. 55-16 at 31. Nonetheless, he was unable to find the phone, and
Hetrick advised that it had been lost “in the woods.” Id. Although Hetrick‟s phone was never
located, Markle retrieved some of the messages that he was seeking from K.E.‟s phone. Id.
Douglas commenced this action against Hetrick and the Brookville Area School District
(“District”) on August 18, 2010, alleging violations of the Fourteenth Amendment to the United
States Constitution, Title IX of the Education Amendments of 1972 (“Title IX”) [20 U.S.C. §
1681 et seq.], and the common law of Pennsylvania respecting the tort of battery. ECF No. 1 at
¶¶ 16-38. Meanwhile, the criminal proceedings against Hetrick continued. On February 7, 2011,
Hetrick pleaded “guilty” to three counts of aggravated indecent assault pursuant to the terms of a
plea agreement. ECF Nos. 55 & 62 at ¶ 121. Douglas filed an amended complaint in this action
on March 14, 2011, and added Craft as a defendant. ECF No. 33. On May 4, 2011, the Court of
Common Pleas of Jefferson County, Pennsylvania, sentenced Hetrick to a period of incarceration
of five to ten years followed by thirty years probation. ECF Nos. 55 & 62 at ¶ 121.
Douglas filed a motion for summary judgment on August 24, 2011. ECF No. 55. The
District and Craft filed a motion for summary judgment two days later. ECF No. 59. These
motions are the subject of this memorandum opinion.
III.
Standard of Review
Summary judgment may only be granted where the moving party shows that there is no
genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED.
R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary
judgment against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party‟s case, and on which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
evaluating the evidence, the Court must interpret the facts in the light most favorable to the non5
18 PA. CONS. STAT. § 3126(a)(8).
18 PA. CONS. STAT. § 3127(b).
7
18 PA. CONS. STAT. § 6301(a)(1).
8
18 PA. CONS. STAT. § 5903(c)(1).
9
18 PA. CONS. STAT. § 6312(d).
10
18 PA. CONS. STAT. § 6318(a)(4).
6
6
moving party, drawing all reasonable inferences in his or her favor. Watson v. Abington
Township, 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to
demonstrate that the evidence contained in the record does not create a genuine issue of material
fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A
dispute is “genuine” if the evidence is such that a reasonable trier of fact could return a verdict
for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the
non-moving party will bear the burden of proof at trial, the moving party may meet its burden by
showing that the admissible evidence contained in the record would be insufficient to carry the
non-moving party‟s burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party
satisfies its burden, the burden shifts to the non-moving party, who must go beyond his or her
pleadings and designate specific facts by the use of affidavits, depositions, admissions or
answers to interrogatories in order to show that there is a genuine issue of material fact for trial.
Id. at 324. The non-moving party cannot defeat a well-supported motion for summary judgment
by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams
v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
IV.
Discussion
Douglas‟ amended complaint pleads five counts. In Counts I and II, Douglas asserts
substantive due process and Title IX claims against the District. ECF No. 33 at ¶¶ 18-32. In
Counts III and IV, she asserts substantive due process and battery claims against Hetrick. Id. at
¶¶ 33-40. In Count V, Douglas attempts to hold Craft liable for the substantive due process
violations allegedly committed by Hetrick. Id. at ¶¶ 41-57.
Douglas moves for summary judgment with respect to all of her claims. ECF No. 55.
The District and Craft move for summary judgment with respect to Counts I, II and V of the
amended complaint. ECF No. 59. Hetrick, who is represented by separate counsel, has neither
responded to Douglas‟ motion for summary judgment nor filed any motion on her own behalf.
A.
The Title IX Claim Against the District
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. §
1681(a). Although a recipient of federal financial assistance can lose its federal funding for
failing to comply with Title IX‟s anti-discrimination requirement, Title IX‟s enforcement
7
provision provides that “no such action shall be taken until the department or agency concerned
has advised the appropriate person or persons of the failure to comply with the requirement and
has determined that compliance cannot be secured by voluntary means.” 20 U.S.C. § 1682. This
limitation on the enforcement mechanism created by Congress evinces a legislative intent to give
an offending entity an opportunity to end its discriminatory practices before its federal financial
support is terminated.
In Cannon v. University of Chicago, 441 U.S. 677, 709-717, 90 S.Ct. 1946, 60 L.Ed.2d
560 (1979), the United States Supreme Court held that private victims of sex-based
discrimination could seek redress under Title IX even though the applicable statutory language
provided only for the discontinuation of an offending entity‟s federal financial assistance.
Congress subsequently validated the holding in Cannon by abrogating the States‟ Eleventh
Amendment immunity in actions brought under Title IX by private individuals. Pub. L. No. 99506, § 1003; 100 Stat. 1807, 1845 (1986); 42 U.S.C. § 2000d-7(a). In light of this action by
Congress, it is “beyond dispute” that private individuals can sue recipients of federal financial
assistance under Title IX. Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149
L.Ed.2d 517 (2001). The Supreme Court held in Franklin v. Gwinnet County Public Schools,
503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), that individuals can seek monetary
relief under Title IX in actions brought to redress sex-based discrimination.
Title IX‟s proscription of sex-based “discrimination” is broad enough to encompass
“sexual harassment.” Jackson v. Birmingham Board of Education, 544 U.S. 167, 173-174, 125
S.Ct. 1497, 161 L.Ed.2d 361 (2005). A teacher engages in a prohibited form of “discrimination”
when he or she “sexually harasses and abuses a student.” Franklin, 503 U.S. at 75. A Title IX
action, however, can be brought only against a recipient of federal financial assistance.
Mwabira-Simera v. Howard University, 692 F.Supp.2d 65, 70 (D.D.C. 2010); Johnny’s
Icehouse, Inc. v. Amateur Hockey Association of Illinois, 134 F.Supp.2d 965, 970-971 (N.D.Ill.
2001). The recipient of federal financial assistance in this situation is ordinarily the school or
educational entity that employs the offending teacher. A plaintiff cannot invoke Title IX to sue
an individual teacher or school official. Fitzgerald v. Barnstable School Committee, 555 U.S.
246, 257, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009).
In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277, 118 S.Ct. 1989,
141 L.Ed.2d 277 (1998), the Supreme Court held that a student seeking to recover damages from
8
a school district for a teacher‟s misconduct must demonstrate that an official of the district with
the “authority to institute corrective measures on the district‟s behalf” had “actual notice” of the
prohibited discrimination, and that the official was “deliberately indifferent” to the district‟s
obligations under Title IX. The Supreme Court reasoned that since a federal agency could not
terminate a school district‟s federal funding without advising the “appropriate person or persons”
of the discrimination and determining that compliance with Title IX could not be “secured by
voluntary means,” it would frustrate the purposes of the enforcement mechanism to permit a
victim of sexual harassment to proceed against a school district on a theory of respondeat
superior or “constructive notice.” Gebser, 524 U.S. at 285-291. Speaking through Justice
O‟Connor, the Supreme Court explained:
The administrative enforcement scheme presupposes that an official who is
advised of a Title IX violation refuses to take action to bring the recipient into
compliance. The premise, in other words, is an official decision by the recipient
not to remedy the violation. That framework finds a rough parallel in the standard
of deliberate indifference. Under a lower standard, there would be a risk that the
recipient would be liable in damages not for its own official decision but instead
for its employees‟ independent actions.
Id. at 290-291. Since a school district‟s liability under Title IX is premised on a district official‟s
“actual notice” of the discrimination, the offending teacher‟s own notice of his or her actions
cannot be imputed to the district. Id. at 291.
The standard for determining whether a school district is liable under Title IX for sexual
harassment was further delineated in Davis v. Monroe County Board of Education, 526 U.S. 629,
119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In Davis, the Supreme Court clarified that the sexbased “discrimination” prohibited under Title IX was broad enough to encompass one student‟s
harassment of another student, and that the framework established in Gebser applied with equal
force to a situation in which the harasser was “a student rather than a teacher.” Davis, 526 U.S.
at 643. The Supreme Court also declared that a cause of action for sexual harassment was
cognizable under Title IX only where the harassment at issue was “so severe, pervasive, and
objectively offensive that it effectively bar[red] the victim‟s access to an educational opportunity
or benefit.” Id. at 633. It was noted that harassing conduct engaged in by a teacher was more
likely to be actionable than was harassing conduct engaged in by a student, since “[t]he
relationship between the harasser and the victim” had a direct impact on the extent to which the
9
harasser‟s misconduct could “be said to breach Title IX‟s guarantee of equal access to
educational benefits and to have a systemic effect on a program or activity.” Id. at 653.
Under Pennsylvania law, a person commits the crime of “aggravated indecent assault”
when he or she “engages in penetration, however slight, of the genitals or anus of a complainant
with a part of the person‟s body for any purpose other than good faith medical, hygienic or law
enforcement procedures” and “the complainant is less than 16 years of age and the person is four
or more years older than the complainant and the complainant and the person are not married to
each other.” 18 PA. CONS. STAT. § 3125(a)(8). Hetrick was 42 years old when she engaged in
intimate activities with K.E.11 ECF No. 55-16 at 20-21. K.E. was 15 years old at the time of the
sexual encounters. Id. Hetrick‟s conviction for aggravated indecent assault conclusively
establishes that she digitally penetrated K.E.‟s vagina. M.B. v. City of Philadelphia, 128
Fed.Appx. 217, 225-226 (3d Cir. 2005)(unpublished). Given the age difference between the two
individuals, Hetrick also committed the offense of indecent assault when she fondled K.E.‟s
breasts and genital area. 18 PA. CONS. STAT. § 3126(a)(8). The relevant statutory prohibitions
are designed “to protect minors younger than 16 years of age from older teenage and adult sexual
aggressors.” Commonwealth v. Albert, 758 A.2d 1149, 1154 (Pa. 2000).
Title IX does not purport to establish the minimum age at which a minor is deemed to be
capable of consenting to sexual activities with an older individual. Instead, Title IX prohibits
certain forms of sex-based “discrimination” in the educational context. 20 U.S.C. § 1681(a).
Where an individual‟s interactions with another person are sexual in nature, it is reasonable to
assume that those interactions are motivated, at least in part, by the other person‟s “sex.” Oncale
v. Sundower Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In
order to constitute “harassment,” however, sexually-oriented conduct must be “unwelcome.”
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
While Title IX prohibits certain forms of “sexual harassment,” it is not implicated by every form
of “sexual misconduct” declared to be illegal under state law. Benefield v. Board of Trustees of
the University of Alabama, 214 F.Supp.2d 1212, 1220 (N.D.Ala. 2002). Some federal courts
have suggested that sexually-oriented conduct directed toward an underage individual should not
be presumed to be “unwelcome” simply because state criminal statutes classify that individual as
someone who is too young to consent to sexual activity. Id. at 1217-1220; R.L.R. v. Prague
11
The documentary record indicates that Hetrick was born on November 30, 1967. ECF No. 55-16 at 20-21.
10
Public School District I-103, 838 F.Supp. 1526, 1534 (W.D.Okla. 1993). In Chancellor v.
Pottsgrove School District, 501 F.Supp.2d 695, 708 (E.D.Pa. 2007), the United States District
Court for the Eastern District of Pennsylvania determined that a high school student assigned to a
teacher‟s class had lacked the capacity to “welcome” that teacher‟s “physical sexual conduct.”
Nonetheless, the District Court later held that the student‟s “voluntary participation in sexual
activities with the teacher” could be considered for the purpose of determining whether the
“harassment” in question had been sufficiently “severe, pervasive and objectively offensive” to
be actionable under Title IX. Chancellor v. Pottsgrove School District, 529 F.Supp.2d 571, 574
(E.D.Pa. 2008).
The Court notes that while K.E. was enrolled in a trigonometry class taught by Hetrick
during the first semester of her sophomore year, she was no longer in Hetrick‟s class when the
second semester began.12 ECF No. 59-25 at 11-12. Hetrick‟s relationship with K.E. did not
become sexual until January 2010. ECF No. 55-10 at 26-27; ECF No. 62-2 at 26-27. It is also
worth noting that K.E. was not a member of the Brookville girls‟ softball team, which was
coached by Hetrick. ECF No. 62-2 at 28-29. K.E. testified that she had understood her
interactions with Hetrick to be “inappropriate,” but that she had declined to speak up about the
matter for fear that Hetrick would lose her job. Id. at 31. K.E.‟s comments to Stevenson on
March 23, 2010, evidently left him with the impression that she did not want disciplinary action
to be taken against Hetrick. ECF No. 59-72 at 32-33. Under these circumstances, it is not clear
whether Hetrick‟s actions in relation to K.E. constituted “unwelcome” harassment.13 Benefield,
214 F.Supp.2d at 1217-1220. In any event, the Court will assume arguendo that K.E. was
“subjected to discrimination” within the meaning of Title IX when Hetrick fondled her breasts
and genital area. 20 U.S.C. § 1681(a).
In order to advance her Title IX claim against the District, Douglas must point to
evidence suggesting that an official with the “authority to institute corrective measures” had
“actual notice” of the ongoing discrimination, and that the official was “deliberately indifferent”
to the District‟s obligation to stop Hetrict‟s misconduct. Gebser, 524 U.S. at 277.
Pennsylvania‟s Child Protective Services Law (“CPSL”) [23 PA. CONS. STAT. § 6301 et seq.]
12
Carrico testified that while her precalculus class had been a year-long course, Hetrick‟s trigonometry class had
been offered only during the first semester. ECF No. 59-25 at 12. K.E. apparently took both classes during her
sophomore year. Id.
13
Sexual advances can constitute “unwelcome” harassment even if they lead to “voluntary” sexual activities.
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
11
provides that “a school employee who has reasonable cause to suspect, on the basis of
professional or other training or experience, that a student coming before the school employee in
the employee‟s professional or official capacity is a victim of serious bodily injury or sexual
abuse or sexual exploitation by a school employee shall immediately contact the [school]
administrator.” 23 PA. CONS. STAT. § 6352(a)(1). Brookville has implemented this legislative
mandate by promulgating Policy No. 806, which requires a “school employee” who has
“reasonable cause to suspect” that a student is a victim of “serious bodily injury,” “sexual abuse”
or “sexual exploitation” to immediately contact the principal and notify him or her of the
situation. ECF No. 55-13 at 37. Shaffer testified that she had spoken with Stevenson as early as
December 2009 about text messages between Hetrick and K.E. stating, “I love you.” ECF No.
59-70 at 9. Shaffer learned of these messages while speaking with Brynna. Id. at 8-10.
Hetrick‟s close relationship with K.E. apparently caused Brynna to feel like she was being
“replaced” as Hetrick‟s daughter. Id. at 10. When questioned about the matter during a
deposition, Stevenson acknowledged that he had overheard conversations between Shaffer and
Brynna about the text messages. ECF No. 59-72 at 28. Shaffer and Stevenson both testified that
they had not believed the relationship between Hetrick and K.E. to be sexual prior to Brynna‟s
discovery of the graphic text message on March 22, 2010. ECF No. 59-70 at 8-9; ECF No. 5972 at 28. In any event, Douglas argues that Stevenson had enough information before that date
to call the situation to Wolfe‟s attention. ECF No. 56 at 19-20; ECF No. 61 at 8-9. Wolfe
testified that Stevenson had violated Policy No. 806 by failing to report the matter sooner. ECF
No. 59-76 at 7. Douglas relies on Wolfe‟s testimony to buttress her Title IX claim. ECF No. 56
at 19-20; ECF No. 61 at 8-9.
The argument advanced by Douglas is unavailing. The duty to report established by the
CPSL and Policy No. 806 extends to every “school employee.” 23 PA. CONS. STAT. §
6352(a)(1); ECF No. 55-13 at 37. Only an individual with the “authority to institute corrective
measures” can be fairly characterized as an “appropriate person” under Gebser. Gebser, 524
U.S. at 277. In Warren v. Reading School District, 278 F.3d 163, 173 (3d Cir. 2002), the United
States Court of Appeals for the Third Circuit held that a guidance counselor who had sometimes
assumed the duties of the principal when the principal was away could not be regarded as an
“appropriate person” when the principal was present. It was determined that the guidance
counselor had not been “cloaked with sufficient authority” to be an “appropriate person” during
12
the relevant period of time. Warren, 278 F.3d at 173. The Court of Appeals explained that a
school‟s principal was ordinarily high enough on the institutional hierarchy to base a school
district‟s Title IX liability on his or her “actual knowledge” of discrimination and “deliberate
indifference” thereto. Id. at 170. Since the guidance counselor had not been acting as the
principal during the period of time in question, however, the Court of Appeals concluded as a
matter of law that he was not an “appropriate person” for the purpose of Title IX liability. Id. at
172-174. Douglas‟ contention that the category of “appropriate persons” recognized in Gebser is
broad enough to include every “school employee” who is required to report cases of suspected
child abuse under state or local law is foreclosed by the holding in Warren.14 There is nothing in
the record which suggests that Stevenson had the “authority to institute corrective measures”
against Hetrick. Gebser, 524 U.S. at 277. Consequently, his alleged knowledge of the
“discrimination” against K.E. cannot be imputed to the District. Warren, 278 F.3d at 173-174.
Even if Stevenson could be treated as an “appropriate person” under Title IX, Douglas‟
claim would still fail for a different reason. Where the relevant “discrimination” consists of a
sexual relationship between a teacher and a student, an “appropriate person” must have “actual
notice” of the relationship itself, and be deliberately indifferent to the situation, before the
relevant school district can be subjected to Title IX liability. Bostic v. Smyrna School District,
418 F.3d 355, 360-361 (3d Cir. 2005). It does not suffice for Douglas to show that Stevenson
was aware of facts consistent with the “possibility” that Hetrick and K.E. were involved in a
sexual relationship. Id. In this context, a recipient of federal funding is liable under Title IX
only where it is deliberately indifferent to “known acts” of “discrimination.” Davis, 526 U.S. at
643. Since Stevenson did not know the extent of Hetrick‟s relationship with K.E. prior to March
23, 2010, his awareness of the text messages prior to that date would not have established the
District‟s liability under Title IX even if he had been an “appropriate person” under the
circumstances of this case. Bostic, 418 F.3d at 360-361.
Douglas faults Wolfe and Craft for failing to prevent contact between Hetrick and K.E.
after learning of their inappropriate relationship on the morning of March 24, 2010. ECF No. 56
14
If every person employed by the District could be characterized as an “appropriate person” merely by virtue of the
CPSL and Policy No. 806, Hetrick would also have to be regarded as an “appropriate person.” Such a result would
cause liability under Title IX to collapse into something akin to respondeat superior liability. Gebser v. Lago Vista
Independent School District, 524 U.S. 274, 285-291, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The Supreme Court
has clearly rejected that approach. Id. at 291 (remarking that “the knowledge of the wrongdoer” was “not pertinent
to the analysis”).
13
at 20; ECF No. 61 at 9. After being told to meet with Wolfe and Craft no later than 12:25 P.M.,
Hetrick telephoned Carrico and asked for an opportunity to speak with K.E. ECF No. 59-25 at
13. Carrico instructed K.E. to meet Hetrick in the hallway. Id. at 14. K.E. exited Carrico‟s
classroom and discussed the situation with Hetrick. Id. Hetrick apparently asked K.E. to
dissuade Douglas from initiating a criminal investigation. ECF No. 62-2 at 46-47. K.E. returned
to Carrico‟s classroom after speaking with Hetrick. Id. at 47. Carrico inquired as to whether
K.E. was alright, and K.E. responded in the affirmative. ECF No. 59-25 at 14. Carrico had no
knowledge of the preexisting sexual relationship when she asked K.E. to meet Hetrick in the
hallway. Id. Although Douglas does not allege that Hetrick touched K.E. inappropriately on
March 24, 2010, she contends that the District is liable under Title IX for failing to prevent the
meeting. ECF No. 56 at 20; ECF No. 61 at 9.
This argument posited by Douglas is not persuasive. The Court understands the
“deliberate indifference” prong of the Gebser framework to incorporate a causation requirement.
Gebser, 524 U.S. at 291 (“Comparable considerations led to our adoption of a deliberate
indifference standard for claims under § 1983 alleging that a municipality‟s actions in failing to
prevent a deprivation of federal rights was the cause of the violation.”)(emphasis added). When
an “appropriate person” knows of sex-based discrimination and refuses to remedy the situation,
his or her “deliberate indifference” inevitably causes the discrimination to continue. Id. at 290291. Title IX‟s statutory enforcement mechanism provides a recipient of federal financial
assistance with an opportunity to end discrimination “by voluntary means” before prospective
funding is jeopardized. 20 U.S.C. § 1682. The standard adopted in Gebser was “fashioned
along the same lines.” Gebser, 524 U.S. at 290. Douglas cannot hold the District liable under
Title IX without establishing that the “deliberate indifference” of an “appropriate person or
persons” caused K.E. to “be subjected to discrimination.” 20 U.S.C. §§ 1681(a), 1682; Davis,
526 U.S. at 650-653. Given that K.E. was not “subjected to discrimination” during her meeting
with Hetrick on March 24, 2010, the District‟s alleged failure to prevent that engagement cannot
serve as the basis for Title IX liability.
The CPSL provides that a school administrator or employee “shall report immediately to
law enforcement officials and the appropriate district attorney any report of serious bodily injury
or sexual abuse or sexual exploitation alleged to have been committed by a school employee
against a student.” 23 PA. CONS. STAT. § 6353(a). Policy No. 806 implements this mandate by
14
requiring a school principal “who has independent cause to suspect injury or abuse” to
immediately call the matter to the attention of “law enforcement officials and the appropriate
district attorney.” ECF No. 55-13 at 37. Wolfe testified that he and Craft had contacted the
Jefferson County District Attorney‟s Office shortly after learning that Hetrick had abused K.E.
ECF No. 59-76 at 19. He also stated that he had spoken with Markle about the matter at
approximately 4:00 P.M. on March 24, 2010. Id. at 21. Markle testified that Wolfe had not
provided him with any names or details during the course of this discussion. ECF No. 59-68 at
7. Douglas contacted the PSP on March 25, 2010, and reported Hetrick‟s illicit sexual
relationship with K.E. ECF No. 62-1 at 44. The PSP referred the case to Markle. ECF No. 5968 at 7. The ensuing criminal investigation appears to have been triggered by Douglas‟ contact
with the PSP rather than by reports made by Wolfe or Craft. ECF No. 55-16 at 23. The parties
apparently disagree as to whether the District‟s actions satisfied the requirements of the CPSL
and Policy No. 806. ECF No. 56 at 20; ECF No. 63 at 19. That issue, however, is not material
to Douglas‟ Title IX claim. The District‟s alleged failure to conform its conduct to the specific
requirements of Pennsylvania law and Policy No. 806 did not constitute actionable
“discrimination” within the meaning of Title IX.15 Gebser, 524 U.S. at 291-292.
Douglas complains that “evidence was lost” because of the District‟s failure to isolate
Hetrick and contact law enforcement personnel immediately after learning that Hetrick‟s
relationship with K.E. had been sexual. ECF No. 56 at 20; ECF No. 61 at 9. The Court assumes
that Hetrick‟s phone may have been secured if Wolfe or Craft had acted sooner. Title IX,
however, did not require the District to take a particular “form of disciplinary action” against
Hetrick. Davis, 526 U.S. at 649. Instead, Title IX merely required the District to respond to
Hetrick‟s known acts of “discrimination” in a manner that was not “clearly unreasonable.” Id. at
648-649. The relevant question is whether Wolfe and Craft took reasonable actions to stop
Hetrick‟s discriminatory conduct. Warren, 278 F.3d at 170-171. Hetrick was placed on
administrative leave immediately after admitting that she had touched K.E. inappropriately. ECF
No. 59-26 at 27. She submitted her resignation the next day. ECF No. 59-17. Craft accepted
15
The District‟s “Guide to Safety and Security” instructs school officials not to question the victim of a sex offense
prior to the arrival of an investigating officer and one of the victim‟s parents. ECF No. 55-19 at 43. Douglas
contends that Wolfe and Craft contravened this protocol by questioning K.E. prior to her arrival at the school. ECF
No. 56 at 20; ECF No. 61 at 9. Nevertheless, the alleged failure of Wolfe and Craft to properly implement the
District‟s internal policies did not constitute a violation of Title IX. Gebser v. Lago Vista Independent School
District, 524 U.S. 274, 291-292, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).
15
Hetrick‟s resignation and instructed her to return any school equipment or materials in her
possession. ECF No. 59-18. The actions taken by Wolfe and Craft ended Hetrick‟s
discriminatory conduct. These actions were taken almost immediately after Stevenson called the
illicit relationship to the attention of the “appropriate persons.” Title IX required the District to
do nothing more. Davis, 526 U.S. at 648-649.
The record indicates that Hetrick touched K.E.‟s breasts and buttocks on March 22, 2010.
ECF No. 55-16 at 24. It was on that occasion that Brynna discovered the illicit relationship and
reported her mother‟s misconduct to Shaffer and Tia. ECF No. 55 at ¶¶ 132-134. Nothing in the
record suggests that K.E. was ever “subjected to discrimination” again. 20 U.S.C. § 1681(a).
Stevenson did not have “actual notice” of Hetrick‟s relationship with K.E. until March 23, 2010.
Bostic, 418 F.3d at 361 (explaining that a “possibility” of discrimination “cannot be equated
with” a “known act” of discrimination). He called the matter to Wolfe‟s attention on the
morning of March 24, 2010.16 ECF No. 55 at ¶ 140. Wolfe was the first “appropriate person” to
learn that Hetrick had “discriminated” against K.E. Warren, 278 F.3d at 170-171. He
immediately contacted Craft and began an investigation. ECF No. 59-76 at 15-17. Hetrick was
confronted with the allegations against her and placed on administrative leave later that day.
ECF No. 59-26 at 27. Even if the remedial actions taken by Wolfe and Craft were imperfect in
some respects, they were not “clearly unreasonable in light of the known circumstances.” Davis,
526 U.S. at 648.
On the basis of the existing record, the District cannot be held liable under Title IX for
the “discrimination” perpetrated by Hetrick. Accordingly, Douglas‟ Title IX claim must be
dismissed. The Court will deny Douglas‟ motion for summary judgment with respect to that
claim and grant the corresponding portion of the District‟s motion for summary judgment. ECF
Nos. 55 & 59.
B.
The Substantive Due Process Claims
Douglas brings her federal constitutional claims pursuant to 42 U.S.C. § 1983, which
provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation
16
Stevenson testified that he had unsuccessfully tried to contact a school administrator after speaking with K.E. on
March 23, 2010. ECF No. 59-72 at 26.
16
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”
42 U.S.C. § 1983. This statutory provision does not create substantive rights. Maher v. Gagne,
448 U.S. 122, 129, n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)(observing that § 1983 “does not
create substantive rights at all, but merely provides a remedy for the violation of rights conferred
by the Constitution or other statutes”). A plaintiff cannot prevail in an action brought under §
1983 without establishing an underlying violation of a federal constitutional or statutory right.
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119-120, 125 S.Ct. 1453, 161 L.Ed.2d
316 (2005).
The Due Process Clause of the Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due process of law . . . .” U.S. CONST.,
AMEND. XIV, § 1. Although the precise language of the Due Process Clause refers only to the
“process” by which an individual is deprived of a constitutionally-protected liberty or property
interest, the Supreme Court has consistently maintained that the constitutional provision
“guarantees more than fair process.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct.
2258, 138 L.Ed.2d 772 (1997). The Due Process Clause has been construed to prohibit “certain
government actions regardless of the fairness of the procedures used to implement them.”
Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In this respect,
the Fourteenth Amendment substantively prohibits a State from “abusing governmental power”
or “employing it as an instrument of oppression.” Davidson v. Cannon, 474 U.S. 344, 348, 106
S.Ct. 668, 88 L.Ed.2d 677 (1986). In County of Sacramento v. Lewis, 523 U.S. 833, 847, n. 8,
118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court explained that where executive
action is challenged on substantive due process grounds, “the threshold question is whether the
behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” If this question yields a positive answer, a reviewing court
can proceed to consider whether the liberty or property interest infringed is sufficiently
“fundamental” to be worthy of substantive due process protection. Lewis, 523 U.S. at 847, n. 8
(referring to the egregiousness of an executive official‟s conduct as “an issue antecedent to any
question about the need for historical examples of enforcing a liberty interest of the sort
claimed”); Nicholas v. Pennsylvania State University, 227 F.3d 133, 138-143 (3d Cir.
17
2000)(explaining that only the deprivation of a “fundamental” liberty or property interest can
give rise to a substantive due process claim).
The Supreme Court has described “conduct intended to injure in some way unjustifiable
by any government interest” as “the sort of official action most likely to rise to the conscienceshocking level.” Lewis, 523 U.S. at 849. The act of sexually assaulting an individual can never
further a legitimate governmental interest. Doe v. Taylor Independent School District, 15 F.3d
443, 452 (5th Cir. 1994)(explaining that “no state interest” is furthered by a sexual assault, since
“there is never any justification for sexually molesting a schoolchild”); Whittaker v. County of
Lawrence, 674 F.Supp.2d 668, 700, n. 13 (W.D.Pa. 2009)(observing that “[a] government never
has a legitimate interest in subjecting a woman to rape”). The “fundamental rights and liberty
interests” protected by the Due Process Clause include an individual‟s right to “bodily integrity.”
Glucksberg, 521 U.S. at 720. In Stoneking v. Bradford Area School District, 882 F.2d 720, 727
(3d Cir. 1989), the United States Court of Appeals for the Third Circuit recognized that “a
student‟s right to bodily integrity” under the Due Process Clause is broad enough to encompass
his or her “right to be free from sexual assaults” perpetrated by a public school teacher. Douglas
relies on Stoneking in support of her contention that Hetrick‟s sexual relationship with K.E.
constituted a violation of K.E.‟s Fourteenth Amendment right to bodily integrity. ECF No. 56 at
21.
1.
The Substantive Due Process Claims Against Hetrick
Douglas moves for summary judgment with respect to her substantive due process claims
against Hetrick, arguing that a jury need only consider the issue of damages in light of Hetrick‟s
“guilty” plea to three counts of aggravated indecent assault. ECF No. 56 at 21-22. Hetrick has
not responded to Douglas‟ motion for summary judgment. The Court notes that Hetrick is not
represented by the District‟s attorney, and that her answer to Douglas‟ amended complaint was
filed by a separate attorney. ECF No. 45. When Douglas filed her motion for summary
judgment, she did not include a certificate of service confirming that Hetrick‟s counsel had been
served with a copy of the motion. ECF No. 55. Hetrick is presently incarcerated, and it is not
clear to the Court whether she is aware of Douglas‟ motion for summary judgment.
The lack of a response from Hetrick does not independently justify the entry of summary
judgment against her. Anchorage Associates v. Virgin Islands Board of Tax Review & Tax
Assessor, 922 F.2d 168, 171 (3d Cir. 1990). Since Douglas has the burden of proof with respect
18
to her claims, the Court has an obligation to consider whether the “facts specified” in her motion
entitle her to a judgment as a matter of law. Id. at 175. That is especially true in this instance,
since Hetrick may not even know that Douglas‟ motion is pending. Under the present
circumstances, the proper course of action is to provide Hetrick with notice of the pending
motion and a renewed opportunity to file a response. FED. R. CIV. P. 56(e)(1), (4).
Stoneking involved a school employee‟s alleged use of “physical force, threats of reprisal,
intimidation and coercion to sexually abuse and harass” a female student over the course of
several years. Stoneking, 882 F.2d at 722. The present case appears to be different. As far as
the Court can tell, K.E.‟s relationship with Hetrick was consensual. Hetrick‟s conduct was
illegal under Pennsylvania law only because of the age difference between herself and K.E., and
because K.E. had not yet attained the age of 16. 18 PA. CONS. STAT. § 3125(a)(8). K.E.‟s first
intimate encounter with Hetrick occurred only four months before her sixteenth birthday. ECF
No. 55 at ¶ 113; ECF No. 59 at ¶ 6. When the relationship ended, K.E.‟s birthday was only three
weeks away. ECF No. 55 at ¶ 132-134; ECF No. 59 at ¶ 6. In the absence of force or coercion
of some kind, Hetrick‟s conduct would not have been illegal under Pennsylvania law prior to
1995.17 1990 Pa. Laws 4, § 5; Commonwealth v. Decker, 698 A.2d 99, 100, n. 2 (Pa.Super.Ct.
1997). Although Hetrick‟s sexual encounters with K.E. were prohibited under Pennsylvania law,
it does not necessarily follow that they were similarly prohibited under the Due Process Clause.18
The “substantive rights” conferred on individuals by the Fourteenth Amendment are “selfexecuting.” City of Boerne v. Flores, 521 U.S. 507, 524, 117 S.Ct. 2157, 138 L.Ed.2d 624
(1997). The contours of those rights do not turn on the intricacies of state law. United Artists
Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 402 (3d Cir. 2003). The
Supreme Court has cautioned against constructions of the Due Process Clause that “would make
of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may
already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47
17
The statutory predecessor to Pennsylvania‟s aggravated indecent assault statute prohibited an individual who had
attained the age of 18 from penetrating the “genitals or anus” of a child under the age of 14. 1990 Pa. Laws 4, § 5;
Commonwealth v. Decker, 698 A.2d 99, 100, n. 2 (Pa.Super.Ct. 1997). The current version of the statute, which
prohibits a person who is four or more years older than a child under the age of 16 from penetrating the child‟s
“genitals or anus,” was signed into law by Governor Thomas J. Ridge on March 31, 1995. 1995 Pa. Laws 10, § 9;
Decker, 698 A.2d at 100, n. 2.
18
There is no question that Pennsylvania may constitutionally prohibit Hetrick‟s conduct. Lawrence v. Texas, 539
U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)(recognizing a State‟s power to prohibit some forms of
consensual sexual activity in order to protect “minors” and persons “situated in relationships where consent might
not easily be refused”).
19
L.Ed.2d 405 (1976). For this reason, courts should not be eager to “constitutionalize broad
swaths of state tort law” by defining substantive due process rights in overly general terms.
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 404 (3d Cir. 2000).
Not every form of “inappropriate or unwanted touching” perpetrated by a state official is
sufficiently egregious to violate the Due Process Clause. Hawkins v. Holloway, 316 F.3d 777,
785 (8th Cir. 2003). The sexual contact in this case, however, was clearly severe enough to
implicate K.E.‟s Fourteenth Amendment right to bodily integrity. Craig v. Lima City Schools
Board of Education, 384 F.Supp.2d 1136, 1147 (N.D.Ohio 2005)(finding a teacher‟s digital
penetration of a female student‟s vagina to be conscience-shocking); Hinkley v. Baker, 122
F.Supp.2d 48, 52-53 (D.Me. 2000)(holding that a teacher‟s act of touching the breasts of a young
female student could “shock the conscience”). The only question is whether the seemingly
consensual nature of her relationship with Hetrick should weigh against a determination that
Hetrick‟s conduct was conscience-shocking. Some courts have found consensual sexual
relationships between teachers and underage students to be violative of the Due Process Clause.19
Doe, 15 F.3d at 451 (stating that the Constitution protects a 15-year-old student from “statutory
rape”); Doe v. Beaumont Independent School District, 8 F.Supp.2d 596, 606 (E.D.Tex.
1998)(declaring “[c]onsensual sexual intercourse between a teacher and a minor student” to be
actionable under § 1983 “where the teacher abuses his position under the color of state law to
engage in the sexual acts”). Nonetheless, the Court is “reluctant to expand the concept of
substantive due process” beyond the context of coercive activities without the benefit of
adequate briefing from the parties, since “guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115,
125, 112 S.Ct. 1061, 117 S.Ct. 261 (1992).
19
The Court is not persuaded by the reasoning employed in Chancellor v. Pottsgrove School District, 501 F.Supp.2d
695, 713 (E.D.Pa. 2007). In Chancellor, the United States District Court for the Eastern District of Pennsylvania
took the position that a consensual sexual relationship between a public school teacher and a student assigned to the
teacher‟s class violates the student‟s substantive due process rights even if he or she has reached the applicable age
of consent. Chancellor, 501 F.Supp.2d at 713. The rule adopted in Chancellor would essentially render some
sexual relationships between consenting adults violative of the Fourteenth Amendment. Such a result would be
contrary to the Supreme Court‟s admonition that the Fourteenth Amendment “does not purport to supplant
traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in
society.” Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The mere fact that the
Constitution permits a State to protect individuals who are “situated in relationships where consent might not easily
be refused” by enacting prophylactic restrictions on sexual activity does not mean that the Constitution itself
provides such prophylactic protection. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508
(2003).
20
For these reasons, Hetrick will be notified of Douglas‟ motion for summary judgment and
ordered to file a response. Douglas will be afforded an opportunity to file a responsive brief after
Hetrick‟s response is filed. If Hetrick refuses or fails to file a timely response, summary
judgment will be entered against her without further inquiry. Stackhouse v. Mazurkiewicz, 951
F.2d 29, 30 (3d Cir. 1991). In the meantime, Douglas‟ motion will remain pending with respect
to her substantive due process claims against Hetrick. The Court‟s consideration of Douglas‟
remaining substantive due process claims will proceed on the assumption that Hetrick violated
K.E.‟s substantive due process right to bodily integrity.
2.
The Substantive Due Process Claims Against Craft
Douglas seeks to hold Craft liable for the constitutional injuries suffered by K.E. ECF
No. 33 at ¶¶ 41-57. According to Douglas, Craft may be liable under § 1983 for failing to
implement a training program designed to prevent the sexual abuse of students and for failing to
prevent contact between Hetrick and K.E. after discovering the abuse on March 24, 2010. ECF
No. 56 at 22. Douglas apparently believes that Craft‟s liability for K.E.‟s injuries depends on
whether she was “acting in her personal capacity” rather than in her “official capacity.” Id. at 23
(emphasis added).
It is clear from Douglas‟ argument that she fundamentally misconstrues the distinction
between personal-capacity claims and official-capacity claims. The “capacity” in which a public
official is sued has nothing to do with the “capacity” in which he or she has acted. Hafer v.
Melo, 502 U.S. 21, 27-31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). A plaintiff bringing a
personal-capacity claim against an official seeks to hold the official personally liable for his or
her conduct. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
An award of damages entered against a personal-capacity defendant can be executed only against
his or her “personal assets.” Id. at 166. An official sued in his or her personal capacity may rely
on personal defenses or immunities that are not available to governmental entities. Id. at 166167. In contrast, an official-capacity action brought against a public official is not materially
different from an action brought directly against the entity of which he or she is an agent. Hafer,
502 U.S. at 25. When an official-capacity defendant leaves office, his or her successor is
“automatically substituted as a party” to the litigation by operation of law. FED. R. CIV. P. 25(d).
An award of damages entered against an official-capacity defendant can be executed only against
the employing governmental entity, since “an official-capacity suit is, in all respects other than
21
name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166. The only immunities
available to a defendant sued in his or her official capacity are those available to the
governmental entity itself. Hafer, 502 U.S. at 25. This distinction does not relate to the
“capacity” in which a defendant has acted, since a public official may be personally liable for his
or her official acts. Hafer, 502 U.S. at 27-31.
The distinction between personal-capacity and official-capacity suits is most relevant in
actions brought against state officials. In most instances, the Eleventh Amendment bars actions
brought by private parties against unconsenting States in federal court. Blatchford v. Native
Village of Noatak, 501 U.S. 775, 779-780, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). The
Supreme Court has not construed § 1983 as an abrogation of the States‟ Eleventh Amendment
immunity. Quern v. Jordan, 440 U.S. 332, 342-345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).
Since an official-capacity suit against a state official is no different than a suit against the State
itself, a state official sued in his or her official capacity for money damages is not a “person”
subject to suit under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 62-71, 109
S.Ct. 2304, 105 L.Ed.2d 45 (1989). Nevertheless, under Ex parte Young, 209 U.S. 123, 154-160,
28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not bar official-capacity
actions brought against state officials by private parties seeking prospective relief. The Supreme
Court has characterized the doctrine established in Young as “an expedient „fiction‟ necessary to
ensure the supremacy of federal law.” Central Virginia Community College v. Katz, 546 U.S.
356, 378, n. 14, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006). In accordance with this “fiction,” a state
official sued in his or her official capacity for injunctive relief is treated as a “person” amenable
to suit under § 1983. Will, 491 U.S. at 71, n. 10. As a general rule, however, the relief sought by
a plaintiff has no bearing on whether his or her claim is barred by the Eleventh Amendment.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
Therefore, a plaintiff seeking injunctive relief against a state official must ordinarily bring an
official-capacity action against that official rather than an action against his or her employing
State. Burns v. Alexander, 776 F.Supp.2d 57, 73 (W.D.Pa. 2011).
Local governmental entities cannot avail themselves of the Eleventh Amendment
immunity enjoyed by the States. Board of Trustees v. Garrett, 531 U.S. 356, 369, 121 S.Ct. 955,
148 L.Ed.2d 866 (2001); Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed.
766 (1890). The Supreme Court held in Monell v. Department of Social Services, 436 U.S. 658,
22
690-691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that municipal entities are “persons” subject to
suit under § 1983. Douglas can proceed directly against the District without naming Craft as an
official-capacity defendant. Consequently, Douglas‟ official-capacity claims against Craft will
be dismissed on the ground that they are duplicative of her claims against the District. Malone v.
Economy Borough Municipal Authority, 669 F.Supp.2d 582, 604-605 (W.D.Pa. 2009).
Douglas attempts to hold Craft personally liable for violating K.E.‟s constitutional rights.
In support of her claims, Douglas argues that Craft enjoyed “policymaking authority” under 24
PA. STAT. § 10-1081. ECF No. 56 at 22. Under that statutory provision, Craft was a non-voting
member of Brookville‟s School Board during the 2009/2010 school year. 24 PA. STAT. § 101081. An official sued under § 1983, however, may only be held personally liable “for his or her
own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009). For this reason, Craft‟s status as Brookville‟s superintendent cannot serve as a basis for
holding her liable for K.E.‟s injuries. Evancho v. Fisher, 423 F.3d 347, 353-354 (3d Cir. 2005).
Liability under § 1983 cannot be premised on a theory of respondeat superior. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In order to proceed with her personalcapacity claims against Craft, Douglas must show that Craft was personally involved in
Hetrick‟s misconduct. Id.
Douglas contends that Craft is personally liable under § 1983 for failing to implement a
training program for teachers prior to Hetrick‟s actions in relation to K.E. ECF No. 56 at 22.
The United States Court of Appeals for the Third Circuit has indicated that a supervisor may be
personally liable under § 1983 if he or she “implements a policy or practice that creates an
unreasonable risk” that a subordinate will perpetrate a constitutional violation, provided that the
supervisor‟s “failure to change the policy or employ corrective practices” actually causes the
subordinate to violate a person‟s constitutional rights. Argueta v. United States Immigration &
Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011). A plaintiff proceeding on such a theory,
however, must do more than show that the defendant could have prevented the constitutional
violation and failed to do so. Black v. Indiana Area School District, 985 F.2d 707, 712 (3d Cir.
1993). In this context, Douglas cannot hold Craft liable for K.E.‟s injuries without
demonstrating that Craft “played an affirmative role in bringing about the sexual abuse”
perpetrated by Hetrick, and that Craft “acted with deliberate indifference to that abuse.” Id.
23
The evidentiary record provides no support for Douglas‟ personal-capacity claims against
Craft. Craft became Brookville‟s superintendent in August 2009. ECF No. 59-26 at 3. K.E.‟s
sophomore year was Craft‟s first year in the position. Id. Craft played no role in formulating the
District‟s preexisting policies. Id. at 6-7. She first became aware of Hetrick‟s relationship with
K.E. on March 24, 2010. Id. at 12-13. At that point, the relationship had already ended. Craft
placed Hetrick on administrative leave immediately after speaking with her about the matter. Id.
at 27. No action taken by Craft contributed to K.E.‟s injuries. Stoneking, 882 F.2d at 728-729
(permitting claims against school officials to go forward based on evidence that they had caused
sexual assaults to occur by concealing prior allegations of sexual abuse, discouraging students
from pursuing complaints of sexual abuse, giving offending teachers excellent performance
evaluations, and forcing an alleged victim to publicly recant her allegations).
Douglas argues that Craft failed to follow the appropriate isolation, detention and
reporting procedures after learning of the abuse on March 24, 2010. ECF No. 56 at 23. The
alleged deficiencies in Craft‟s reaction to the abuse, however, have no bearing on Douglas‟
constitutional claims. The last sexual encounter between Hetrick and K.E. occurred on March
22, 2010. ECF No. 55-16 at 24. K.E.‟s right to bodily integrity was not infringed subsequent to
that date. In order to hold Craft personally liable for K.E.‟s injuries, Douglas must establish a
causal relationship between Craft‟s conduct and the violation of K.E.‟s constitutional rights.
Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010). Since K.E.‟s constitutional
rights were not violated after Craft learned of the illicit sexual relationship, Douglas cannot show
that Craft‟s actions or inactions caused Hetrick to infringe those rights. Consequently, Douglas‟
personal-capacity claims against Craft must be dismissed.
3.
The Substantive Due Process Claims Against the District
A local governmental entity cannot be held vicariously liable under § 1983 for
constitutional violations committed by its agents or employees. Berg v. County of Allegheny,
219 F.3d 261, 275 (3d Cir. 2000). Instead, a plaintiff may recover damages from a governmental
entity only where his or her constitutional injuries are caused by the execution of the entity‟s
“policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy.” Monell, 436 U.S. at 694. A local governing body is clearly
liable for constitutional injuries caused by the implementation or execution of “a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body‟s
24
officers.” Id. at 690. “Similarly, an act performed pursuant to a „custom‟ that has not been
formally approved by an appropriate decisionmaker may fairly subject a municipality to liability
on the theory that the relevant practice is so widespread as to have the force of law.” Board of
County Commissioners v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
Where a plaintiff alleges that a municipal “policy or custom” has caused a municipal employee
to violate his or her constitutional rights, “stringent standards of culpability and causation must
be applied” to ensure that the municipality is not subjected to liability solely because it happens
to employ the individual responsible for the violation. Reitz v. County of Bucks, 125 F.3d 139,
145 (3d Cir. 1997).
Douglas appears to base her constitutional claims against the District, at least in part, on
the District‟s alleged failure to train its employees to detect and report signs of sexual abuse.
ECF No. 56 at 5-9; ECF No. 61 at 1-8. In City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989), the Supreme Court declared that “[o]nly where a municipality‟s
failure to train its employees in a relevant respect evidences a „deliberate indifference‟ to the
rights of its inhabitants can such a shortcoming be properly thought of as a city „policy or
custom‟ that is actionable under § 1983.” Speaking through Justice White, the Supreme Court
explained:
It may seem contrary to common sense to assert that a municipality will actually
have a policy of not taking reasonable steps to train its employees. But it may
happen that in light of the duties assigned to specific officers or employees the
need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need. In that event,
the failure to provide proper training may fairly be said to represent a policy for
which the city is responsible, and for which the city may be held liable if it
actually causes injury.
Harris, 489 U.S. at 390 (footnotes omitted). This line of reasoning applies with equal force to a
school district‟s conduct in relation to its students. Stoneking, 882 F.2d at 725.
As noted earlier, K.E. was neither a student in Hetrick‟s class nor a member of
Brookville‟s softball team during the second semester of her sophomore year. ECF No. 59-25 at
11-12; ECF No. 62-2 at 28-29. Although Hetrick did not teach or coach K.E. during the course
of their illicit sexual relationship, she used her authority as a teacher to facilitate some of the
sexual encounters. When Hetrick transported K.E. to and from school, she permitted K.E. to
25
utilize an entrance to the school building that was otherwise available only to members of the
faculty. ECF No. 55-10 at 14. In addition, Hetrick provided K.E. with the written
documentation that she needed to switch her study hall from Stevenson‟s classroom to Hetrick‟s
classroom. Id. at 17. Given that Hetrick invoked her authority as a teacher to obtain greater
access to K.E., she was presumably acting “under color of” Pennsylvania law when she
improperly fondled K.E.‟s breasts and genital area.20 Becerra v. Asher, 105 F.3d 1042, 1047 (5th
Cir. 1997).
Earlier this year, in Connick v. Thompson, ___U.S.___, ___, 131 S.Ct. 1350, 1360, 179
L.Ed.2d 417 (2011), the Supreme Court observed that “decisionmakers can hardly be said to
have deliberately chosen a training program that will cause violations of constitutional rights” if
they have not been put on “notice that a course of training is deficient in a particular respect.” In
order to establish the requisite “deliberate indifference” on the part of a municipal entity, a
plaintiff must ordinarily produce evidence which demonstrates that the entity has declined to
alter or improve its training regimen in the face of a “pattern of similar constitutional violations”
perpetrated by untrained employees. Connick, 131 S.Ct. at 1360. Nonetheless, this line of
reasoning does not “foreclose the possibility that evidence of a single violation of federal rights,
accompanied by a showing that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation, could trigger municipal
liability.” Brown, 520 U.S. at 409. Douglas asserts that prior instances of misconduct placed the
District on notice that additional training was necessary to prevent teachers from sexually
abusing their students. ECF No. 56 at 13-15.
Wolfe was an assistant principal at Brookville during the 2002/2003 school year. ECF
Nos. 59 & 68 at ¶ 9. At that time, James Estep (“Estep”) was Brookville‟s principal. Id. at ¶ 15.
Gloria Shaffer (“Gloria”), a school custodian, reported on February 14, 2003, that she had seen
Rick Fenstermaker (“Fenstermaker”), a Spanish teacher and basketball coach, place his arms
around a student in his classroom. Id. at ¶ 13. After speaking with Gloria about the matter,
Wolfe contacted Estep and began an investigation. Id. at ¶¶ 14-15. During the ensuing week,
three male students confirmed that Fenstermaker had touched them inappropriately. Id. at ¶ 16.
20
A plaintiff satisfies the Fourteenth Amendment‟s “state action” requirement by establishing that the defendant
state official acted “under color of” state law within the meaning of § 1983. Lugar v. Edmondson Oil Co., 457 U.S.
922, 929, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)(stating that “the statutory requirement of action „under color of
state law‟ and the „state action‟ requirement of the Fourteenth Amendment are identical”).
26
Estep contacted Brookville‟s Chief of Police, Ken Dwerok (“Dwerok”), on February 21, 2003,
and informed him of the situation. Id. at ¶ 17. The Jefferson County District Attorney‟s Office
later became involved in the investigation. Id. at ¶ 18. A surveillance camera was secretly
placed in Fenstermaker‟s classroom to monitor his activities. Id. at ¶ 19. The camera later
recorded Fenstermaker as he inappropriately touched a male student. Id. at ¶ 20. Indecent
assault charges were ultimately brought against him. Id. at ¶ 21. The District initiated
disciplinary proceedings against Fenstermaker by suspending him with pay. Id. at ¶ 22. On
March 20, 2003, Fenstermaker was provided with the hearing required under Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).21 ECF No. 59-4
at 1. After the hearing, David K. Monsour (“Monsour”), Brookville‟s superintendent, converted
Fenstermaker‟s suspension with pay to a suspension without pay. Id. Fenstermaker responded
in April 2003 by initiating the grievance procedures available to him under the applicable
collective bargaining agreement. Id. at 4-6. A jury convicted Fenstermaker of indecent assault
in December 2004. ECF Nos. 59 & 68 at ¶ 24. The District reported Fenstermaker‟s conduct
and conviction to Pennsylvania‟s Department of Education (“Department”) on January 7, 2005.
ECF No. 59-5. On April 1, 2005, Fenstermaker formally presented Brookville with his notice of
resignation. ECF No. 59-6. Fenstermaker‟s teaching certificate was revoked pursuant to
Pennsylvania‟s Professional Educator Discipline Act [24 PA. STAT. § 2070.1a et seq.] on October
26, 2005. ECF No. 59-7.
During the 2006/2007 school year, John D. Johnson (“Johnson”) was the District‟s
superintendent and Wolfe was Brookville‟s principal. ECF Nos. 59 & 68 at ¶¶ 36-37. Kim
Thomas (“Thomas”) was a music teacher. ECF No. 59-75 at 8. Her daughter, Courtney Thomas
(“Courtney”), was a student at Brookville. ECF No. 59-65 at 6. In March 2007, Thomas
contacted Mark Heckman (“Heckman”), an assistant principal, and reported that Ray Ewing
(“Ewing”), a biology teacher at Brookville, had encouraged Courtney to skip her classes and
spend time alone with him. ECF Nos. 59 & 68 at ¶ 38; ECF No. 59-8 at 2. After learning of the
allegations, Johnson went to the Thomas residence and read messages that Ewing had sent to
Courtney. ECF No. 59-65 at 6. Johnson confronted Ewing with the allegations on March 19,
2007, and suspended him with pay. Id. A hearing was scheduled for March 26, 2007. ECF No.
21
In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 535, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985),
the Supreme Court held that “a public employee who can be discharged only for cause” is constitutionally entitled to
“notice and an opportunity to respond” before being discharged.
27
59-8 at 3. Ewing declined to attend the hearing and informed Johnson of his intent to resign. Id.
at 1. Ewing‟s suspension with pay was immediately converted to a suspension without pay. Id.
The matter was referred to the District Attorney‟s Office, but no criminal charges were brought
against Ewing. ECF Nos. 59 & 68 at ¶¶ 44-45. Ewing‟s employment with the District was
formally terminated on April 16, 2007. ECF No. 59-9 at 3. His misconduct was reported to the
Department on May 23, 2007. Id. at 3-4. The report ultimately resulted in a suspension of
Ewing‟s teaching certificate. ECF No. 59-65 at 7.
Ray Doolittle (“Doolittle”), a guidance counselor employed by Brookville, exchanged
affectionate email messages with Brooke Lingenfelter (“Lingenfelter”), a female student, during
the spring and summer of 2007. ECF No. 55-4 at 50; ECF No. 55-5 at 5-9. He sometimes
referred to her as “dimples” or “kiddo.” Id. Doolittle‟s messages frequently spoke about
Lingenfelter‟s relationship with God. Id. In a message sent to Lingenfelter on June 6, 2007,
Doolittle stated, “I will always support you as long as I feel that you are in line with God‟s will
for your life, and we‟ll tackle whatever happens together!” ECF No. 55-5 at 13 (boldface type
and underlining in original). Lingenfelter‟s mother and stepfather became concerned about the
tenor of Doolittle‟s messages and called the situation to Johnson‟s attention. ECF Nos. 59 & 68
at ¶¶ 94-96. The matter was referred to the Board of School Directors, the Brookville Police
Department, the PSP and the District Attorney‟s Office. Id. at ¶¶ 97-98, 101, 103. No evidence
of criminal wrongdoing was found. Id. at ¶¶ 99, 102 & 104. Although District personnel wanted
to speak with Lingenfelter, her parents would not allow the interview to take place.22 Id. at ¶
110. In a letter dated October 12, 2007, Johnson informed Doolittle that the investigation would
remain open. ECF No. 55-6 at 6-7. The Department was made aware of Doolittle‟s conduct.
ECF Nos. 59 & 68 at ¶¶ 108-109. On February 8, 2008, the Department determined that there
was “probable cause to pursue disciplinary action” and advised that it would be conducting its
own investigation. ECF No. 55-6 at 20. February 25, 2009, was Lingenfelter‟s eighteenth
birthday. ECF No. 59-23 at 7. On that day, Wolfe and Sheila Hillwig (“Hillwig”), the District‟s
acting superintendent, interviewed Lingenfelter without her parents‟ consent. ECF Nos. 59 & 68
at ¶ 111. Lingenfelter denied that Doolittle had acted inappropriately. ECF No. 59-23 at 20.
She claimed that she had spoken with Doolittle about problems that she was having at home, and
22
Douglas claims that the interview was forbidden by Lingenfelter‟s psychologist rather than by her parents. ECF
No. 68 at ¶ 110. Lingenfelter‟s parents, however, were the only individuals who had the legal authority to permit or
forbid her participation. Herron v. Seizak, 468 A.2d 803, 805 (Pa.Super.Ct. 1983).
28
that her mother had become resentful about the situation. Id. at 8-9. In a letter dated July 10,
2009, the Department informed the Board of School Directors that it had “decided not to initiate
formal disciplinary proceedings” against Doolittle. ECF No. 55-6 at 22. After the investigation
was closed, Doolittle remained in contact with Lingenfelter and ultimately attended her wedding.
ECF Nos. 59 & 68 at ¶¶ 116-117.
On May 16, 2008, Doolittle was running with Ian Hetrick (“Ian”), who was a 29-year-old
graduate of Brookville. ECF No. 59-28 at 1. During the run, Ian stated that Ray Puller
(“Puller”), a teacher at one of the District‟s elementary schools, had molested him in his
bedroom 17 years earlier. Id. Ian and Puller were neighbors at the time of the alleged incident,
and Ian was very close friends with Puller‟s son, Clint Puller (“Clint”).23 ECF No. 59-55 at 1.
Ian claimed that Puller had entered his bedroom while he was sleeping and touched his penis
through his shorts. ECF No. 59-53 at 5, 10. He told Doolittle that he had declined to say
anything about the incident because of his close friendship with Clint. ECF No. 59-28 at 1.
Doolittle reported Ian‟s allegation to Johnson on the morning of May 19, 2008. ECF No. 59-55
at 1. Johnson spoke with Puller about the allegation later that morning. Id. Puller vehemently
denied that he had improperly touched Ian. Id. Johnson reported Ian‟s allegation to the District
Attorney‟s Office and the Brookville Police Department. ECF Nos. 59 & 68 at ¶ 67. No report
was filed with the Department. Id. at ¶ 70. The Court notes that, under Pennsylvania law,
“[c]omplaints involving sexual abuse or exploitation of a child or a student may be filed beyond
the date of the alleged occurrence or date of its discovery up until five years after the child or
student reaches 18 years of age.” 24 PA. STAT. § 2070.9(a). Since more than five years had
elapsed between Ian‟s eighteenth birthday and his decision to report the alleged abuse, any report
filed with the Department would have been untimely. The matter quickly concluded on June 23,
2008, when Puller decided to retire in order to take advantage of post-employment health
benefits. ECF Nos. 59 & 68 at ¶¶ 72-76.
Benji Smith (“Smith”) served as Brookville‟s technology director during the 2008/2009
school year. ECF Nos. 59 & 68 at ¶ 83. He allegedly utilized the District‟s email system to
pursue “unprofessional” relationships with two female teachers, Sarah Curry (“Curry”) and
Karen Ray (“Ray”), when he was supposed to be working. Id. at ¶ 84. Hillwig initiated
23
The record indicates that Clint was killed in an accident in 2006, and that Ian ultimately named his own son after
Clint. ECF No. 59-28 at 1-2; ECF No. 59-55 at 1.
29
disciplinary proceedings against Smith, Curry and Ray on May 1, 2009. ECF Nos. 59-10, 59-12
& 59-13. A hearing was held on May7, 2009. ECF No. 59-11 at 3. Smith and Curry resigned
while the disciplinary proceedings were still underway. ECF Nos. 59 & 68 at ¶¶ 87, 90. In a
letter dated May 14, 2009, Hillwig notified Ray that she had been indefinitely suspended without
pay. ECF No. 59-11 at 1, 3. On May 22, 2009, Ray initiated the grievance process available to
her under the applicable collective bargaining agreement. Id. Her grievance was denied on
January 4, 2010. Id. at 11. The denial of the grievance resulted in the termination of Ray‟s
employment with the District. ECF Nos. 59 & 68 at ¶ 93.
The evidentiary record does not establish a pattern of constitutional violations perpetrated
by District employees. The communications initiated by Ewing and Doolittle were not permitted
to escalate into constitutional violations. Ian‟s allegation against Puller does not implicate
constitutional concerns, since the alleged incident was not connected to Puller‟s status as a
teacher.24 D.T. v. Independent School District, 894 F.2d 1176, 1186-1192 (10th Cir.
1990)(holding that an elementary school‟s basketball coach had not acted “under color of” state
law by molesting students while assisting at summer basketball camps that were not connected to
school-related activities). It is worth noting that Johnson launched an investigation into Puller‟s
conduct even though 17 years had passed since the alleged incident. The incidents involving
Smith, Curry and Ray are totally irrelevant to the issues in this case. The Constitution does not
limit the circumstances in which consenting adults can pursue “unprofessional” relationships,
and the allegedly “inappropriate” conduct of Smith, Curry and Ray did not threaten the
constitutional rights of Brookville‟s students. Brown, 520 U.S. at 411 (“A plaintiff must
demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation
of a particular constitutional or statutory right will follow the decision.”)(emphasis added).
These three individuals, of course, ultimately lost their jobs anyway. Only the conduct of
Fenstermaker directly implicated the students‟ constitutional rights.25 The District cooperated
24
The Court acknowledges that a teacher‟s off-duty misconduct can provide a school district with notice of his or
her propensity to engage in conduct that could threaten the constitutional rights of students. Board of County
Commissioners v. Brown, 520 U.S. 397, 412, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)(suggesting that a
governmental entity may be liable under § 1983 for hiring an employee with a known propensity to inflict a
particular type of constitutional injury).
25
The Due Process Clause does not prohibit every form of “inappropriate or unwanted touching” engaged in by a
public official. Hawkins v. Holloway, 316 F.3d 777, 785 (8th Cir. 2003). It is not clear whether Fenstermaker‟s
unlawful conduct was sufficiently egregious or invasive to violate the Due Process Clause. That issue is
inconsequential in the present context. Board of County Commissioners v. Brown, 520 U.S. 397, 409, 117 S.Ct.
1382, 137 L.Ed.2d 626 (1997)(acknowledging “the possibility that evidence of a single violation of federal rights,
30
with the relevant law enforcement personnel and brought Fenstermaker to justice shortly after
learning of his illegal conduct.
Douglas does not deny that the District responded forcefully to the alleged misconduct of
these individuals. The crux of her argument is that the District did not inform its teachers of such
misconduct or alter its training programs in response thereto. ECF No. 56 at 6-7. This line of
reasoning does not provide a sound basis for holding the District liable for K.E.‟s injuries. The
District‟s responsiveness to the allegations against Fenstermaker, Ewing, Doolittle, Puller and
Hetrick belies Douglas‟ assertion that it was “deliberately indifferent” to the constitutional rights
of its students. Brown, 520 U.S. at 410 (describing the “deliberate indifference” standard as a
“stringent standard of fault” requiring evidence that “a municipal actor disregarded a known or
obvious consequence” of his or her conduct). Furthermore, the relevant inquiry relates to the
“substance of the training” provided by a governmental entity rather than to the “particular
instructional format” chosen. Connick, 131 S.Ct. at 1363. The District was not specifically
required to inform its employees of the misdeeds committed by others on prior occasions. P.H.
v. School District of Kansas City, 265 F.3d 653, 661 (8th Cir. 2001)(“A handbook need not spell
out every specific factual scenario of sexual abuse or harassment that is prohibited in order to be
effective.”).
Even if Douglas could establish that the District was “deliberately indifferent” to the
constitutional rights of its students, she would not be able to show that the District‟s allegedly
inadequate training regimen caused Hetrick to violate K.E.‟s constitutional rights. Carswell v.
Borough of Homestead, 381 F.3d 235, 244-245 (3d Cir. 2004). When Hetrick was hired to teach
at Brookville, she was required to view a training film pertaining to the abuse of children. ECF
No. 59-20 at 4. She signed a form acknowledging that she understood her obligation to report
known instances of “sexual exploitation” to the relevant authorities. Id. at 3-4. She was
specifically made aware of the District‟s responsibility to address claims of “sexual harassment”
under Title IX. Id. at 1-2. Given that Hetrick‟s conduct in relation to K.E. was obviously wrong,
her actions cannot reasonably be attributed to the District‟s alleged failure to train her
accordingly. Connick, 131 S.Ct. at 1363 (observing that “recurring constitutional violations are
not the „obvious consequence‟ of failing to provide prosecutors with formal in-house training
accompanied by a showing that a municipality has failed to train its employees to handle recurring situations
presenting an obvious potential for such a violation, could trigger municipal liability”)(emphasis added).
31
about how to obey the law”); Stoneking, 882 F.2d at 727 (remarking that “a teacher‟s molestation
of a student could not possibly be deemed an acceptable practice”). When her illicit relationship
with K.E. was discovered, Hetrick immediately knew that she was in serious legal trouble. ECF
No. 55 at ¶¶ 134, 149-151. It cannot be doubted that Hetrick‟s shortcomings “resulted from
factors other than a faulty training program.” Harris, 489 U.S. at 391. The content of a
municipal defendant‟s training program is of little relevance in a case involving an employee‟s
willful violation of known legal restrictions. Id. (indicating that “mistakes” made by “adequately
trained officers” say “little about the training program” provided by their employing entity).
Stevenson knew from his conversations with Shaffer that Hetrick and K.E. had been
sending each other text messages. ECF No. 59-69 at 1. He also knew that K.E. had switched her
study hall from his classroom to Hetrick‟s classroom. ECF No. 59-72 at 25. When questioned
about what he had known prior to March 23, 2010, Stevenson testified that he had viewed
Hetrick‟s relationship with K.E. as something akin to a mother/daughter relationship. Id. at 28.
He stated that he had not believed the relationship to be “sexual in nature.” Id. Stevenson
further explained that K.E. had attributed her decision to move her study hall to Hetrick‟s
classroom to her need for tutoring in mathematics. Id. at 25.
Douglas posits that Hetrick‟s abuse of K.E. might have been deterred or stopped if
Stevenson had intervened sooner. ECF No. 56 at 8. She claims that Stevenson did not receive
proper training about his duty to report signs of child abuse. Id. The problem with Douglas‟
argument is threefold. First of all, Stevenson was aware of facts that would explain Hetrick‟s
close relationship with K.E. even in the absence of inappropriate activity. He is the one who had
recommended that K.E. take piano lessons from Hetrick. ECF No. 62-1 at 31. K.E. had told him
that she was being tutored by Hetrick. ECF No. 59-72 at 25. Second, it is undisputed that
Stevenson prefaced his discussion with Shaffer and K.E. on March 23, 2010, with a warning that
he would be legally obligated to report any information suggesting that K.E. had been mentally,
physically or emotionally harmed. ECF No. 59-69 at 2; ECF No. 59-70 at 26. Stevenson‟s
knowledge of this obligation directly contradicts Douglas‟ assertion that he had not been
previously advised of his responsibility to report evidence of abuse. Finally, the questionable
communications initiated by Ewing and Doolittle never resulted in constitutional violations.
Fenstermaker‟s misconduct did not involve the improper use of text messages. Therefore, the
District was never placed on notice that a teacher‟s sexual exploitation of a student would be “a
32
plainly obvious consequence” of its alleged decision not to train teachers and school employees
to investigate or report the content of text messages exchanged between teachers and students.
Brown, 520 U.S. at 412.
Richard A. Wallace (“Wallace”) and Jacob L. Lewis (“Lewis”), both of whom were
teachers at Brookville during the 2009/2010 school year, served as parking lot monitors. In that
capacity, they were expected to observe students entering the school building in order to ensure
that inappropriate conduct was not occurring. ECF No. 57-1 at 4-5. Wallace and Lewis both
testified that they had seen Hetrick and K.E. enter the building together on several occasions.
ECF No. 55-18 at 23-24; ECF No. 57-1 at 11. Wallace apparently believed that K.E. was
Hetrick‟s daughter. ECF No. 55-18 at 23. Lewis stated that he had known Hetrick‟s children at
the time, and that he had never believed K.E. to be Hetrick‟s daughter. ECF No. 57-1 at 12.
Brookville‟s Policy No. 440, which was in effect during the 2009/2010 school year, prohibited
teachers from transporting students in their personal vehicles without the authorization of the
School Board. ECF No. 55-18 at 18. Wallace and Lewis were not aware of Policy No. 440
when they served as parking lot monitors. ECF No. 55-18 at 16; ECF No. 57-1 at 19.
Douglas suggests that Hetrick‟s abuse of K.E. could have been stopped earlier if Wallace
and Lewis had received proper training about Policy No. 440. ECF No. 56 at 8. She intimates
that the District is liable under § 1983 for failing to provide such training. Id. As an initial
matter, it is not entirely clear whether Hetrick violated Policy No. 440 when she transported K.E.
to and from school. Wolfe testified that he had understood the policy to require teachers to use
school vans, rather than their personal vehicles, when transporting students to and from schoolrelated events such as competitions and field trips. ECF No. 59-76 at 8-9. Under Wolfe‟s
interpretation of the policy, Hetrick was not prohibited from providing K.E. with rides to and
from school. Id. Even if Douglas‟ construction of the policy is correct, however, the District‟s
failure to train Wallace and Lewis about that policy cannot serve as a basis for liability in this
context. The District‟s “deliberate indifference” as to whether its own policies were being
enforced is not the same “indifference” that is relevant to the inquiry applicable under § 1983.
Brown, 520 U.S. at 411. In order to hold the District liable for K.E.‟s injuries under these
circumstances, Douglas must show that a teacher‟s sexual abuse or molestation of a student was
the “plainly obvious consequence” of the District‟s failure to make parking lot monitors aware of
Policy No. 440. Id. A teacher‟s decision to provide a student with a ride to and from school
33
does not inherently threaten the student‟s welfare. Indeed, there may be instances where such an
arrangement would provide a student with the safest available means of transportation.
Consequently, the District‟s “indifference” to the requirements of Policy No. 440 cannot be
equated with its alleged “indifference” to K.E.‟s constitutional rights. Id. (“A plaintiff must
demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation
of a particular constitutional or statutory right will follow the decision.”)(emphasis added).
The record indicates that Andrea Blair (“Blair”), Wolfe‟s secretary during the 2009/2010
school year, viewed recordings from a surveillance camera depicting Hetrick and K.E. entering
and leaving the school building together in January 2010. ECF No. 55-18 at 10. The recordings
were apparently lost or misplaced when Wolfe left Brookville to become the superintendent of
the Punxsutawney School District. Id. at 9. Relying on Brewer v. Quaker State Oil Refining
Corp., 72 F.3d 326, 334 (3d Cir. 1994), Douglas contends that the District‟s failure to produce
the recordings should give rise to an inference that the depictions of Hetrick and K.E. entering
and leaving the building would have been damaging to its defense. In order for the rule
established in Brewer to apply, “it must appear that there has been an actual suppression or
withholding of the evidence” in question. Brewer, 72 F.3d at 334. Douglas points to nothing in
the record which suggests that the recordings were deliberately altered or destroyed. ECF No. 56
at 12. Moreover, she cannot establish that the District is liable under § 1983 even if District
officials knew all along that Hetrick and K.E. were entering and leaving the building together. In
order for municipal liability to attach in this context, the “identified deficiency” in the District‟s
training program must be “closely related” to K.E.‟s “ultimate injury.” Harris, 489 U.S. at 391.
It is undisputed that, during the relevant period of time, K.E. was taking piano lessons at
Hetrick‟s residence immediately after school. ECF No. 62-1 at 32. In light of the many
innocuous reasons why a student may frequently enter and leave a school building with a
teacher, Blair‟s alleged failure to investigate the matter further cannot be fairly attributed to a
training deficiency pertaining to a student‟s right to bodily integrity. Harris, 489 U.S. at 389392.
Markle served as Brookville‟s “resource officer” during the 2007/2008 school year. ECF
No. 59-68 at 3. In that capacity, he sometimes stayed on school grounds while classes were in
session so that disturbances could be dealt with expeditiously. Id. at 16. The position was
discontinued after the school year because of opposition from a member of the School Board. Id.
34
Douglas speculates that K.E.‟s injuries might have been prevented if the District had employed a
“resource officer” during the 2009/2010 school year. ECF No. 56 at 17. Even if the presence of
a police officer could have prevented some or all of Hetrick‟s sexual encounters with K.E.,
“[s]uch a claim could be made about almost any encounter resulting in injury.” Harris, 489 U.S.
at 391. The alleged causal link between the District‟s elimination of Markle‟s position and
Hetrick‟s ability to assault K.E. on school grounds is far too attenuated to subject the District to
liability under § 1983. Brown, 520 U.S. at 405 (explaining that “rigorous standards of
culpability and causation must be applied” whenever a plaintiff claims that a governmental entity
“has not directly inflicted an injury” but has nevertheless “caused an employee to do so”).
The arguments advanced by Douglas concerning the omissions of Stevenson, Wallace,
Lewis, Blair and other District officials are problematic for another reason. In any failure-totrain case, the governmental entity‟s failure to provide proper training is a step removed from the
constitutional violation resulting from that failure. Oklahoma City v. Tuttle, 471 U.S. 808, 822823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)(plurality opinion). That is why a plaintiff seeking to
hold a governmental entity liable in this context must demonstrate that his or her injury would
have been avoided if the offending employee had been “trained under a program that was not
deficient in the identified respect.” Harris, 489 U.S. at 391. Where a plaintiff attempts to extend
this theory to a government‟s failure to train other employees to detect or report the actions of an
offending employee, the government‟s alleged inaction is “a good deal further removed from the
constitutional violation.” Tuttle, 471 U.S. at 822. For this reason, it is not clear whether such an
attenuated failure-to-train claim is ever cognizable under § 1983. Connick, 131 S.Ct. at 1359
(“In limited circumstances, a local government‟s decision not to train certain employees about
their legal duty to avoid violating citizens‟ rights may rise to the level of an official government
policy for purposes of § 1983.”)(emphasis added). In any event, the United States Court of
Appeals for the Third Circuit recently rejected a similar type of claim on the ground that no
pattern of prior sexual abuse had been identified. Kline v. Mansfield, 255 Fed.Appx. 624, 630
(3d Cir. 2007)(unpublished). Since the record does not reveal a pattern of sexual exploitation
stemming from the failure of Brookville‟s teachers to detect or report signs of child abuse, the
Court need not consider the broader question of whether a school district‟s failure to provide this
type of second-hand training can ever provide a legitimate basis for governmental liability under
§ 1983.
35
The Court notes that, in February 2010, Douglas discovered a green box containing
pictures of Hetrick and K.E. while looking through K.E.‟s closet. ECF No. 62-1 at 33. K.E. had
apparently been planning to give the box to Hetrick as a St. Valentine‟s Day present. Id. After
discovering the box, Douglas cancelled K.E.‟s remaining piano lessons and instructed Hetrick
not to transport K.E. to and from school. Id. at 33-35. Hetrick advised Douglas that it was
normal for teenagers to develop “crushes” on their teachers. Id. at 35. Douglas did not report
the matter to District personnel. She apparently told Wolfe and Craft on March 24, 2010, that
she had not previously called the situation to their attention because of her erroneous belief that
nothing inappropriate had taken place. ECF No. 59-74 at 4. The fact that Douglas views her
discovery of the green box differently in hindsight than she did in February 2010, like Stevenson
views the text messages differently in hindsight than he did prior to March 23, 2010, further
serves to illustrate why the District is not responsible for the crimes committed by Hetrick.
Local governments sued under § 1983 are responsible only for “their own illegal acts.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986)(emphasis in original). No decision made by the District constituted the “functional
equivalent” of a decision to infringe K.E.‟s Fourteenth Amendment right to bodily integrity.
Harris, 489 U.S. at 395. It was Hetrick‟s own misconduct, rather than a deficient training
program, that was the “moving force” behind the constitutional violations alleged. Brown, 520
U.S. at 404. No reasonable trier of fact could conclude otherwise. Douglas cannot hold the
District liable for K.E.‟s injuries solely because it employed Hetrick during the relevant period of
time. Connick, 131 S.Ct. at 1359. Therefore, the motion for summary judgment filed by
Douglas will be denied with respect to the claims asserted against the District and Craft. ECF
No. 55. The motion for summary judgment filed by the District and Craft will be granted in its
entirety. ECF No. 59.
C.
The Battery Claims
Douglas moves for summary judgment with respect to her battery claims against Hetrick.
ECF No. 56 at 21-22. She relies on Hetrick‟s “guilty” plea to three counts of aggravated
indecent assault in support of her motion. Id. As discussed earlier, Douglas never filed a
certificate of service confirming that a copy of her motion had been served on Hetrick‟s counsel.
ECF No. 55. Hetrick has not responded to the motion, and the Court is not sure whether she is
even aware of it. Given that Douglas has the burden of proof, the Court cannot grant summary
36
judgment in her favor without considering whether the “facts specified” in her motion entitle her
to a judgment as a matter of law. Anchorage Associates, 922 F.2d at 175.
It is undisputed that Hetrick pleaded “guilty” to three counts of aggravated indecent
assault. ECF Nos. 55 & 62 at ¶ 121. Hetrick‟s conviction stems from the fact that she digitally
penetrated K.E.‟s vagina while K.E. was below the age of 16. 18 PA. CONS. STAT. § 3125(a)(8).
Pennsylvania‟s criminal statutes generally prohibit an individual who is more than four years
older than a child under the age of 16 from engaging in sexual activities with that child. 18 PA.
CONS. STAT. §§ 3122.1, 3123(a)(7), 3125(a)(8), 3126(a)(8). Sexual activities with a child under
the age of 13 are prohibited regardless of the age difference between the offending individual
and the child. 18 PA. CONS. STAT. §§ 3121(c), 3123(b), 3125(a)(7), 3126(a)(7). The different
standards applicable under Pennsylvania law reflect a legislative judgment that while a child
under the age of 13 is incapable of consenting to sexual activity in any circumstance, a child
between the ages of 13 and 15 can arguably consent to sexual activity with a slightly older
individual. Albert, 758 A.2d at 1152-1154.
In C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 349 (Pa. 2008), the Pennsylvania
Supreme Court held that a civil defendant could not defeat a battery claim brought by a child
under the age of 13 by contending that the child had consented to sexual activity. In so holding,
the Pennsylvania Supreme Court relied on the fact that the criminal law had categorically
classified children under the age of 13 as being “incompetent as a matter of law to consent to
sexual contact.” C.C.H., 940 A.2d at 349. The criminal statutes relating to children between the
ages of 13 and 15, however, are less absolute. 18 PA. CONS. STAT. §§ 3122.1, 3123(a)(7),
3125(a)(8), 3126(a)(8). It is not entirely clear whether the reasoning employed in C.C.H. should
be extended to cover a situation involving sexual contact between an older adult and a 15-yearold child. Although the age difference between Hetrick and K.E. rendered Hetrick‟s conduct
indefensible under Pennsylvania‟s aggravated indecent assault statute, the sexual relationship
appears to have been consensual in all other respects.
In view of the fact that Hetrick has not responded to Douglas‟ motion for summary
judgment, the Court will inform her of its pendency and order her to file a response. Douglas
will be afforded an opportunity to supplement her arguments after Hetrick‟s response is filed.
Summary judgment will be entered against Hetrick if she does not respond to this Court‟s order
in a timely manner. Stackhouse, 951 F.3d at 30. After the positions of the parties are clearly
37
articulated, the Court will be in a better position to determine whether the apparently consensual
nature of K.E.‟s sexual encounters with Hetrick should have any bearing on whether Hetrick is
liable for battery under Pennsylvania law. C.C.H., 940 A.2d at 342-350. Douglas‟ motion for
summary judgment will be addressed shortly after the requested submissions are filed.
Pursuant to this Court‟s order of July 1, 2011, motions for summary judgment were due
on August 19, 2011. ECF No. 49. Hetrick‟s counsel received a copy of the order. Id. at 2. The
deadline was extended to August 26, 2011, at the request of the parties. ECF Nos. 52 & 54.
Hetrick has not filed a motion for summary judgment. Douglas‟ substantive due process and
battery claims against Hetrick will proceed to trial in any event. The only remaining question is
whether the trial will be limited to the issue of damages, or whether it will also include a liability
phase. The claims against Hetrick will not be dismissed if it is determined that the issue of
consent precludes the entry of summary judgment against her. In that event, Douglas and
Hetrick will both be free to introduce evidence pertaining to that issue. Ortiz v. Jordan,
___U.S.___, ___, 131 S.Ct. 884, 889, 178 L.Ed.2d 703 (2011)(“Once the case proceeds to trial,
the full record developed in court supersedes the record existing at the time of the summary
judgment motion.”).
V.
Conclusion
For the reasons stated in this opinion, the Court will deny Douglas‟ motion for summary
judgment with respect to Counts I, II and V of the amended complaint. ECF No. 31 at ¶¶ 18-32,
41-57. The motion for summary judgment filed by the District and Craft will be granted in its
entirety, and they will be dismissed as defendants in this case. ECF No. 59. Douglas‟ motion for
summary judgment will remain pending with respect to Counts III and IV of the amended
complaint until the parties supplement their filings and inform the Court of their respective
positions. ECF No. 33 at ¶¶ 33-40. The applicable deadlines for these filings will be specified in
an order following this opinion.
McVerry, J.
38
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LISA DOUGLAS, individually and as
)
the parent and natural guardian of K.E., )
a minor,
)
)
Plaintiff,
)
)
v.
)
)
BROOKVILLE AREA SCHOOL
)
DISTRICT; SANDRA CRAFT,
)
Superintendent of the Brookville Area
)
School District; and KARIN HETRICK, )
)
Defendants.
)
Civil Action No. 10-1087
ORDER OF COURT
AND NOW, this 8th day of December, 2011, it is hereby ORDERED, ADJUDGED,
and DECREED that the MOTION FOR SUMMARY JUDGMENT filed by Defendants
Brookville Area School District and Sandra Craft (ECF No.59) is GRANTED, and that each of
these Defendants are dismissed from this case.
The MOTION FOR SUMMARY JUDGMENT filed by Plaintiff Lisa Douglas (ECF No.
55) is DENIED with respect to Counts I, II and V of the Amended Complaint. Counsel for
Defendant Karin Hetrick is hereby ORDERED to respond to Plaintiff Lisa Douglas‟ Motion for
Summary Judgment on or before January 6, 2011. If Plaintiff Lisa Douglas wishes to file a
responsive brief, she must do so on or before January 20, 2011.
39
The caption of this case is hereby amended to read as follows:
LISA DOUGLAS, individually and as the
parent and natural guardian of K.E., a minor,
Plaintiff,
v.
KARIN HETRICK,
Defendant.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
James J. Ross, Esquire
Email: jross@brf-law.com
Thomas E. Breth, Esquire
Email: tbreth@dmkcg-law.com
Robbie M. Taylor, Esquire
Email: taylorlaw@windstream.net
Blair H. Hindman, Esquire
Email: gnhh@choiceonemail.com
Karin Hetrick
Inmate No. OR4920
SCI Cambridge Springs
451 Fullerton Avenue
Cambridge Springs, PA 16403-1238
40
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