Doe v. Russell County School Board et al

Filing 91

OPINION and ORDER granting 59 Motion for Summary Judgment against Defendant Bobby Gobble; granting in part and denying in part 60 Motion to Exclude; granting in part and denying in part 62 Motion for Summary Judgment; defendants Henley and Hooker are dismissed; and defendant's designated as John Roes 1-10 are dismissed without prejudice. Signed by Judge James P. Jones on 2/13/18. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JOHN DOE, AN INFANT, BY HIS NEXT )
)
FRIEND, REELIA WATSON,
)
Plaintiff,
)
)
v.
)
)
RUSSELL COUNTY SCHOOL BOARD )
)
D/B/A RUSSELL COUNTY PUBLIC
)
SCHOOLS, ET AL.,
)
Defendants.
)

Case No. 1:16CV00045
OPINION AND ORDER
By: James P. Jones
United States District Judge

Monica H. Beck and Douglas E. Fierberg, The Fierberg National Law
Group, PLLC, Traverse City, Michigan, and Paul R. Thomson, III, The Thomson
Law Firm, PLLC, Roanoke, Virginia, for Plaintiff; Christopher S. Dadak and Jim
H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, and Mary Katherine
Patton, Chafin Law Firm P.C., Lebanon, Virginia, for Defendants Russell County
School Board d/b/a Russell County Public Schools, Phillip Henley, and Kimberly
Hooker; W. Ethan Stewart, Stewart Law Office, P.C., Norton, Virginia, guardian
ad litem for Defendant Bobby Gobble.
Bobby Gobble was an elementary school custodian who over time sexually
abused several young boys who were students at the school, including John Doe,
the pseudonymously-named plaintiff in this case. Following discovery of his
abuse, Gobble pled guilty to state criminal charges and is currently serving a
lengthy prison term. As a result of Gobble’s abuse, Doe now sues Gobble, as well
as the Russell County, Virginia, School Board (the “School Board”), and former
school principals Phillip Henley and Kimberly Hooker, based on various state and

federal causes of action, including Title IX and 42 U.S.C. § 1983.1 This court has
subject-matter jurisdiction of the claims under 28 U.S.C. § 1331 and 28 U.S.C. §
1367(a).
Following extensive discovery, the plaintiff has moved for summary
judgment against Gobble, and the School Defendants have moved for summary
judgment on all counts pending against them. The School Defendants have also
moved to exclude certain proposed trial testimony by two of the plaintiff’s expert
witnesses. The motions have been fully briefed and orally argued and are ripe for
decision.
For the following reasons, I will grant summary judgment against Gobble,
deny summary judgment to the School Board, grant summary judgment to Henley
and Hooker, and grant in part and deny in part the School Defendants’ Motion to
Exclude.
I. FACTS.
The following facts are taken from the summary judgment record and, where
disputed, are presented in the light most favorable to the nonmoving party.
John Doe began attending Lebanon Elementary School (“LES”) in the fall of
2011 as a nine-year-old third grade student. When he began attending LES, Doe
had an individualized education plan (“IEP”) to address his special learning needs.
1

The School Board and the defendant former school principals will be referred to
collectively as the “School Defendants.”
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He could not write his name, wrote his letters backward, and could not read. His
mother, referenced in the record as Jane Doe, was incarcerated, and Doe was living
with his grandmother, step-grandfather, and three siblings. His grandmother, who
had custody of Doe, was ill and suffered from heart problems.
Defendant Phillip Henley was the principal of LES from 2005 until June 1,
2012, the end of Doe’s third-grade year. Defendant Kimberly Hooker was the
principal of LES during the 2012-13 school year, when Doe was in fourth grade.
Dennis Price

who is not a defendant

was the assistant principal at LES from

2006 until 2012 and later served as the principal of LES from 2013 to 2015.
During the 2013-14 school year, when Doe was in fifth grade, he attended Lebanon
Middle School (“LMS”), located across the street from LES.
Gobble began working at LES as a janitor in May 2007 and became the head
custodian on July 8, 2011. His sister, Brenda Helbert, worked as the assistant
custodian at LES. Helbert had two sons, B.G. and S.G., who were a few years
older than Doe and were students at other schools in Russell County.
Gobble first met Doe at LES, where the two talked to one another often.
Doe wanted to help Gobble with his custodial duties. Gobble had a practice of
encouraging boys to help him collect trash at the end of the school day. Teachers
would permit students to leave class during the last five to ten minutes of the

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school day for this purpose, and Gobble frequently gave the boys one or two
dollars or candy in exchange for helping him.
Gobble and Doe began spending more and more time together, during and
after school, at LES and elsewhere. This relationship was encouraged by Doe’s
teachers, who thought Gobble was a good influence on Doe. Teacher Cecille
Lawson Skeens called Gobble to her classroom on several occasions to calm Doe
down, and each time Gobble took Doe out of the classroom and into the hallway.
Doe’s teachers sent him out of the classroom by himself to get supplies and coffee
from the custodian office. On at least one occasion, Gobble was allowed to
remove Doe from school to get a haircut. While he was enrolled in the after school
program, Doe was allowed to leave the program to spend time with Gobble and
help him with his cleaning duties around the school. Gobble was not related to
Doe and did not have written permission to remove Doe from school, although
Doe’s grandmother and mother verbally approved of Doe spending time with
Gobble.
Gobble signed off on Doe’s report cards. Teacher Alisha Powers met with
Gobble and Doe to discuss Doe’s IEP. Gobble would ask Skeens how Doe had
done on tests and assignments, and she would provide that information to Gobble.
Gobble told her that he helped Doe study and would bring him a soft drink at lunch

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if Doe did well. Doe frequently spent time in the custodian office, the door to
which remained closed at Henley’s direction.
Gobble gave Doe rides home from school in his personal vehicle on a
regular basis. Gobble befriended Doe’s family and sometimes stayed to eat dinner
with them. Gobble took Doe to Gobble’s house along with his nephews, B.G. and
S.G., to play video games, and Doe ended up spending the night there. Doe would
eventually stay at Gobble’s house for days on end and essentially lived with
Gobble for a period of several months. B.G. and S.G. introduced Doe to Henley at
LES one day and told Henley that Gobble was taking them all out to dinner.
Henley incorrectly assumed that Doe was related to B.G., S.G., and Gobble.
Henley became aware that Doe would help Gobble gather trash and also
participated in the after-school program. As the school year went on, Gobble
mentioned to Henley that Doe would go to Gobble’s house because he did not like
to stay at his own home. Henley did not ask Gobble any questions about Doe
being at his house, including whether he had the permission of a parent or
guardian. Henley never talked to Doe’s grandmother, his guardian.
Doe’s teachers were aware that Gobble bought him shoes, clothes, and an
expensive video game console that he had to finance. Doe’s teachers also knew
that Gobble often bought him food, which he took to Doe in the school cafeteria
during lunch, and that Gobble paid Doe’s expenses related to little league football.
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Teacher Powers encountered Doe with Gobble and his nephews at the amusement
park known as Dollywood, some distance from Russell County. Henley did not
ask teachers if they had any concerns about Doe spending time with Gobble.
Henley never checked on Gobble as part of his regular workday. He had no set
supervisory schedule for Gobble. Henley never reviewed security camera footage
to see what Gobble was doing.
Gobble began sexually abusing Doe in early 2012. The abuse continued
until the summer of 2013, when Jane Doe, who had regained custody of him,
stopped allowing Doe to spend time with Gobble.

Gobble has admitted to

repeatedly molesting Doe in the LES boiler room and custodian office, in his
vehicle, at the home Gobble shared with his then-wife, and at the home of
Gobble’s sister Helbert, where Gobble lived while separated from his wife. The
abuse occurred on a near-daily basis.
According to Gobble, Henley and Hooker knew that Gobble was regularly at
school before his shift began and that children spent time in the custodian office
with him before school started. Henley and Hooker knew that teachers sometimes
sent students by themselves to the custodian office during the school day to get
supplies, like sponges or paper towels. Henley and Hooker further knew that Doe
spent time in the custodian office after school and that Gobble spent time in the
custodian office with Doe, S.G., and B.G., with the door to the office closed. In
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addition, Henley and Hooker were aware that Doe and Gobble’s nephews were
with Gobble at the school when school was not in session. Henley and Hooker
knew that Gobble brought Doe to school in the mornings and that Doe left school
with Gobble at the end of the day. Gobble testified that neither principal asked
him why he was at school before his shift began or told him he should not have
children in the custodian office with him.
In 2012, Gobble’s wife Charlene made a complaint to the Russell County
Department of Social Services (“DSS”) about Gobble’s relationship with Doe.
Charlene reported that Doe was staying at the couple’s house and spending an
excessive amount of time with Gobble. She stated that Gobble was no longer
sleeping with her and was instead sleeping in the same room as Doe. Charlene
reported that Gobble’s relationship with Doe was negatively affecting the couple’s
marriage.
Pam Kincaid, Kathy Brickey, and two other DSS personnel went to
Gobble’s home to investigate the complaint. Charlene showed them where Gobble
slept and a small cot next to the bed where Doe slept. After leaving the Gobble
home, the DSS workers went to LES and spoke to Hooker about the complaint.
Hooker told them that Gobble had taken the child under his wing because Doe was
insecure and he looked up to Gobble as a father figure. Hooker stated that Gobble
made sure that Doe got home in the evenings and would take him to ball games.
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Following this conversation, the focus of the DSS investigation shifted from
Gobble to Jane Doe.
The DSS workers spoke to Gobble, who told them that Doe’s mother had
allowed him to take the child under his wing and to help him with things at school
and give him rides home. Gobble stated he was very fond of Doe. Brickey asked
Gobble about Doe spending the night at his house, and Gobble said that the boy’s
mother approved. Hooker sat in on this interview of Gobble but did not ask any
questions.
The DSS workers spoke to Doe, who stated that he wanted to spend more
time with his mother rather than spending so much time with Gobble. Doe said
that he liked Gobble and that Gobble took him places. Hooker sat in on the DSS
interview of Doe, but she did not ask any questions.
Kincaid then instructed Gobble to take the child to Doe’s home, where the
DSS workers met them. Kincaid asked Jane Doe about the relationship between
Gobble and Doe, and Jane Doe said she was aware that Gobble was taking Doe to
his house, that Gobble had become a friend of the family, and that he had been to
the Doe house several times for dinners and birthdays. The DSS workers told Jane
Doe that Doe should spend more time at home.

Kincaid concluded that the

complaint was unfounded, and DSS closed the case. Kincaid notified the school of
the results of the investigation.
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Charlene made another complaint to DSS about a month after the initial
investigation. Charlene reported that Gobble had moved out of her home and the
child was still spending nights with Gobble. Charlene told Kincaid that Doe would
sit on Gobble’s lap, hug him, and call him Daddy, and Charlene was concerned
that they might get in trouble if Doe got hurt. Charlene told Doe to get off of
Gobble’s lap. Gobble told Charlene she was jealous. No school official talked to
Charlene about Doe or Gobble’s relationship with him.
Gobble told teacher Naomah McCoy that he planned to adopt Doe.
Gobble’s wife did not want to do this, but according to McCoy, Gobble seemed
obsessed with the idea.

McCoy thought it was strange that Gobble would

jeopardize his marriage over Doe. Gobble complained to teacher Powers that his
wife had called DSS. He was furious about it and told Powers that he was going to
leave his wife.
Hooker recalls learning of Charlene’s complaint to DSS and sitting in on
DSS interviews of Doe and Gobble in the spring of 2013, when Doe was in fourth
grade. She learned through the interviews that Doe stayed at Gobble’s home.
Gobble said he was helping Doe’s mother monetarily and by giving Doe rides.
Hooker did not talk to Doe after the interview about anything that came up during
the interviews. She did talk to Gobble and asked him some of the same questions
DSS had asked, to which he gave the same answers he had given to DSS.
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Hooker testified that after Kincaid told her that DSS ruled Charlene’s
complaint unfounded, Hooker called the school system’s central office to ask
whether she needed to do anything else. According to Hooker, the superintendent
told her she did not need to take any further action because DSS had completed its
investigation. Hooker stated that she discretely inquired of several teachers as to
whether they had any concerns about Gobble, but most of the teachers testified that
they did not recall Hooker ever asking them about Gobble.
Earlier in the school year, prior to the DSS investigation, Hooker had
instructed LES teachers that students should not be allowed to help Gobble collect
trash and that they needed to be in the classroom during class time. Hooker told
the teachers and Gobble that Gobble was not permitted to pay students for helping
him do his work. When Hooker noticed that Doe was staying after school with
Gobble, she called Doe’s grandmother, who gave permission and expressed her
appreciation for Gobble.

Hooker did not obtain written permission from the

grandmother for Gobble to take Doe to activities or to keep him after school.
Hooker told Gobble that if Doe was going to stay after school, he had to be
enrolled in the after-school program. Hooker checked Doe’s grades and saw that
they were low, and she thought he could benefit from the academic support of the
after-school program. Even after he was enrolled in the after-school program,
teacher Powers told Hooker that Doe would try to leave the program to help
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Gobble. Hooker then told Doe that he could not stay at school if he was not in the
after-school program. Doe began riding the bus home, but Powers told Hooker
that Doe’s grandfather would drive him back to school and he would again spend
time with Gobble. Hooker did not talk to the grandfather, grandmother, mother, or
Doe about this.
Hooker called Jane Doe, who told her that Gobble had her permission to
take Doe home and take him to practices and games. Hooker knew that DSS had
talked to Jane Doe, and Hooker brought up the investigation on the phone call.
Jane Doe said that Gobble was helping her and she appreciated him. Hooker did
not talk to either of the school’s guidance counselors about Gobble or Doe.
Like Henley, Hooker required the custodian door to be closed. Hooker
knew there were security cameras in the school, but they did not always work
while she was principal. The school day ended at 3:20, and Hooker usually left
around 4:00 or 4:15. The after-school program took place from 3:30 to 5:30.
Hooker knew that Gobble was transporting Doe in his personal vehicle. There was
an understanding that school employees should always have another adult with
them when transporting a student in a personal vehicle, but Hooker did not
investigate whether Gobble had another adult with him when transporting Doe.
In the summer or fall of 2013, Jane Doe cut off communications between
Doe and Gobble. She had noticed Gobble following Doe around at his birthday
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party, which was held in the LES cafeteria, and she got a “bad feeling.” She later
saw Gobble following Doe around at football games and threatened to call law
enforcement. Doe’s step-grandfather testified that at some point during or after the
birthday party, Doe indicated that he did not want to go to Gobble’s house and told
his younger brother not to go to Gobble’s house. At that point, the grandfather
became suspicious that Gobble may have touched Doe inappropriately.

The

grandfather also witnessed Gobble’s behavior at a football game and talked to law
enforcement officers who were present there. The officers talked to Gobble, who
stopped following Doe around. After Jane Doe cut off contact with Gobble,
Gobble repeatedly sent text messages to Doe and had Doe’s bus driver pass love
notes to Doe.
Brenda Hess was assistant superintendent from March to June 2012 and
became superintendent in June 2012. She remained superintendent until 2016.
When Hess first started working in the central office, Harry Steffey was the Title
IX Coordinator. He was succeeded by Rebecca Dye, who was followed by Cathy
Gent.
Around the fall of 2012, Hooker told Hess that Gobble’s wife had made a
complaint to DSS because she was jealous of a student and that the complaint was
unfounded. Hess understood that DSS had been investigating a charge that Gobble
had sexually abused a student. Hess emphatically denied that she told Hooker not
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to conduct her own investigation. She testified that Hooker was supposed to do her
own investigation.

Hess testified, “She should have followed through with

questioning and got the specifics of the behavior and what had happened and taken
action for whatever needed to be done. Just because DSS did theirs, does not
excuse the school from doing our[] [investigation].” Pl.’s Br. in Opp’n to Sch.
Defs.’ Mot. for Summ. J. Ex. 3, 55, ECF No. 69-3. The Title IX Coordinator
should have been involved, and Hess set forth a number of steps Hooker should
have taken to investigate the complaint. According to Hess, Hooker should have
reviewed video footage after learning of the first complaint to DSS. Hess said that
after the DSS investigation, Hooker should have been diligent in closely
supervising Gobble.
In February 2014, Gobble molested student A.M. at LES. A.M. told his
stepfather about the incident, and his stepfather reported the incident to Price.
Gobble was placed on paid leave pending an investigation. Gobble ultimately
confessed to the abuse of A.M., Doe, and others, was arrested, and pleaded guilty
to numerous state charges.
Following Gobble’s confession, Doe continued to attend LMS for a short
time and then the family moved to Pulaski County. Doe eventually returned to
Russell County and currently attends a school there. After his return, he has
experienced bullying by his classmates regarding Gobble’s sexual abuse. Teachers
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have witnessed the bullying and have not done anything about it. Doe got into a
fight on the school bus with one of the students who bullied him. As a result, Doe
was suspended for four days and transferred to an alternative school for several
months.
Doe testified that because of his experience with Gobble, he does not like to
be around people and avoids crowds where people are watching him. He does not
feel normal. He would like to undergo counseling. He is not getting any special
services from the school system. He has had several girlfriends, but he does not
like to be touched by males or females, even on the hand or shoulder. It takes him
a long time to trust a person and become affectionate. He does not trust any adults
other than his mother and step-grandfather.
Psychiatrist Richard S. Epstein, M.D., an expert witness for the plaintiff, has
opined that Doe suffers severe and chronic posttraumatic stress disorder (“PTSD”)
as a result of Gobble’s abuse. He avoids social interactions, lashes out at times,
has self-medicated with alcohol, and does not trust most men. He is depressed and
anxious. Earlier in his childhood, before Gobble’s abuse, Doe was generally
outgoing and happy. Since being abused by Gobble, he has lost interest in many of
the activities he previously enjoyed.

Dr. Epstein opined that without proper

treatment, Doe is at risk for future psychological decompensation and
employment-related impairments as a result of Gobble’s abuse.
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A Virginia State Board of Education document entitled “Guidelines for the
Prevention of Sexual Misconduct and Abuse in Virginia Public Schools” states,
“Responsibility for protecting students from sexual misconduct and abuse is shared
by the school board, superintendent, administrators, teachers and other school
board employees, school volunteers, parents, state agencies, and law enforcement.”
Br. in Supp. Mot. for Summ. J. Ex. 1, 1, ECF No. 63-1. The document provides
that a school board’s responsibilities include, among other things, “[t]he
development, effective implementation and enforcement of clear and reasonable
policies governing the interaction of students and school board employees and
volunteers” as well as “[t]he establishment of channels for reporting by students
and parents of suspected misconduct and abuse, and the prompt notification of law
enforcement when criminal activity is alleged or suspected.” Id. According to the
guidelines, school board sexual misconduct policies should include “[c]lear and
reasonable rules governing communication and interaction between students and
school board employees” and “[t]raining of school personnel and volunteers and
the dissemination of sexual misconduct and abuse prevention policies to school
board employees, volunteers, students, and parents.” Id. at 1-2.
The guidelines advise that
Educators, other employees, and volunteers should be aware of
behaviors often associated with inappropriate conduct that can create
an appearance of impropriety, including:
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Conducting ongoing, private, conversations with individual
students that are unrelated to school activities or the well-being
of the student that take place in locations inaccessible to others;
Inviting a student or students for home visits without informing
parents;
Visiting the homes of students without the knowledge of
parents;
Inviting students for social contact off school grounds without
the permission or knowledge of parents; and
Transporting students in personal vehicles without the
knowledge of parents or supervisors.
Id. at 2. Violations of appropriate employee-student boundaries include, inter alia,
“[p]hysical contact with a student that could be reasonably interpreted as
constituting sexual harassment” and “[s]ingling out a particular student or group of
students for personal attention and friendship beyond the bounds of an appropriate
educator/mentor-student relationship.” Id. The guidelines state that “[s]chool
boards also should provide training for employees and volunteers on the prevention
of misconduct and abuse and disseminate information about relevant division
policies to employees, volunteers, students, and parents.” Id. at 3.
Henley developed a faculty handbook when he was principal of LES, but he
could not recall whether it specifically addressed employee sexual harassment of
students or Title IX. Representatives of DSS and the Russell County Sheriff’s
Department provided training to administrators, including principals, about once
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per school year. Teachers did not attend these training sessions. Principals were
expected to disseminate the information they learned to the teachers and staff at
their schools.

The training sessions sometimes covered sexual abuse and

sometimes addressed child neglect. They did not specifically address Title IX.
Posters about mandatory reporting of child abuse and neglect were placed in the
copying area and teacher’s lounge. Henley did not receive or give any training on
investigating reports of sexual abuse or on preventing abuse of students by school
employees. Students did participate in a training program once a year called
“Good Touch, Bad Touch.”
Henley could not identify the school system’s Title IX Coordinator or
describe that person’s duties. He testified in his deposition that if he received a
complaint of abuse or harassment, he was supposed to report it to the
superintendent and to DSS, and at that point, he considered the complaint to be in
DSS’s hands.
Principal Price also could not identify the Title IX Coordinator. Upon
receiving a complaint, Price would contact the superintendent and report to DSS.
He does not recall anyone telling him that he should make a report to the Title IX
Coordinator. He testified in his deposition that he could not think of any steps that
the School Board could take to prevent another employee from sexually abusing a
student.
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A lawyer gave an annual presentation on school law to administrators, and
his presentations touched upon mandatory reporting and sexual harassment issues.
He discussed how to recognize staff-to-student harassment, what to do about it,
and the need to report it.

He emphasized that teachers needed to report to

administrators but also follow up to ensure that the conduct was reported to DSS.
The portion of the presentation addressing sexual harassment usually lasted fifteen
or twenty minutes.
Hooker did not receive any formal training from the school system regarding
investigating a complaint of employee sexual abuse of a student. She had training
through the state that was required to obtain her teaching license, and that training
addressed abuse, neglect, and grooming. She completed that training in the early
2000s. Hooker stated that upon receiving a report of harassment or abuse, her duty
was to report to DSS, report to the superintendent, take notes, and follow up with
DSS. Though the school system’s harassment policies were publicly available, the
superintendent never provided training on them.
When Hooker was LES principal, she developed a handbook for LES faculty
and staff. The handbook did not address Title IX or sexual harassment because
Hooker thought those things were addressed in the Student Conduct Code (“SCC”)
issued by the School Board. Neither the LES handbook nor the faculty handbook
stated to whom a student should report sexual abuse by an employee. The SCC
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stated that the principal must require a written note from a parent or guardian in
order for another adult to pick up a student during school hours. Hooker testified
that she usually complied with that policy, but sometimes she called the parent or
guardian rather than requiring a written note.

The SCC contained a sexual

harassment policy, but it did not give examples of what constitutes sexual
harassment, nor did it mention Title IX. The SCC was sent home with students
and parents were supposed to sign and return a page stating that they had gone over
it with their children. The school system did not provide any training or education
regarding the sexual harassment policy contained in the SCC.
On August 13, 2012, Hooker held a two-and-a-half hour faculty meeting for
all teachers and staff of LES. She addressed 72 agenda items, including mandatory
reporting, which she discussed for ten or fifteen minutes. Hooker knew that
educators could be held legally liable if they were aware of sexual harassment and
did not take immediate and appropriate action. She stated that she regularly told
teachers that they should report to her if they saw anything that made them feel
uncomfortable. She told them if they called DSS, they should also involve her.
She told teachers not to be in a classroom alone with a student, not to add students
as friends on Facebook, not to text with students, and to be careful what they said
to students and parents.

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After DSS visited the school to interview Gobble and Doe in 2013, Hooker
did not provide any training to LES employees about employee-on-student
harassment, and she did not request that the school system bring anyone into the
school to provide that training. She did not ask teachers to keep an eye on
Gobble’s interactions with Doe.
According to Hess, the Title IX Coordinator is not responsible for
determining whether a complaint is truthful or founded, but the coordinator is to
assume that the complaint is true until they can prove differently. In the case of a
sexual abuse or harassment complaint, the coordinator should follow up to ensure
that the child is receiving services if needed. DSS or law enforcement would make
the finding as to whether the complaint was founded.
Steffey, who retired in 2012, was an administrator in the central office and
was in charge of security. No one ever informed him that he was the Title IX
Coordinator.

He did not receive any additional pay for serving as Title IX

Coordinator. He did not seek out any training on Title IX and has never seen any
of the Dear Colleague Letters issued by the Department of Education, Office for
Civil Rights (“OCR”).

He does not remember reviewing the Title IX

implementing regulations. He testified that he thought the principals or assistant
principals should have reviewed security footage daily, but he did not know
whether that happened. If Steffey received a parental complaint, he would verbally
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notify the principal and the superintendent. He testified that he did not have any
responsibility after that.

He thinks the superintendent was responsible for

overseeing Title IX compliance, but he is not sure. As an administrator, he was not
aware of any reports or complaints that a school employee was sexually harassing
a student. If anyone within the school system had concerns that an employee was
harassing a student, Steffey said DSS should have been notified. DSS would have
conducted an investigation, and according to Steffey, the school should have relied
on that investigation without taking any further action. He does not know of
anything that the school system did to prevent sexual harassment of students. He
does not remember the school system providing any training on employee sexual
harassment of students.
Rebecca Dye testified that she was never informed that she was the Title IX
Coordinator until she was preparing for her deposition in this case. Dye thought
the purpose of Title IX was to prevent discrimination in college sports and sexual
harassment in college settings. She learned something about Title IX in 2004
when she was working on her administrative degree. She was not involved in the
Gobble investigation.
Cathy Gent is the current Title IX Coordinator and oversees parental
complaints. She became the Title IX Coordinator in 2013. When she receives a
complaint, she writes it down in a notebook. The person receiving a complaint is
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supposed to put the complaint into writing and give it to Gent, Scotty Fletcher, the
Alternate Title IX Compliance Officer, or their principal.

There is no set

procedure for what is supposed to happen with the written complaint.
Gent testified that in her mind, the standard for investigating a Title IX
complaint is beyond a shadow of a doubt. She stated that Title IX covers race
discrimination and applies to athletics, policies, and procedures, as well as sexual
harassment. She testified that her duty as Title IX Coordinator is to report the
details of complaints to the superintendent. It is her duty to investigate and to
make sure that students have equal opportunities and are not discriminated against.
The superintendent would decide whether or not a complaint is founded and would
determine consequences or further action. Gent simply investigates complaints
and passes along the information she collects. She is not required to complete any
forms regarding complaints. Gent stated that DSS is called about every complaint
accusing an employee of sexually harassing or assaulting a student. DSS then
leads the investigations. School personnel can sit in on interviews, but according
to Gent, the school does not have any obligation to gather additional information.
Gent was not informed of the October 2012 or early 2013 DSS
investigations of Gobble.

Hooker only told her about those investigations in

connection with this lawsuit.

She was aware of the February 2014 police

investigation. Hess told Gent there had been a complaint by a parent and sent Gent
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and Fletcher to LES to investigate. They talked to Price and immediately called
DSS.

They talked to Gobble at the end of the school day, and he denied

everything. They did not allow him to come back to school the next day. DSS
interviewed A.M. and his mother the next morning, as well as Helbert, Gobble, and
other students. The worker told Hess that Gent and Fletcher would be allowed to
sit in on the interviews but were not allowed to ask any questions. Fletcher asked
one question during one of the interviews, and the DSS worker became very upset
and told him not to speak again.
Gent and Fletcher watched surveillance videos and documented when
students came and went from the custodian office. A.M. and M.S., the children of
two school employees, were among the children shown entering and leaving the
custodian office in the mornings. The videos showed children alone with Gobble
in the office. Gent does not recall how many days’ worth of video footage they
reviewed. She does not recall talking to teachers about Gobble or undertaking any
other investigation. Gent was not informed which children Gobble had abused.
Hess later told her that DSS was going to interview Doe. Gent never asked any
other students whether Gobble had inappropriately touched them. She was never
informed whether DSS determined that Gobble had abused Doe. She does not
recall anyone telling her that Gobble had admitted to abusing anyone other than
A.M. She did not talk to Doe’s grandparents or mother until years later. She does
-23-

not know whether any counseling or services were offered to Doe, although she
thinks the school told him he could talk to a guidance counselor.
Gent has attended some trainings through the Department of Criminal
Justice that addressed sexual harassment, but her responsibilities as Title IX
Coordinator were not addressed. She was not required to attend these sessions but
sought them out on her own.

She explained the concept of grooming by

pedophiles and stated that Gobble allowed kids to play on his computer and bought
them breakfast, which could be considered grooming. As Title IX Coordinator,
she never educated teachers about grooming behaviors or asked them to report
such behaviors, and she is unaware of any training on grooming that the school
system provided to teachers.
The School Board’s sexual harassment policy in place at the time of the
relevant events discussed sexual harassment in general but did not specifically
mention harassment of students by employees. It did not identify the Title IX
Coordinator or mention a compliance officer. Gent has never asked an attorney or
other third party to review the policy, aside from principals and administrators.
Gent is not aware of the Title IX implementing regulations. When she became
Title IX Coordinator, no one sat her down and explained Title IX to her. The
school system recently conducted a civil rights review, but Gent does not know of
any Title IX audit or review of the school system. She does not know whether
-24-

anyone is tasked with following up with students or parents who have not signed
and returned the sexual harassment policy acknowledgement form.
When asked to explain the beyond a shadow of a doubt standard she uses for
complaints, Gent explained she would look for a concrete bit of knowledge that
proved something happened or did not happen. She would look for video evidence
or a witness who saw the incident or something of that nature. She stated that she
would want to be convinced beyond a reasonable doubt.
Fletcher, the Alternate Title IX Compliance Officer, testified that it is not the
school’s job to independently investigate complaints or concerns. Instead, the
school’s job is to make a report to DSS and let DSS investigate. If the conduct is
not criminal in nature, the school may discipline the employee involved. He did
not recall any policies regarding sexual harassment or mandatory reporting. The
school board approves the SCC, which is discussed and revised annually at a
principal’s meeting. There is no district-wide handbook for school employees, but
some principals have created handbooks for the staff of their schools. Fletcher
would probably be notified if Gent received a complaint of sexual harassment of a
student by a teacher, but there is no set procedure addressing that. He testified that
whether he was notified would depend on how the superintendent chose to handle
the complaint. Fletcher has received some training on Title IX through continuing
education courses. He has never received training regarding grooming techniques
-25-

that predators often use to gain access to children, and he is unaware of any such
training provided by the School Board. He has been the alternate compliance
officer for four to six years, and he has never received training on his duties as an
alternate compliance officer. He is not aware of any survey conducted with respect
to Title IX or sexual harassment of students.
Over the past three decades, complaints have been made by students and
parents against a number of Russell County teachers, coaches, and employees for
inappropriate conduct, sexual relationships with students, and sexual harassment.
Most of the complaints involved high school students, and the conduct varied in
severity. The complaints were handled inconsistently and often not according to
written policies.
II. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST GOBBLE.
The plaintiff has asserted four state law claims against Gobble: negligence
per se, assault, battery, and intentional infliction of emotional distress.

The

plaintiff has moved for summary judgment in his favor on his claims against
Gobble. Gobble opposes the Motion for Summary Judgment, arguing that the
plaintiff has not adequately established that Gobble’s actions caused Doe’s
injuries.
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
-26-

matter of law.” Fed. R. Civ. P. 56(a). To raise a genuine issue of material fact
sufficient to avoid summary judgment, the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the
court is required to view the facts and draw reasonable inferences in a light most
favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994). “Mere unsupported speculation . . . is not enough to defeat a summary
judgment motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55,
62 (4th Cir. 1995).
Count IX of the Complaint asserts a state law negligence per se claim
against Gobble based on alleged violations of Va. Code Ann. §§ 18.2-371 and
16.1-228.

The first statute, section 18.2-371, provides that any adult who

“willfully contributes to, encourages, or causes any act, omission, or condition that
renders a child delinquent, in need of services, in need of supervision, or abused or
neglected as defined in § 16.1-228” is guilty of a Class 1 misdemeanor. Section
16.1-228 defines “[a]bused or neglected child” to include a child “[w]hose parents
or other person responsible for his care creates or inflicts, threatens to create or
inflict, or allows to be created or inflicted upon such child a physical or mental
injury by other than accidental means.” The statute defines “[c]hild in need of
services” as “a child whose . . . condition presents or results in a serious threat to
-27-

the well-being and physical safety of the child.”

Id.

A “[c]hild in need of

supervision” includes “[a] child who, while subject to compulsory school
attendance, is habitually and without justification absent from school,” if the
school has satisfied certain requirements to procure regular attendance. Id.
To succeed on a negligence per se claim, the plaintiff must establish that:
(1) “the defendant violated a statute that was enacted for public safety”; (2) the
plaintiff “belongs to the class of persons for whose benefit the statute was enacted,
and that the harm that occurred was of the type against which the statute was
designed to protect”; and (3) “the statutory violation was a proximate cause of his
injury.” Halterman v. Radisson Hotel Corp., 523 S.E.2d 823, 825 (Va. 2000).
Counts XII and XIII assert state law claims of assault and battery against
Gobble. Under Virginia law, “[t]he tort of assault consists of an act intended to
cause either harmful or offensive contact with another person or apprehension of
such contact, and that creates in that other person’s mind a reasonable
apprehension of an imminent battery.” Koffman v. Garnett, 574 S.E.2d 258, 261
(Va. 2003).

“The tort of battery is an unwanted touching which is neither

consented to, excused, nor justified.” Id. at 261. In Virginia, a minor under the
age of thirteen is legally incapable of consenting to sexual acts.

Martin v.

Commonwealth, 630 S.E.2d 291, 292 (Va. 2006); Va. Code Ann. §§ 18.2-67.1,
18.2-67.3. “[T]he quality of the act’s offensiveness is judged by an objective
-28-

standard, not by whether the plaintiff found the act offensive.”

Balas v.

Huntington Ingalls Indus., Inc., 711 F.3d 401, 411 (4th Cir. 2013) (citing
Restatement (Second) of Torts § 18 (Am. Law Inst. 1965)).
Count XIV asserts a claim of intentional infliction of emotional distress
against Gobble. Under Virginia law, a plaintiff alleging intentional infliction of
emotional distress must prove the following elements:

“(i) the wrongdoer’s

conduct was intentional or reckless, (ii) the conduct was outrageous and
intolerable, (iii) the alleged wrongful conduct and emotional distress are causally
connected, and (iv) the distress is severe.” Ostolaza-Diaz v. Countrywide Bank,
N.A., 360 F. App’x 504, 507 (4th Cir. 2010) (unpublished) (citing Ogunde v.
Prison Health Servs., 645 S.E.2d 520, 526 (Va. 2007)). The second element
requires that the conduct was “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Russo v. White, 400
S.E.2d 160, 162 (Va. 1991) (internal quotation marks and citation omitted).
Gobble’s only argument opposing summary judgment on all of these claims
is a speculative contention that other factors, rather than Gobble’s abuse, might
have caused Doe’s emotional distress and psychological injuries. There is ample
evidence in the record to satisfy the elements of all of the claims against Gobble,
and Gobble has offered no evidence in opposition to the plaintiff’s motion. I find
-29-

that there is no genuine dispute of material fact as to the claims against Gobble,
and that Doe is entitled to judgment as a matter of law against Gobble on Counts
IX, XII, XIII, and XIV.
III. SCHOOL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.
The School Defendants previously moved to dismiss the plaintiff’s claims
against them, and I partially granted that motion. Doe v. Russell Cty. Sch. Bd., No.
1:16CV00045, 2017 WL 1374279 (W.D. Va. Apr. 13, 2017).

Following

disposition of the Motion to Dismiss, the remaining claims against the School
Board consist of two claims (Counts I and II) under Title IX of the Educational
Amendments of 1972 and one claim pursuant to 42 U.S.C. § 1983 (Count III)
based on a failure-to-train theory. In addition, there are three pending claims
against Henley and Hooker each in their individual capacities

a § 1983

supervisory liability claim (Counts IV and V), a § 1983 failure-to-train claim
(Count III), and a state law gross negligence claim (Count XI). The School
Defendants have now moved for summary judgment in their favor on all of these
remaining claims.
A. Count I.
Count I claims that the School Board’s actions and inactions violated Title
IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688. Title IX
states that “[n]o person in the United States shall, on the basis of sex, be excluded
-30-

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). This prohibition encompasses sexual harassment or abuse of
a student by a public school employee, for which money damages can be awarded
in a private legal action. See generally Franklin v. Gwinnett Cty. Pub. Schs., 503
U.S. 60 (1992).
To establish a Title IX claim on the basis of sexual harassment,
a plaintiff must show that (1) she was a student at an educational
institution receiving federal funds, (2) she was subjected to
harassment based on her sex, (3) the harassment was sufficiently
severe or pervasive to create a hostile (or abusive) environment in an
educational program or activity, and (4) there is a basis for imputing
liability to the institution.
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007). In Gebser v. Lago
Vista Independent School District, 524 U.S. 274, 277 (1989), the Supreme Court
held that under Title IX, a school district is not liable for damages based on sexual
harassment of a student by a teacher “unless an official of the school district who at
a minimum has authority to institute corrective measures on the district’s behalf
has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.”
The Court adopted that rule because the Title IX remedial scheme “is predicated
upon notice to an ‘appropriate person’ and an opportunity to rectify any violation,”
and the Court defined an “appropriate person” as “an official of the [federal
funding] recipient entity with authority to take corrective action to end the
-31-

discrimination.” Gebser, 524 U.S. at 290 (citation omitted). The appropriate
person, and thus the school board, is deliberately indifferent to sexual harassment
where the response to notice of misconduct is “clearly unreasonable in light of the
known circumstances.” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648
(1999).
I previously ruled that Hooker, as LES principal, was an appropriate person
as defined by Gebser. Doe, 2017 WL 1374279, at *6. Doe has produced evidence
that Hooker had actual notice of misconduct based on Charlene’s complaints to
DSS and the resulting DSS investigations that occurred in late 2012 and early
2013. The School Board argues that as a matter of law, it was not deliberately
indifferent because Hooker’s response to the DSS investigations was reasonable in
light of the fact that Doe’s guardians approved of and encouraged Gobble’s role in
Doe’s life, and DSS concluded that Charlene’s complaints were unfounded. While
the School Board can certainly make that argument to the jury at trial, I find that
the plaintiff has offered sufficient evidence from which reasonable jurors could
conclude that Hooker’s response to the DSS investigations was clearly
unreasonable in light of the known circumstances.
Hess, the superintendent and Hooker’s boss during the 2012-13 school year,
testified that Hooker had an obligation to conduct her own investigation of Gobble
after Charlene complained of an inappropriate relationship with Doe. Through the
-32-

DSS investigation, Hooker learned that Doe, a particularly vulnerable elementary
school student, was living in the same bedroom with a school employee to which
he was unrelated. She further learned that Doe’s relationship with Gobble was
causing problems in Gobble’s marriage, and she described Charlene as being
jealous of Doe. In addition, Hooker knew that Doe was regularly spending time
with Gobble at LES behind closed doors, both during the school day and when
school was not in session.

Some of the facts are in dispute and Hooker’s

credibility is at issue, but jurors could reasonably find from the record evidence
that Hooker undertook little to no investigation in response to this knowledge and
did virtually nothing to increase her supervision of Gobble or limit Gobble’s access
to Doe.

Reasonable jurors could conclude that Hooker’s inaction allowed

Gobble’s abuse of Doe to continue for months longer than it might otherwise have
occurred.
The question of what constitutes a clearly unreasonable response in light of
known circumstances is one best answered by the finder of fact, particularly in a
complicated case like this one. Because there are factual disputes and credibility
issues that must be resolved by a jury, I will deny the Motion for Summary
Judgment as to Count I.

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B. Count II.
Count II charges the School Board with violating Title IX by failing to take
corrective action after Gobble’s confession and arrest. The plaintiff claims that
despite actual knowledge of abuse, the School Board failed to “provide, offer,
recommend, or coordinate adequate health, psychological, counseling, and
academic assistance and services to Plaintiff to minimize the harm he suffered,”
Compl. ¶ 110, and failed to terminate or discipline any School Board personnel as
a result of their handling of the situation.2 According to the plaintiff, this inaction
constituted deliberate indifference and materially impaired Doe’s access to
educational opportunities and benefits. The School Board contends it is entitled to
summary judgment on this claim because failure to provide counseling does not
amount to a viable cause of action, Doe moved out of Russell County and was not
a student for a period of time after Gobble’s confession, and Jane Doe testified that
Doe does not want counseling at this time.
The premise of a school board’s liability under Title IX “is an official
decision by the recipient not to remedy the violation.” Gebser, 524 U.S. at 290.
OCR has issued guidance, in the form of a Dear Colleague Letter, that once a
2

In an earlier brief, the plaintiff stated that Counts I and II “may be considered
together as constituting Plaintiff’s Title IX claim.” Pl.’s Br. in Opp’n to Sch. Defs.’ Mot.
to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim 12-13,
n.4, ECF No. 24. However, the plaintiff has never sought to amend the Complaint to
combine these two claims, so I will continue to treat them as separate claims.
-34-

school knows of sexual harassment of a student, it must take steps not only to end
the harassment, but also to “prevent its recurrence, and remedy its effects.” U.S.
Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter (Jan. 25, 2006),
www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.pdf; see also 34 C.F.R. §
106.3 (requiring schools to take remedial action “to overcome the effects of”
discrimination on the basis of sex). Addressing cases of student-on-student sexual
violence, OCR has stated that “[i]n addition to counseling or taking disciplinary
action against the harasser, effective corrective action may require remedies for the
complainant, as well as changes to the school’s overall services or policies.” U.S.
Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter (Apr. 4, 2011)
(archived) at 15, www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.
Though these statements represent OCR policy in the context of administrative
enforcement actions rather than private lawsuits, they bear upon the question of
whether the School Board’s response to known sexual abuse of a student was
appropriate and adequate in this case, or whether the School Board responded with
deliberate indifference by failing to take remedial measures following Gobble’s
arrest.
The fact that Doe ceased to be a student for some period of time following
Gobble’s confession is not a reason to rule in favor of the School Board on this
claim as a matter of law. There is evidence that Doe continued to attend LMS for
-35-

some days or weeks following Gobble’s confession and arrest, and in any event, he
ultimately returned to Russell County and is a student there now. Moreover, Jane
Doe’s testimony that Doe does not currently want to undergo counseling at best
creates a factual dispute.

Doe himself testified that he does wish to receive

counseling, and in any event, Doe’s statements or wishes regarding counseling
would not have prevented the School Board from offering it.
I find that the plaintiff has presented sufficient evidence from which a jury
could conclude that the School Board acted with deliberate indifference to
Gobble’s confessed abuse of Doe by failing to offer counseling or other remedial
measures to Doe. In addition, a jury could conclude that the School Board failed to
take action necessary to prevent future harassment, such as training or disciplining
personnel or revising applicable policies, and thus did not comply with its
obligations under Title IX. I will deny the Motion for Summary Judgment as to
Count II.
C. Count III.
Count III is a failure-to-train claim asserted against all three of the School
Defendants under 42 U.S.C. § 1983.

It is based on the violation of Doe’s

Fourteenth Amendment substantive due process right to bodily integrity and to be
free from sexual abuse by a school employee, as well as his property interest in a
public education. The School Defendants argue that they are entitled to summary
-36-

judgment on this claim because they were unaware of any deficiency in training,
and any such deficiency was not a proximate cause of the sexual abuse. Henley
and Hooker also assert qualified immunity.
“[T]here are limited circumstances in which an allegation of a ‘failure to
train’ can be the basis for liability under § 1983.” City of Canton v. Harris, 489
U.S. 378, 387 (1989). In the school context, the failure to train must amount to
deliberate indifference to the rights of students, and the deficiency in training
“must be closely related to the ultimate injury.” Id. at 391. “Where a plaintiff
claims that the [governmental body] has not directly inflicted an injury, but
nonetheless has caused an employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the [governmental body] is not held liable
solely for the actions of its employee.” Bd. of Cty. Comm’rs v. Brown, 520 U.S.
397, 405 (1997).
The School Defendants’ “continued adherence to an approach that they
know or should know has failed to prevent tortious conduct by employees may
establish the conscious disregard for the consequences of their action — the
‘deliberate indifference’ — necessary to trigger [public entity] liability.” Id. at
407. “Without notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program
that will cause violations of constitutional rights.” Connick v. Thompson, 563 U.S.
-37-

51, 62 (2011). Notice can be established by showing that the need for the training
and the risks of not providing the training were obvious. See Canton, 489 U.S. at
390; Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994).
I find that the plaintiff has produced sufficient evidence that the School
Defendants had notice of deficient training either based on past incidents of sexual
misconduct against students by School Board employees or because the need for
training was obvious.

The plaintiff offered evidence of past complaints and

investigations of employee-on-student harassment by seven School Board
employees, several of whom were repeat offenders. Incidents involving five of the
seven employees occurred less than ten years before Gobble began abusing Doe,
and at least two of the incidents occurred around the same time period that Gobble
began abusing Doe. A jury could conclude that these incidents placed the School
Defendants on notice that they needed to provide training to administrators,
teachers, and staff on how to identify, prevent, and investigate employee-onstudent sexual harassment.
Even without this history, however, a jury could reasonably conclude that
the School Defendants’ need to thoroughly train administrators, teachers, and staff
on how to spot and address sexual misconduct was obvious. In 1998, thirteen
years before Gobble began to prey upon Doe, the Supreme Court wrote:
The number of reported cases involving sexual harassment of
students in schools confirms that harassment unfortunately is an all
-38-

too common aspect of the educational experience. No one questions
that a student suffers extraordinary harm when subjected to sexual
harassment and abuse by a teacher, and that the teacher’s conduct is
reprehensible and undermines the basic purposes of the educational
system.
Gebser, 524 U.S. at 292.

The plaintiff has pointed to numerous guidance

documents issued by OCR and the Virginia Department of Education conveying to
educators the extent of the sexual harassment problem in schools and the need to
provide adequate training, adopt appropriate policies, and conduct thorough and
timely investigations. The deposition testimony of many of the school employee
witnesses in this case suggests that they received little or no training from the
School Defendants on how to identify warning signs of sexual harassment, the
steps they should take to prevent sexual harassment, how to investigate complaints,
and how to remedy sexual harassment. Based on the record evidence, a jury could
reasonably conclude that whatever training the School Defendants provided on
these topics was woefully inadequate.
I further find that whether insufficient training was closely related to the
ultimate injuries suffered by Doe is a jury question. There is evidence that would
justify the conclusion that teachers and administrators overlooked numerous red
flags and encouraged Gobble’s relationship with Doe, which may have
emboldened Gobble and intensified the abuse.

It is undisputed that Gobble

molested Doe on LES grounds on a number of occasions, when he was
-39-

unquestionably under the supervisory control of the School Defendants.

The

School Board was Gobble’s employer and was responsible for ensuring the safety
of Doe in the school environment.

A jury could find that had teachers and

administrators been better trained to spot and respond to signs of abuse, they might
have curtailed Gobble’s access to students while at LES and instructed him not to
interact with non-family related students outside of school, regardless of what the
students’ parents permitted. Had he failed to comply with such a directive, the
School Defendants could have taken disciplinary action against him, which may
have discouraged the abuse, or even terminated him, which might have affected
Doe’s guardians’ perception of Gobble. Jane Doe testified that she trusted Gobble
because he was a school employee, and teachers and administrators presented him
as a positive influence on Doe. Had school officials raised concerns to her about
Gobble, she may have ended Doe’s contact with Gobble sooner or restricted their
unsupervised interactions. A jury could conclude that the DSS investigations may
have proceeded differently had Gobble’s wife not been the only complainant, or
had teachers voiced concerns to the DSS investigators about Gobble’s behavior. In
sum, there is sufficient evidence to allow a jury to infer that a lack of appropriate
training proximately contributed to Doe’s constitutional injuries.
Henley and Hooker contend that they are entitled to qualified immunity on
Count III. A § 1983 claim requires proof of the following three elements: “(1) the
-40-

deprivation of a right secured by the Constitution or a federal statute; (2) by a
person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156,
1159-60 (4th Cir. 1997). While state officials sued in their official capacities are
not “persons” under § 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989), state officials sued in their individual capacities are “persons” within the
meaning of the statute and are not absolutely immune from suit, Hafer v. Melo, 502
U.S. 21, 31 (1991). A government official sued in his individual capacity under
§ 1983 may, however, be entitled to qualified immunity. Id. at 25 (“[O]fficials
sued in their personal capacities . . . may assert personal immunity defenses such as
objectively reasonable reliance on existing law.”)
Qualified immunity “shields government officials from liability for civil
damages, provided that their conduct does not violate clearly established statutory
or constitutional rights within the knowledge of a reasonable person.” Meyers v.
Balt. Cty., 713 F.3d 723, 731 (4th Cir. 2013). The doctrine “seeks to balance two
interests, namely, the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Sims v. Labowitz, 877
F.3d 171, 177 (4th Cir. 2017) (internal quotation marks and citations omitted).
Qualified immunity is immunity from suit rather than merely immunity from
liability; therefore, the question of qualified immunity should be decided before
-41-

trial. Id. A defendant asserting qualified immunity has the burden of proving the
defense. Id.
“To overcome the qualified immunity defense at the summary judgment
stage, the plaintiff must have shown facts that make out a violation of a
constitutional right, and the right at issue must have been clearly established at the
time of the defendant’s alleged misconduct.” Thompson v. Virginia, 878 F.3d 89,
97 (4th Cir. 2017) (internal quotation marks and citations omitted). In assessing
whether a defendant is entitled to qualified immunity, the court must first
identify the specific right that the plaintiff asserts was infringed by the
challenged conduct. [The court] then engage[s] in a two-step inquiry,
asking whether a constitutional violation occurred and whether the
right violated was clearly established at the time of the official’s
conduct. Courts have discretion to take these steps in either order.
. . . A right is clearly established only if its contours are sufficiently
clear that a reasonable official would understand that what he is doing
violates that right. The unlawfulness of the official’s conduct must be
apparent in light of pre-existing law. To be clearly established,
existing precedent must have placed the statutory or constitutional
question beyond debate.
Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 537-38 (4th Cir. 2017) (internal
quotation marks and citations omitted).
The Fourth Circuit has stated that “[u]nder established precedent,” students
have a right to bodily integrity and to be free from sexual abuse by state actors.
Doe v. Rosa, 795 F.3d 429, 436-37 (citing Hall v. Tawney, 621 F.2d 607, 612-13
(4th Cir. 1980)).

Doe’s constitutional right to be free from school-based
-42-

molestation was clearly established at the time of these events. Henley and Hooker
argue, however, that they were confronted with an unusual situation in that Doe’s
guardians allowed Gobble to be Doe’s caretaker. The principals assert that this
specific situation was unlikely to occur with any regularity, and reasonable
principals would not have known that they needed to provide training regarding
such a circumstance.
The Supreme Court and Fourth Circuit have admonished that “courts must
not define clearly established law at a high level of generality,” but must instead
“examine whether the violative nature of [a defendant’s] particular conduct is
clearly established . . . in light of the specific context of the case, not as a broad
general proposition.” E.W. v. Dolgos, No. 16-1608, 2018 WL 818303, at * 8 (4th
Cir. Feb. 12, 2018) (internal quotation marks and citations omitted). The plaintiff
has not pointed the court to any controlling authority sufficiently similar to the
situation confronted by Henley and Hooker in this case, where a student’s parent or
guardian expressly approved of a child living with a school employee and a local
agency investigated complaints and concluded they were unfounded. Although the
evidence could support a finding that Henley and Hooker were deliberately
indifferent in their failure to provide training, existing precedent did not provide
them sufficient notice that their conduct would give rise to a violation of
constitutional rights. They are therefore entitled to qualified immunity, and I will
-43-

grant the Motion for Summary Judgment with respect to Count III as to Henley
and Hooker. I will deny the motion as to the School Board.
D. Count IV.
Count IV is a § 1983 supervisory liability claim against Henley.

The

plaintiff alleges that Henley had actual or constructive knowledge of conduct by
Gobble that posed a pervasive and unreasonable risk of constitutional injury to
Doe, and that Henley responded with deliberate indifference.

Henley again

contends that he did not have knowledge that Gobble posed any risk in light of
Doe’s guardians’ approval of Gobble’s activities, and that any failure of Henley to
investigate or take action was not the proximate cause of Doe’s injuries.
In order to establish supervisory liability under § 1983 in a case like this, a
plaintiff must show that (1) the defendant in a supervisory position had knowledge
(actual or constructive) that his subordinate was engaged in conduct that “posed a
pervasive and unreasonable risk of constitutional injury to citizens like the
plaintiff”; (2) the response by the defendant was so inadequate as to show
deliberate indifference; and (3) there was a causal link between the inaction and the
injury suffered by the plaintiff. Baynard v. Malone, 268 F.3d 228, 235 (4th Cir.
2001). The Fourth Circuit has defined constructive knowledge as “[k]nowledge
that one using reasonable care or diligence should have, and therefore that is

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attributed by law to a given person.” Hoschar v. Appalachian Power Co., 739 F.3d
163, 175 (4th Cir. 2014) (citation omitted).
The plaintiff has produced evidence from which a jury could find that
Henley had actual knowledge of the following facts:
Gobble brought Doe to school in the mornings, and Doe left school
with Gobble at the end of the day;
Doe was spending time at Gobble’s house;
Gobble took Doe and Gobble’s nephews to dinner in Bristol, Virginia,
which is located a distance from Russell County;
Gobble was regularly at school several hours before his shift began;
Gobble spent time in the custodian office with children before school
started;
Teachers would send students, alone, to the custodian office during
the school day to get supplies;
Doe spent time in the custodian office after school;
Gobble spent time in the custodian office with Doe and other children
with the door closed;
Doe and Gobble’s nephews were with Gobble at LES when school
was not in session; and
Gobble removed Doe and other students from classes to collect trash.
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From this actual knowledge, a jury could reasonably conclude that Henley
had a duty to monitor Gobble more closely and conduct an investigation. A jury
could conclude that a reasonably prudent principal should have discovered all of
the other red flags of which teachers were aware, including Gobble’s singling out
of Doe, marital problems, tendency to hug Doe and pat him on the head, frequent
and relatively expensive gifts to Doe, and more. While individual teachers might
not have regarded isolated incidents as red flags, a jury could find that a reasonable
principal with knowledge of all of these facts should have recognized the risk
Gobble posed to Doe and taken action to limit that risk. A jury could also impute
to Henley constructive knowledge of facts that may have been gleaned from
security camera footage or from asking detailed questions of Doe’s family
members. I find that this actual and constructive knowledge, if found by the jury,
would be sufficient to satisfy the first element of Doe’s supervisory liability claim
against Henley.
As to proximate causation, I again find that it is a jury issue for the reasons
stated above with respect to Doe’s failure-to-train claim. Contrary to the School
Defendants’ assertions, the home approval and the results of a poorly conducted
DSS investigation do not necessarily mean that there was nothing more that could
have been done to detect and halt Gobble’s abuse of Doe. A jury could reasonably
conclude that Henley’s lack of diligence facilitated and perpetuated Gobble’s
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abuse. Indeed, the undisputed facts show that Henley was Gobble’s supervisor for
years before Doe began attending LES, and Gobble gained access to Doe and
developed a relationship with him through his employment at LES. A jury might
find that more careful supervision of Gobble from the start of his employment
could have prevented Gobble from ever forming that relationship in the first place.
As with Count III, Henley contends that he is entitled to qualified immunity
on Count IV. The question as to this count is whether a reasonable principal with
Henley’s knowledge would have known that failure to properly supervise Gobble
was likely to cause a violation of clearly established constitutional rights. Drawing
all inferences in favor of the plaintiff, for the reasons stated as to Count III, I
conclude that Henley did not have sufficient notice that his conduct was
unconstitutional. Therefore, I will grant the Motion for Summary Judgment as to
Count IV.
E. Count V.
Count V asserts supervisory liability under § 1983 against Hooker. The
plaintiff has offered evidence that Hooker’s actual knowledge far exceeded that of
Henley. Viewing that evidence in the light most favorable to the plaintiff, Hooker
knew all of the things that Henley knew, plus she learned that Gobble’s wife was
jealous of Doe and complained to DSS about their relationship, and that Doe and
Gobble were living together in the same bedroom. The constructive knowledge
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that could be imputed to her likewise continued to grow during her term as
principal of LES, as teachers witnessed more of Gobble’s behavior and his
interactions with Doe. For instance, teachers became concerned that Gobble was
singling out Doe for preferential treatment and learned that Gobble was obsessed
with adopting Doe and was willing to end his marriage over his wife’s complaints
about Doe. For the reasons stated above as to the supervisory liability claim
against Henley, I find that the plaintiff has presented sufficient evidence to
overcome the School Defendants’ Motion for Summary Judgment as to the first
and third elements of the supervisory liability claim against Hooker.
Hooker argues that as a matter of law, she was not deliberately indifferent.
A number of the facts surrounding Hooker’s actions regarding Gobble are in
dispute. It appears to be undisputed that she instructed teachers not to allow
Gobble to remove students from class to help him with his janitorial duties,
although it is unclear whether that action was taken in response to mounting
knowledge of potential abuse. It is undisputed that Hooker sat in on the DSS
interviews of Gobble and Doe and that she did not ask any questions in those
interviews. It is undisputed that she did not review security camera footage of
Gobble’s activities at LES. She may have talked to certain teachers and family
members about Gobble, but what she asked in those alleged conversations is
disputed. The occurrence and content of any conversations she had with Gobble
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are also in dispute. These factual disputes would need to be resolved by a jury, as
the scant undisputed facts are insufficient for me to conclude as a matter of law
that Hooker did not act with deliberate indifference to the knowledge that Gobble
posed an unreasonable risk to Doe.
However, like Henley, Hooker asserts that she is entitled to qualified
immunity on Doe’s supervisory liability claim. I again conclude that, when faced
home approval of the child
spending time alone with the school employee and a local agency’s investigation
isting precedent did not give Hooker
adequate notice that her failure to more thoroughly investigate and supervise
Gobble was likely to amount to a constitutional violation. Therefore, I must grant
Hooker’s Motion for Summary Judgment as to Count V on the ground of qualified
immunity.
F. Count XI.
Count XI asserts a claim of gross negligence under Virginia law against
Henley and Hooker. They assert that they are entitled to summary judgment on
this claim because the plaintiff has not produced evidence that would allow a
rational jury to conclude that their conduct rose to the level of negligence required
to succeed on a gross negligence claim.

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“Gross negligence is a degree of negligence showing indifference to another
and an utter disregard of prudence that amounts to a complete neglect of the safety
of such other person.” Elliott v. Carter, 791 S.E.2d 730, 732 (Va. 2016) (internal
quotation marks and citation omitted). The tort “requires a degree of negligence
that would shock fair-minded persons, although demonstrating something less than
willful recklessness.” Id. (citations omitted). “Ordinarily, the question whether
gross negligence has been established is a matter of fact to be decided by a jury.
Nevertheless, when persons of reasonable minds could not differ upon the
conclusion that such negligence has not been established, it is the court’s duty to so
rule.”

Id. (citation omitted).

“Because the standard for gross negligence in

Virginia is one of indifference, not inadequacy, a claim for gross negligence must
fail as a matter of law when the evidence shows that the defendants exercised some
degree of care.” Id. (internal quotation marks, alterations, and citations omitted).
In short, the standard for gross negligence in Virginia is very high. As to
Henley, I find that the plaintiff has not produced evidence showing that he acted in
a way that would shock a reasonable person or that exhibited a complete neglect of
Doe’s safety. As to Hooker, the undisputed facts reveal that she undertook some
degree of care, however slight, with regard to Doe’s safety when she sat in on DSS
interviews, called Doe’s grandmother to verify that she gave permission for
Gobble to give Doe rides, and instructed teachers not to allow Gobble to remove
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students from class to collect trash. For these reasons, I will grant the Motion for
Summary Judgment as to Count XI.
IV. SCHOOL DEFENDANTS’ MOTION TO EXCLUDE EXPERT TESTIMONY.
The School Defendants have filed a motion in limine to exclude the
testimony of two of plaintiff’s disclosed expert witnesses at trial, Charol M.
Shakeshaft, Ph.D., and Richard S. Epstein, M.D. Dr. Shakeshaft, a professor of
education at Virginia Commonwealth University, is expected to testify that the
School Defendants “failed to adopt, enforce, and/or train on appropriate policies,
practices, and procedures to protect students from sexual abuse as that suffered by
Plaintiff.” Pl.’s Disclosures 2, ECF No. 61-1. Dr. Epstein, a psychiatrist, is
expected to testify “regarding past, present, and future psychological pain,
suffering, and impairment” occasioned by the sexual abuse of the plaintiff, as well
as his “future treatment needs.” Id. at 1-2.
The case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), provides the basic analytical framework for determining the admissibility
of expert testimony. Under Daubert, the court acts as a “gatekeeper” by ensuring
“that any and all scientific testimony or evidence admitted is not only relevant, but
reliable.” Id. at 589. “[T]he trial judge’s general ‘gatekeeping’ obligation . . .
applies not only to testimony based on ‘scientific’ knowledge, but also to
testimony based on ‘technical’ and ‘other specialized’ knowledge.”
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Co. v. Carmichael, 526 U.S. 137, 141 (1999). The trial court’s inquiry into
admissibility is “a flexible one” and the court’s analysis will “depend[] on the
nature of the issue, the expert’s particular expertise, and the subject of his
testimony.” See id. at 150 (internal quotation marks and citation omitted). More
generally, cases after Daubert have shown that “the rejection of expert testimony is
the exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note to
2000 amendment.
The principles of Daubert and its progeny are reflected in the Federal Rules
of Evidence, which allow expert evidence under certain circumstances:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
As stated by the advisory committee:
When facts are in dispute, experts sometimes reach different
conclusions based on competing versions of the facts. The emphasis
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in the amendment on “sufficient facts or data” is not intended to
authorize a trial court to exclude an expert’s testimony on the ground
that the court believes one version of the facts and not the other.
Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. The reality is
that “the trial court’s role as gatekeeper is not intended to serve as a replacement
for the adversary system.” Id. (quoting United States v. 14.38 Acres, 80 F.3d 1074,
1078 (5th Cir. 1996)).

As noted in Daubert, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible
evidence.” 509 U.S. at 596.
“Testimony from an expert is presumed to be helpful unless it concerns
matters within the everyday knowledge and experience of a lay juror.” Kopf v.
Skyrm, 993 F.2d 374, 377 (4th Cir. 1993). Issues associated with the admission of
expert testimony may arise when “the evaluation of the commonplace by an expert
witness might supplant a jury’s independent exercise of common sense.” Id.
(internal quotation marks and citation omitted).
A. Dr. Shakeshaft.
At oral argument on the present motion, plaintiff’s counsel conceded that it
would be inadmissible to elicit from Dr. Shakeshaft the opinions set forth in her
Rule 29(a)(2) disclosure that the School Defendants were “deliberately indifferent”
to the risk of harm to the plaintiff and that the failure to provide adequate policy or
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training was a proximate cause of the sexual abuse by Gobble. I agree with the
School Defendants that under the particular circumstances of this case, such
opinions are beyond the proper role of an expert witness and would supplant the
jury’s role in evaluating and determining the facts. See United States v. Barile, 286
F.3d 749, 760 (4th Cir. 2002) (noting that “[e]xpert testimony that merely states a
legal conclusion is less likely to assist the jury in its determination”).
Otherwise, I find no grounds to exclude the testimony of Dr. Shakeshaft.
While certainly subject to cross examination, her professional qualifications permit
her to opine on the standard of care in adopting and enforcing school policies
relating to the prevention of sexual abuse of students by school personnel.3
Whether she considered all of the relevant facts in the case sufficient to state a
credible opinion on whether the School Defendants met that standard of care is a
matter for the jury, based upon all of the evidence in the case.
B. Dr. Epstein.
The School Defendants do not attack Dr. Epstein’s professional
qualifications as an expert on the effects on child victims of sexual abuse, or on the
appropriate medical treatment of such children. They do not dispute his opinion

3

Among other things, Dr. Shakeshaft testified in her deposition that she helped
write the guidelines for prevention of sexual misconduct and abuse in public schools
approved by the Virginia State Board of Education in 2011. Shakeshaft Dep. 29-30, ECF
No. 67-2.
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that the plaintiff suffers from PTSD as a result of his sexual abuse by Gobble.
Rather, they contend that he has not stated a foundation for his opinions that the
plaintiff will require over his lifetime up to 60 days of psychiatric hospitalization
and two out-patient visits per week with a psychiatrist, all as a result of the sexual
abuse by Gobble. They argue that he has not offered any literature or data to
support these opinions, and that his opinion on future hospitalization is speculative
because it is based on “an unforeseen thing,” such “a parent dying, or a
grandparent dying” or “future trauma . . . . [t]hat happens to a lot of people.”
Epstein Dep. 138-39, ECF No. 61-6.
The plaintiff does not contest that Dr. Epstein has not referenced studies,
data, or medical literature to support his challenged opinions, but argues that these
opinions are admissible because they are based on his “many years of experience
and expertise.” Pl’s Br. in Opp’n 4, ECF No. 67.
It is correct that Dr. Epstein has an impressive curriculum vitae, and over a
lengthy medical practice, has written and lectured on the diagnosis and treatment
of PTSD, including that of children with the affliction. It is also true that relevant
experience by an expert may be sufficient to support the admissibility of his
opinions. See Fed. R. Evid. 702 advisory committee’s note to 2000 amendment
(stating that “the text of Rule 702 expressly contemplates that an expert may be
qualified on the basis of experience [and] [i]n certain fields, experience is the
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predominant, if not sole, basis for a great deal of reliable expert testimony”).
Unfortunately, however, the record provided by the parties as to Dr. Epstein’s
opinions is very sparse. It does not contain his full Rule 29(a)(2) disclosure and
only snippets from his deposition testimony. I do not find on the present record
that Dr. Epstein has given any explanation for the basis of his challenged opinions.
Do these opinions in fact come from his experience with other patients comparable
to the plaintiff? Perhaps yes, but I cannot tell at this point.
When objected to, the proponent of expert testimony has the burden of proof
to demonstrate its admissibility. See Margaret A. Berger, Procedural Paradigms
for Applying the Daubert Test, 78 Minn. L. Rev. 1345, 1365 (1994). The court has
wide discretion in resolving Daubert issues, and under the circumstances, I will
allow the plaintiff to supplement its response to the School Defendants’ objections
as to Dr. Epstein’s proposed testimony.
V. CONCLUSION.
For the reasons stated, it is ORDERED as follows:
1.

Plaintiff’s Motion for Summary Judgment against Defendant Bobby

Gobble, ECF No. 59, is GRANTED as to said defendant’s liability under Counts
IX, XII, XIII, and XIV of the Complaint, with the amount of the judgment to be
determined following the jury’s verdict as to the damages to be awarded against
said defendant;
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2.

Defendants Russell County School Board, Phillip Henley, and

Kimberly Hooker’s Motion to Exclude, ECF No. 60, is GRANTED IN PART
AND DENIED IN PART. Plaintiff is granted leave to supplement his response to
the objections to the testimony of Richard S. Epstein, M.D., provided such
response is filed by February 19, 2018, and with any reply thereto by the
defendants to be filed no later than February 23, 2018;
3.

Defendants Russell County School Board, Phillip Henley, and

Kimberly Hooker’s Motion for Summary Judgment, ECF No. 62, is GRANTED
IN PART AND DENIED IN PART. It is GRANTED as to Counts III, IV, V, and
XI

as

to

defendants

Henley

and

Hooker,

and

they

are

DISMISSED as defendants. It is otherwise DENIED; and
4.

Defendants designated as “John Roes 1-10” in the Complaint are

DISMISSED without prejudice and Counts VIII and X of the Complaint solely
against said defendants are DISMISSED without prejudice. 4
ENTER: February 13, 2018
/s/ James P. Jones
United States District Judge

4

Without filing separate motions, the plaintiff has requested the court to impose
sanctions on the School Defendants for filing the motion in limine to exclude certain of
the plaintiff’s expert testimony, and in addition has requested the court to sua sponte
enter summary judgment against the School Board under Counts I and II. These requests
are denied. The motion in limine relating to the expert testimony is not sanctionable, and
there are issues of fact in dispute that preclude summary judgment for the plaintiff.
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