W.H. et al v Olympia School District et al

Filing 54

ORDER denying 42 Motion for Reconsideration signed by Judge Benjamin H. Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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W.H., et al.,

CASE NO. C16-5273 BHS
Plaintiffs,

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ORDER DENYING
DEFENDANTS’ MOTION FOR
RECONSIDERATION

v.
OLYMPIA SCHOOL DISTRICT, et al.,

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Defendants.

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This matter comes before the Court on the motion for reconsideration of

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Defendants Olympia School District (the “District”), Jennifer Priddy, Frederick Stanley,

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Barbara Greer, William Lahmann, and Dominic Cvitanich (collectively “Defendants”).

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Dkt. 42. The Court has considered the pleadings filed in support of and in opposition to

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the motion and the remainder of the file and hereby denies the motion for the reasons

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stated below.

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I.

INTRODUCTION

On August 18, 2017, the Court entered an order granting in part and denying in

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part Defendants’ motion for summary judgment. Dkt. 39. On August 29, 2017,

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Defendants moved for reconsideration. Dkt. 42. On August 29, 2017, the Court issued an

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order requesting a response from Plaintiffs. Dkt. 44. On September 8, 2017, Plaintiffs

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responded. Dkt. 46. On September 14, 2017, Defendants replied. Dkt. 49.

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II.
A.

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DISCUSSION

Standard
Motions for reconsideration are governed by Federal Rule of Civil Procedure 60

and Local Rules W.D. Wash. LCR 7(h). LCR 7(h) provides:

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Motions for reconsideration are disfavored. The court will ordinarily deny
such motions in the absence of a showing of manifest error in the prior
ruling or a showing of new facts or legal authority which could not have
been brought to its attention earlier with reasonable diligence.

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The Ninth Circuit has described reconsideration as an “extraordinary remedy, to
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be used sparingly in the interests of finality and conservation of judicial resources.” Kona
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Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 James
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Wm. Moore et al., Moore’s Federal Practice § 59.30[4] (3d ed. 2000)). “[A] motion for
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reconsideration should not be granted, absent highly unusual circumstances, unless the
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district court is presented with newly discovered evidence, committed clear error, or if
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there is an intervening change in the controlling law.” Id. (quoting 389 Orange Street
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Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
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B.

Newly Discovered Facts

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Defendants move for reconsideration on two factual bases. First, they point out the
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Court’s previous order relied on the fact that Ms. Chambers’s declaration claimed that
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she made a complaint to the District in 2007, but subsequent depositions have revealed
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that the complaint was not made until 2009. See Dkt. 42 at 2–3, 9. Second, Defendants
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argue that Mr. McGuigan’s declaration inaccurately suggests that he named Gary Shafer

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as his child’s bus driver in his 2007 complaint to the District—another inaccuracy which

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was not discovered until a recent deposition. Id. at 4–5. The newly discovered facts

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presented by Defendants relate to the Court’s decision in the following two ways: (1) the

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Court relied on the purported fact that Ms. Chambers and Mr. McGuigan made their

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complaints to the District in 2007 to conclude that a triable issue of fact exists as to

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whether the District had actual knowledge of sexual grooming prior to the minor

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Plaintiffs’ abuse, see Dkt. 39 at 12–13; and (2) the Court relied on the purported fact that

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Ms. Chambers and Mr. McGuigan made their complaints to the District in 2007 to

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conclude that there are triable issues of fact as to whether Defendants implemented

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customs or practices in deliberate indifference to their students’ welfare that proximately

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caused plaintiffs’ sexual abuse.

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The fact that Ms. Chambers’s report was not made until the beginning of the

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2008–2009 school year substantially weakens Plaintiffs’ Title IX claims that the District

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had actual notice of the readily-recognizable sexual grooming prior to Plaintiffs’ sexual

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abuse during the 2008–2009 school year. It similarly weakens Plaintiffs’ argument that

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the District’s customs and Defendants’ alleged failure to investigate complaints of

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readily-recognizable sexual grooming proximately caused the minor Plaintiffs’ abuse.

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However, while these newly discovered facts weigh significantly on the strength

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of Plaintiffs’ case, the Court concludes that they do not alter the outcome of the previous

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order. Even though Ms. Chambers did not make her complaint until late 2009, the fact

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remains that the District received Mr. McGuigan’s complaint in 2007. That complaint

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described how the driver of his daughter’s bus, Gary Shafer, would regularly make

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unscheduled stops mid-route in order to play games of hide and seek with kindergarten

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children, during which he would touch and tickle them. Dkt. 34-3 at 62–64; Dkt. 47 at

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41–43. There is no question that two reports of behavior readily identified as evidence of

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sexual grooming provide a stronger basis for finding that the District had actual

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knowledge of sexual misconduct than does a single report. Nonetheless, Mr. McGuigan’s

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2007 report is alone sufficient to sustain the Court’s previous order; specifically, that a

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jury could find that “although the District may not have subjectively viewed the

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complained-of conduct as sexually motivated, the District nonetheless had actual

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knowledge of grooming occurring on their buses that qualified as ‘sexual misconduct’

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under applicable state regulations specifically implemented for the administration of

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school employees.” Dkt 39 at 13. Moreover, although Ms. Chambers’s report was not

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received until late 2009, that the complaint was purportedly ignored is still relevant to

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whether Mr. McGuigan’s 2007 complaint was ignored pursuant to a policy or custom

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implemented by Defendants in deliberate indifference to the risk of student abuse.

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Additionally, the fact that the Mr. McGuigan’s complaint did not identify Gary

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Shafer by name has no effect on the Court’s analysis. Mr. McGuigan provided the

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District with route information, including the name of the student and the school and

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kindergarten class to which the student was being driven. Dkt. 47 at 51. Mr. McGuigan

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called both the student’s elementary school as well as the District’s transportation

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department to lodge the complaint. Dkt. 47 at 42. A jury could reasonably conclude that

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the Defendants would have discovered Gary Shafer’s identity as the driver in question

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had the District adequately responded to Mr. McGuigan’s 2007 complaint.

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C.

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Assignments of Manifest Error
Defendants also argue that the Court’s previous order was premised on three legal

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errors. First, Defendants argue that the Court improperly considered the declaration of

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Mr. McGuigan because it was not signed. Dkt. 42 at 4. Second, they argue that the Court

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used an improper standard in determining that there is a triable issue of fact as to whether

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they possessed actual knowledge of Gary Shafer’s sexual grooming of bus passengers. Id.

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at 7–8. Third, they argue that the Court improperly found that it was an undisputed fact

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that Gary Shafer was acting under color of state law in his role as a bus driver for the

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District. Id. at 8–9.

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Regarding the first assigned error, Defendants did not object to the unsigned copy

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of Mr. McGuigan’s declaration. If Defendants had so objected, Plaintiffs would have

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provided the properly signed copy, as they have done in response to the motion for

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reconsideration. Dkt. 47 at 41–43. The subsequent deposition of Mr. McGuigan only

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confirms the facts attested to in his declaration. Considering the declaration to which no

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objection was filed was not manifest error; and if it was, the error has since been cured by

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the filing of a properly signed declaration.

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In their second assignment of error, Defendants argue that the Court improperly

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applied the precedent of Gebser v. Lago Independent School Dist., 524 U.S. 274, 283

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(1998), to Plaintiffs’ Title IX claim when it found that “a triable issue of fact arises as to

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actual knowledge when a school official is confronted with known acts that could

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objectively be characterized as sexually motivated, but the official does not view those

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acts as sexual harassment.” Dkt. 39 at 10 (internal quotations marks and edits omitted).

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However, other than requesting that the Court reconsider its previous decision,

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Defendants do not offer any substantive analysis on how the Court’s decision conflicts

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with Gebser. This is likely because the Court already placed significant emphasis on the

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Gebser decision in its previous order, and Defendants’ arguments regarding Gebser have

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already been considered. Accordingly, the Court will decline to vacate its previous order

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based on Defendants’ single-sentence assertion that the Court improperly applied Gebser.

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Defendants have already challenged the legal standard for actual knowledge employed by

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the Court in an appeal to the Ninth Circuit, see Dkt. 40, and the Court agrees that an

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appeal before the Circuit is the proper venue for their arguments on this issue to be

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resolved.

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Finally, the Court declines to grant reconsideration on Defendants’ assignment of

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error that Gary Shafer was not acting under color of state law when he abused the minor

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plaintiffs. Where a “real nexus exists between the activity out of which the violation

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occurs and the teacher’s duties and obligations, then the teacher’s conduct is taken under

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color of state law.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 n. 4 (5th Cir. 1994),

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cert. denied, 513 U.S. 815. The Ninth Circuit has plainly stated that “the Constitution

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protects a child’s right to be free from sexual abuse by school employees while attending

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public school.” Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir.

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1997). Because Gary Shafer abused the minor Plaintiffs while he was transporting and

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supervising them in his role as a bus driver employed by the District, the abuse has an

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obvious and real nexus to his obligations and duties as a district employee.

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III.

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ORDER

Therefore, it is hereby ORDERED that Defendants’ motion for reconsideration
(Dkt. 42) is DENIED.
Dated this 4th day of October, 2017.

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A

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BENJAMIN H. SETTLE
United States District Judge

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