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C.R. v. Novi Community School District

United States District Court, E.D. Michigan, Southern Division

February 9, 2017

C.R. and J.R., individually and as Next Friends of JOE R., a minor, Plaintiffs,
v.
NOVI COMMUNITY SCHOOL DISTRICT, et al., Defendants.

          HON. R. STEVEN WHALEN Judge.

          CONSOLIDATED ORDER RESOLVING CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKTS. 78, 79, 83, 84)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         This case is before the Court because one special-needs middle school student, “J.J., ” allegedly sexually abused his classmate, “Joe R., ” also a male special-needs student, while a third boy recorded the incident on his cell-phone. The response of the school district, teachers and administrators, as well as their conduct preceding the incident, caused Joe R.'s parents to file this lawsuit on his behalf.

         Plaintiffs-Joe R., his mother J.R. and his father C.R.-filed an eleven-count Amended Complaint bringing claims against two Novi Middle School (NMS) administrators, an NMS teacher, an NMS substitute teacher and her staffing agency employer and the Novi Community School District (NCSD) and its Superintendent under Title 20 U.S.C. § 1681, Title 42 U.S.C. § 1983, Title 42 U.S.C. § 12101 and several Michigan state statutes and common law causes of action. (Dkt. 12).

         Before the Court are cross-motions for summary judgment by both Defendants and Plaintiffs. Defendants NCSD's Superintendent Steven Matthews, NMS Principal Stephanie Schriner, NMS Assistant Principal Andrew Comb, NMS math teacher Vera Williams (Dkt. 83); NCSD (Dkt. 84); and Jean Solomon, a substitute teacher, and EDUStaff, LLC, her employer staffing agency (Dkt. 78) are all seeking summary judgment on all of Plaintiffs' claims against them. Plaintiffs are seeking summary judgment on two of their claims. (Dkt. 79). On October 17, 2016, the Court heard oral argument on all four motions in Flint, Michigan.

         For the reasons stated below, the Court will GRANT IN PART AND DENY IN PART Novi Community School District's motion for summary judgment (Dkt. 84), GRANT IN PART AND DENY IN PART Andrew Comb, Steven Matthews, Stephanie Schriner and Vera Williams's motion for summary judgment (Dkt. 83), DENY Plaintiffs' motion for summary judgment (Dkt. 79), and GRANT IN PART AND DENY IN PART Jean Solomon and EDUStaff's motion for summary judgment. (Dkt. 78).

         I. Background

         NCSD and NMS Student Behavior Policies

         In 2011, the U.S. Department of Education sent a letter apprising federal funding recipients, including NCSD, of the need to train school staff on recognizing sexual harassment and their responsibilities to prevent and respond to it under Title IX, 20 U.S.C. § 1681. (Dkt. 79, Ex. 4). According to NCSD policy, Superintendent Steven Matthews had a duty to oversee this training. (Dkt. 79, Ex. 1 at 15).[1] Matthews testified that he is unsure whether NMS staff received such training during the 2013-14 school year-i.e. the year J.J.'s alleged harassment of Joe R. took place. (Dkt. 79, Ex. 1 at 15). According to NMS Principal Stephanie Schriner, as of 2013 NMS had not offered its staff any training on sexual abuse protocol, but the faculty had discussed the topic “informally.” (Dkt. 79, Ex. 2 at 28).

         In addition to NCSD's responsibilities under Title IX, the school district's internal policy requires the Superintendent to promulgate administrative guidelines for providing intervention when students show warning signs of troubling behaviors. (Dkt. 79, Ex. 1 at 29-30; Ex. 7). Superintendent Matthews testified, however, that he had never promulgated such guidelines and did not know whether his district has any. (Id.). Matthews further stated that he believed NCSD has a system for transitioning students that teachers believe to be dangerous between the elementary and middle schools, but added that he was unaware of the system's details because individual school principals administered it. (Id. at 30-32). Principal Schriner, however, testified that NMS has no such transition system. (Dkt. 79, Ex. 2 at 16). In addition, Assistant Principal Comb, in charge of discipline at NMS, testified that it was the school's practice not to check incoming or current students' past behavioral records. When asked whether he told Joe R.'s parents that he gave all students a “clean slate, ” Mr. Comb acknowledged that he may have said something like that, and added, “we don't go dig into what a student may have done at a school before our school.” (Dkt. 79, Ex. 3 at 97-98).

         J.J.'s Alleged Harassment of Joe R.

         Plaintiffs allege that in or about September 2013, J.J. began sexually harassing Joe R. (Dkt. 12 at 5). At that time, each boy was either twelve or thirteen years old, [2] in seventh grade and received special education services. (Id. at 2, 4; Dkt. 79 at 25). Joe R. qualified for special education support under the eligibility category of Autism Spectrum Disorder. (Dkt. 79, Ex. 10 at 4).[3] J.J. qualified for special education programming under the eligibility category of Emotionally Impaired. (Dkt. 79, Ex. 11).[4] Vera Williams, the boys' special education math teacher, testified that she would “describe the emotional level of both children to be similar to that of a child who is seven to eight years old.” (Dkt. 79, Ex. 21 at 34; Ex. 18 at 4).

         Specifically, Plaintiffs allege that from September 2013 through February 26, 2014, J.J. touched Joe R.'s groin area and penis above and below his clothes and engaged him in kissing and other sexually inappropriate behaviors. (Dkt. 12 at 7-8). The incidents are alleged to have occurred (1) on a regular basis in a small, side-room, adjoining a class room, in which teacher Vera Williams allegedly placed J.J. and Joe R. during math class, [5] (2) once during an enrichment period called “Academic 20, ” (3) once in an empty classroom, (4) once in a bathroom stall and (5) on February 26, 2014 during Stacey Becker's special education English class. (Dkt. 79 at 27-28). According to Detective Bender, J.J. admitted to most of this conduct. (Dkt. 79, Ex. 20 at 27-30).[6] At his deposition, Joe R. used the name “the beast” to describe J.J. and referred to the sexual harassment incidents as J.J. “conquering” him. (Dkt. 79, Ex. 25 at 55-56). Additionally, Joe R. testified that he and J.J. “always tried to hide” their behavior, and that on February 14, 2014 he asked J.J. to be his valentine. (Id. at 36-37).

         Regarding the February 26, 2014 incident in Ms. Becker's English class, another student, J.P., who was a classmate of J.J. and Joe R., admits to having taken a cell phone video of J.J. touching Joe R., a short segment of which is in the record and the Court has reviewed. (Dkt. 79, Ex. 28 at 11; Ex. 33).[7] In the video, J.J. and J.P. are seated at desks to the right and left of Joe R.'s desk respectively, forming a semicircle. (Dkt. 79, Ex. 33). J.J.'s hand is rested, under the desks, on Joe R.'s upper right thigh. (Id.). J.P. testified that, while filming, the boys were all reading and J.P. “kind of like put [his] head down” and put his cell phone “on [his] lap so [he] could [film J.J. and Joe R.] and the teacher wouldn't notice.” (Dkt. 79, Ex. 28 at 17). Neither the video nor any other non-testimonial evidence in the record indicates how many other students were in the class. According to Ms. Becker, there were, at most, three other students in the room in addition to J.J., J.P. and J.R. (totaling six), but it may have been only the three boys involved in the incident. (Dkt. 79, Ex. 22 at 11-13).

         In addition, neither the video nor anything else in the record establishes with certainty which teacher was present while J.P. filmed J.J. touching Joe R. in Ms. Becker's English classroom. There is evidence that both Ms. Becker and Ms. Jean Solomon, a substitute teacher employed and placed at NMS by EDUStaff, a staffing agency and Michigan Limited Liability Company, were in the school building that day, but testimony conflicts on the question of which teacher was present when the incident occurred. (Dkts. 85, Ex. 73; 78, Ex. C). J.P. testified that his “regular teacher-” Ms. Becker-was in the classroom. (Dkt. 79, Ex. 28 at 15). Assistant Principal Comb, who viewed the original four-minute cell phone video before it was destroyed, testified that, although only the lower extremities of the teacher were visible, they did not appear to him to belong to Ms. Becker. (Dkt. 79, Ex. 3 at 81, 140). Ms. Becker testified that she was in the NMS building on the date and during the time period when the video would have been made, but that she was not then in her classroom, as Ms. Solomon was covering for her. (Dkt. 79, Ex. 22 at 59-61). Ms. Solomon admits to having been at NMS on the date and time in question, but testified that she was not in Ms. Becker's classroom when J.P. filmed J.J. touching Joe R. (Dkt. 79, Ex. 34 at 15-16). NMS and NCSD records show only that on February 26, 2014, Ms. Solomon was assigned to substitute at NMS for teacher Sara Lieberman for the entire day. (Dkt. 78, Ex. C at 2; Dkt. 79, Ex. 36 at 2).[8]

         The Discovery of J.J.'s Alleged Harassment of Joe R. and the NMS and Novi PD Investigations

         Before the incident on February 26, 2014 occurred, the evidentiary record indicates that at least three NMS teachers had seen J.J. and Joe R. holding hands or touching during classes on at least five occasions. Math teacher Ms. Vera Williams testified that in September 2013 she saw J.J.'s hand on Joe R.'s leg, and that on February 25, 2014 she also saw Joe R. put his hand on J.J.'s leg. (Dkt. 79, Ex. 21 at 29-31). According to Detective Bender, Academic 20 teacher Ms. Margaret Sheeran saw J.J. and Joe R. holding hands on one occasion during the 2013-14 school year. (Dkt. 79, Ex. 20 at 25).[9] Ms. Becker testified that she saw the boys holding hands around December, 2013 or January, 2014 and again in February, 2014. (Dkt. 79, Ex. 22 at 32-34; Ex. 86). In addition, Ms. Becker testified that on February 14, 2014 Joe R. entered her classroom crying and told her that he was upset because he asked J.J. to be his valentine and J.J. said no. (Dkt. 79, Ex. 22 at 39). In response to these incidents, the teachers either physically separated or verbally admonished the boys or ignored the behavior;[10] there were no formal interventions, and no NMS administrators were ever apprised of the issue, nor were either of the boys' parents contacted.

         On February 27, 2014, the day after J.P. filmed J.J. touching Joe R. in Ms. Becker's classroom, the incident came to the attention of NMS administrators. That morning, NMS social worker Nicole Colone learned from students in her group social work class that J.P. possessed a cell phone video recording of J.J. touching Joe R. (Dkt. 79, Ex. 8 at 77-78; Ex. 30). At 12:30 p.m., she met with Assistant Principal Comb to discuss this matter. (Dkt. 79, Ex. 3 at 59). Mr. Comb states that he immediately interviewed J.P., confirmed the video's existence and learned that J.P. and two other classmates possessed copies of it; he testifies that he immediately retrieved all three students' cell phones. (Id. at 61-63). Mr. Comb then interviewed J.J. and Joe R. (Id. at 67). Based upon the information he gathered, he concluded that there was an “indication of a mutual relationship.” (Id. at 73). Later that afternoon, Mr. Comb called Joe R.'s mother, J.R., to notify her of what occurred; she agreed to meet him, together with her husband, C.R., at 8 a.m. the following morning. (Id. at 80).

         According to J.R., when Joe R. came home from school that evening, the two spoke briefly about J.J. (Dkt. 79, Ex. 23 at 138). Later that evening, C.R., Joe R.'s father, returned from work, and Lindsay Ludtke, an occupational therapist, came over for her weekly appointment with Joe. R. (Id. at 147). At that time, J.R. testified, she, C.R. and Lindsay Ludtke questioned Joe R. in detail about his relationship with J.J. (Id. at 148).[11] Joe R. testified that he spoke with his parents and Lindsay Ludtke that night, but that he could not recall the questions they asked him. (Dkt. 79, Ex. 25 at 67-68). After speaking with Joe R. about his relationship with J.J., J.R. and C.R. decided to cancel the next morning's meeting with Mr. Comb, because they “knew [they] needed to file a police report.” (Dkt. 79, Ex. 23 at 156).

         On February 28, 2014, in light of what had occurred the day before, Principal Schriner testified that she convened a meeting with Mr. Comb and social worker Nicole Colone. (Dkt. 79, Ex. 2 at 121).[12] At the meeting, they discussed Mr. Comb's interviews with J.P., J.R. and Joe R. and watched J.P.'s original video recording of the February 26, 2014 incident. (Id. at 121-22). Based on what Mr. Comb learned from the interviews, and what they all saw in J.P.'s video, the group concluded that the incident took place in Ms. Becker's sixth period English class, that Joe R. was “mutually participating” in the incident, and that the appropriate consequence for both boys was a three-day out-of-school suspension. (Id. at 121-22; Dkt. 79, Ex. 26).[13]

         At an unspecified time later in the afternoon on February 28, 2014 Principal Schriner, Mr. Comb and Ms. Colone summoned J.P. to Principal Schriner's office. (Dkt. 79, Ex. 2 at 124). Principal Schriner testified that during this meeting, with J.P.'s father on speakerphone, they returned J.P.'s cell phone to him and, at their suggestion, he deleted the video of J.J. touching Joe R. (Id. at 126).[14] Principal Schriner explained that she, Mr. Comb, and Ms. Colone believed it would be in J.P.'s best interest to delete the video because “it would be a form of bullying if he were to show it to other students.” (Id.).[15] Principal Schriner further stated that before the group encouraged J.P. to delete the video, she had conferred with Detective Jonathan Zabick, a member of the Novi Police Department assigned to NMS as the School Resource Officer. (Id. at 126). Detective Zabick testified that, when he spoke with Principal Schriner about the video, he communicated to her that it would be “OK” to recommend to J.P. that he delete it, because, according to Zabick's supervisor, the Novi Police Department determined that it had no right to secure a video of a twelve or thirteen-year-old “touching the crotch, ” “over the clothes” of a peer. (Dkt. 79, Ex. 41 at 70-72).

         Around the same time that Principal Schriner, Mr. Comb and Ms. Colone met with J.P. on February 28, 2014, Joe R.'s parents, J.R. and C.R., were preparing to file a report with the Novi Police Department, which they did at 4:30 p.m. that same day. (Dkt. 79, Ex. 23 at 163; Dkt. 79, Ex. 20).[16] The case was assigned to Detective Michael Bender, who, together with Detective Zabick, conducted an investigation. (Dkt. 79, Ex. 17 at 124; Ex. 20). Detectives Bender and Zabick interviewed all potential witnesses at NMS (Dkt. 79, Ex. 17 at 118; Ex. 20 at 15-28), reviewed the thirty-second clip of J.P.'s original video (which they recovered from the cell phone of one of the students with whom J.P. shared the video) (Dkt. 79, Ex. 17 at 168; Ex. 20 at 13) and had Joe. R forensically interviewed at a child advocacy center. (Dkt 79; Ex. 17 at 24-28; Ex. 20 at 23).

         Based on his findings, Detective Bender concluded that touching occurred between Joe R. and J.J. in all the locations Plaintiffs allege-i.e. Ms. Becker's English class, the Academic 20 period, the bathroom, an empty classroom and Ms. Williams's math class. (Dkt. 79, Ex. 17 at 32-47). Defendants do not contest this finding. (Dkt. 86 at 11). Detective Bender also concluded that the acts between J.J. and Joe R. were “mutual.” (Dkt. 79, Ex. 17 at 152). At the end of his investigation, Detective Bender submitted his findings to the Oakland County Prosecuting Attorney's office. On April 24, 2014, he received an email from that office stating that all charges against J.J. were declined, and that the case was closed (Dkt. 79, Ex. 17 at 180; Ex. 20 at 34).

         According to Principal Schriner, when she learned of the police investigation and the allegations of chronic abuse, she conducted her own internal investigation at NMS, for which she admits there is no documentation. (Dkt. 79, Ex. 2 at 45). Principal Schriner testified that her investigation consisted of speaking with Ms. Williams and Ms. Sheeran, “scan[ing] through” NMS hallway security videos, and reviewing J.J's and Joe R.'s educational and behavioral records. (Id. at 47-68). She explained that in her review of the videos she saw footage of J.J. and Joe R. walking toward an empty classroom together, as well as footage of the boys walking in tandem into a bathroom. (Dkt. Id. at 47-53). As Detective Bender testifies, Principal Schriner provided him with the footage of the boys' walk toward the empty classroom, but not the footage of J.J. and Joe R. entering the bathroom. (Dkt. 79, Ex. 17 at 17).[17] Based on Principal Schriner's and Mr. Comb's investigations, the NMS administration concluded that they were “unable to find any conclusive evidence establishing that any sexual contact . . . occurred other than the incident captured on video by J.P., which appeared to be consensual.” (Dkt. 83 at 26; Dkt. 84 at 28).

         After February 27, 2014, J.R. and C.R. never returned Joe. R to NMS. J.R. testifies that NMS staff, including Principal Schriner, repeatedly pressured her to allow Joe R. to return to school, including to his classes with J.J. Because J.R. did not believe Joe R. would be safe there, she withdrew her son from NMS. (Dkt. 79, Ex. 23 at 178). Principal Schriner admits that her intention was for Joe R. to return to his normal class schedule with J.J., because neither the police nor NMS investigations “revealed that Joe. R had been subject to repeated molestations.” (Id. at 170). Accordingly, Principal Schriner characterized C.R. and J.R.'s decision not to return Joe R. to NMS as “voluntarily…keep[ing] him home.” (Dkt. 79, Ex. 2 at 168). Plaintiffs state that Joe R. has been in therapy since the alleged abuse came to light. (Dkt. 37 at 90).

         II. Summary Judgment

         Summary judgment is proper where the record shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute is genuine only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met that burden, the non-moving party must point to evidence supporting its position that is “significantly probative” and more than “merely colorable.” Liberty Lobby, 477 U.S. at 249. “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient” to defeat a motion for summary judgment. Id. at 252. In deciding whether a reasonable jury could return a verdict for the nonmoving party, the Court must view the evidence, and draw all reasonable inferences, in that party's favor. Id. at 255.

         III. Plaintiffs', the Individual Novi Defendants', and NCSD's Motions for Summary Judgment (Dkts. 79, 83, 84)

         Plaintiffs bring claims against Assistant Principal Comb, Superintendent Matthews, Principal Schriner and Math teacher Vera Williams (“the Individual Novi Defendants”), as well as NCSD. The Individual Novi Defendants and NCSD each move for summary judgment on all of Plaintiffs' claims against them. (Dkts. 83, 84) and Plaintiffs move for summary judgment on two of their claims. (Dkt. 79).

         The Court will resolve these claims in the order that they appear in the Amended Complaint. (Dkt. 12). As to Counts I and II, alleging violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. and for Title IX Retaliation against NCSD, Defendant NCSD moves for summary judgment on both of these counts, while Plaintiffs move for summary judgment on Count I. With respect to Counts III and IV, which allege violations of 42 U.S.C. § 1983 against NCSD and the Individual Novi Defendants, those Defendants seek summary judgment on those two counts; Plaintiffs seek it as to Count III only. NCSD moves for summary judgment as to Count V, charging a violation of § 504 of the Rehabilitation Act of 1973 and the Americans with Disability Act of 1990 (ADA), 42 U.S.C. 12101, et seq. As to Counts VI and VII, which charge violations of the Michigan Elliot-Larsen Civil Rights Act (Michigan ELCRA) and the Michigan Persons With Disabilities Civil Rights Act (Michigan PWDCRA), both NCSD and the Individual Novi Defendants seek summary judgment. The Individual Novi Defendants move for summary judgment on Count VIII, seeking damages for Intentional Infliction of Emotional Distress (IIED), while Defendant Vera Williams asks for the same as to Count IX, charging her with Gross Negligence. Finally, Defendants Jean Solomon and EDUStaff move for summary judgment on Plaintiffs' negligence and respondeat superior claims in Counts X and XI.

         A. NCSD's and Plaintiffs' Motions for Summary Judgment on Plaintiffs' Title IX Claims (Counts I and II)

         Plaintiffs bring a claim under 20 U.S.C. § 1681 (Title IX) against NCSD for J.J.'s alleged sexual harassment and abuse of Joe R. (Count I). In addition, Plaintiffs bring a claim under Title IX for retaliation against NCSD. (Count II). NCSD moves for summary judgment on both claims. (Dkt. 84 at 29-37). In response, Plaintiffs filed a cross-motion for summary judgment on their sexual harassment claim only. (Count I). (Dkt. 79 at 47-54). The Court will address these claims in the following order: NCSD's motion for summary judgment on Plaintiffs' sexual harassment claim (Count I), Plaintiffs' cross-motion for summary judgment on this claim, and then Defendants' motion for summary judgment on Plaintiffs' retaliation claim. (Count II).

         Title IX provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). In Davis v. Monroe County Board of Education, the Supreme Court held that a federal funding recipient may be liable under Title IX for deliberate indifference to student-on-student sexual harassment. 526 U.S. 629, 643 (1999). To establish a prima facie case of student-on-student sexual harassment under Title IX, a plaintiff must produce evidence demonstrating the following: (1) sexual harassment so severe, pervasive, and objectively offensive that it could be said to deprive plaintiff of access to the educational opportunities or benefits provided by the school, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment. Stiles ex rel. D.S. v. Grainger County, Tenn., 819 F.3d 834, 848 (6th Cir. 2016) (citing Davis, 526 U.S. at 650; Patterson v. Hudson Area Schs., 551 F.3d 438, 444-45 (6th Cir. 2009)).[18]

         The Court turns first to NCSD's motion for summary judgment on Plaintiffs' Title IX sexual harassment claim. (Count I). With respect to the first element, Plaintiffs have created a genuine issue of material fact as to whether J.J.'s alleged harassment and abuse of Joe R. was sufficiently severe, pervasive, and objectively offensive for Title IX purposes: Plaintiffs have provided evidence indicating that over the course of one year J.J. subjected Joe R. to repeated over and under the clothes genital touching, and hugging and kissing. In addition, in recounting these experiences, Joe. R described J.J. as “the beast” and characterized J.J.'s actions as “conquering him.” Ultimately, C.R. and J.R. removed Joe R. from NMS because they felt that it was unsafe to allow Joe R. to be near J.J. As such, Plaintiffs have presented evidence upon which a reasonable jury could conclude that J.J.'s alleged harassment of Joe R. was severe, pervasive, and objectively offensive.

         The record is also sufficient to raise a genuine issue of fact as to the second element of the Davis test-that is, whether or not NCSD had actual knowledge of J.J.'s harassment of Joe R. Actual knowledge requires only that a single school administrator with authority to take corrective action knew of the sexual harassment. Stiles, 819 F.3d 834, 848 (citing Gebser v. Lago Vista Indep Sch. Dist. 524 U.S. 274, 290 (1998)). Plaintiffs meet this threshold because the evidence shows that on February 27, 2014 Principal Schriner and Mr. Comb watched a four-minute video of J.J. petting Joe R. in his groin region while in Ms. Becker's classroom. In addition, Principal Schriner testified that Detective Zabick told her about the police report that C.R. and J.R. filed on the day that they filed it-February 28, 2014-and Mr. Comb testified that Schriner told him about the police report by March 3, 2014 at the latest. (Dkt. 79, Ex. 2 at 85; Ex. 4 at 91). Plaintiffs have thus presented sufficient evidence to demonstrate that Principal Schriner and Mr. Comb knew that J.J. was touching Joe R. inappropriately.

         The third prong of the Davis test requires Plaintiffs to show that school officials were deliberately indifferent to peer-on-peer sexual harassment. School administrators will be liable under the deliberate indifference standard only if their response was “clearly unreasonable in light of the known circumstances.” Stiles, 819 F.3d at 848 (quoting Davis, 526 U.S. at 648). Additionally, the deliberate indifference must “at a minimum cause students to undergo harassment or make them liable or vulnerable to it.” Vance v. Spencer County Public School Dist. 231 F.3d 253, 260 (6th Cir. 2000) (quoting Davis, 526 U.S. at 645).

         The Court finds that Plaintiffs have produced evidence upon which a reasonable jury could conclude that Principal Schriner and Mr. Comb were deliberately indifferent to J.J.'s alleged harassment of Joe R: when Principal Schriner and Mr. Comb discovered J.P.'s video of J.J. touching Joe R., they responded by encouraging J.P. to delete the video (possibly, according to Nicole Colone's testimony, after being in a position to know that Joe R.'s parents had filed a police report in regard to the incident), suspending Joe R., and pressuring C.R. and J.R. to return their son to school, including all of his classes with J.J., according to their view that the boys' behavior was “mutual” and Joe R. was therefore in no danger. In addition, Principal Schriner admits to deleting hallway video footage showing the boys entering a bathroom together, even as she knew of Detective Bender's ongoing investigation into Joe R.'s allegations of chronic abuse by J.J. Indeed, their course of deleting material evidence, adopting a theory of mutuality to explain away the boys' behavior, and insisting that Joe R. be returned to his normal class schedule, including all classes with J.J., could reasonably be described as clearly unreasonable in light of the circumstances-including the fact that they had seen a video of highly inappropriate touching between J.J. and Joe R. and that the situation was serious enough for Joe R.'s parents to have filed a police report. Moreover, a reasonable jury could conclude that Principal Schriner and Mr. Comb's clearly unreasonable response left Joe R. vulnerable to further abuse at the hands of J.J.; but for C.R. and J.R. keeping Joe R. from returning to NMS, Principal Schriner would have immediately placed him back in all of his classes with J.J., exposing him to the same risk for abuse which was demonstrated on the video and had been previously observed on several occasions by both teachers and students.

         Plaintiffs have created issues of fact for trial with respect to every element of their Title IX sexual harassment claim against NCSD. (Count I). A reasonable jury could conclude that Joe R. was subject to severe, pervasive and objectively offensive harassment at the hands of J.J., and that when Principal Schriner and Mr. Comb discovered this harassment their response was clearly unreasonable, such that it left Joe R. vulnerable to future abuse. Accordingly, NCSD's motion for summary judgment on Plaintiffs' Title IX sexual harassment claim (Count I) against it is DENIED.

         With respect to Plaintiffs' cross-motion for summary judgment on their Title IX sexual harassment claim against NCSD (Count I), the Court applies the same law to the same facts, but must view the evidence in a light most favorable to the non-moving party, NCSD. So viewed, the school district has presented evidence sufficient to create issues of fact for trial on Plaintiffs' Title IX sexual harassment claim against it. (Count I). With respect to the severity of J.J.'s alleged harassment, NCSD admits only to the incidents of above-the-clothes touching and hand-holding that appear in J.P's cell phone video and that Ms. Williams and Ms. Becker testified to have personally observed. If a jury were to find that these were the only incidents that occurred, it might reasonably conclude that the nature of the harassment Joe R. suffered at the hands of J.J. was not sufficiently severe or pervasive for NCSD to be liable on a Title IX sexual harassment claim. Moreover, NCSD contends that upon learning of Joe R.'s allegations of chronic abuse, Principal Schriner and Mr. Comb each conducted thorough investigations, recommended that Joe R. return to school because they genuinely believed J.J. did not present a threat to him, and only recommended that J.P. delete his cell phone video because Officer Zabick told them the Novi Police Department had no use for it. Viewing the evidence in the light most favorable to Defendants, a reasonable jury could find that Principal Schriner's and Mr. Comb's responses to Joe R.'s allegations were not clearly unreasonable in light of the nature of the harassment and the fact that the police officer communicated to NMS that there was no need for J.P.'s cell phone video.

         Because issues of fact remain as to the severity and pervasiveness of J.J.'s alleged harassment of Joe. R, and, relatedly, the reasonableness of Principal Schriner's and Mr. Comb's responses to the situation, Plaintiffs' motion for summary judgment on their Title IX sexual harassment claim against NCSD (Count I) is DENIED.

         In addition to a claim for sexual harassment, Plaintiffs also bring a Title IX claim for retaliation against NCSD. (Count II). A plaintiff can establish a retaliation claim either through direct evidence or through circumstantial evidence that supports the inference of retaliation. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___ 133 S.Ct. 2517 (2013). Here, Plaintiffs do not present direct evidence that NCSD retaliated against Joe R. because he complained of sexual harassment. Instead, Plaintiffs argue that retaliation can be inferred based on circumstantial evidence. In evaluating retaliation arguments based on such evidence, courts must apply the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010). According to the McDonnell Douglas framework, a plaintiff has the initial burden of demonstrating a prima facie case of retaliation by establishing: 1) the plaintiff engaged in activity protected under Title IX; (2) plaintiff's exercise of her protected rights was known to defendant; (3) an adverse [educational] action was subsequently taken against the student or the student was subjected to severe or pervasive retaliatory harassment by a teacher or administrator; and (4) there was a causal connection between the protected activity and the adverse [educational] action. Fuhr, 710 F.3d at 674. Should a plaintiff succeed in establishing a prima facie case, a presumption of unlawful retaliation arises and the defendant is then faced with the burden to produce evidence that rebuts the presumption by “articulating some legitimate, nondiscriminatory reason for its action.” Id. (quoting Spengler, 615 F.3d at 542).

         Viewing the evidence in Plaintiffs' favor, it is sufficient to establish a prima facie case of retaliation based on circumstantial evidence. Defendants dispute neither that Plaintiffs' complaints to NMS and the Novi Police were protected activity nor that NMS employees knew about Plaintiffs' complaints. The crux of the analysis is thus whether Joe R. suffered any adverse actions as a result of complaining of J.J's harassment and whether there was a causal connection between Joe R.'s complaints and the adverse actions. After Principal Schriner and Mr. Comb viewed J.P.'s video and learned of the Novi Police report filed by C.R. and J.R., they made the decision to suspend Joe R. from school. (Both Joe R. and J.J. were suspended.) Defendants argue that because the suspension was eventually “removed” from Joe R.'s record after C.R. and J.R. hired a lawyer who advocated for its removal, it no longer qualifies as an adverse action. Defendants provide no support for this proposition. Moreover, Joe R.'s record still reflects the incident and includes a characterization of Joe R.'s conduct as “allowing another student to touch his privates.” (Dkt. 87, Ex. 41 at 5). Further, in addition to the suspension, Joe R. was marked absent, and his work was marked incomplete, during the period that his parents kept him from returning to NMS because Principal Schriner had decided that Joe R. would be returned to his normal class schedule, including all his classes with J.J. (Dkts. 83, Ex. 44; 87, Ex. 99). Plaintiffs have thus presented sufficient evidence to raise a jury question as to whether adverse actions were taken against Joe R. subsequent to his complaints of sexual harassment to NMS and the Novi PD.

         The next issue for the Court with respect to Plaintiffs' Title IX retaliation claim is whether Plaintiffs have produced sufficient circumstantial evidence to create a fact issue as to whether Joe R.'s complaints of sexual abuse caused the adverse actions taken against him. Plaintiffs meet this burden. Viewing the evidence in the light most favorable to Plaintiffs, the record allows an inference that in response to allegations of sexual abuse at their school, Principal Schriner and Mr. Comb took action to suppress any evidence that the abuse had actually occurred: they deleted evidence, suspended Joe R. and marked his educational record with an incident report, absences, and notes of incomplete work, and told his parents that it was safe for Joe R. to return to school, J.J. and Joe R.'s relationship was mutual, and that no remedial action was needed. From this evidence, a reasonable jury could conclude that had Joe. R and his parents never complained of sexual harassment-Joe R. would not have suffered a suspension, nor the absences, incomplete assignments, or incident report annotations that now appear in his permanent record.

         Because Plaintiffs have produced evidence sufficient to demonstrate that Joe R. suffered adverse educational actions for complaining about J.J.'s alleged sexual harassment, they have succeeded in establishing a prima facie case of Title IX retaliation. The burden now shifts to Defendants to rebut a presumption of unlawful retaliation by articulating a legitimate reason for the adverse actions Joe R. suffered. Defendants' efforts to meet this burden are insufficient to remove the question from the jury. In response to Plaintiffs' retaliation claim, Defendants argue simply that there is no evidence Joe R. was subjected to an adverse action because his suspension was revoked. (Dkt. 84 at 36-37). Defendants provide no authority for the proposition that the revocation of a suspension operates to nullify that suspension as an adverse action. While Defendants proffer a reason for the suspension, Joe R.'s alleged complicity in the touching incident, the validity of this reason as legitimate is very much a question of fact. Moreover, even if the suspension's revocation mitigated its effect as an adverse action, there is still a question of fact as to whether the reasons given justified the negative annotations that were placed on Joe. R's student record.

         Accordingly, because Plaintiffs have established a prima facie case of unlawful retaliation under Title IX, and because Defendants have failed to rebut the presumption of unlawful retaliation sufficiently to remove any question of material fact, NCSD's motion for summary judgment on Plaintiffs' retaliation claim against it (Count II) is DENIED.

         B. The Individual Novi Defendants', NCSD's, and Plaintiffs' Motions for Summary Judgment on Plaintiffs' § 1983 Claims (Counts III and IV)

         Under 42 U.S.C. § 1983, Plaintiffs allege that the Individual Novi Defendants deprived Joe R. of his constitutional rights to equal protection and substantive due process, including the right to personal security and bodily integrity, and that NCSD's customs, policies, and practices caused these deprivations. (Counts III and IV). (Dkt. 12 at 29-35, 26-29).[19] The Individual Novi Defendants and NCSD each move for summary judgment on these claims. (Dkts. 83 at 27-31; 84 at 37-41).[20] Plaintiffs move for summary judgment only on their failure to train § 1983 claim against NCSD (Count III). (Dkt. 79 at 43-47). Since a school district cannot be liable under § 1983 if a plaintiff fails to show that at least one of its employees inflicted a constitutional harm, McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 471 (6th Cir. 2006), the Court turns first to the Individual Novi Defendants' motion for summary judgment, then addresses NCSD's and Plaintiffs' motions.

         In their Amended Complaint, Plaintiffs allege that the Individual Novi Defendants and NCSD deprived Joe R. of his Fourteenth Amendment rights to equal protection, due to intentional discrimination against Joe R. based on the fact that he suffers from Autism Spectrum Disorder, and his Fourteenth Amendment due process right to liberty, including the right to bodily integrity. (Dkt. 12 at 26). In their responses, however, Plaintiffs fail to articulate clear theories of an equal protection and due process violation and instead present a generalized medley of arguments regarding the Individual Novi Defendants' and NCSD's alleged § 1983 violations. (Dkt. 87 at 75-81). The Court, therefore, will independently analyze the equal protection and due process claims that Plaintiffs present in their Amended Complaint according to controlling Sixth Circuit and Supreme Court precedent.

         The sine qua non of an equal protection claim is state discrimination against a plaintiff based on her membership in a certain class of persons. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The Sixth Circuit recognizes two ways to prove an equal protection violation based on a school official's response to peer-on-peer harassment: (1) disparate treatment of one class of students who complain about peer mistreatment, and (2) deliberate indifference to discriminatory peer harassment. Stiles ex rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 841 (6th Cir. 2016) (citing Soper v. Hoben, 195 F.3d 845, 852 (6th Cir. 1999); Shively v. Green Local Sch. Dist Bd. Of Educ., 579 Fed.Appx. 348, 356-57 (6th Cir. 2014); Williams v. Por Huron Sch. Dist 455 Fed.Appx. 612, 620 (6th Cir. 2012)).

         To succeed on a disparate treatment theory, Joe. R must present evidence tending to show that NMS officials treated his complaints of peer harassment differently than they would have treated the complaints of a similarly situated, non-disabled student. Stiles, 819 F.3d at 852; Gohl v. Livonia Pub. Sch. Sch. Dist., 836 F.3d 672, 684 (6th Cir. 2016). Here, Plaintiffs proffer no evidence demonstrating how NMS officials responded to any other similarly situated, non-disabled student. To succeed on a deliberate indifference theory, Plaintiffs must present evidence indicating both that Joe R. was subjected to peer-harassment because of his disability and that school officials responded to it in a manner that was clearly unreasonable in the light of known circumstances. Stiles, 819 F.3d at 852. Within the context of their equal protection argument, Plaintiffs present no evidence that J.J. targeted Joe R. because of his disability.[21] Accordingly, because Plaintiffs have not presented evidence upon which a reasonable jury could conclude that the Individual Novi Defendants violated Joe R.'s equal protection rights under a disparate treatment or deliberate indifference theory, the Individual Novi Defendants' motion for summary judgment on Plaintiffs' § 1983 equal protection claim (Count IV) is GRANTED.

         Plaintiffs' second theory of the Individual Novi Defendants' liability under § 1983 is that they violated Joe R.'s Fourteenth Amendment right to substantive Due Process, including his right to bodily integrity. The Due Process Clause of the Fourteenth Amendment protects against state actions which deprive a person of life, liberty, or property without due process of law; it does not protect persons against such deprivations caused by other private actors. Stiles, 819 F.3d at 853 (citing U.S. Const. amend. XIV, § 1; Deshaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989)). There are, however, two exceptions to this rule: (1) when a person is in state custody and therefore in a “special relationship” with the state and (2) when the state creates or increases the risk of harm to a person-that is, when a “state-created danger” caused a plaintiff's injury. Stiles, 819 F.3d at 853.

         In their complaint, Plaintiffs allege that the present case fits into both exceptions, thereby requiring NMS, under the Due Process Clause, to protect Joe R. from J.J.'s harassment. In their briefing however, Plaintiffs only develop the state-created danger theory. With respect to the special relationship exception, Plaintiffs' argument fails. A special relationship “arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” Stiles, 819 F.3d at 853 (citing Deshaney, 489 U.S. at 200). NMS imposed no limitations on Joe R.'s freedom to act. Moreover, the Sixth Circuit has “consistently rejected” the existence of a special relationship based on a school's knowledge of a student's special vulnerability. Id. at 854. Plaintiffs, therefore, cannot establish that NMS stood in a special relationship to Joe. R., comparable to, for example, the relationship between a state run psychiatric ward and an involuntarily committed mental patient. See Jones v. Union County, TN, 296 F.3d 417, 428 (citing Youngberg v. Romeo, 457 U.S. 307, 319 (1982)).

         With respect to the second exception, Plaintiffs have, however, presented evidence which raises a genuine issue of material fact as to whether some of Joe R.'s injuries were the product of a state-created danger. To succeed on a state-created danger theory, plaintiffs must establish: “(1) an affirmative act that creates or increases the risk to the plaintiff, (2) a special danger to the plaintiff as distinguished from the public at large, and (3) the requisite degree of state culpability.” Id. at 854 (citing McQueen v. Beecher Cmty. Schs. 433 F.3d 460, 464 (6th Cir. 2006)).

         As to the first element, the word “affirmative” is interpreted strictly; “omissions, ” such as “failing to enforce school policy, ” do not qualify as affirmative acts that create or increase the risk to the plaintiff. Stiles, 819 F.3d at 854-55 (citing Morrow v. Balaski, 719 F.3d 160, 178 (3d Cir. 2013) (failing to expel a bully was not an affirmative act); McQueen, 433 F.3d at 465-66 (teacher leaving students unsupervised did not create or increase the risk of peer-on-peer shooting)). To determine whether an affirmative state action increased danger to an individual, a court must ask “whether the individual was safer before the state action than after it.” Id. (citing Jasinski v. Tyler, 729 F.3d 531, 539 (6th Cir. 2013)). Plaintiffs argue that NCSD increased Joe R.'s risk of harassment by failing to properly train its staff about sexual harassment issues; that the Individual Novi Defendants increased Joe R.'s risk of harassment by failing to properly respond to J.J.'s and Joe R.'s conduct; and that Vera Williams increased Joe. R's risk of harassment by repeatedly placing him in a “seclusion room” with J.J. Because NCSD's alleged failure to train its staff, and the Individual Novi Defendants' alleged failure to properly respond to the boys' behavior, are omissions, they do not meet the strictly interpreted element of “affirmative acts” under a state-created danger theory of liability. The alleged conduct by special education Math teacher Vera Williams, however, is an affirmative act. Williams testified that she saw the boys touch each other in a manner that she considered inappropriate in September 2013. According to Joe R.'s testimony, throughout the 2013-14 school year, she “put” him and J.J. in a small separate room, which Plaintiffs call a “seclusion room, ” adjacent to their regular math classroom, “a lot.” (Dkt. 79, Ex. 25 at 71). In corroboration of Joe R.'s account, J.J. stated to Detective Bender that Vera Williams “always allowed” the boys to go into this room together. (Dkt. 79, Ex. 20 at 29). If true, placing Joe R. in, or allowing him to remain in, a small separate room with J.J., a much larger boy- who she had previously seen touch Joe R. inappropriately-is conduct that made Joe R. considerably more vulnerable to harassment than he would otherwise have been. Thus, although Ms. Williams denies that she ever allowed-let alone placed-the boys together by themselves in this separate room, Joe R. and J.J.'s statements create an issue of fact as to whether Ms. Williams committed an affirmative act which exposed Joe R. to a greater risk of being sexually harassed by J.J.

         The second element the Court must consider is whether by placing Joe. R into this separate room with J.J., Ms. Williams created a special danger to Joe R. A “special danger exists where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large.” McQueen, F.3d at 467-68. The facts adduced by Plaintiffs clearly create a jury issue regarding this prong: as established, before allegedly placing J.J. and Joe R. in the separate room with one another, Ms. Williams had already seen J.J. inappropriately touch Joe R., and, as she testified, at the time of the alleged harassment her belief was that each boy functioned at the level of a seven or eight-year-old. In addition, it is undisputed that when the harassment is said to have occurred J.J. physically towered over Joe R., so that the possibility of physical intimidation would have been apparent. Thus, if Ms. Williams did repeatedly place J.J. and Joe R. in a separate room, alone with one another, a jury could reasonably conclude that this act created a danger for Joe R. that a member of the general public would not have experienced.

         The third and final element of a state-created danger theory requires Plaintiffs to demonstrate that when Ms. Williams placed the boys in the separate room, she had the “requisite degree of culpability.” In cases, as here, where the state actor had time for deliberation and reflection, the requisite degree of culpability is subjective recklessness, or an “aware[ness] of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the actor] must also draw that inference.” McQueen, F.3d at 469. Subjective recklessness can be proven “circumstantially by evidence showing that the risk was so obvious that the official had to have known about it.” Id. As discussed, Vera Williams testified that she had seen the boys inappropriately touching in September 2013 and that she believed they functioned like seven or eight-year-olds. The difference in their physical size was also patently evident to her. Accordingly, a reasonable jury could conclude that Ms. Williams had to know that repeatedly secluding J.J. and Joe. R in a room with one another placed Joe R. at a greater risk of further inappropriate touching by J.J.

         Because Plaintiffs have presented sufficient evidence to create genuine issues of material fact regarding whether Ms. Williams, with the requisite awareness, took affirmative acts that endangered Joe R. in particular, Defendants' motion for summary judgment on Plaintiffs' § 1983 state-created danger, substantive due process claim against Ms. Williams (Count IV) is DENIED.

         As Plaintiffs have created a fact issue regarding whether Ms. Williams acted in violation of Joe R.'s substantive due process right to bodily integrity, the Court will now consider whether there also exist issues of fact for trial with respect to Plaintiffs' § 1983 supervisory liability claims against Superintendent Matthews, Principal Schriner, and Assistant Principal Comb, and Plaintiffs' municipal liability claim against NCSD. (Count IV).

         To establish supervisory liability, a § 1983 plaintiff must, at minimum, show that a supervisor knowingly acquiesced in unconstitutional conduct; as part of this inquiry, a court must consider whether an official's “execution of his or her job function” caused plaintiff's injury. Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016). As a second part of the inquiry in a § 1983 supervisory liability claim, a court must also consider whether there is a causal connection between the defendant's wrongful conduct and the violation alleged. Id. at 242. Peatross and Coley v. Lucas Cty., 799 F.3d 530 (6th Cir. 2015) illustrate conduct that the Sixth Circuit has considered “knowing acquiescence.” In Coley, the Court found that plaintiff stated a claim for § 1983 supervisory liability under a knowing acquiescence theory against a sheriff where one of the officers supervised by the sheriff used excessive force against plaintiff and the sheriff allegedly: (1) failed to train his staff regarding the use of excessive force (2) failed to properly investigate plaintiffs' allegations of the officer's use of excessive force and (3) made false statements to officials regarding the incident. Coley, 799 F.3d at 541-42. Similarly, in Peatross, the court found that a supervising officer knowingly acquiesced in the unconstitutional conduct of one of his subordinates where a subordinate used excessive force against plaintiff and the supervisor allegedly: (1) failed to train his charges in the use of excessive force (2) failed to properly investigate plaintiff's allegations and (3) attempted to cover-up the unconstitutional conduct of his subordinates by exonerating the officers. Peatross, 818 F.3d at 242-43.

         Here, Plaintiffs have presented sufficient evidence to create a genuine issue of material fact as to whether Principal Schriner knowingly acquiesced in Ms. Williams's violation of Joe R.'s Constitutional right to bodily integrity. As Principal Schriner testified, NMS had no transition system for students who the district considered to present behavioral issues; indeed, according to Mr. Comb, it was NMS policy to eschew examining its students' behavioral records. Moreover, as Principal Schriner further stated, NMS, in contravention of the Department of Education's 2011 Dear Colleague letter, had not offered its faculty any training for how to detect or respond to sexual harassment. In addition, Principal Schriner admits that on March 7, 2013, she, along with other NMS administrators including Superintendent Matthews, received an email from C.R. and J.R. alleging, among other things, that Joe R. had been subject to sexual abuse by a peer on a daily basis in a separate room during math class. (Dkt. 79, Ex. 2 at 152; Ex. 37). Upon receiving this letter, Superintendent Matthews asked Principal Schriner to “help him understand the context.” (Id. Ex. 38). Despite already having viewed J.P.'s video and learning of the report J.R. and C.R. filed with the Novi Police Department, Principal Schriner's investigation of the allegations consisted of having a single conversation with Ms. Williams “about the opportunity for students to be alone” in the separate room, which Ms. Williams states never occurred. (Id. Ex. 2 at 41-42). Then, after speaking with Ms. Williams, Principal Schriner pressured C.R. and J.R. to return their son to school, including all of his classes with J.J., according to her view that the boys' behavior was “mutual” and Joe R. was therefore in no danger. Principal Schriner's conduct arguably falls within the pattern of supervisory behavior that the Sixth Circuit considered knowing acquiescence in Peatross and Coley: that is, she failed to train and supervise her employees with respect to sexual harassment and when she learned of allegations of J.J. harassing Joe R. in a separate room that Ms. Williams placed them in she conducted a perfunctory investigation and took acts such as failing to ...


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