United States District Court, E.D. Michigan, Southern Division
C.R. and J.R., individually and as Next Friends of JOE R., a minor, Plaintiffs,
NOVI COMMUNITY SCHOOL DISTRICT, et al., Defendants.
R. STEVEN WHALEN Judge.
CONSOLIDATED ORDER RESOLVING CROSS-MOTIONS FOR
SUMMARY JUDGMENT (DKTS. 78, 79, 83, 84)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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).
and NMS Student Behavior Policies
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). 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
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
Alleged Harassment of Joe R.
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,  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). J.J. qualified for special
education programming under the eligibility category of
Emotionally Impaired. (Dkt. 79, Ex. 11). 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).
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,  (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). 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).
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.
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).
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).
Discovery of J.J.'s Alleged Harassment of Joe R. and the
NMS and Novi PD Investigations
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
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; there were no formal interventions,
and no NMS administrators were ever apprised of the issue,
nor were either of the boys' parents contacted.
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).
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). 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).
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). 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).
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). 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.). 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).
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). 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
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).
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). 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
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
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.
Plaintiffs', the Individual Novi Defendants', and
NCSD's Motions for Summary Judgment (Dkts. 79, 83,
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).
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.
NCSD's and Plaintiffs' Motions for Summary Judgment
on Plaintiffs' Title IX Claims (Counts I and II)
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).
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.
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.
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.
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).
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.
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.
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.
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.
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).
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
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.
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.
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.
The Individual Novi Defendants', NCSD's, and
Plaintiffs' Motions for Summary Judgment
on Plaintiffs' § 1983 Claims (Counts III and
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). The Individual Novi Defendants and NCSD
each move for summary judgment on these claims. (Dkts. 83 at
27-31; 84 at 37-41). 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'
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.
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)).
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. 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)
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.
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,
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)).
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.
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
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.
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.
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).
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.
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