Opinion
CA 00-0215-C
February 23, 2001
JUDGMENT
In accordance with the memorandum opinion and order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the defendants' motion for summary judgment, as amended (Docs. 38-40 47-48), be GRANTED, that plaintiffs complaint, as amended, be DISMISSED WITH PREJUDICE, and that the costs of this action be taxed to the plaintiff.
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendants' motion for summary judgment, as amended (Docs. 38-40 47-48), plaintiffs brief in opposition to the summary judgment motion (Doc. 54), defendants' reply to plaintiffs brief in opposition to the motion for summary judgment (Doc. 59), plaintiffs supplemental brief in opposition to the defendants' motion for summary judgment (Doc. 63), and the parties' oral arguments on January 8, 2001. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636 (c), for all proceedings, including disposition of this motion. (See Doc. 45 ("In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.")) Upon consideration of the contents of the briefs, all materials submitted in support of the briefs, and the arguments of counsel, the Court GRANTS the motion for summary judgment on plaintiffs claims and ORDERS that plaintiffs complaint, as amended, be DISMISSED WITH PREJUDICE.
In addition, the following relevant motions/documents have been filed in this case and will be addressed and/or ruled upon at various points throughout this opinion: (1) defendants' Notice of Filing of Documents Under Seal for In-Camera Inspection (Doc. 51); (2) plaintiffs Motion to Strike the Affidavit of Mary Ann Lomenick (Doc. 55; see Doc. 57 defendants' response to plaintiffs motion to strike)); (3) defendants' Motion to Compel Production by Non-Party Psychological Services of Mobile (Doc. 56); (4) defendants' Motion to Strike Exhibits to Plaintiffs Brief in Opposition to Defendants' Motion for Summary Judgment (Doc. 58; see Doc. 61 (plaintiffs response to defendants' motion to strike exhibits)); (5) defendants' Motion to Strike Portions of Plaintiffs Narrative Summary of Undisputed Facts (Doc. 60); and (6) plaintiffs Motion for Leave to File Supplemental Exhibit in Opposition to Summary Judgment (Doc. 62; see Doc. 64 (defendants' opposition to motion for leave to file supplemental exhibit)).
In light of this disposition, the defendants' Motion to Compel Production by NonParty Psychological Services of Mobile (Doc. 56) is deemed MOOT.
Any appeal taken from this memorandum opinion and order and judgment shall be made to the Eleventh Circuit Court of Appeals. ( See Doc. 45 ("An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court."))
FINDINGS OF FACT
1. K. F. was born on July 8, 1992 (Doc. 39, Exhibit 6, Deposition of K. F., at 17; see also Doc. 54, Deposition of K. F.'s Father, at 11) and began attending kindergarten classes at Monroeville Elementary School in Monroeville, Alabama during the 1997-1998 school year ( compare Doc. 39, Exhibit 1, Affidavit of Mary Ann Lomenick, ¶ 4 ("K. F. and M. D. were students in my first-grade class during the 1998-1999 school year . . . .") with Doc. 39, Exhibit 6, K. F. depo., at 10 (K. F.'s testimony that she started going to Monroeville Elementary when she was in kindergarten)).2. K. F. began the 1998-1999 school year in Mary Ann Lomenick's first grade classroom. (Doc. 39, Lomenick's aff., at ¶ 4) M. D. was one of K. F.'s classmates. ( Id.)
3. On two or three occasions prior to March 15, 1999, M. D. cursed in a loud voice at K. F. while the two classmates were on the playground during their P. E. session. (Doc. 39, K. F. depo., at 122-128; see also id. at 130-131 (M. D. never used bad words in the classroom, library or bathroom)) On these occasions, M. D. used the "M. F." word, the "B" word and the "N" word. ( Id. at 122-123) K. F. informed neither the P. E. teachers/aides or Ms. Lomenick about M. D.'s bad language. ( Id. at 126, 128 157) K. F. did, however, inform her mother of M. D.'s language. ( Id. at 126; see also Doc. 54, Deposition of K. F.'s Mother, at 91-92) K. F.'s mother went to Lomenick and told her about M. D. cursing at K. F. on the playground and also told Lomenick that K. F. was afraid of M. D. ( Id. at 92; see also id. at 99 (K. F.'s mother's testimony that she told Lomenick that she was not trying to get M. D. spanked but rather, she was trying to prevent her daughter from coming home with the bad words and from being bullied by M. D.)) Lomenick told K. F.'s mother that she knew M. D. was a bully and could understand why K. F. would be afraid of M. D. since M. D. was so much larger than her and other students in the class. ( See Id. at 96-97; Doc. 39, Exhibit 6, K. F. depo., at 107 (M. D. was the biggest girl in her first-grade class)) Lomenick also told K. F.'s mother that she would take care of things by talking with M. D. (Doc. 54, K. F.'s Mother depo., at 99)
Even though the Court found plaintiffs motion to compel the school records of M. D. moot by order dated November 20, 2000 (Doc. 46), the defendants, pursuant to an order issued in open court on November 16, 2000, filed the permanent educational records of M. D. for this Court's in camera inspection (Doc. 51). To the extent this Court need make any further ruling with respect to these records, it is noted that the records are irrelevant because they contain no information showing that the defendants had prior notice of the incidents forming the basis of plaintiffs complaints.
This Court has made its own findings of fact, following an independent review of the evidence, and therefore, finds it unnecessary to strike portions of plaintiffs narrative summary as requested by the defendants (Doc. 60). The defendants' motion to strike (Doc. 60) is accordingly, DENIED. Should the defendants disagree with any findings of fact made by the Court, they may make their objections known to the Eleventh Circuit Court of Appeals.
I felt that Mrs. Lomenick was concerned because at the time she showed concern.
And I felt that she was concerned. And I believed that she was going to stop M from bullying K.
And she acted as if she really understood the problem. So I thought that she was going to stop the problem.
And she gave me no reason to believe otherwise. And, you know, she told me that. She said, Mrs. F, she said, when you go home, she said, you let K know — because, see, Mrs. Lomenick knew. She knew that K had a problem with trust.
Because every time that I talked to her she always told me, Mrs. F, we need to work on getting K, letting her know that it's okay if she tells me these things because you're not here.
(Doc. 39, Exhibit 8, K. F.'s Mother depo., at 102)
4. In addition, some time prior to March 1999, while Lomenick's class was walking to the lunchroom, M. D. purposely swung her left elbow and hit K. F. in the left eye. (Doc. 39, K. F. depo., at 110-114 117) M. D. said "Oops" following contact and K. F. covered her eye; her eye did not bleed and she did not cry. (Doc. 39, K. F. depo., at 114) K. F. did not say anything to Lomenick or any other teacher about the incident ( id. at 115) because Lomenick was looking at M. D. when she hit K. F. ( id. at 118-120). K. F. reported the incident to her mother who said nothing and also to her father who told her to leave her eye alone and it would stop hurting. ( Id. at 116)
Prior to March 15, 1999, Lomenick's class went to lunch and sat in the cafeteria in alphabetical order by sex. ( Compare Doc. 39, Exhibit 1, Lomenick depo., at ¶ 5 12 (M. D. and K. F. sat next to each other at lunch before March 15, 1999 meeting) with Doc. 39, Exhibit 6, K. F. depo., at 111-112 (K. F. testified that she was in line behind M. D. because that is the way they were supposed to be but that this arrangement later changed))
5. During the early part of March 1999, K. F. told Lomenick that M. D. asked her to pull up her dress and show her panties to the boys. (Doc. 54, Deposition of Mary Ann Lomenick, at 47) "So I called MD to me, and I asked her what did she say, and she tried to tell me that another student said it also. She agreed that she said it. So I called another student, and I asked her if she said it also, and she said, `No, ma'am, I didn't say it. MD said it.' So I handled the situation with MD." ( Id.) Lomenick informed K. F.'s mother, when she came to speak with her about the incident, that she had punished M. D. by moving her to a different-colored light and putting her in timeout. ( See Doc. 54, K. F.'s Mother depo., at 111) K. F. also told her mother that M. D. had been punished for the dress incident. ( Id.) "And I'm thinking, you know, that was sufficient punishment. Because K told me that when Mrs. Lomenick did it M started crying. When she put her in the time-out or whatever that M started crying, and that she cried the whole time that she was there until Mrs. Lomenick let her off the punishment." ( Id. at 116)
During her conversation with her daughter, K. F.'s mother reminded K. F. of an earlier discussion wherein she had been told that if M. D. or any other student did anything to her she was supposed to tell Ms. Lomenick and K. F. told her mother that she told Lomenick about the incident. ( Id. at 112)
6. On March 12, 1999, M. D. hit and scratched K. F.'s vagina with her fingernail while their class was in the library watching a movie and checking-in books under the librarian's supervision. (Doc. 39, Exhibit 6, K. F. depo., at 58, 71 160-162) Lomenick's class was the only class in the library at the time and the students were seated at small round tables in the middle of the library where there are no bookshelves. ( Id. at 59-60 71-72) The librarian, Mrs. Broughton, was sitting at her desk in close proximity to the round tables checking-in books K. F.'s class was returning to the library. ( See id. at 71-72 75; see also Doc. 39, Exhibit 3, Affidavit of Maurine Broughton, at ¶ 6 ("At no time did I leave the students alone in the library on March 12, 1999. I stood in front of the library and monitored the students as they watched a computer CD-ROM. I checked out books at the check-out counter.")) K. F. and M. D. were sitting alone at one of the round tables when M. D. scratched her. (Doc. 39, Exhibit 6, K. F. depo., at 73; but cf. Doc. 39, Exhibit 3, Broughton aff., at ¶ 4 ("K. F. and M. D. sat at different tables at the library, and at no time did I observe K. F. and M. D. interacting with each other on March 12, 1999.")) K. F. twice told M. D. to stop and hit M. D.'s hand three times to make her stop. (Doc. 39, Exhibit 6, K. F. depo., at 70 73-77) K. F. neither hit M. D. loudly enough or told her to stop loudly enough for any of her classmates or Mrs. Broughton to take notice. ( Id. at 73, 77 82; see id. at 78 ("The reason why I wasn't loud [was] because I thought maybe I would get in trouble.")) M. D. stopped her assault on K. F. when she saw Mrs. Broughton get up from her desk. ( Id. at 75) Neither Broughton or Lomenick learned of the assault that day because K. F. did not tell them about M. D.'s attack ( id. at 68 87; see also Doc. 39, Lomenick aff., at ¶ 5 ("I was surprised by the allegations because K. F. did not mention a problem to me when I took the children from the library to my classroom on March 12, 1999. Also, no other students reported anything to me, even though the children in my class usually reported any kind of out-of-the-ordinary activities.")); however, K. F. did cry after the assault and Mrs. Broughton saw her crying but said nothing (Doc. 39, Exhibit 6, K. F. depo., at 84-86; but cf. Doc. 39, Exhibit 3, Broughton aff., at ¶ 3 ("I was surprised by the allegations because K. F. did not inform me of the allegations when I checked out her book on March 12, 1999. In fact, K. F. looked at me as she normally did. She did not cry or do anything outside of the ordinary. Furthermore, although first graders usually tell if a classmate does anything improper, no other students reported the incident to me either.")).
K. F. was dressed in a dress and panties. ( Id. at 161) M. D. did not take K. F.'s panties or dress off during the assault. ( Id. at 161-162)
K. F. testified that there was nothing that kept her from telling Broughton about M. D.'s assault, she simply did not tell her. ( Id. at 87)
7. K. F.'s parents took her to the emergency room on Sunday March 14, 1999, after K. F.'s mother noticed a discharge on K. F.'s underwear on March 13, 1999, spoke to K. F. about the discharge and complaints from the child that bathing her private area hurt, and observed scratches and tearing in the vaginal area. ( See Doc. 54, K. F. Mother's depo., at 118-125 129; Doc. 54, Exhibit 1 (Dr. Marsha Raulerson's notes reveal an examination of K. F. on March 14, 1999 in the emergency room)) "I said, K, remember the conversation that you and I and daddy had about if anybody tried to touch you in your private area — by the time I said private area, her automatic reaction was and she started to cry even more, she said, but, mama, M did this. M did that mama. I tried to fight her, but she wouldn't stop. I said, M did what? She said, she hurt me down there." (Doc. 54, K. F. Mother's depo., at 123) Dr. Raulerson's physical examination of K. F. revealed "a penetration injury to introitus and abrasion on labia[.]" (Doc. 54, Exhibit 1)
Introitus is "a general term for the entrance to a cavity or space." THE SLOANEDORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY, at 386 (1987).
8. On March 15, 1999, K. F.'s father went to Monroeville Elementary School and informed the principal, Deborah Marriott, that K. F. "had been `digitally penetrated' by another female first-grade student on Friday, March 12, 1999 during library time." (Doc. 39, Exhibit 2, Affidavit of Deborah Marriott, at ¶ 3) K. F.'s father also informed Marriott that the Department of Human Resources would investigate the allegations. ( Id.)
4. I immediately began an investigation into the allegations.
5. As part of my investigation, I interviewed Maurine Broughton (the librarian); Mary Ann Lomenick (K. F. and M. D.'s classroom teacher); K. F.; and M. D.
6. I also contacted M. D.'s mother to inform her of the allegations made against M. D. M. D.'s mother came to the school and met with me, K. F.'s father, Maurine Broughton, Mary Ann Lomenick and Assistant Principal Carolyn Ellis.
7. Maurine Broughton stated that she had been monitoring the class in the library and she did not see K. F. and M. D. interact during their library period on March 12, 1999. She stated that they sat at different tables. She also stated that she interacted with both K. F. and M. D. individually on March 12, 1999. She did not see that K. F. was crying, nor did K. F. report the incident to her. Additionally, no other child reported any improper activity by M. D., even though at this age, children often tell their teacher if another child acts improperly.
8. Mary Ann Lomenick stated that she was not present when the children were in the library on March 12, 1999. She also stated that she was not aware of the allegations and that K. F. had not reported the incident to her. She stated that K. F. gave no signs of being upset or distraught following the library period and that no other child reported anything to her.
9. When asked about the allegations, K. F., in the presence of her father, agreed with what her father had reported to me. K. F. did not independently state what allegedly happened in the library; she simply agreed with her father's version of events.
10. When asked about the allegations made by K. F.'s father, M. D. repeatedly denied the allegations and cried while doing so. M. D.'s response seemed appropriate given her age and the nature of the allegations. At some point during the meeting, M. D.'s mother insisted that I stop questioning M. D.
11. During the meeting, I offered to move K. F. to another classroom but K. F.'s father refused to have his child moved . . . .
12. All parties agreed that K. F. and M. D. would be separated at lunch (because they usually sat next to each other at the lunchroom table).
13. I advised K. F.'s father that the staff would monitor K. F. and M. D. to be alert to future interactions between the two children. Maurine Broughton and Mary Ann Lomenick assured K. F.'s father of their concern as well.
14. I met with the physical education teacher Wendy Baggett and aides, Melissa Elliott, Mike McQueen, and Darlene Chandler. I asked them to be particularly observant of the children. I also asked them to be cautious when pairing students for classroom activities. Because the aides work car duty in the mornings and afternoons, I asked them to pay particular attention to K. F. and M. D. in the mornings when children are dropped off before school and in the afternoons when they are picked up. I also asked them to do the same during the children's physical education class, and to so the same when monitoring the outside and inside hallways and walkways and when monitoring the cafeteria.
15. During the meeting, K. F. was instructed to scream or do whatever she needed to do to get an adult's attention if M. D. or anyone else bothered her again.
While it is Marriott's recollection that at this same meeting she offered to move M. D. to another classroom, an offer which was rejected by M. D.'s mother ( id.), it is K. F.'s father's recollection that Marriott only offered to have K. F. change classrooms (Doc. 54, K. F.'s Father depo., at 80).
This was the only change in seating agreed upon because it is clear that the students in Lomenick's class did not sit in alphabetical order in the classroom. (Doc. 39. Exhibit 6, K. F. depo., at 105 111-112 (K. F.'s testimony that lunchroom seating assignment changed at some point in time during the first grade))
See also Doc. 47, Exhibit 12, Deposition of Deborah Marriott, at 26, 28-33 36 (Marriott's testimony about the steps taken to keep M. D. and K. F. apart as best as possible under the circumstances).
While it is Marriott's recollection that at this same meeting she offered to move M. D. to another classroom, an offer which was rejected by M. D.'s mother ( id.), it is K. F.'s father's recollection that Marriott only offered to have K. F. change classrooms (Doc. 54, K. F.'s Father depo., at 80).
This was the only change in seating agreed upon because it is clear that the students in Lomenick's class did not sit in alphabetical order in the classroom. (Doc. 39. Exhibit 6, K. F. depo., at 105 111-112 (K. F.'s testimony that lunchroom seating assignment changed at some point in time during the first grade))
See also Doc. 47, Exhibit 12, Deposition of Deborah Marriott, at 26, 28-33 36 (Marriott's testimony about the steps taken to keep M. D. and K. F. apart as best as possible under the circumstances).
16. K. F. agreed to do so.
( Id., at ¶¶ 4-16; see also Doc. 54, K. F.'s Father depo., at 79-81 ("I went out and told Ms. Marriott that K had been digitally penetrated by M D. So Ms. Marriott, she was standing out there unloading the school buses. So we went inside the office and talked about it. And then she called Ms. Lomenick, Ms. Ellis, Ms. Broughton, and M [D's mother] — M D. And, you know, we — we discussed what had gone on. And I told Ms. Marriott I wanted M moved. So she told me that — she said that she could move K, but she couldn't move M. So we talked. And then M [D's mother], she called for M. And M [D's mother] went outside and got M. Well, M [D's mother] pulled M aside and talked to her before she came in the room with us. And then I think they brought K — she brought K in. . . . And then M [D's mother] left school and came back with her mother, her father, and her brother. And they came in and made a scene, so I told — I told them I was going back to work."))
9. After the meeting, Marriott telephoned the Monroe County Department of Human Resources and was advised that a representative from the Conecuh County Department of Human Resources would be investigating the matter beginning on March 16, 1999. (Doc. 39, Marriott aff., at ¶ 17; see also Doc. 54, K. F.'s Father depo., at 81 (testimony that his supervisor at the Monroe County Department of Human Resources told him that the Conecuh County Department of Human Resources was handling the investigation))
K. F.'s father is employed as a Social Worker II with the Monroe County Department of Human Resources. (Doc. 39, Exhibit 7, K. F.'s Father depo., at 13)
18. On Tuesday, March 16, 1999, Conecuh County Department of Human Resources representative, Lucy Calloway, came to Monroeville Elementary School to investigate K. F.'s allegations.
19. On Tuesday, March 16, 1999, Kathy McCullough, a social worker with Conecuh County DHR came to the school to investigate K. F.'s father's allegations. I arranged for Ms. McCullough to speak with M. D. To the best of my knowledge and belief, she also spoke with K. F., Maurine Broughton, and Mary Ann Lomenick.
20. On the afternoon of March 16, 1999, I received a telephone call from M. D.'s mother. M. D.'s mother was extremely upset that I had allowed M. D. to be questioned by DHR representatives. M. D.'s mother informed me that she would contact the superintendent of Monroe County Schools, the chairperson of the Monroe County Board of Education, and her attorneys about the matter.
21. I later received the attached letter from M. D.'s mother dated March 16, 1999, advising me that no one was to question M. D. without her mother's presence or permission. . . .
This note reads as follows: "During our meeting on Monday, March 15, 1999, at 8:42 a.m., I stopped you from questioning my child about an alledge (sic) incident brought to you by Mr. W F, who was introduced to me as a representative of the Department of Human Resource[s] of Monroe County. If I stopped you from questioning my child in my presence and in the presence of a representative from Monroe County's Department [of] Human Resource[s], why did you pull my child from Mrs. Lomenick's class on Tuesday, March 16, 1999, and allow her to be questioned by Kathy McCollough, who is a representative from Conecuh County's Department of Human Resource[s]? Under no circumstances is M to be questioned by anyone without my presence or permission." (Doc. 39, Exhibit A to Marriott aff.)
This note reads as follows: "During our meeting on Monday, March 15, 1999, at 8:42 a.m., I stopped you from questioning my child about an alledge (sic) incident brought to you by Mr. W F, who was introduced to me as a representative of the Department of Human Resource[s] of Monroe County. If I stopped you from questioning my child in my presence and in the presence of a representative from Monroe County's Department [of] Human Resource[s], why did you pull my child from Mrs. Lomenick's class on Tuesday, March 16, 1999, and allow her to be questioned by Kathy McCollough, who is a representative from Conecuh County's Department of Human Resource[s]? Under no circumstances is M to be questioned by anyone without my presence or permission." (Doc. 39, Exhibit A to Marriott aff.)
(Doc. 39, Marriott aff., at ¶¶ 18-21)
10. Following the meeting, Lomenick took steps, in addition to the meeting agreement that K. F. and M. D. would not sit together in the lunchroom, to make it less likely for K. F. and M. D. to have significant contact during restroom and water breaks. (Doc. 39, Lomenick aff., at ¶¶ 13-14)
13. . . . For example, after lunch, my female students lined up in alphabetical order. After the seating arrangement was changed following K. F.'s father's allegations, the order was as follows: M. D., M. G., A. M., K. F. They were sent into the restroom three at a time. However, K. F. was not allowed to enter the restroom until M. D. exited, and M. D. was not allowed to enter the restroom until K. F. exited.
14. When lining up my class for restroom breaks, I separate the children into lines of boys and girls. While the children were in the restrooms, I stood outside the main door of the girls['] restroom with the outside door propped open. While standing at the door, I could hear any conversation between students in the girls' restroom.
Plaintiff has moved to strike the affidavit of Mary Ann Lomenick (Doc. 55; see Doc. 57 (defendants' response to plaintiffs motion to strike)). The law in this circuit is clear about when an affidavit may be stricken, in whole or in part, as a sham.
[A] party cannot give "clear answers to unambiguous questions' in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction. Van T. Junkins and Associates v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984). When this occurs, the court may disregard the affidavit as a sham. Id. at 658-59. We apply this rule sparingly because of the harsh effect this rule may have on a party's case. In addition, we feel that `[t]o allow every failure of memory or variation in a witness' testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the . . . affiant . . . was stating the truth." Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir. 1986). Thus, our cases require a court to find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit. See id. at 954. If no inherent inconsistency exists, the general rule allowing an affidavit to create a genuine issue "even if it conflicts with earlier testimony in the party's deposition." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980), governs. In these instances, any conflict or discrepancy between the two documents can be brought out at trial and considered by the trier of fact.Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (footnote omitted); see also Lambert v. The Independent Life Accident Ins. Co., 994 F. Supp. 1385, 1389 (M.D.Ala. 1998) ("When comparing discrepancies between affidavits and earlier deposition testimony, the district court must distinguish between discrepancies `which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.' . . . `An affidavit may only be disregarded as a sham `when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact . . . [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.'" ". . . Only those affidavit statements which are `inherently inconsistent' with earlier deposition testimony should be stricken."); Treadwell v. Dow-United Technologies, 970 F. Supp. 962, 967 (M.D.Ala. 1997) (same); Brassfield v. Jack McLendon Furniture, Inc., 953 F. Supp. 1424, 1430 (M.D.Ala. 1996) (same); Bullard v. Widnall, 953 F. Supp. 1461, 1474-1475 n. 22 (M.D.Ala. 1996) (same), aff'd, 149 F.3d 1196 (11th Cir. 1998).
Plaintiff simply has not satisfied his burden of showing that Lomenick's affidavit should be disregarded as a sham. First, plaintiff cannot show that Lomenick gave clear answers to unambiguous questions which negate the existence of any genuine issue of material fact. Plaintiff contends that Lomenick, in her deposition, never discussed any plan to keep M. D. separated from K. F. and denied having any supervisory responsibility for either assault. The insurmountable problem plaintiff faces in making this argument, however, is that Lomenick was not asked any questions which would have given her an opportunity to lay out the steps she took to keep M. D. and K. F. separated, as much as possible, during water and bathroom breaks. Moreover, to strike Lomenick's affidavit as a sham because she answered in the negative (i.e., "not under my supervision") when posed a question that assumed that neither incident was alleged to have happened in her classroom ( see Doc. 54, Lomenick depo., at 36) would itself be a sham since there is no further elucidation regarding her answer as it relates to the bathroom assault ( see id. at 36-37 43) and from K. F.'s mother's own testimony it is clear that Lomenick did institute a change in the bathroom order because this witness testified that K. F. told her on the date of the second assault that M. D. got in trouble and was moved by Lomenick to the back of the line which caused K. F. to be in the restroom at the same time with M. D. (Doc. 54, K. F.'s Mother depo., at 172-173).
In light of the foregoing, plaintiffs motion to strike Lomenick's affidavit (Doc. 55) is DENIED.
11. On March 19, 1999, Marriott informed Monroe County Superintendent Dennis Mixon of the allegations and that both she and the Conecuh County Department of Human Resources were investigating those allegations. (Doc. 39, Exhibit 2, Marriott aff., at ¶ 22; see also Doc. 39, Exhibit 5, Affidavit of Dennis Mixon, at ¶¶ 2-3 (same))
Q. What allegations did she say that the Fs had made?
A. That there had been an incident in the library involving two students.
Q. And what did she say happened?
A. She said the allegation was that one student had — another student had digitally penetrated K F.
Q. Did she tell you who the students were?
A. I believe she might have mentioned their names, yes. But I did not know them.
Q. Did she tell you anything else about the allegations?
A. No.
Q. Did you give her any instructions?
A. I asked what was being done, and she told me that this was being investigated.
Q. And did she say how she was investigating it?
A. She was speaking with the librarian, who would be Maureen (sic) Broughton and also the classroom teacher, Mrs. Lomenick.
Q. Did she tell you anything else about the investigation?
A. I don't believe so, no.
Q. Did you leave it up to her to handle the investigation? Mrs. Marriott?
A. Between the school and DHR, yes.
Q. And did you trust Mrs. Marriott's competency to handle this matter?
A. I did.
Q. Did you consider it a serious matter?
A. I did.
Q. Did you make yourself any credibility cause as to whether this incident actually happened?
A. No.
Q. And did you investigate the matter any?
A. Not personally.
Q. Do you know what Mrs. Marriott did to investigate? Did you follow up on that conversation?
A. She did report back to me, yes.
Q. And what did she report?
A. She reported DHR's findings.
Q. And what were those?
A. That no action would be taken.
Q. And did she report any findings of her own?
A. No formal report, no.
Q. Was there an informal report?
A. Other than the phone conversation, no.
Q. Okay. Well, tell me about the phone conversation. What did she say? And what did you say?
A. That DHR was investigating; that no action had been taken by them as a result of their investigation; and that the monitoring procedures that she had put into place were continuing; and that she had offered to move K F from the class and the father refused.
Q. Did she tell you what monitoring procedures she was using?
A. She did. Just increased supervision, assigning the school personnel to supervise the children at all times.
Q. Did she say that as part of the monitoring procedure that she was going to try to keep the children apart?
A. I don't recall.
Q. Did she say as part of the monitoring procedure they were going to try to make sure that M D and K F didn't get into the same place together alone?
A. I don't know that she specifically stated that, no.
Q. Do you think that the children should have been separated?
A. That opportunity was given, and the father refused.
Q. But I'm just saying: Do you think that the children should have been separated? or do you have an opinion on that?
A. That opportunity was given. It was refused.
Q. I understand that, sir. I'm asking: Do you personally think that those two children should have been separated?
MR. BOARDMAN: Let me ask you not to speculate on the answer to the question. He wants to know if you'd reached that — you're not asking him right now if he's reached that conclusion, but if he had reached the conclusion earlier?
A. At that point, no.
Q. At any point, did you determine that these two children should be separated?
A. At a later point when the second allegation was made, they were separated, which I thought was appropriate action, yes.
(Doc. 54, Deposition of Dennis Mixon, at 13-18)
12. On April 7, 1999, K. F. sat by M. D. during story time. (Doc. 39, Exhibit 1, Lomenick aff., at ¶ 16) Lomenick did not make either child move because she did not want to make either uncomfortable. ( Id.)
13. On or about April 12, 1999, Lomenick asked K. F. if she liked her seating assignment at lunch and when she replied she did not Lomenick told her that she could not move her until she spoke with her parents. ( Id., at ¶ 17) K. F.'s mother, however, relays a very different version of the discussion. (Doc. 54, K. F.'s Mother depo., at 158-159)
I said, tell me what happened today. She said, mama, we were in the lunch room and we were eating lunch. And she said, she said, Mrs. Lomenick came and asked me if M was still bothering me and I told her yes.
And she said, then Mrs. Lomenick asked me if I wanted to sit back next to M, and I told her no.
And I said, what happened then? She said, on Monday Mrs. Lomenick told me — she said after Mrs. Lomenick asked me if I wanted to sit back next to her and I told her no, she told me, well, you're going to sit back next to her anyway on Monday.
I said, well, don't worry about it. You don't have to sit back next to M. I said calm down. I said don't get upset about it.
I said we'll tell daddy. And I said I'm quite sure we can get this straightened out. I said, I don't know why she's doing that. I said, but we'll get it straightened out.
( Id.) K. F.'s father called Marriott, on or about April 16 or 19, 1999, and asked the principal why Lomenick was going to change the lunchroom seating arrangements to where they were prior to the March 15, 1999 meeting. ( See Doc. 54, K. F.'s Father depo., at 100) Marriott informed K. F.'s father that she would have Lomenick call him and Lomenick did make the call. ( Id.) When K. F.'s father asked Lomenick about her plan to seat K. F. and M. D. next to each other in the lunchroom, Lomenick simply stated that she thought K. F. and M. D. were going to be friends. ( Id. at 101) K. F.'s father was incredulous, telling Lomenick that he could not understand how she could think K. F. could be friends with a girl who had digitally penetrated her and further, that he did not want K. F. sitting next to M. D. ( Id. at 101-102; see Doc. 39, Exhibit 1, Lomenick aff., at 18 ("I told K. F.'s father that K. F. did not sit by M. D. during lunch nor would I move K. F. to sit next to M. D.")) Moreover, K. F.'s mother went to the school on the same day that her husband spoke with Lomenick by phone to speak with Lomenick in person. (Doc. 54, K. F.'s Mother depo., at 163-165)
And I told her, I said, Mrs. Lomenick, I said, I don't understand why you wanted to put K back next to M. I said, I've told you this before, but K is terrified of M. She is absolutely terrified of her.
She said, well, Mrs. F, I really and truly believed that K and M were going to be friends.
I said, how can you say that they were going to be friends? I said, I can't pick or choose K's friends. And you can't pick or choose K's friends. K has to do that for herself.
I said K has told you that she does not like M. And I said, I have told you on several occasions that K is afraid of M.
So explain to me why you wanted to put them back sitting next to each other. I said K is terrified of M.
She told me, she said, well, Mrs. F, one time I called them up to read. And she said, I had two chairs sitting out. She said, and K came up and sat in the chair to read. And M came behind her. And they looked at each other and smiled.
I said, well, K has not told me anything to that effect . . . .
But I stressed to her, I said, Dr. Bennett has told us that under no circumstances is this child to be allowed to hurt K again.
I said, he told us that K will probably get over this first incident if we continue to assure her that it was not her fault and that she can come to us and talk to us at any time and let us know if she's having a problem.
And I said, he said that if this happens again it's going to devastate her. And I told Mrs. Lomenick this.
She said, well, I think it's important that you continue to get her the help that she needs. And I said, well, we fully intend to do that.
( Id.; but cf. Doc. 39, Exhibit 1, Lomenick aff., at ¶ 19 ("On the afternoon of April 13, 1999, K. F.'s mother came to my classroom and informed me that she did not want K. F. to sit by M. D. during lunch. I told her of my conversation with K. F. and informed her that K. F. did not sit by M. D. during lunch that day or any other day."))
14. One or two days prior to April 26, 1999, M. D. again scratched K. F. on her vagina while the two girls were in the girls' bathroom by the first-grade classrooms. ( See Doc. 39, Exhibit 6, K. F.'s depo., at 162-165) M. D. crawled under the stall door to enter K. F.'s stall. ( Id. at 91) K. F. twice kicked M. D. but did not shout to Lomenick for her assistance. ( Id. at 93-95; see id. at 46-48 90 (K. F.'s testimony that Lomenick took the entire class to the bathroom, allowed only a few students to go in at a time, stood outside the bathroom and could hear what was going on in the bathrooms since the students were not allowed to use the automatic hand-drier))
15. When K. F. walked out of the bathroom, Lomenick was not outside the bathroom nor was she in the classroom and therefore, she did not tell her teacher what M. D. had done to her. ( Id. at 143-144) K. F. testified that she did not tell Lomenick the next day what had happened because she did not trust her since Lomenick had told her on one occasion when she complained about "Douglas" kicking her that God did not like it when you told on other people and on another occasion gave her a Jolly Rancher instead of the sucker everybody else received. ( Id. at 147-150) She also testified at this point in her deposition that Lomenick was not a good teacher ( id. at 147) despite earlier clear testimony, to admittedly leading questions, that she enjoyed first grade, that Lomenick was a good teacher ( id. at 11; see also id. at 12 67), and that she could always talk to Lomenick if something happened to her ( id. at 29). K. F. also did not tell anyone else of the assault ( id. at 156), specifically her kindergarten teacher, the principal or the P. E. teachers, despite clear testimony that she trusted all of them ( id. at 144-145 151-152) and felt that she could go and talk to them if anything ever happened to her ( id. at 27-29, 39-43 144-145).
16. The following Saturday when her mother discovered a discharge in her underwear similar to that discovered on March 15, 1999, K. F. told her mother that she had again been assaulted by M. D., this time in the bathroom. (Doc. 54, K. F.'s Mother depo., at 172-174) K. F.'s parents took K. F. to Dr. Raulerson the following Monday because Raulerson was out-of-town and told K. F.'s mother that K. F.'s condition would not change between Saturday and Monday. ( Id. at 176-178)
17. K. F. was examined by Dr. Raulerson on April 26, 1999. (Doc. 54, Exhibit 1) Physical examination of K. F.'s genitalia revealed an intact hymen and a slight increase in redness but no abrasions. ( Id.)
18. On that same date, K. F.'s mother and father went to Marriott's office and reported that M. D. had assaulted K. F. while the two girls were alone in the bathroom on Thursday, April 22, 1999. (Doc. 39, Exhibit 2, Marriott aff., at 26) Marriott called Lomenick to the office to speak with K. F.'s parents and her about the bathroom allegations. ( Id., at ¶ 28) K. F.'s mother relays that the following discussion took place once Lomenick reached the office:
Mrs. Marriott started off, and she told Mrs. Lomenick what we had said, that K had said that M had hurt her again.
And I proceeded to tell Mrs. Lomenick what K had said. And I said K said that when she left the bathroom and got back to the classroom the lights were off, that the other children had their heads down and you were not there.
And she said, well, I can't remember. She said, I don't know where I was. She said, I just cannot remember where I was.
Mrs. Marriott asked her where was the aide that was supposed to have been there with her. She said, well, she wasn't here . . . that day when it happened to . . . K. She said she wasn't there that day.
She said, I had them by myself. And she said, Mrs. F, she said, I don't remember where I was.
I said, well, you knew that you were not supposed to leave them alone.
That's when she told me, she said, but K knew . . . better than to stay in the bathroom with M.
(Doc. 54, K. F.'s Mother depo., at 183-185; but cf. Doc. 39, Exhibit 2, Marriott aff., at ¶ 29 ("Ms. Lomenick reassured me that she had implemented measures to be sure that K. F. and M. D. were never in the restroom together at any time following the allegations reported on March 15, 1999. Further, Ms. Lomenick reported that at no time did K. F. appear upset or distraught on April 22, 1999. K. F. had never screamed out or told anyone at school about the alleged April 22, 1999, incident."); Doc. 39, Exhibit 1, Lomenick aff., at ¶¶ 22-23 ("During the time period of the allegations made on April 26, 1999, my class was arranged in rows 1 through 5. M. D. sat on row 5. K. F. sat on row 2. . . . Each row took turns going to the bathroom first. (Row 1 went first on Monday, then rows 2, 3, 4 and 5; Row 2 went first on Tuesdays, then rows 3, 4, 5 and 1; Row 3 went first on Wednesdays, then rows 4, 5, 1 and 2; Row 4 went first on Thursdays, then rows 5, 1, 2 and 3; Row 5 went first on Fridays, then rows 1, 2, 3 and 4.) Therefore, on Thursdays, row 4 would have lined up first. Because row 4 went first on Thursdays, M. D. would have been in the restroom before K. F. . . . After K. F.'s father's allegations on March 15, 1999, I did not allow K. F. to enter the restroom if M. D. was already in the restroom; nor did I allow M. D. to enter the restroom if K. F. was already in the restroom."))
19. During the April 26, 1999 meeting, K. F.'s parents agreed to move K. F. to another first-grade classroom. (Doc. 39, Exhibit 2, Marriott aff., at ¶ 30) "I asked K. F.'s parents if there was anything else they wanted us to do to help K. F. K. F.'s parents did not ask me to take any additional steps." ( Id. at ¶ 32; see also Doc. 47, Exhibit 12, Marriott depo., at 62-63 ("I asked the parents was there anything that we could do that we had not already taken care of in the move, and they didn't ask for anything else, and I couldn't think of anything else. We did get the counselor again to be certain that they were watched going to the lunchroom and that sort of thing in the mornings. Everyone was still very conscious of the children's interactions.")) K. F. completed her first-grade year in Ms. Crim's classroom. (Doc. 39, Exhibit 6, K. F. depo., at 66 (improperly spelled "Krimm" in deposition))
In addition, K. F.'s parents agreed to Marriott's suggestion that a teacher escort K. F. and her brother to the cafeteria in the mornings and walk them to their classrooms. ( Id., at ¶ 31) Carol Rogers was assigned this duty. ( Id.)
20. On May 7, 1999, Marriott was informed by K. F.'s father that M. D. and K. F. were on the same bus during a field trip. (Doc. 39, Exhibit 2, Marriott aff., at ¶ 33)
K. F.'s father did not allege that the children interacted or that M. D. in any way assaulted or harassed K. F. The bus had numerous adult chaperons and teachers on it.
In response to K. F.'s father's concern, I spoke with the teachers on the bus (Ms. Lomenick and Ms. Crim). Both teachers assured me that although K. F. and M. D. were on the same bus, the two children were not seated next to or near each other and in no way interacted with each other.
( Id. at ¶¶ 33-34; see also Doc. 39, Exhibit 1, Lomenick aff., at ¶ 26 ("On May 7, 1999, Monroeville Elementary School students took a field trip to Mobile, Alabama. The first grade classes were placed on a bus together. I was one of at least six adults on the first-grade class bus. K. F. and M. D. were not seated together, nor were they near each other on the bus. They did not interact with each other while on the bus. My class sat in the front of the bus. K. F.'s class sat in the back of the bus. I sat with M. D. for part of the bus ride."))
21. On May 18, 1999, Lucy Calloway, the Conecuh County DHR representative, spoke to Marriott at Monroeville Elementary School regarding all allegations made by K. F.'s father. (Doc. 39, Exhibit 2, Marriott aff., at ¶ 35)
Ms. Calloway and I agreed that she would come back the following day to interview K. F. She also stated that she would visit M. D.'s home and speak with her there. She also advised me that the staff at Monroeville Elementary School was acting properly in its responses to K. F.'s father's allegations.
On May 19, 1999, M. D.'s mother called me and expressed her concerns about DHR questioning her child. She advised me that M. D. was having problems with nervousness and that M. D. did not want to come to school. She also warned me that there would be "hell" if we continued to treat her child as if she had done something that she said she did not do.
On May 21, 1999, I met with K. F.'s father and K. F.'s father requested notification before anyone else spoke with K. F. regarding the allegations. I advised him that if the DHR investigators returned, I would contact him and let he and the Conecuh County DHR reach an agreement.
( Id. at 35-37)
22. Sometime in June of 1999, Marriott received a letter from the Conecuh County Department of Human Resources dated June 9, 1999, advising that the charges of inadequate supervision were "`not indicated.'" ( Id. at 38)
23. On August 28, 1999, K. F. was taken by her mother to see Dr. Kirby J. Plessala, an obstetrician/gynecologist. (Doc. 47, Exhibit 15)
K is a 7 year old black female, presenting with her mother M today, having on and off irritation for the past several weeks of some brownish yellowish discharge; K also says that when she gets in the tub it burns; she does not have any dysuria. She's seen pediatricians twice; had negative urinalysis and urine cultures; recommended Dove soap and that also burns her. Everything placed onto the vulva burns her. Today on exam, she has a normal appearing prepubescent vulva; hymeneal area is intact, no evidence of trauma or sexual contact; she does have a little bit of yellowish discharge — this is sent for culture. Prepubescent vaginal discharge; probably due to hygiene and contamination. Amoxil; check vaginal culture; followup PRN."
( Id.)
24. K. F. returned to Monroeville Elementary School to attend second grade during the 1999-2000 school year; she was in Ms. McDaniel's classroom. ( See Doc. 39, Exhibit 6, K. F. depo., at 67 131) One day during her second grade year, while K. F.'s class was eating lunch and M. D.'s class was putting their trays away, K. F. overheard M. D. tell a girl named Courtney that K. F. made her sick. ( See id. at 131-132 139-140) Moreover, the following occurred:
3. On or about September 13, 1999, K. F.'s father advised me that K. F. had told him that M. D. had hit her on the arm during the previous week.
4. I told him that I would investigate the allegation and would speak with the children to find out what happened.
5. After K. F.'s father left my office, I called M. D. to my office. I also contacted M. D.'s mother so that she would be present when I questioned M. D.
6. M. D. denied that she had hit or had even seen K. F. that morning.
7. In an effort to extend the same courtesy to K. F.'s father that had been extended to M. D.'s mother, I called K. F.'s father at work to arrange a time to meet with him and K. F. I left several messages for him, beginning the morning of September 13, 1999. I confirmed with the staff at his office that he received my messages.
8. I was finally able to reach K. F.'s father by phone on September 17, 1999. I informed him that I wanted to extend to him the same opportunity extended to M. D. and her mother. He informed me that he would call me back to arrange a time to meet. I expressed to him my concern that five days had elapsed since the allegation was made, and I still had not been able to speak with K. F. about the allegation.
9. On September 14, 1999, I implemented a system whereby K. F. would be closely monitored. I informed Mr. F of that procedure during our telephone conversation on September 17, 1999.
10. At some point, I questioned K. F., in her father's presence, about the allegations.
11. K. F. did not tell me what happened. K. F.'s father told me what happened, and K. F. agreed with her father's account of the events.
12. Because M. D. denied the allegations, no disciplinary action was taken against her.
13. On October 15, 1999, K. F.'s father came to the school in his capacity as a case worker for the Department of Human Resources. We visited briefly in my office, and I asked him if he was satisfied with the monitoring procedures. He said everything was going well and that K. F. was having a good year.
(Doc. 39, Exhibit 4, Affidavit of Melanie Ryals, at ¶¶ 3-13)
Melanie Ryals became the principal of Monroeville Elementary School to start the 1999-2000 school year. (Doc. 47, Deposition of Melanie Ryals, at 7)
25. The only other relevant event which happened during the 1999-2000 school year is also described by Melanie Ryals in her affidavit: "On April 3, 2000, K. F.'s parents came to my office to meet with me. K. F.'s mother was upset and informed me that Bernadine Tucker, a para-professional at Monroeville Elementary School had told K. F.'s mother, `You make me sick.' I told K. F.'s mother that I would speak with Ms. Tucker. I called Ms. Tucker into my office and informed her of K. F.'s mother's allegations. In K. F.'s mother's presence, Ms. Tucker denied the allegation. K. F.'s mother became agitated and verbal as K. F.'s father tried to calm her. I also called Latonya Lang into my office. Ms. Lang confirmed Bernadine Tucker's version of the encounter." ( Id. at ¶ 14)
26. The parties agreed during oral argument that Monroeville Elementary School services students in kindergarten through the second grade. Therefore, K. F. successfully completed her final grade at the school.
27. K. F.'s mother began home-schooling her children during the 2000-2001 school year. (Doc. 54, K. F.'s Mother depo., at 59; see also Doc. 39, Exhibit 6, K. F.'s depo., at 15 (K. F.'s testimony that she was being home-schooled by her mother))
28. Mary Ann Lomenick testified that she does not believe that M. D. digitally raped K. F. (Doc. 54, Lomenick depo., at 28) She also testified that in her opinion children the age of six, as M. D. and K. F. were at the time, cannot feel sexual gratification and therefore, she would consider the assaults M. D. allegedly subjected K. F. to were simple assaults as opposed to sexual assaults. (Doc. 47, Exhibit 14, Lomenick depo., at 23, 25 27)
29. The Monroe County Board of Education's sexual harassment policy reads as follows:
Students shall not engage in conduct constituting sexual harassment. Sexual harassment, whether between students or between a student and an employee is illegal and will not be tolerated. The Board will investigate all allegations of sexual harassment and take appropriate action against students who engage in sexual harassment. Sanctions against students for violation of this policy may include verbal or written warning, suspension, or expulsion.Definition
Sexual harassment is defined to include unwelcome sexual advance, request for sexual favors, and other verbal or physical conduct of a sexual nature when the advances, requests, or conduct have the effect of interfering with performance of school related activities or creating an intimidating, hostile, or otherwise offensive environment in or about the school or school facility.Complaint Procedure
A student who believes he or she has been or is being subjected to any form of sexual harassment shall immediately report the matter to the school counselor, principal or the Superintendent. Any student who becomes aware of or suspects that a student is being sexually harassed shall immediately report the information to the school counselor, principal or Superintendent. A student's request to make his or her report of sexual harassment to someone of the same sex as the student shall be granted.
No student alleging sexual harassment shall be required to present the matter to the person who is the subject of the complaint.
If the complaint is received by someone other than the school principal, the person receiving the complaint shall promptly inform the school principal. The principal shall start an immediate investigation into the matter. The custodial parent(s) of the student will be informed of the complaint. The completed investigation shall be reviewed by the Superintendent or the Superintendent's designee and legal counsel for prompt and appropriate action, if warranted. A written response to the student's complaint will be provided to the custodial parent(s) of the student and the student within 45 days of the date the student first registered the complaint. The student or the custodial parent(s) of the student may appeal the decision within 10 days of receipt of the decision by filing a written notice of appeal with the Superintendent. The Superintendent shall present the decision and notice of appeal to the Board at the next scheduled meeting of the Board. The Board shall make a final decision and notify the student and custodial parent(s) of the student in writing of the Board's decision.Protection of Complainant
No student shall be subject to adverse action for any good faith report of sexual harassment under this policy. To the fullest extent practical, all reports of sexual harassment will be kept confidential.
(Doc. 54, SEXUAL HARASSMENT Policy of Monroe County Board of Education adopted June 8, 1995)
30. K. F.'s father never appealed any decision made by Marriott or Ryals to Superintendent Nixon or the Monroe County Board of Education (Doc. 39, Exhibit 7, K. F.'s Father depo., at 138-139), even though he knew those decisions could be appealed ( id. at 137), because he felt like that was supposed to have been "done by the person doing the investigation." ( Id. at 137-138) Moreover, K. F.'s father testified that he has no evidence indicating that any decision made by Lomenick, Marriott, Ryals or Crim was made for an illegal reason as opposed to making decisions based upon the best interests of the children involved. ( See id. at 103-111, 134-136 141-145)
Plaintiffs Motion for Leave to File Supplemental Exhibit in Opposition to Summary Judgment (Doc. 62; see Doc. 64 (opposition to motion for leave to file supplemental exhibit)) is DENIED as being irrelevant to the disposition of the issues presently before this Court.
CONCLUSIONS OF LAW
A. Summary Judgment Standard .1. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."). The clear language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof by the non-movant on an element essential to his case renders all facts immaterial, so the movant is entitled to judgment as a matter of law. Id. at 323, 106 S.Ct. at 2553; see Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990) ("Facts in dispute cease to be `material' facts when the plaintiff fails to establish a prima facie case."), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991).
The substantive law will identify which facts are material. 477 U.S. at 248, 106 S.Ct. at 2510. The Supreme Court concluded in Anderson "that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Id. at 255, 106 S.Ct. at 2514.
2. This Court must inquire "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict — 'whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (citation omitted) (emphasis in original). The party seeking summary judgment has the initial responsibility of informing the court of the basis for the motion and of establishing, based upon the discovery instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. When the burden of proof at trial belongs to the nonmovant, as is the case here, the moving party need not "support its motion with affidavits or other similar materials negating the opponent's claim," id. but rather, "a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324, 106 S.Ct. at 2553. Once this initial demonstration is made, Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id., quoting Fed.R.Civ.P. 56(e).
Forbidding reliance upon pleadings precludes a party from "choos[ing] to wait until trial to develop claims or defenses relevant to the summary judgment motion." . . . This effectuates the purpose of summary judgment which "`is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" . . . Thus, "mere general allegations which do not reveal detailed and precise facts" will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists.Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom. Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995). In other words, there is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
3. In considering whether the defendant is entitled to summary judgment, the Magistrate Judge has viewed the facts in the light most favorable to the plaintiff. Belcher v. City of Foley, 30 F.3d 1390, 1392 (11th Cir. 1994). Therefore, what the undersigned has stated the facts to be in this opinion may not be the facts that would be established at trial. See id. at 1393 (citation omitted).
B. Title IX Sexual Harassment .
4. Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." 20 U.S.C. § 1681 (a). The parties agree that the Monroe County Board of Education is a recipient of federal education funds for purposes of Title IX.
5. To establish the Monroe County Board of Education's liability for student-on-student harassment, plaintiff must show that the defendant was "deliberately indifferent to sexual harassment, of which [it has] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school." Davis, supra, 526 U.S. at 650, 119 S.Ct. at 1675; see also Murrell v. School District No. 1, Denver, Colorado, 186 F.3d 1238, 1246 (10th Cir. 1999) (To state a claim under Title IX a plaintiff "must allege that the district (1) had actual knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe, pervasive and objectively offensive that it (4) deprived the victim of access to the educational benefits or opportunities provided by the school."); see Doc. 39, Exhibit 9, O'Neill v. Ira F. Simmons Middle School, CV-97-C-3049-S, at 6 (N.D.Ala. 2000) ("In determining school board liability, a court should consider four factors: (1) whether there is severe, pervasive, and objectively offensive behavior; (2) whether the conduct is motivated by sex; (3) whether the harassment causes a concrete and negative effect on the students' ability to receive an education; and (4) whether the school board has actual knowledge of the harassment and thereafter shown (sic) deliberate indifference.").
The Monroe County Board of Education is the sole defendant with respect to plaintiffs Title IX claim ( see Doc. 24, Second Amended Complaint, at 7 ("Defendant Monroe County, Alabama Board of Education allowed KF to be subjected to sexual harassment and abuse. This defendant did so even though [it] had a duty to provide KF with a safe environment at school. As a result of this defendant's conduct, KF suffered mental suffering, physical injury, emotional humiliation, stress, embarrassment, frustration and anger.")), since the individual defendants are not subject to Title IX liability, see Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 633 636, 119 S.Ct. 1661, 1666 1668, 143 L.Ed.2d 839 (1999) (only federally funded institutions, not individuals, are subject to liability in private causes of action under Title IX and only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities).
6. Although there are now allegations of verbal insults in the several months prior to the sexual assaults and two hitting incidents, one prior to the sexual assaults and the second occurring after those assaults, these acts within the school setting do not rise to the level of actionable sexual harassment.
Indeed, at least early on, students are still learning how to interact appropriately with peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.Davis, supra. Therefore, the playground name-calling and hallway hitting, while understandably inappropriate and upsetting, simply do not constitute sexual harassment under Title IX and Davis "when instigated by another student in the school environment." O'Neill, supra, at 7. This is particularly appropriate where, as here, none of these actions were immediately reported by K. F. to either her classroom teacher or, respecting the playground language, the P. E. teachers, and K. F.'s mother only generally reported the playground insults to plaintiffs teacher.
7. Accordingly, the two incidents of sexual assault, that is, M. D.'s action of twice scratching K. F.'s vagina, and the one incident in which M. D. tried to get K. F. to pull up her dress are the only actions which may be considered by this Court for purposes of the Board's Title IX liability. Without further guidance, the Court is constrained to find that these three incidents, which occurred over a two-month period, constitute sufficiently severe, pervasive and objectively offensive harassment to establish the Board's Title IX liability. The insurmountable hurdle for plaintiff, however, is her inability to show on the undisputed facts that the Board was deliberately indifferent to the sexual harassment.
8. There is no dispute here that school officials were made aware, by K. F.'s parents, of the two incidents of sexual assault perpetrated against K. F. by M. D, as well as the incident in which M. D. asked K. F. to lift up her dress so the boys could see her panties. The sole question for this Court, therefore, becomes whether school officials, and as a result the Monroe County Board of Education, were deliberately indifferent to these known incidents of sexual harassment.
This Court, in viewing the facts in the light most favorable to the plaintiff as it must on summary judgment, finds that M. D. did sexually assault K. F. However, in this very sensitive case it must be reiterated that the facts established at trial might be very different from those which the Court must recognize at this stage of the proceedings.
9. In this regard, "the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable." Davis, supra, 526 U.S. at 649, 119 S.Ct. at 1674; see also id. at 645, 119 S.Ct. at 1672 ("[T]he deliberate indifference must, at a minimum, `cause [a] student to undergo' harassment or `make [her] liable or vulnerable' to it.") This is the context by which the deliberate indifference standard is viewed for Title IX liability because "courts should refrain from second guessing the disciplinary decisions made by school administrators." Id.; see id. at 648, 119 S.Ct. at 1673-1674 (deliberate indifference does not mean that "recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action."). It is all too clear that "[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not `clearly unreasonable' as a matter of law."
10. K. F. reported the dress incident to Lomenick and Lomenick, after questioning M. D. and another student, place M. D. in timeout. Moreover, when school officials learned of the first sexual assault of K. F. by M. D., an allegation at all times vehemently and emotionally denied by M. D. and her mother, an offer was made by Marriott, the principal, to move K. F. to a different first-grade classroom and though K. F.'s father demurred to this suggestion, all participants in the March 15, 1999 meeting agreed that K. F. would no longer sit by M. D. in the lunch room. In addition, certain other teachers, like the P. E. teachers and aides, were asked to keep a close eye on the two girls and keep them as separate as possible and Mary Ann Lomenick, the girls' first-grade teacher, instituted a different bathroom and water break procedure, than that used prior to March 15, 1999, to try to keep the girls separated at those times as well. It is the Court's opinion that this response by school officials to the first sexual assault was not "clearly unreasonable" as a matter of law.
K. F.'s mother felt that this was sufficient punishment for this conduct.
11. Unfortunately, despite the best efforts and intentions of school officials, M. D. was able to perpetrate a second assault upon K. F. while both girls were in the restroom on April 19, 1999. Following this incident, an agreement was reached to move K. F. to another classroom and a teacher was assigned to escort both K. F. and her brother to the cafeteria early in the morning and to their classrooms. This response also was not "clearly unreasonable" as a matter of law.
12. The bottom line in this case is that school officials acted immediately in some manner when informed of M. D.'s sexual assaults on K. F.'s person and when M. D. tried to get K. F. to show her panties to the boys, rather than stand idly by and doing nothing. This Court will not now second guess Monroeville Elementary School officials' failure to take disciplinary action against M. D. for the two sexual assaults, given M. D.'s repeated denials that the assaults took place, M. D.'s mother's threats to sue officials if any disciplinary action was taken, see Davis, supra, 526 U.S. at 649, 119 S.Ct. at 1674 ("[I]t would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims."), and K. F.'s failure to immediately inform any school official of those assaults so that an immediate investigation could be instituted. The very fact that school officials took some action following both these incidents (and the pulling up the dress incident) is sufficient, in the undersigned's mind, to shield the Monroe County Board of Education from liability under Title IX. Therefore, the Monroe County Board of Education is entitled to summary judgment on plaintiffs Title IX claim.
C. Section 1983 Claim of Deliberate Indifference to Known Sexual Harassment .
13. Plaintiffs remaining claim asserted against both the Monroe County Board of Education and the individual defendants in their individual capacities is a denial of Equal Protection, see U.S. Const. amend. XIV, § 1 ("No state shall . . . deny to any person within its jurisdiction the equal protection of the law."), due to deliberate indifference to known sexual harassment. ( Compare Doc. 24, at 7-8 with Doc. 54, at 25-27 Doc. 63)
Plaintiff concedes that he has no claim against the individual defendants in their official capacities since that would be duplicitous of his action against the Monroe County Board of Education. ( Compare Doc. 54, at 28 with Doc. 48, at 30 Doc. 40, at 30)
14. While this Court is willing to concede, based upon the Tenth Circuit's decision in Murrell, supra, that plaintiff has arguably identified a § 1983 claim against the Board and the individual defendants, see 186 F.3d at 1249 ("In order to establish municipal, or in this case School District, liability for sexual harassment under the Fourteenth Amendment, a plaintiff must demonstrate that a state employee's discriminatory actions are representative of an official policy or custom of the municipal institution, or are taken by an official with final policy making authority."); see also id. at 1250 ("By way of contrast to the institution itself, a governmental official or supervisory employee may be held liable under section 1983 upon a showing of deliberate indifference to known sexual harassment. Although conduct by a state actor is required in order to support a claim under section 1983 and the primary conduct in this case is that of a student, we have found the possibility of state action where `a supervisor or employer participates in or consciously acquiesces in sexual harassment by an outside third party or by co-workers.'"), all the defendants are nevertheless entitled to summary judgment on plaintiffs § 1983 Equal Protection claim because, as previously found, school officials, and, therefore, the Monroe County Board of Education, were not deliberately indifferent to M. D.'s sexual harassment of K. F. because at all times they responded in some manner to the reported harassment.
15. In reaching this conclusion, the Court finds it appropriate to quote at length from the Eleventh Circuit's decision in Davis v. DeKalb County School District, 233 F.3d 1367 (2000):
Plaintiffs claim that the district court erred by granting summary judgment and finding DCSD and Duncan not liable under section 1983 for Mency's misconduct. A plaintiff seeking to impose liability on a municipality (school district) under section 1983 must identify a municipal policy or custom that caused a deprivation of federal rights. But it is well established that a municipality may not be held liable under section 1983 on a theory of respondeat superior. Instead, recovery from a municipality is limited to acts that are, properly speaking, acts of the municipality — that is, acts which the municipality has officially sanctioned or ordered. Moreover, it is not enough to identify conduct properly attributable to the municipality. A plaintiff must show that the municipal action was taken with the requisite degree of culpability, i.e., that the municipal action was taken with deliberate indifference to its known or obvious consequences.
In essence, Plaintiffs claim that the Defendants failed to protect Plaintiffs from Mency. In granting summary judgment, the district court concluded that the Plaintiffs had failed to produce sufficient evidence to satisfy the requirement that DCSD or Duncan knew of Mency's conduct or were deliberately indifferent to evidence that should have put them on notice. Thus, the only issue before us is whether Plaintiffs created a triable issue that Defendants possessed the requisite notice to establish institutional liability under section 1983.
The district court correctly held that the deliberate indifference standard applies to section 1983 claims basing liability on a municipality's actions in failing to prevent a deprivation of federal rights. As stated at length in our discussion of Plaintiffs' Title IX claim, the record contains no evidence that the Defendants knew that Mency was sexually harassing Plaintiffs, or that Defendants were deliberately indifferent to information that should have put them on notice.Id. at 1375-1376 (internal quotation marks, citations and footnotes omitted). Taking this holding and applying it in light of the Supreme Court's recent decision in Davis v. Monroe County Board of Education, supra, the Court concludes that the individual defendants and the Monroe County Board of Education cannot be liable to plaintiff under § 1983 in light of plaintiffs inability to establish their deliberate indifference to known acts of sexual harassment. As stated at length in this Court's discussion of plaintiffs Title IX claim, the record contains sufficient evidence for this Court to conclude that the defendants responded to all reports of sexual harassment and therefore, were not deliberately indifferent to those reports. Without evidence of deliberate indifference, plaintiff simply cannot establish a violation of § 1983.
Even if this Court was to rule to the contrary, the individual defendants would nevertheless be entitled to summary judgment based upon the doctrine of qualified immunity. "Qualified immunity shields government officials from both suit and liability if their conduct violates no clearly established right of which a reasonable person would have known." Denno v. School Board of Volusia County, Florida, 218 F.3d 1267, 1269 (11th Cir.) (citations omitted), reh'g denied, 235 F.3d 1347 (en banc), cert. denied, ___ U.S. ___, 121 S.Ct. 382, 148 L.Ed.2d 295 (2000). In elaborating on the qualified immunity standard, the Eleventh Circuit has held that "`[f]or qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel, (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.'" Id. at 1270, quoting Lassiter v. Alabama A M Univ., 28 F.3d 1146, 1150 (11th Cir. 1994) (en banc). In Denno, the Eleventh Circuit has given clear direction that "[o]ne way that a plaintiff can satisfy the qualified immunity standard is to point to case law which predates the official's alleged improper conduct, which case law involves materially similar facts and truly compels the conclusion that the plaintiff had a right under federal law." Id. (citation omitted).
In this case, plaintiff relies upon Murrell, supra and Davis, supra, and argues that these cases establish an equal protection right to be free from unwanted sexual harassment and that this right was violated by the defendants' deliberate indifference to the reports of sexual harassment. Accordingly, the plaintiff argues, the qualified immunity standard is satisfied. Plaintiffs argument is rejected for two reasons. First, and foremost, Davis was decided by the United States Supreme Court on May 24, 1999, see id. at 629, 119 S.Ct. at 1661, and Murrell was decided by the Tenth Circuit on August 4, 1999, see 186 F.3d at 1238; therefore, neither decision predates the three incidents of sexual harassment/assault in this case and thus cannot serve as a basis for establishing the individual defendants liability in this case. Plaintiff has pointed to no other cases which support a § 1983 equal protection claim against the individual defendants and since Davis and Murrell postdate the incidents of sexual harassment in this case this Court simply has no way of concluding that any reasonable government agent would have known that his or her actions in this case were a clear violation of federal law in the circumstances. Secondly, this Court would reach this same conclusion even had Davis and Murrell predated the incidents of sexual harassment/assault in this case since those cases are directed to whether the plaintiffs had stated claims under federal law as opposed to whether the defendants were liable to the plaintiff for their actions or inactions. Accordingly, the individual defendants are entitled to summary judgment on plaintiffs § 1983 claim for the additional reason that they are immune from suit based upon the affirmative defense of qualified immunity.
CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment is due to be GRANTED and therefore, plaintiffs complaint is due to be DISMISSED WITH PREJUDICE.DONE and ORDERED this the 23rd day of February 2001.