practice or custom of the School District was the proximate cause of her injuries.
In order to determine whether the School District, acting through its agents, had a practice or custom that "caused" the plaintiff's injuries, such that municipal liability will attach, this Court must review the allegations and depositions. The first incident that purports to support the inference that the defendants had a practice or custom occurred in late 1977 or early 1978.
According to the deposition testimony of Theresa Rodgers, she was sexually accosted by her social studies teacher, Richard DeMarte, in her senior year. Ms. Rodgers testified that she immediately reported this incident to Mr. Miller and Dr. Smith, whereupon she was warned that it was going to be her word against Mr. DeMarte's and that she should not go home and tell her parents about the assault. Ms. Rodgers further testified that the principal suggested that she stay away from Mr. DeMarte, if at all possible, and then counselled her that he would take care of it. Deposition of Theresa Rodgers at 113-14.
Despite Dr. Smith's assurance that "he would take care of it," Theresa Rodgers was never informed of any action taken against Mr. DeMarte. Mr. DeMarte's personnel file, maintained by the School District, conspicuously lacks any record of disciplinary action taken against him during the pertinent time period. In fact, Dr. Smith gave Mr. DeMarte a perfect score on his teaching evaluation, remarkably, an evaluation that included assessment of "emotional stability," "social adjustment," "judgment" and "habits of conduct." See Plaintiff's Exhibit 4 filed in Companion Case.
Additionally, female students voiced complaints against Mr. DeMarte in January, 1981; March, 1981; November, 1982 and October, 1985.
Dr. Smith and Mr. Miller had direct notice of all these complaints. Mr. Shuey was informed of at least two of the above noted complaints. See Defendants' Second Supplemental Brief Submitted in Companion Case at 4. The personnel file of Mr. DeMarte is silent as to these incidents. Furthermore, it is not clear what, if any, disciplinary action was taken against the teacher. Significantly, Mr. DeMarte is still coaching the girls' tennis team.
The next critical series of events, upon which liability of the School District is based, occurred in the fall of 1979. At that time, Judy Grove, a high senior and member of the band, reported to Mr. Miller and Dr. Smith that the band director, Edward Wright, had sexually assaulted her.
It will fall to a jury to ascertain the exact sequence of events that immediately preceded and followed Judy Grove's disclosure. A review of the deposition testimony of Frederick Smith, Richard Miller, Judy Grove, and her father, Hayward Grove, demonstrates a great divergence of views. However, for purposes of summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Additionally, the Court must consider reasonable inferences that might be drawn in favor of the plaintiff. Since the testimony of Judy Grove is most favorable to the plaintiff, the Court will review that testimony in some detail.
Although Ms. Grove's recollections, regarding specific dates and times, were somewhat vague, her deposition testimony was rather emphatic on other points. Judy Grove testified that she relayed the incident of the sexual assault to both Mr. Miller and Dr. Smith.
According to her testimony, Dr. Smith implied that in light of the circumstances -- Judy had been drinking on the evening of the assault -- she was responsible for the assault. Dr. Smith warned that she would not look good if the facts got out. Judy reports that she was frightened and felt as though she was receiving no support from the Administrators. It was only after being threatened with public disclosure and personal humiliation that Judy retracted, in a rather flippant fashion, that the assault had occurred.
Sometime after these initial meetings, Judy's father requested a conference. Prior to inviting Judy into the conference, Mr. Miller and Dr. Smith talked with Mr. Grove. Mr. Grove testified that an effort was made to convince him that no teacher would behave in the fashion alleged by Judy. See Deposition of Hayward Grove at 36, 41. Although when Mr. Grove entered the meeting he was confident that his daughter's version of the facts were true, he admitted to being less certain after conferring with these Administrators. Id.25
One of the topics of discussion at the above mentioned conference was whether Judy would be able to remain in the band. As perceived by both Judy and her father she had a choice: recant her story in front of the assembled band or withdraw from all band activities. See Deposition of Judy Grove at 59-60, 68; Deposition of Hayward Grove at 44, 47, 49. As recalled by Judy, the suggestion to appear before the band and dispel the "rumors," about Mr. Wright, originated with Dr. Smith. See Deposition of Judy Grove at 74 (September 12, 1986).
In early January, 1980, Dr. Smith assembled all the band members.
He proceeded to acknowledge that rumors had been circulating and that a certain student would address those rumors. The floor was turned over to Judy. As recalled by Judy, pressed with questions by her peers, she fled the room in tears. It is not clear whether an apology was ever actually offered.
The episode of the forced apology has special significance in light of the assaultive conduct that occurred between Edward Wright and Kathleen Stoneking. Apparently, the "forced apology" served as a trump card in the hands of Edward Wright. When a student would threaten to disclose the abuse, Wright quickly reminded his victim about the "Judy Grove incident." His message was clear and convincing: "No one believed Judy Grove, why would anyone believe you." See infra Note 17. His tactical threat proved to be quite effective at least for a period of time.
In reviewing the above events, for the purpose of evaluating the liability of the School District, this Court need not decide whether the School District had a practice or custom, of dealing with complaints of sexual abuse or harassment, which "caused" the plaintiff's injuries. Nor is it for this Court to determine whether Dr. Smith, Mr. Miller and Mr. Shuey are liable in their official capacities, such that liability could be imputed to the School District. See Brandon, supra, 469 U.S. 464. Rather, this Court is charged with the task of evaluating the record evidence and determining whether genuine issues of material facts exist. The ultimate issue of liability is one with which the jury must wrestle.
For the purposes of this motion, the Court concludes that there is sufficient evidence from which a jury could infer the existence of a practice or custom. Additionally, it could be inferred from the evidence that the School District was responsible for the practice or custom and that the practice or custom caused the plaintiff's injuries. Thus, the defendants' motion, as it pertains to the liability of the School District, must be denied.
C. Qualified Immunity
The standard to be applied in resolving a qualified immunity issue is well-settled. In Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), the Supreme Court revised the qualified immunity standard and held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights, of which a reasonable person would have known." Id. at 818. Thus, the pending question, in terms of the qualified immunity defense, is whether the plaintiff had a constitutional right which at the time of the alleged violation, was clearly established.
As the Court concluded in Section IV B (1) of this opinion, the plaintiff has alleged a viable claim of a constitutional violation. According to the Court's conclusion, there is a special relationship that existed between the plaintiff and the individual defendants. As a result of this relationship defendants had a duty to provide a reasonably safe environment for the plaintiff. There is nothing new or novel about this constitutional right or this duty. See, e.g., Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977); Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980); Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Withers v. Levine, 615 F.2d 158 (4th Cir. 1980); Doe I, 649 F.2d 134 (2d Cir. 1981); Stokes v. Delcambre, 710 F.2d 1120 (5th Cir. 1983).
This Court concludes that a reasonable person would have been aware that the plaintiff had a substantive due process right to be free from intrusions into her "personal privacy and bodily integrity." As the court in Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980) so aptly stated:
the existence of this right to ultimate bodily security -- the most fundamental aspect of personal privacy -- is unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process. Numerous cases in a variety of contexts recognize it as the last line of defense against those literally outrageous abuses of official power whose very variety makes formulation of a more precise standard impossible. Clearly recognized in persons charged with or suspected of crime and in the custody of police officers, we simply do not see how we can fail also to recognize it in public school teachers.
Id. at 613. Thus, defendants are not entitled to qualified immunity.
D. Pendent State Claims
Since the Court denied the defendants' motion for summary judgment, as it pertained to the plaintiff's § 1983 claims, this Court retains subject matter jurisdiction over the pendent state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
The only remaining question is whether the complaint sets forth state law claims. The plaintiff's complaint does not identify a specific state law cause of action;
the pleadings are not sufficient to give notice of the claim alleged. Thus, this Court concludes that the motion for summary judgment, as it pertains to the state law claims set forth in Counts II, IV and VI, is granted.
An appropriate order shall be issued.
AND NOW, this 28th day of August, 1987, for the reasons set forth in the accompanying Opinion,
IT IS HEREBY ORDERED that:
(1) the Motion for Summary Judgment, filed on behalf of the Defendants, Bradford Area School District, Frederick Smith, Richard Miller and Frederick Shuey, is DENIED as the Motion relates to Counts I, III, V and VII of the Complaint;
(2) the Motion for Summary Judgment, filed on behalf of the defendants, is GRANTED as it pertains to Counts II, IV and VI of the Complaint.
Judgment is entered in favor of the Defendants and against the Plaintiff, Kathleen Stoneking, on Count II, Count IV and Count VI of the Complaint.
IT IS FURTHER ORDERED that the Defendants shall file a Pretrial Narrative Statement by September 18, 1987. The trial, scheduled for September 8, 1987, is continued. A Pretrial Conference shall be held on Wednesday, October 7, 1987, at 4:00 pm in Room 310, United States Courthouse, Erie, Pennsylvania.