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Lisa Douglas, Individually and As the Parent and Natural Guardian of K.E., A Minor v. Brookville Area School District; Sandra Craft

December 8, 2011

LISA DOUGLAS, INDIVIDUALLY AND AS THE PARENT AND NATURAL GUARDIAN OF K.E., A MINOR, PLAINTIFFS,
v.
BROOKVILLE AREA SCHOOL DISTRICT; SANDRA CRAFT, SUPERINTENDENT OF THE BROOKVILLE AREA SCHOOL DISTRICT; AND KARIN HETRICK, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Before the Court for disposition are the Plaintiff‟s MOTION FOR SUMMARY JUDGMENT (ECF No. 55), along with her supporting brief, supplement and exhibits (ECF Nos. 56-58), the Defendants‟ MOTION FOR SUMMARY JUDGMENT (ECF No. 59), along with their supporting brief and exhibits (ECF No. 60), and the responsive filings presented by the parties (ECF Nos. 61-69). For the reasons that follow, the Defendants‟ motion for summary judgment will be granted, and the Plaintiff‟s motion for summary judgment will be denied in part.

II. Background

K.E.*fn1 is a female who was born on April 13, 1994. ECF Nos. 59 & 68 at ¶ 6.*fn2 She was enrolled as a sophomore at Brookville High School ("Brookville") during the 2009/2010 school year. ECF Nos. 55 & 62 at ¶ 97. Shannon Shaffer ("Shaffer"), a senior at Brookville, became acquainted with K.E. through band-related activities. Id. at ¶ 123. Karin Hetrick ("Hetrick"), a female, was a mathematics teacher and girls‟ softball coach at Brookville. Id. at ¶ 97. Hetrick‟s daughter, Brynna Hetrick ("Brynna"), was a senior at Brookville and one of Shaffer‟s best friends. Id. at ¶ 125.

K.E. was in a trigonometry class taught by Hetrick during the first semester of her sophomore year. ECF No. 59-25 at 12. She was also a member of the Brookville girls‟ soccer team. ECF Nos. 55 & 62 at ¶ 98. The team lost a playoff game to the Karns City girls‟ soccer team in November 2009. Id. at ¶ 99. Shortly thereafter, Hetrick sent K.E. a text message inquiring as to how the game had gone. Id. at ¶ 99. Hetrick used K.E.‟s cellular telephone number to send the message. Id. The number had been given to Hetrick by Shaffer earlier that day. Id. Hetrick asked Shaffer about K.E.‟s sexual orientation a few weeks after sending the text message. Id. at ¶ 100.

Hetrick and K.E. were both members of a band preparing to play in a school musical. ECF No. 55 at ¶ 102.*fn3 Brookville had a policy prohibiting teachers from using their personal vehicles to transport students except where specifically permitted by a policy promulgated by the School Board. Id. at ¶ 111. Nevertheless, Hetrick sometimes transported K.E. to and from band practice. Id. at ¶ 102. Hetrick also drove K.E. to and from the Young Men‟s Christian Association ("YMCA") in Brookville, where K.E. regularly exercised. Id. at ¶ 105. K.E. frequently visited Hetrick in her classroom around this same period of time. Id. at ¶ 103. They often played board games in Hetrick‟s classroom after classes had ended. Id. at ¶ 107. K.E. later started to take piano lessons at Hetrick‟s residence. Id. at ¶ 106. Hetrick transported K.E. to and from these lessons. Id.

Hetrick attended a basketball game on December 12, 2009. ECF No. 55-10 at 24. During the game, K.E. sent a text message indicating that her mother was not home and asking Hetrick to visit her house. Id. Hetrick proceeded to K.E.‟s residence. Id. When Hetrick entered the residence, she was "embraced" by K.E. Id. K.E. proceeded to play music on her drums with Hetrick present. Id. During the ensuing three and a half months, K.E. and Hetrick frequently "embraced" and "kissed" each other in Hetrick‟s classroom. Id. at 24-25.

Between January and March of 2010, K.E. and Hetrick had several intimate encounters inside of Hetrick‟s vehicle, Hetrick‟s house, and a storage room that was adjacent to a school gymnasium. Id. at 26-27. In addition to "kissing" and "embracing," some of these encounters involved "fondling" and the "inappropriate penetration" of K.E.‟s vagina. Id. Hetrick sometimes fondled K.E. underneath her clothes. Id. at 27. K.E. occasionally disrobed during the encounters inside of Hetrick‟s vehicle. Id. K.E. and Hetrick engaged in intimate "kissing," "hugging" or "touching" on 50 to 60 different occasions. Id. at 29. They frequently exchanged text messages and "inappropriate" photographs on their cellular telephones during this same period of time. Id.

Brynna started to notice that K.E. was constantly in Hetrick‟s classroom during study halls and after school. ECF No. 55 at ¶ 128(f). Brynna told Shaffer that she felt like K.E. was "replacing" her as Hetrick‟s daughter. Id. Shaffer discussed the situation with Timothy F. Stevenson ("Stevenson"), Brookville‟s music teacher and band director, on three separate occasions. Id. at ¶ 128(c).

On March 22, 2010, Brynna went to Hetrick‟s classroom in order to get some money. Id. at ¶ 132. Hetrick was not in the room, but her cellular telephone was sitting on her desk. Id. Brynna accessed the text messages on the phone and observed that several sexually suggestive messages had been exchanged between her mother and K.E. Id. At that time, Hetrick and K.E. were inside of the storage room of the gymnasium. Id. Brynna proceeded to the gymnasium and saw her mother and K.E. coming out of the storage room. Id. at ¶ 133. Having become aware of the situation, Brynna "stormed" out of the school and showed one of the text messages to Shaffer. ECF No. 55-12 at 32. The message, which had been sent by Hetrick to K.E., referred to an individual who was "excited" and "wet." ECF No. 59-70 at 13. Brynna then telephoned her older sister, Tia Hetrick ("Tia"), and insisted that she speak with Shaffer. ECF No. 55-12 at 32. At Brynna‟s request, Shaffer described the content of the text message to Tia. Id. After speaking with Shaffer, Tia contacted Hetrick and confronted her about her relationship with K.E. Id.

Brynna and Shaffer went to the residence of their friend, Logan Sneel ("Sneel"), to spend the night. ECF No. 59-70 at 13. Hetrick sent a text message to Shaffer advising that her family was aware of the relationship, that she was going to speak with K.E.‟s parents about the matter, and that she was prepared to submit her resignation to Brookville. Id. at 14. Hetrick apparently sent the text message to Shaffer after learning from her husband that Brynna was with Shaffer at Sneel‟s residence. Id. K.E. did not know that Brynna had uncovered the relationship until a few hours later, when Hetrick sent her a text message stating that the relationship would have to end. ECF No. 62-2 at 42. Later that evening, Shaffer contacted K.E. and informed her that Brynna had discovered the inappropriate text message on Hetrick‟s phone. Id.

At 7:40 A.M. on the morning of March 23, 2010, Shaffer met with Stevenson, described the content of the text messages sent by Hetrick, and advised that Hetrick‟s relationship with K.E. had been inappropriate. ECF No. 55 at ¶ 135. Shortly thereafter, K.E. spoke with Shaffer and acknowledged that her relationship with Hetrick had been sexual in nature. Id. at ¶ 136. Shaffer encouraged K.E. to speak with Stevenson and escorted her to his office. Id. K.E. met with Stevenson at lunchtime and admitted that her relationship with Hetrick had involved hand-holding, kissing and touching. Id. at ¶ 137.

Stevenson reported the matter to Keith Wolfe ("Wolfe"), Brookville‟s principal, at 9:20 A.M. on the morning of March 24, 2010. Id. at ¶ 140. After meeting with Stevenson, Wolfe and Sandra Craft ("Craft"), Brookville‟s superintendent, pulled Shaffer out of class and asked her what she knew about K.E.‟s relationship with Hetrick. Id. at ¶ 142. Shaffer described the text messages that Brynna had discovered on Hetrick‟s phone and stated that K.E. and Hetrick had engaged in intimate activities. Id. at ¶ 143. Wolfe and Craft went to Hetrick‟s classroom and advised that they would be speaking with her at 12:25 P.M. about her relationship with a student. Id. at ¶ 145.

K.E. was in a class being taught by Amanda Carrico ("Carrico"). Id. at ¶ 147. Hetrick telephoned Carrico and asked for an opportunity to speak with K.E. in a nearby hallway. Id. Carrico honored the request and instructed K.E. to meet Hetrick in the hallway. Id. Hetrick and K.E. proceeded to discuss the matter. Id. at ¶ 148. After speaking with K.E., Hetrick decided to meet with Wolfe and Craft at 11:20 A.M. instead of waiting until 12:25 P.M. Id. at ¶ 150. During the meeting, Hetrick acknowledged that her relationship with K.E. had been inappropriate. Id. at ¶¶ 150-151. Craft informed Hetrick that she was being placed on administrative leave. ECF No. 62 at ¶ 146.

That same day, Officer Vince Markle ("Markle"), a member of the Brookville Police Department, stopped by the school and spoke with Wolfe. ECF No. 55 at ¶ 155. Wolfe informed Markle that the school was conducting an investigation but did not provide any details.

Id. Wolfe and Craft discussed the situation with K.E. at approximately 1:50 P.M. Id. at ¶ 157. K.E. confirmed that her relationship with Hetrick had been inappropriate. Id. Hetrick telephoned K.E.‟s mother, Lisa Douglas ("Douglas"), and apologized for "hugging" her daughter. ECF No. 62-1 at 41. After learning from her husband that K.E. needed a ride home, Douglas drove to the school and found K.E. in a room with Wolfe and Craft. Id. at 42. K.E. left the room at Douglas‟ request. Id. Shortly thereafter, Douglas was informed of the relationship that had existed between K.E. and Hetrick. Id. Wolfe and Craft told Douglas that the relationship had been confirmed to them by Hetrick, Brynna and Shaffer, but that K.E. had not provided them with detailed information. Id. Douglas took K.E. home after conferring with Wolfe and Craft. Id.

Hetrick presented Brookville with her letter of resignation on March 25, 2010. ECF No. 62 at ¶ 154. Her resignation was immediately accepted. Id. at ¶ 155. Douglas reported the relationship to the Pennsylvania State Police ("PSP") that same day. ECF No. 55 at ¶ 159. The PSP referred the matter to Markle. ECF No. 55 at ¶ 160. Markle proceeded to conduct an investigation. Id. at ¶ 162. According to an affidavit of probable cause prepared in support of criminal charges later filed against Hetrick, Markle and Officer Mickey Stormer ("Stormer") went to Hetrick‟s residence on March 25, 2010, to conduct an interview. ECF No. 55-16 at 23. After signing a statement acknowledging that she had been read her rights in accordance with Miranda v. Arizona, 384 U.S. 436, 467-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Hetrick agreed to speak with Markle and Stormer. Id. She admitted that she had inserted her fingers into K.E.‟s vagina on at least one occasion. Id. Hetrick also stated that, on ten to twelve different occasions, she had touched K.E.‟s breasts and vagina while K.E. was completely unclothed. Id.

Later that day, K.E. and Douglas met with Markle and Stormer at the Brookville Police Station. Id. K.E. described incidents in which Hetrick had rubbed her vagina for five to ten minutes at a time. Id. at 24. She stated that Hetrick had touched her breasts and buttocks near the school gymnasium on March 22, 2010. Id. K.E. also provided Markle with a flash drive that she had used to download four "nude or partially nude" photographs that had been forwarded to her by Hetrick. Id. In addition, K.E. advised Markle and Stormer that she had forwarded ten "nude or partially nude" photographs of herself to Hetrick‟s phone. Id. Hetrick was ultimately charged with aggravated indecent assault,*fn4 indecent assault,*fn5 indecent exposure,*fn6 corrupting the morals of a minor,*fn7 disseminating sexually explicit materials to a minor,*fn8 possession of child pornography,*fn9 and having unlawful contact with a minor.*fn10 ECF No. 55-16 at 18-24.

During his investigation, Markle obtained a warrant authorizing a search of Hetrick‟s cellular telephone. ECF No. 55-16 at 31. Nonetheless, he was unable to find the phone, and Hetrick advised that it had been lost "in the woods." Id. Although Hetrick‟s phone was never located, Markle retrieved some of the messages that he was seeking from K.E.‟s phone. Id.

Douglas commenced this action against Hetrick and the Brookville Area School District ("District") on August 18, 2010, alleging violations of the Fourteenth Amendment to the United States Constitution, Title IX of the Education Amendments of 1972 ("Title IX") [20 U.S.C. § 1681 et seq.], and the common law of Pennsylvania respecting the tort of battery. ECF No. 1 at ¶¶ 16-38. Meanwhile, the criminal proceedings against Hetrick continued. On February 7, 2011, Hetrick pleaded "guilty" to three counts of aggravated indecent assault pursuant to the terms of a plea agreement. ECF Nos. 55 & 62 at ¶ 121. Douglas filed an amended complaint in this action on March 14, 2011, and added Craft as a defendant. ECF No. 33. On May 4, 2011, the Court of Common Pleas of Jefferson County, Pennsylvania, sentenced Hetrick to a period of incarceration of five to ten years followed by thirty years probation. ECF Nos. 55 & 62 at ¶ 121.

Douglas filed a motion for summary judgment on August 24, 2011. ECF No. 55. The District and Craft filed a motion for summary judgment two days later. ECF No. 59. These motions are the subject of this memorandum opinion.

III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment 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, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the non-moving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the non-moving party‟s burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories in order to show that there is a genuine issue of material fact for trial. Id. at 324. The non-moving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. Discussion

Douglas‟ amended complaint pleads five counts. In Counts I and II, Douglas asserts substantive due process and Title IX claims against the District. ECF No. 33 at ¶¶ 18-32. In Counts III and IV, she asserts substantive due process and battery claims against Hetrick. Id. at ¶¶ 33-40. In Count V, Douglas attempts to hold Craft liable for the substantive due process violations allegedly committed by Hetrick. Id. at ¶¶ 41-57.

Douglas moves for summary judgment with respect to all of her claims. ECF No. 55. The District and Craft move for summary judgment with respect to Counts I, II and V of the amended complaint. ECF No. 59. Hetrick, who is represented by separate counsel, has neither responded to Douglas‟ motion for summary judgment nor filed any motion on her own behalf.

A. The Title IX Claim Against the District

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). Although a recipient of federal financial assistance can lose its federal funding for failing to comply with Title IX‟s anti-discrimination requirement, Title IX‟s enforcement provision provides that "no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." 20 U.S.C. § 1682. This limitation on the enforcement mechanism created by Congress evinces a legislative intent to give an offending entity an opportunity to end its discriminatory practices before its federal financial support is terminated.

In Cannon v. University of Chicago, 441 U.S. 677, 709-717, 90 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the United States Supreme Court held that private victims of sex-based discrimination could seek redress under Title IX even though the applicable statutory language provided only for the discontinuation of an offending entity‟s federal financial assistance. Congress subsequently validated the holding in Cannon by abrogating the States‟ Eleventh Amendment immunity in actions brought under Title IX by private individuals. Pub. L. No. 99-506, § 1003; 100 Stat. 1807, 1845 (1986); 42 U.S.C. § 2000d-7(a). In light of this action by Congress, it is "beyond dispute" that private individuals can sue recipients of federal financial assistance under Title IX. Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The Supreme Court held in Franklin v. Gwinnet County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), that individuals can seek monetary relief under Title IX in actions brought to redress sex-based discrimination.

Title IX‟s proscription of sex-based "discrimination" is broad enough to encompass "sexual harassment." Jackson v. Birmingham Board of Education, 544 U.S. 167, 173-174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). A teacher engages in a prohibited form of "discrimination" when he or she "sexually harasses and abuses a student." Franklin, 503 U.S. at 75. A Title IX action, however, can be brought only against a recipient of federal financial assistance. Mwabira-Simera v. Howard University, 692 F.Supp.2d 65, 70 (D.D.C. 2010); Johnny's Icehouse, Inc. v. Amateur Hockey Association of Illinois, 134 F.Supp.2d 965, 970-971 (N.D.Ill. 2001). The recipient of federal financial assistance in this situation is ordinarily the school or educational entity that employs the offending teacher. A plaintiff cannot invoke Title IX to sue an individual teacher or school official. Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 257, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009).

In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), the Supreme Court held that a student seeking to recover damages from a school district for a teacher‟s misconduct must demonstrate that an official of the district with the "authority to institute corrective measures on the district‟s behalf" had "actual notice" of the prohibited discrimination, and that the official was "deliberately indifferent" to the district‟s obligations under Title IX. The Supreme Court reasoned that since a federal agency could not terminate a school district‟s federal funding without advising the "appropriate person or persons" of the discrimination and determining that compliance with Title IX could not be "secured by voluntary means," it would frustrate the purposes of the enforcement mechanism to permit a victim of sexual harassment to proceed against a school district on a theory of respondeat superior or "constructive notice." Gebser, 524 U.S. at 285-291. Speaking through Justice O‟Connor, the Supreme Court explained:

The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees‟ independent actions.

Id. at 290-291. Since a school district‟s liability under Title IX is premised on a district official‟s "actual notice" of the discrimination, the offending teacher‟s own notice of his or her ...


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