BORMAN, District Judge.
Now before the Court is (1) Defendants Warren Consolidated Schools, Dr. James Clor and Jerry Maiorano's motion for summary
The Court heard oral argument on January 31, 2003. Having considered the entire record, and for the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the motions for summary judgment. Specifically, the Court
Plaintiffs, three young girls,
Plaintiffs' complaint, filed on June 30, 2000, sets forth three counts — Count I: Michigan gross negligence and intentional misconduct; Count II: Federal 42 U.S.C. § 1983 — violation of the due process clause of the Fourteenth Amendment; and Count III: Federal Title IX sexual harassment. In addition to Defendant Kearly, Plaintiffs seek relief from the Warren Consolidated School District ("District"), Dr. Paul Stamatakis ("Stamatakis"), former Superintendent of the Warren Consolidated Schools, Dr. James Clor ("Clor"), current Superintendent of the Warren Consolidated Schools and former Associate Superintendent in charge of elementary education, and Jerry Maiorano ("Maiorano"), Principal at Siersma Elementary School.
Defendant Kearly began employment with the Warren Consolidated School District in 1966 as a physical education teacher at Pennow Elementary School.
In 1984, a complaint was lodged against Kearly by a male student alleging that Kearly grabbed him by the neck and slammed him into a locker. The allegation was confirmed, in part, by one of Kearly's gym aides; Kearly received a verbal reprimand. (District's Br. Exh. A, document 548.)
In 1985, Kearly was transferred to Flynn Middle School ("Flynn"). Allegations of improper sexual misconduct began surfacing almost immediately. On October 8, 1985, a female student alleged that Kearly looked down the front of her (as well as another female student's) top during class. No action was taken against Kearly. The assistant principal discounted the student's allegation, notwithstanding that more than one student made such an observation, because the student's accusation came after being disciplined by Kearly. (District's Br. Exh. A, document 494.)
On November 3, 1986, Flynn Principal Moy and Assistant Principal Weinberg met with Kearly to discuss numerous allegations/rumors of improper conduct, including, but not limited to: (1) having girls around his desk; (2) looking down female students' dresses; (3) keeping girls after class; and (4) teasing students and making improper comments such as "because you were over last night." (District's Br. Exh, A, document 440.) Kearly allegedly received another verbal warning. (District's Br. at 1.)
In 1986 or 1987, Kearly began sexually harassing a nineteen year-old former student, Tracy Stack, who was employed by the District as an assistant volleyball coach at Warren High — Kearly was the varsity volleyball coach. Kearly made inappropriate sexual comments to Ms. Stack, kissed her while conducting "meetings" at local bars, bought her alcoholic beverages, called her at home, and told her he could provide her with a furnished apartment. (Pl.'s Resp. Br. Exh. 3, documents 597-99, 611; Pl.'s Resp. Br. Exh. 14.) A deal was brokered by the District in which Ms. Stack, in order to keep her job, agreed not to file formal sexual harassment charges.
In January, 1988, Flynn Principal Moy discussed several issues with Kearly, including an incident in which a female student slapped him after he touched her buttocks. Moy noted that students were "talking" and that he could lose it all. Apparently, no discipline was taken
On October 5, 1989, Flynn Assistant Principal Chuck Kluka met with Kearly to discuss a parent's concern that her daughter would be placed in Kearly's class. Specifically, the parent heard rumors that Kearly "puts girls with large boobs in [the] front row" and "drops pen[s] to look up dress[es]." It is unclear what, if anything, transpired as a result of this concern.
In January 1990, a crisis team met with a Flynn student, LW,
Despite these assertions, Principal Moy, on November 5, 1990, sent a letter to Kearly, stating that Kearly would not be reprimanded for this misconduct. Instead, Moy issued a "letter of direct order," directing Kearly to refrain from physical contact with students, to refrain from teasing and other negative comments, and to refrain from showing favoritism. (District's Br. Exh. A, document 1599.) On December 17, 1990, the school made a report of abuse to the Michigan Department of Social Services regarding the LW matter. Defendant Kearly was not mentioned in this report. Instead, the District listed LW's mother as the alleged perpetrator of the abuse. (District's Br. Exh. A, document 497.)
The Sterling Heights Police Department commenced a criminal investigation into LW's accusations against Kearly, and criminal assault & battery charges were brought against him. (District's Br. Exh. A, documents 463, 520.) The District suspended Kearly with pay on May 1, 1991, stating that "[i]t would `appear' that the prosecutor's office has information that we do not have." (District's Br. Exh. A, document 502.) On December 10, 1991, Kearly was acquitted of the assault and battery charges. According to Thomas Dettloff, lead police investigator on the Kearly case, the Warren Consolidated School District was only "minimally cooperative" in the investigation. (Dettloff Affidavit ¶ 8.) Specifically, the District allegedly failed to produce numerous documents, including the names and/or interview notes of the students interviewed as part of the District's internal investigation into LW's accusations. (Id.) Dettloff indicated that the information would have substantially strengthened the case against Kearly. (Id. ¶ 9.)
On September 9, 1993, school officials were again notified of improper conduct by Kearly. This time, a female student's mother notified the school that her daughter was pretending to be sick because she did not want to return to Kearly's classroom. Once again, the cause of the incident was improper touching by Kearly. (District's Br. Exh. A, document 505.) On September 28, 1993, Kearly received a written reprimand from Assistant Superintendent Beckett. (District's Br. Exh. A, document 1325.) The letter stated, in relevant part:
(Id.) (emphasis in original).
The District did not follow through on this threat. After Kearly grieved the reprimand though his union, Assistant Superintendent Beckett, just as he had with respect to LW, expunged the reprimand from Kearly's personnel file even though he believed the reprimand was, in fact, issued for just cause. Beckett did so because the student was now comfortable in Kearly's class and the student's mother "express[ed] satisfaction with the way things are going now." (District's Br. Exh. A, document 627.)
In 1994, Kearly was transferred to Beer Middle School. On May 19, 1995, Kearly submitted a transfer request, seeking to fill a job posting for a elementary school physical education position. Kearly's reason for seeking the transfer was to return "back to [my] original position." (District's Br. Exh. A, document 197.) It was the ultimate approval of this transfer that put Kearly in a physical position to sexually assault the three plaintiffs in this case.
Kearly, however, did not immediately receive approval for the transfer. Article XI of the collective bargaining agreement entered into between the District and the Warren Education Association ("WEA") provided: "In the event a receiving building principal does not wish to accept an applicant for transfer, s/he will provide the reasons in writing, if requested to do so." (Pl.'s Resp. Br. Exh. 11.) Because the elementary position involved work at multiple schools (multiple principals),
On June 22, 1995, the WEA filed a grievance on behalf of Defendant Kearly. The WEA argued that Kearly should have been awarded the elementary physical education instructor position because he was the bidder with the most seniority. (District's Br. Exh. A, document 1226.)
On July 20, 1995, Sharon Hughes sent a memorandum to Defendant Superintendent Stamatakis, "strongly urg[ing]" him to uphold the denial of the transfer. Ms. Hughes included items from Kearly's file and noted: "We have a responsibility to the welfare of our students as well as district liability." The letter concluded:
(District's Br. Exh. A, document 516.)
Stamatakis, however, overruled the administration's decision to deny Kearly's transfer request. (District's Br. Exh. A, document 633.) In making this decision, Stamatakis "did an end around" the normal chain of command, ignoring Roger Allen, the Associate Superintendent of Human Resources, who would have vehemently argued against the transfer. (Allen Dep. at 124-28.) According to Stamatakis, he made this decision because he did not feel the information contained in Kearly's personnel file supported tenure charges. The District had removed the allegations with respect to LW, as well as many of the other allegations of improper touching and other conduct described above. (Stamatakis Dep. at 73, 115-16, 147-48, 150, 157, 161-63, 166.) According to Stamatakis, he made the best decision based upon the information available in Kearly's official personnel file — the information in his personnel file allegedly did not provide enough evidence to initiate tenure charges.
Stamatakis claims that if all of the information regarding Kearly's prior conduct had been maintained in Kearly's official personnel file, he may have made a different decision regarding the transfer. (Stamatakis Dep. at 158-60.) Mr. Stamatakis also acknowledges that as a general rule, if there is a concern that a teacher could be harming students, it is imperative that the district err on the side of caution and
Stamatakis' (as well as Clor's, see infra) claim of ignorance is in direct conflict with the deposition testimony of Marsha Pando, Associate Superintendent of Human Resources.
On October 27, 1995, shortly after Kearly's transfer was approved, the District expunged Kearly's personnel file of numerous other references to prior allegations of improper conduct and behavior. This included items discussed supra, such as Principal Moy's November 5, 1990 letter of direct order, numerous documents and notes related to the Sterling Heights Police Department's criminal investigation of Kearly, Assistant Superintendent Beckett's September 28, 1993 written reprimand of Kearly, the aforementioned letters drafted by Hughes and Michalowski opposing Kearly's transfer, and Ms. Hughes' July 20, 1995 letter to Superintendent Stamatakis. (District's Br. Exh. A, document 594-95.)
Notwithstanding the District's approval of the transfer and subsequent purging of
According to Defendant Clor (contrary to the testimony of Ms. Pando, supra), he was summoned, for unknown reasons, to a meeting with Defendant Stamatakis and others, and informed that he would provide supervision over Kearly. (Clor Dep. at 20, 22.) According to Clor, he was not told that Kearly was prohibited from using students aides; the only condition that Clor claims he was aware of was that Kearly was to be evaluated on an annual basis, forever. (Clor Dep. at 35, 122.) Moreover, because Clor was in charge of elementary educational issues as opposed to personnel issues, (Clor Dep. at 19-20), Clor claims that he knew nothing of Kearly's past misconduct other than a vague understanding that Kearly had been acquitted of an unspecified criminal charge. (Clor Dep. at 23-24.)
After the transfer, Kearly was assigned to work at several elementary schools, including Harwood Elementary School, and Siersma Elementary School where the Plaintiffs in this case were sexually assaulted. Defendant Jerry Maiorano was the principal at Siersma Elementary School, and thus was in charge of the day-to-day oversight of Kearly. (Maiorano Dep. at 11, 83.)
Kearly and Maiorano had been close friends since they began teaching together in Warren, in 1968, at Frost Elementary School. They maintained a social relationship and remained close friends until at least the early 1990's-Maiorano described the relationship as a thirty-year friendship. (Maiorano Dep. at 32-36, 39; Pando Dep. at 139.) Indeed, Maiorano and Kearly were drinking buddies, and Maiorano was the godfather to one of Kearly's children. (Maiorano Dep. at 59-61; Hughes Dep. at 68.)
Despite this very close relationship, Maiorano claims virtual ignorance with respect to Kearly's past instances of improper conduct. Maiorano claims that he was not even aware of the specifies of Kearly's first criminal trial — he was aware of talk, allegations, rumors and innuendo that Kearly was involved in criminal sexual conduct with a student and other improper activity — Maiorano, however, chose not to believe any of the speculation because he and Kearly had been longtime friends. (Maiorano Dep. at 34-40, 99.) Maiorano contends that the District did not inform him of Kearly's documented history of past misconduct. (Maiorano Dep. at 54, 56, 75, 84-85, 93, 96.) Maiorano acknowledges, however, that he was informed during the 1997-1998 school year that Kearly was not allowed to use older students to assist him in working with younger students.
On January 31, 1996, a new allegation of improper conduct surfaced. A male student at Harwood Elementary School reported that Kearly made fun of him and "grabbed his own crotch" in front of the class. (District's Br. Exh. A, document 1084.) When Mr. Faulman, Harwood Elementary School's Principal, confronted Kearly, he observed four fifth grade girls hugging Kearly; one of them stated "I love you and I want to marry you." (Id.) Kearly was instructed to refrain from touching female students. (Id.)
On February 7, 1996, Principal Faulman witnessed fifth grade girls leaving a multi-purpose room at the school. When questioned, the girls indicated that they were helping Mr. Kearly. Defendant Clor, who happened to be at the Harwood Elementary School on this date, observed Kearly's interaction with the young girls. (Clor Dep. at 13-14.) In fact, Marsha Pando, Associate Superintendent of Human Resources, claims that Clor indicated that he witnessed Kearly kissing one of the girls on the lips.
On February 20, 1996, Personnel Director Hughes wrote, once again, to Superintendent Stamatakis expressing "grave concern" over Kearly's contact with young girls. Her letter states:
(District's Br. Exh. A, document 515) (emphasis added). On February 28, 1996, Defendant Stamatakis responded by (1) notifying Ms. Hughes that Clor was directed to investigate the matter; and (2) chastising
In September, 1998, one of the Plaintiffs in this case reported to her mother that Kearly had inappropriately touched her and two other girls while they where aides in Kearly's gym class. Kearly was removed from the classroom and tenure charges were initiated.
As previously noted, Plaintiffs' complaint, filed on June 30, 2000, sets forth three counts — Count I: Michigan gross negligence and intentional misconduct; Count II: Federal 42 U.S.C. § 1983 — violation of the due process clause of the Fourteenth Amendment; and Count III: Federal Title IX sexual harassment. Now before the Court is (1) Dr. James Clor, Jerry Maiorano and the Warren Consolidated School District's motion for summary judgment; and (2) Dr. Paul Stamatakis' motion for summary judgment.
A. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may "at any time, move with or without supporting affidavits, for a summary judgment in the party's favor as to all or any part thereof." FED. R. CIV. P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would 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).
Id. at 323, 106 S.Ct. 2548; Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987).
A fact is "material" for purposes of a motion for summary judgment where proof of that fact "would have [the] effect of establishing or refuting one of the essential elements of a cause of action or
If this burden is met by the moving party, the non-moving party's failure to make a showing that is "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" will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548 (1986). The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce "evidence of evidentiary quality" demonstrating the existence of a material fact. Bailey v. Floyd Cty. Bd. of Ed., 106 F.3d 135, 145 (6th Cir.1997); see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (holding that the non-moving party must produce more than a mere scintilla of evidence to survive summary judgment).
B. CountI — Michigan: Gross Negligence and Intentional Misconduct
The Court must grant summary judgment in favor of the Defendants with respect to Plaintiffs' claim of gross negligence and intentional misconduct.
Michigan Compiled Laws section 691.1407(1), applicable with respect to Defendant Warren Consolidated School District, provides:
MICH. COMP. LAWS ANN. § 691.1407(1) (emphasis added). "Governmental agency" is defined as the state or a political subdivision. M ICH. COMP. LAWS ANN. § 691.1401(d). "Political subdivision," in turn:
MICH. COMP. LAWS ANN. § 691.1401(b) (emphasis added).
The remaining individual Defendants are entitled to summary judgment pursuant to section 1407(2).
MICH. COMP. LAWS ANN. § 691.1407(2) (emphasis added). Thus, under the terms of the statute, an employee is not entitled to governmental immunity if his or her gross negligence is "the proximate cause" of the plaintiff's injury or damage.
The Michigan Supreme Court in Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), overruled Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994), holding that the phrase "the proximate cause" means the one most immediate, efficient, and direct cause preceding an injury, not "a proximate cause." Robinson, 462 Mich. at 445-46, 613 N.W.2d 307. The Court stated:
Robinson, 462 Mich. at 462, 613 N.W.2d 307. In this case, "the proximate cause" of
Plaintiffs argue that the holding in Robinson does not apply where, as in this case, all of the alleged instrumentalities of injury were state actors. There is no indication, however, that the holding of Robinson is so limited. The Michigan Supreme Court's conclusion was not based on the specific facts presented; instead, the Court arrived at its conclusion based upon the clear and unambiguous language of the statute. Robinson, 462 Mich. at 458-463, 613 N.W.2d 307; see also Clark, supra at *4 ("Plaintiff argues that Robinson does not apply because it is factually distinguishable and involved motor vehicles, and that if Robinson does apply this Court should refuse to apply it and follow the dissent in Robinson. Neither assertion has merit. The Robinson Court's language regarding the phrase `the proximate cause' in M.C.L. § 691.1407(2)(c), quoted supra, is not limited.").
C. Count II — Federal: 42 U.S.C. § 1983
42 U.S.C. § 1983 provides, in relevant part:
In order to establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must establish that (1) the individual defendant was acting under color of state law; and (2) the defendant deprived the plaintiff of his rights secured by the United States Constitution. Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir.2002) (citation omitted); Wolotsky v. Huhn, 960 F.2d 1331, 1334-35 (6th Cir.1992) (citation omitted).
1. Individual Defendants
The individual defendants argue that they are entitled to qualified immunity with respect to Plaintiff's § 1983 due process claim.
(i) Qualified Immunity Standard
Government officials are afforded qualified immunity for their discretionary functions, as long as the conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Sandul v. Larion, 119 F.3d 1250, 1254 (6th Cir.1997)
The Supreme Court recently clarified the appropriate analysis to be used when evaluating a claim of qualified immunity. According to Saucier, a court must perform a two-step sequential inquiry. See Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002); Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001). First, as a threshold matter, the district court must determine whether the facts, taken in a light most favorable to the injured party, show that the officer's conduct violated a constitutional right. Saucier, 121 S.Ct. at 2156; Comstock, 273 F.3d at 702. "If no constitutional right would have been violated were the allegations established, there is no [need] for further inquir[y] concerning qualified immunity." Saucier, 121 S.Ct. at 2156. However, if a violation could be established, taking the facts in a light most favorable to the injured party, the court must determine whether the right was clearly established. Id. The issue whether a right was clearly established is a legal question which must be determined by the Court.
An noted in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the injured party must allege more than an abstract right, such as the right to due process, or the right to be free from excessive force under the Fourth Amendment; instead, the right must be clearly established in a "more particularized, and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier, 121 S.Ct. at 2156 (discussing Anderson, 483 U.S. at 640, 107 S.Ct. 3034). Thus, according to the Supreme Court, a right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.; Phelps, 286 F.3d at 299. Stated another way, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Saucier, 121 S.Ct. at 2157 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity protects a government official who "reasonably acted unreasonably." Id. (discussing Anderson, supra). As recently noted by the Sixth Circuit, a court "need not, of course, find a case in which `the very action in question has previously been held unlawful,' but, `in the light of pre-existing law[,] the unlawfulness must be apparent.'"
(ii) Violation of a Constitutional Right
The Due Process Clause of the Fourteenth Amendment clearly protects
In Roseville, the Sixth Circuit reiterated that in an earlier decision, the court explicitly stated that the "supervisory liability" test established in Bellamy v. Bradley, 729 F.2d 416 (6th Cir.1984), applied to individual defendants who had supervisory responsibility over the school employee/teacher-i.e., school administrators may be held liable for the constitutional injury caused by the teacher/employee under the long-established supervisory liability test. Roseville, 296 F.3d at 439 (discussing Claiborne County, 103 F.3d at 513).
However, as outlined in Roseville and Claiborne County, this standard of liability is an onerous one. A defendant cannot be found liable if he or she was merely "sloppy, reckless or negligent in the performance of their [supervisory] duties." Id. at 439. Instead:
Id. (internal citations omitted).
Id. (emphasis added). The Sixth Circuit went on to note that allegations that a supervisor failed to act were insufficient — "[i]n the absence of any allegation that the supervisors had `participated, encouraged, authorized or acquiesced in' the offending conduct ... supervisors had, as a matter of law, `neither committed a constitutional violation nor violated a clearly established right.'" Id. at 439-40. The court also cited with approval a decision of the Eleventh Circuit Court of Appeals. There, the court noted that the deprivations that constitute widespread abuse sufficient to notify the supervisor must be "obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences." Id. at 440, 440-41 (quoting Braddy v. Florida
Such Sixth Circuit precedent presents a high hurdle for Plaintiffs to overcome. However, a review of the record currently before the Court reveals that this case presents the rare instance in which summary judgment is not appropriate under this standard. A summary of Roseville and Claiborne County is instructive.
(a) Doe v. City of Roseville, 296 F.3d 431 (6th Cir.2002)
In Roseville, the plaintiff alleged that she was sexually abused by John Lomnicki, her clementary school reading teacher during the years 1992 and 1993. Roseville, 296 F.3d at 433-34. Lomnicki was hired by the school district in 1960. During the 1975-76 academic year, several girls alleged that Lomnicki touched them in an inappropriate manner. Principal Slinde allegedly told one of the girl's father that "she did not see how it could be possible." Slinde did not document the incident or report it to anyone: she did, however, give Lomnicki an oral warning. Id. at 434.
The next year, more allegations of improper touching surfaced. Principal Slinde allegedly questioned the girls and told them that "she did not want to hear anymore talk about it," Slinde also allegedly cautioned the girls that they were not supposed to tell anyone of the touching, even their parents. Id.
Lomnicki was then transferred to a different clementary school. Slinde, however, did not inform the school of Lomnicki's oral reprimand. In 1979, Superintendent Mayer was notified that Lomnicki had fondled the breasts of four sixth-grade girls. Mayer investigated, determined that Lomnicki used "poor judgment," and issued a written, sealed reprimand. Id. at 435.
Lomnicki was subsequently transferred to Arbor Elementary School, where he taught individual students, one at a time, in a private classroom. When the transfer was effectuated, school officials, once again, were not informed of the oral reprimand or the sealed written reprimand. No allegations of improper conduct were made until 1988 when several sixth-grade girls reported improper touching by Lomnicki (hugging, back rubs, forcible hand holding). Assistant Superintendent Herron and Superintendent Mayer were informed of the allegations. Herron conducted an investigation and a sealed reprimand was once again issued to Lomnicki for "poor judgment." Additionally, Mayer sent a confidential memorandum to the board of education and the district's attorney, informing them of the two incidents for which Lomnicki received written sealed reprimands. Id. at 435. Mayer notified the County Child Abuse Office and transferred Lomnicki to Eastland Elementary School. Id.
Lomnicki occupied a similar position at Eastland Elementary-teaching individual students, one at a time. It is here, in 1992 and 1993, that the plaintiff alleged that Lomnicki committed horrific acts of sexual abuse, the details which are not important to the instant discussion. The plaintiff however, did not immediately notify her parents or school authorities of the abuse. Id. at 436-37. Instead, in early 1993, a criminal investigation was commenced against Lomnicki with respect to an unrelated matter — the sexual abuse of his neighbor. Superintendent Kment was informed of the police investigation in January or February 1993 — Lomnicki was removed from direct contact with students, and the criminal investigation became known to the community at large in March, 1993. Id. at 436. Approximately twenty-one months later, in December, 1994, plaintiff's mother reported her daughter's allegations. Director of Special Education Silava immediately filed a report
The Court first addressed the actions of Slinde, Mayer and Herron, the three employees who were no longer employed by the district at the time the plaintiff was allegedly abused. The court acknowledged that the conduct of the three defendants was "disturbing." Id. at 440. However, according to the court:
Id. at 440-41.
Similarly, the Court found that Superintendent Kment did not violate the plaintiff's constitutional rights. The Court stated:
Id. at 441.
(b) Doe v. Claiborne County, Tenn., 103 F.3d 495 (6th Cir.1996)
In Claiborne County, the plaintiff alleged that she was sexually harassed, abused and raped by a school teacher, Jeffrey Davis, a physical education teacher, in 1991 and 1992. Claiborne County, 103 F.3d at 500-01. Allegations with respect
A few months later, in January, 1990, Superintendent Peters was notified by the Department of Human Services ("DHS") that Davis had allegedly sexually abused nine different girls at Midway School. Two months later, the DHS informed Peters that Davis was still under investigation and that "immediate action" needed to be taken to ensure that Davis would have "no access to or contact with any child." The district promptly removed Davis from student contact and chose not to rehire him for the upcoming school year. Id. at 502.
Thereafter, the DHS concluded that four of the nine allegations were "founded." Davis negotiated a "pre-trial agreement" with the DHS in which the DHS agreed (1) that criminal proceedings, if any, would be brought by the alleged victims, not the DHS; (2) the DHS would not place Davis' name on a registry; and (3) although the DHS would notify the board of education of its finding, it would not take an active role in seeking the suspension of his teaching license. Interim Superintendent Dobbs interpreted the letter "to be an exoneration of Davis." Id. at 502-03.
Thereafter, based on a promise made by school board chairman Burchette that the school board would approve Davis' rehiring, Defendant Barnard, principal at Soldiers Memorial Middle School ("SMMS") personally offered Davis the position of physical education teacher and coach at SMMS. When Davis started to explain the DHS charges, Barnard responded that he didn't "want to hear about it." Although Barnard knew that DHS had requested that Davis refrain from student contact, he made no further inquiries because he believed that Davis had been exonerated of all charges based on the pre-trial agreement. In September, 1990, the school board officially rehired Davis. At the hearing, Superintendent Norris testified that he inspected Davis' personnel file and interpreted the information as consisting of "unfounded charges." Id. at 503.
Because of the DHS charges and other rumors and accusations, Principal Barnard began to closely supervise Davis. In fact, Barnard's permission was specifically requested with respect to the use of the plaintiff as a scorekeeper for Davis' basketball team. Barnard responded: "If you can't find anybody else. If we can't find anybody else." Davis began to sexually abuse the plaintiff shortly thereafter. Id. at 503.
The Sixth Circuit affirmed the district court's dismissal of the plaintiff's section 1983 claims against Superintendents Peters and Norris, and Principal Barnard. The court stated:
Id. at 513.
(iii) Application of Roseville and Claiborne County to the Instant Case
The Court will address each individual defendant in turn.
Defendant Stamatakis claims that he approved Kearly's transfer because he did not feel that the information contained in Kearly's "personnel file" supported tenure charges. Stamatakis notes that the District had purged Kearly's personnel file, including many allegations of improper conduct/touching. Thus, he claims to have made the best decision based on the information available at the time. In fact, Stamatakis claims that if all of the information regarding Kearly's prior conduct had been maintained in his personnel file, he may have made a different decision. Consequently, Stamatakis argues that his conduct, even viewed in hindsight, amounts to nothing more than mere negligence.
However, taking the facts in a light most favorable the non-moving party, Stamatakis' claim that he was hampered by a lack of information is untenable. Marsha Pando, Associate Superintendent of Human Resources, testified that high level meetings occurred prior to the transfer in which Sharon Hughes, the District's Director of Personnel, presented material which had been purged from Kearly's personnel file. Additionally, Ms. Hughes voiced her concern directly to Stamatakis that Kearly was a threat to elementary school students. Testimony in the record reveals that when confronted with this information, Stamatakis characterized Kearly as a "scumbag." Stamatakis' also received a memorandum from Ms. Hughes which included documents from Kearly's file; Hughes argued that the "incidents are severe enough and recent enough to warrant concern. I strongly urge that you support administration's decision to deny his transfer to elementary physical education."
Having been confronted with the documentation, and having concluded that Kearly's long history of misconduct rendered him a "scumbag," Stamatakis still decided, as part of concessions made during the District's collective bargaining with the WEA, to resolve the grievance in Kearly's favor, and allow him to return to the elementary school level. In doing so, Stamatakis "did an end around" the normal chain of command, ignoring Roger Allen, the then Associate Superintendent of Human Resources, who would have vehemently argued against the transfer. Furthermore, Stamatakis made this decision despite acknowledging that if there is a concern that a teacher could be harming students, it is imperative that the district err on the side of caution and protect the students, even if it means breaking a contract. Most troubling, however, is the fact that Stamatakis actually testified that he based his decision, at least in part, on his opinion that a transfer might be appropriate because Kearly would be removed from the middle school setting where there were older, more developed girls that might attract Kearly. Thus, despite the fact that Stamatakis acknowledges that
Stamatakis was not satisfied, however, with merely approving the transfer. Taking the facts in a light most favorable to the non-moving party, Stamatakis' wrath fell upon the individual who most strongly, and most publically, opposed the transfer — Sharon Hughes. Ms. Hughes was reprimanded for her failure to properly purge employee files and for making recommendations "without making a diligent review of the applicable personnel file ... and by considering matters which by agreement were to have been destroyed or expunged from the employees personnel file." (Pl.'s Resp. Br. Exh. 3, document 1277; Hughes Dep. at 104 — noting that she was reprimanded for the handling of the Kearly case.) Ms. Hughes was later removed from her position as Director of Personnel and banished to the position of technical education supervisor. (Hughes Dep. at 10.)
Stamatakis' deliberate indifference did not end here. Shortly after the transfer, Kearly once again began a course of improper conduct. This included grabbing his crotch in front of a class, hugging fifth grade girls, and allegedly kissing an elementary school girl on the lips. Stamatakis' transfer order permitted Kearly to remain in direct contact with students, notwithstanding Director Hughes' second strong warning to Stamatakis:
(District's Br. Exh. A, document 515) (emphasis added).
Similarly, summary judgment must also be denied with respect to Defendant Clor. According to Dr. Clor, he no knowledge of Kearly's past misconduct other than a vague understanding that Kearly had been acquitted of an unspecified criminal charge. Thus, Dr. Clor contends that his alleged inaction, even in the face of observing a single instance in which Kearly allegedly kissed a female student (which he strongly disputes) during the period he had been placed on "Kearly's case" by the Superintendent, while maybe disturbing in hindsight, does not indicate that he "participated, encouraged, authorized or acquiesced in" the offending conduct. Simply stated, Clor argues that he was not confronted with a widespread pattern of constitutional deprivations that were "obvious, flagrant, rampant, and of continued
The Court disagrees. As with Dr. Stamatakis, testimony from Marsha Pando, Associate Superintendent for Human Resources, taken in a light most favorable to the Plaintiffs, establishes that Dr. Clor was well aware of Kearly's long history of misconduct and inappropriate touching — he was aware of a widespread pattern of constitutional violations. Despite this knowledge on Clor's part, Ms. Pando testified that she was under the impression that Dr. Clor personally vouched for Kearly during the transfer debate.
Moreover, according to Stamatakis, Dr. Clor was placed in charge of making sure that Kearly was closely supervised.
Like Defendants Stamatakis and Clor, Defendant Maiorano's claim of ignorance with respect to Kearly's long history of misconduct is certainly subject, based on the record currently before the Court, to attack by the Plaintiffs at trial. Maiorano claims that he was unaware of most of Kearly's past misconduct; he contends that he was only aware of rumors and innuendo which he chose not to believe.
However, Maiorano and Kearly remained close friends into the 1990's. Maiorano, moreover, was Kearly's drinking buddy and was godfather to one of Kearly's children. Given Maiorano's admitted thirty-year friendship with Kearly, a reasonable jury could conclude that he was aware of his friend's long history of improper behavior. Such a conclusion is buttressed by Maiorano's actions after Kearly was removed from Siersma Elementary School. After Maiorano was confronted with the specific details surrounding the sexual molestation of the Plaintiffs, Kearly was asked to remove his personal belongings from the building. On his way out, Kearly told Maiorano: "Love you, brother." (Maiorano Dep. at 117.) Maiorano acknowledges that Kearly was hoping that he would cover for him. (Id.) Maiorano responded: "Don't worry about it, it's okay." (Id.) Credibility determinations must be made by the jury, not this Court.
Furthermore, Maiorano acknowledges that he was informed that Kearly was not allowed to use student aides when working with younger students.
Thus, a reasonable jury could conclude that Maiorano, who maintained an ongoing personal relationship with Kearly into the 1990's, had knowledge of Kearly's widespread pattern of sexual abuse/misconduct with female students. Moreover, taking the facts in a light most favorable to the Plaintiffs, a reasonable jury could conclude that Maiorano "acquiesced in" the offending conduct, by giving Kearly permission to use student aides despite explicit instructions to the contrary.
Consequently, Defendant Maiorano is not entitled to qualified immunity with respect to Plaintiff's section 1983 claim, and Defendants motion for summary judgment on this count is denied with respect to Defendant Maiorano.
2. Warren Consolidated School District
The Warren Consolidated School District may be liable under 42 U.S.C. § 1983. See Monell v. Department of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 ("Congress did intend municipalities and other local government units to be included among those persons to
(a) "Custom" Under Monell
The Court concludes that a genuine issue of material fact exists with respect to whether section 1983 liability exists due to a "custom" of inaction. Although Plaintiffs' brief speaks of "affirmative acts" by the District, it is clear that Plaintiffs contend that the District's actions and/or policies amounted to a "custom of inaction" — i.e., failing to prevent sexual abuse by teachers after repeated notice of instances which would indicate that the teacher was a pedophile. Such a theory was recognized by the Sixth Circuit in Claiborne County.
A "custom" under Monell must "`be so permanent and well settled as to constitute a custom or usage with the force of law.'" Claiborne County, 103 F.3d at 507 (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). It must reflect a course of action deliberately chosen from among various alternatives. Id. at 508 (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). If a custom is established, a plaintiff must also show that his or her injury was incurred because of the execution of that policy. Id. (citation omitted). Consequently, according to the Sixth Circuit, a plaintiff must establish four elements:
Id. (citations omitted).
Here, taking the facts in a light most favorable to the Plaintiffs, a genuine issue of material fact exists with respect to whether the District had a "custom" of failing to prevent the sexual abuse of its students after repeated notice of improper conduct. The evidence set forth above clearly establishes a persistent pattern of sexual abuse by Kearly. Instances of misconduct began in 1984, and continued on a consistent basis until Kearly ultimately abused the Plaintiffs in this case in 1998. Furthermore, because the Board of Education delegated responsibility over personnel matters involving teachers, no matter how serious, to the superintendent and his administrative staff, (Pl.'s Resp. Br. Exh. 17), the District clearly was on constructive notice of this pattern of misconduct.
Moreover, a reasonable jury could conclude that the District had a custom of deliberate indifference to the sexual abuse of students by Kearly. First, as just noted, evidence exists that the Board of Education had a practice and policy of delegating personnel matters involving teachers, no matter how serious, to the superintendent and his administrative staff. As such, Board member Geralyn Thueme acknowledges in a sworn affidavit that the Board
Additionally, the District's response to several of Kearly's instances of inappropriate sexual behavior reveals a custom of deliberate indifference. For example, taking the facts in a light most favorable to the Plaintiffs, after Kearly sexually harassed Ms. Stack, the District brokered a deal in which Ms. Stack agreed not to file formal sexual harassment charges in order to keep her job. In fact, Ms. Stack submitted an affidavit in which she stated that Associate Superintendent Beckett "told me that if I wanted to keep [my] job, I would not take this any further."
The District's handling of Kearly's mistreatment of LW also raises serious concerns. Principal Moy conducted an internal investigation into LW's accusations — the investigation not only confirmed the allegations of mistreatment, but also contained consistent accounts of other highly inappropriate sexual behavior by Kearly. Notwithstanding this fact, the District did not reprimand Kearly, instead, it merely issued a "letter of direct order" regarding future professional conduct. Even more troubling, after Kearly was bound over on charges of assault and battery, Thomas Dettloff, the lead investigator in the case, testified by way of affidavit that the District was only "minimally cooperative" with his investigation, failing to provide numerous documents accumulated by the District which would have "substantially strengthened" the case against Kearly. Furthermore, the District treated Kearly's acquittal, based on the criminal "reasonable doubt" standard, as an exoneration of all charges, notwithstanding the fact that its own investigation confirmed LW's allegations. Associate Superintendent Beckett not only expressed "relief" at the verdict, but he also had Kearly's personnel file expunged of all reference to LW's accusations. Finally, Kearly's suspension was changed by the District to a "conference leave of absence",
The District's deliberate indifference is also exhibited by the fact that on at least two occasions, the District entered into Letters of Understanding with the WEA for the removal of material from Kearly's personnel file. According to Defendant Stamatakis, the purging of Kearly's official "personnel file" impeded his ability to deal with the concerns raised by Hughes and Michalowski — Stamatakis contends that he may have made a different decision with respect to Kearly's grievance had the official personnel file contained all of Kearly's past misconduct.
D. Title IX
Plaintiffs have also asserted a claim pursuant to Title IX, 20 U.S.C. §§ 1681-88. Plaintiffs' complaint alleges that the alleged sexual abuse of Sally, Jane and Mary Doe at the hands of Defendant Kearly amounted to sexual harassment under Title IX's statutory scheme. 20 U.S.C. § 1681 provides, in relevant part: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has held that "discrimination" under Title IX includes sexual harassment of a student by a teacher. Doe v. Claiborne County, Tennessee, 103 F.3d 495, 513 (6th Cir.1996) (citing Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)); see also Soper v. Hoben, 195 F.3d 845, 854 (6th Cir.1999).
1. Individual Defendants
The Government's enforcement power under Title IX may only be exercised against the funding recipient — damages liability has not been extended to parties outside the scope of this power. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 641, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). As such, summary judgment must be granted in favor of Defendants Stamatakis, Clor and Maiorano with respect to Plaintiff's Title IX claim of sexual harassment. See Soper, 195 F.3d at 854.
2. Warren Consolidated School District
The District's liability under Title IX depends on the establishment of two elements.
Based on the Court's previous § 1983 analysis above, a reasonable jury could conclude that the District, through those who had authority to address the alleged discrimination and institute corrective measures — Superintendent Stamatakis, Associate Superintendent Beckett, Director Hughes, various principals, etc. — had actual knowledge of a substantial risk of abuse to children in the district based upon numerous complaints lodged against Kearly from 1984 through 1998. See Hart v. Paint Valley Local Sch. Dist., No. 01-004, 2002 WL 31951264, at *5-*7 (S.D.Ohio Nov. 15, 2002) (discussing the contours of the actual notice standard after Gebser).
Second, the recipient's response to its actual notice of discrimination must amount to deliberate indifference to discrimination. Id. Deliberate indifference occurs when the recipient's response is clearly unreasonable in light of known circumstances. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Similarly, based on the Court's § 1983 analysis supra, a reasonable jury could conclude that the District's response amounted to deliberate indifference — i.e., their response to the various allegations were clearly unreasonable. Consequently, the Court DENIES the District's motion for summary judgment as to Count III.
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the motions for summary judgment. Specifically, the Court
Question: Did you have the material from Sharon Hughes in which she indicated that it was her belief that he should not be transferred because of the serious allegations made against him and that he should not — and her concern that elementary school students would not be able to protect themselves from this man?
* * * * * *
Answer: At that time, she didn't express them directly to me. She expressed them to the superintendent, and there was — there was some discussion of the file that she had.
* * * * * *
Answer: I do recall that he would be evaluated every year, not that there would be a plan of assistance, but he would be evaluated every year. I don't recall a plan of assistance being mentioned. I recall that there would be a directive that he would not be allowed to have any student assistants....
(Pando Dep. at 77-80, 81.)
Question: When you were the director of personnel and Mr. Kearly wanted to transfer to an elementary school, it was your opinion that Mr. Kearly had had a number of incidents in which he demonstrated poor judgment that involved inappropriate contact with students, true or not true?
Question: That he demonstrated what was, in your mind, a danger to female students in the district?
Question: That you were concerned that the younger students would be less likely and less able to protect themselves and object to Mr. Kearly's conduct?
Question: You expressed those views to both administrative and counsel at the meetings which we talked about?
* * * * * *
Question: Who was in attendance at the meeting?
Answer: Mr. Malkowski, Dr. Stamatakis and Mr. Collins.
Question: Did anyone indicate that the substance of what you had expressed was not true?
Question: Did they agree with the substance of what you expressed and just disagree with the conclusion you came to?
Answer: They called him a scumbag.
Question: They called him a scumbag?
Answer: Mr. Kearly.
* * * * * *
Question: You said they referred to him as a scumbag. Would you give me the context of that?
Answer: It shocked me. I think Dr. Stamatakis said, we know he's a scumbag.
(Hughes Dep. at 246-48.) Ms. Hughes subsequently stated that it was either Mr. Collins, the District's attorney, or Mr. Stamatakis who referred to Kearly as a scumbag at the meeting. (Hughes Dep. at 249.)
Question: And did you get the sense that Jim Clor knew Jim Kearly?
Question: How well?
Answer: I don't know how well.
Question: What gave you the sense that he knew him?
Answer: General discussions.
Question: Like what?
Answer: I don't really recall specifics.
Question: Take whatever you recall. What left you with the impression?
Answer: Specifically, the discussion at the time during the negotiations, you know, that there had been allegations against him but they weren't proven.
Question: That was — did you get the sense that Mr. Clor was essentially vouching for Mr. Kearly?
Answer: I had that impression.
(Pando Dep. at 103-04.)
Question: So it was a unusual directive or unique directive agreed?
Answer: I would assume that it was unique.
Question: It being unique, did you have some understanding of why he was being given the directive?
* * * * * *
Answer: Because he was transferred to the elementary school but there was a stipulation put on that that he would be evaluated annually, he would not be allowed to have student aides, and he was to be put in buildings where he was going to be monitored.
(Pando Dep. at 113.)
Question: [Clor] is the person who you relied upon the most for handling the Kearly matter, is that correct?
Answer: With regard to the transfer to the elementary?
Question: Well, that's part of it.
Answer: Yes, he was the key person in that.
Question: Was he also the key person that you relied upon to get information about Kearly?
Question: He was the person who you would have assumed would have best known Kearly's history?
(Stamatakis Dep. at 173-74.)
Question: In the 1997/'98 school year, you were aware that he not use older students to assist him in working with younger students without specific prior permission from the building principal?
Answer: That's in the evaluation, yes.
Question: You knew it then?
(Maiorano Dep. at 80.)
Ms. Pando testified that Maiorano was aware of the restrictions:
Question: Okay. Now, did you come to some conclusion during this entire process whether or not Mr. Maiorano knew about the restrictions that Mr. Kearly had had placed on him that he was not to use any student aides?
Answer: Jerry Maiorano was aware that he was not to have aides.
Question: How do you know that?
Answer: Based on conversations with him.
* * * * * *
Question: Okay. Did Mr. Maiorano, during your investigation, confirm to you that he, in fact, did know about this restriction.
Answer: He knew he was not supposed to have aides, he did not know that he was using the aides.
* * * * * *
Question: And he confirmed that to you?
(Pando Dep. at 133-34.)
Question: Then it says, he was hugging girls and Jim Clor saw him kiss a girl on the lips?
* * * * * *
Answer: And, it was suggested to ask him if he had ever kissed a student and I was told at that time that Jim had seen him kiss a girl on the lips.
Question: And I assume that you confirmed that with Mr. Clor somewhere along the line before the interview?
Answer: Yes I did.
Question: Okay. Mr. Clor confirmed it to you?
Answer: Yes, he did.
(Pando Dep. at 127-28.)
Question: Dr. Clor [was] to investigate this matter in that '96 time period.
Question: Did he provide you with the results of his investigation?
Question: Did he put it in writing?
Question: Why not?
Answer: I don't know.
Question: Do you recall what he told you?
Answer: Basically, that he investigated and everything is under control, so to speak, that he's on top of, on top of the case.
* * * * * *
Question: Okay. If he says he saw female students walking up and hugging Mr. Kearly and told Mr. Kearly, don't let that happen again, would you believe that or would that be an allegation?
Answer: I would believe him.
Question: Okay. Go ahead. Did Dr. Clor ever respond to you and tell you what the conclusion of his investigation was?
Answer: That Kearly was, I guess the term is, reprimanded or told that that type of behavior is not to be, that it's not condoned; that he is to maintain proper decorum with students and that kind of a response. I did not get it in writing so I can't tell you verbatim what he said but my understanding was that he had investigated and he had dealt with the situation.
(Stamatakis Dep. at 82-83, 84.)
(Maiorano Dep. at 117.)
Answer: Mr. Kearly was just a playing card in a political conspiracy.
Question: And the political conspiracy was intending to do what?
Answer: Give power to the people who wanted the power.
Question: Fair statement to say that in your opinion the way that the Kearly matter was handled, and ultimately allowed to get to my three clients, was the result of gross incompetence on the part of the district in not removing him earlier.
* * * * * *
Answer: I would say negligence.
Question: Gross negligence? Ma'am, you're shaking your head.
Question: All the warning signs, as director of personnel, all the warning signs were there, you alerted others to the warning signs and nothing was done, fair statement?
Answer: Correct. My credibility was minimized.
Question: When you saw your credibility was minimized, ma'am, no one ever responded to your warnings, did they? It isn't a question of minimizing, they just didn't respond to it at all, did they?
Answer: No to me?
Question: Nor did they do anything except transfer him so that he could molest my three clients, right?
Answer: They transferred him, yes.
Question: Allowing him to be in a situation where he could molest my three clients, correct?
Answer: Setting up that potential, yes.
(Hughes Dep. at 258-59.)
A plaintiff's assertion of a violation "of a broadly stated general right is not determinative." Rippy v. Hattaway, 270 F.3d 416, 424 (6th Cir.2001). The Sixth Circuit has held that:
Id. (citation omitted). Here, pursuant to Bellamy and Claiborne County, the Court concludes that the constitutional right alleged by the Plaintiffs was clearly established.
Question: Do you have any other administrators in the building?
Answer: Other than myself, no.
(Maiorano Dep. at 11.)
Question: That's my point. I just want to make sure I understand your position; you couldn't do anything to prevent what happened to my three clients because you didn't know anything about this man's history, correct or not correct?
Answer: Correct, but if I had known, I'm not sure I could have done anything anyway because these things were not done in front of me.
(Maiorano Dep. at 96.) Maiorano's testimony — that Kearly could do anything to students and get away with it as long as it wasn't done in his presence — supports the Court's conclusion that Maiorano acted with deliberate indifference with regard to Kearly's conduct.
Question: Matter of fact, let's talk about that a minute. You saw that he was out for almost 95 days on conference leave, right?
Question: Tell me what a conference leave is, sir?
Answer: I don't know.
Question: You don't?
Question: Conference leave, that's a term that's used in a lot of school districts, isn't it? When — if — if Dr. Socol was going to go to a conference, she'd submit a request form saying, I'm going to be out to go to a conference, right?
Question: That's what a conference leave is?
Answer: That is the normal definition of a conference, but I don't know what a 95-day conference leave is.
Question: There is no such thing, is there?
Answer: I don't know.
Question: Have you ever heard of it?
Answer: I haven't heard of it, but it doesn't mean that it doesn't exist. Somewhere, somebody came up with it.
(Stamatakis Dep. at 73-74.) Additionally, with regard to the lack of proper documentation of Kearly's conduct, after several instances of improper touching, no documentation was created by the District.
Question: I'd like you to tell me, as you go through there, if you can find any three-year period in which Mr. Kearly, according to the district's document, was not involved in some conduct related to improper touching or contact with students.
Answer: There seems to be things almost every year.
Question: Okay. Now, we're limited. We only go from '85 to '94 in that document, correct?
(Hughes Dep. at 204.) Ms. Hughes, in response to Kearly's reprimands, also suggested that the District investigate Kearly's background. Apparently, the District also ignored this request. (Hughes Dep. at 254.)