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Wenk v. O'Reilly

United States Court of Appeals, Sixth Circuit

April 15, 2015

PETER WENK; ROBIN WENK, Plaintiffs-Appellees,
v.
EDWARD O'REILLY, Defendant. NANCY SCHOTT, Defendant-Appellant

Argued March 4, 2015

Page 586

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:12-cv-00474--Algenon L. Marbley, District Judge.

ARGUED: Matthew John Markling, MCGOWN & MARKLING CO., L.P.A., Akron, Ohio, for Appellant.

Michael Garth Moore, Columbus, Ohio, for Appellees.

ON BRIEF: Matthew John Markling, Patrick Vrobel, MCGOWN & MARKLING CO., L.P.A., Akron, Ohio, for Appellant.

Michael Garth Moore, Columbus, Ohio, for Appellees.

Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

Page 587

KAREN NELSON MOORE, Circuit Judge.

Plaintiffs Peter Wenk and Robin Wenk, parents of an intellectually-disabled 17-year-old girl, brought suit under 42 U.S.C. § 1983 against various defendants, including Nancy Schott, the Director of Pupil Services at their daughter's school. The Wenks allege that Schott filed a child abuse report about Peter Wenk in retaliation for the Wenks' advocacy to change their daughter's educational plan, and Schott therefore violated their First Amendment rights. The district court denied Schott qualified immunity, and Schott now appeals. The Wenks have moved for damages or, in the alternative, attorney fees and costs for defending this appeal. For the reasons set forth below, we AFFIRM the district court's judgment, and DECLINE to impose sanctions on the Appellant.

I. BACKGROUND[1]

Married plaintiffs Peter and Robin Wenk have a daughter, M.W., who is " cognitively disabled," has " major communication deficits and social skills deficits," and has an IQ of 70 or below. R. 46 (Schott Dep. at 41). M.W. therefore requires special education services. During the events forming the basis of this suit, M.W. attended high school in the Grandview Heights City School District. School officials educate M.W. according to an Individualized Education Program (" IEP" ), as required by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.

During the 2009-2010 school year, Christine Sidon and Karla Hayes co-taught M.W. in a " social skills" class. R. 83 (Sidon Dep. at 37-38, 53). Sidon and Hayes agreed that Hayes " would do all the documentation," and that Sidon " would do the phone calls home to parents." Id. at 50. Sidon believed that Hayes was " documenting what was happening in social skills," including " [a]nything odd." Id. at 50-51. Beginning in 2009, Hayes made handwritten notes about various comments made by M.W. and observations Hayes made about M.W., which she later compiled into a typed document. Hayes's notes suggest that she began documenting her observations at the suggestion of Kathy Binau, the Director of Pupil Services at the time, school psychologist Eric Pickering, and Jesse Truett, the Principal.

Hayes recorded the following incidents: (1) on October 14, 2009, during a discussion with the female students " about proper hygiene when they have their menstrual period[,] [M.W.] raised her hand and told us that her dad puts her tampons in her and it really hurts her," [2] and that she repeated this comment on November 16, 2010; (2) on December 8, 2009, M.W. said

Page 588

" that sometimes she and her dad lick each other on the faces and necks" and that " her whole family hangs around the house naked sometimes" ; (3) on January 27, 2010, M.W. said " that her private parts are 'sticky and itchy,'" and that M.W. repeated this comment in 2010 on February 10, March 10, May 17, and December 13, and on February 23, 2011; (4) on January 28, 2010, M.W. told them that " her Dad put her cream on her vagina for her," and that she repeated this on March 10, 2010 and on February 23, 2011; (5) on February 18, 2010, at an IEP meeting, Peter Wenk said " he really wanted us to find a boyfriend for [M.W.]," and that a certain boy " can do whatever he wants to do to [M.W.] on a date and her father is giving him permission" ; (6) on February 25, 2010, Hayes observed Peter Wenk kiss M.W. " on the lips" before leaving; (7) on January 4, 2011, Peter Wenk told Sidon that he gets in the shower with M.W. to help her wash her hair, and that M.W. said that " Dad takes off his clothes when he gets in the shower with her" ; and (8) on January 6, 2011, M.W. said that " my dad and me and Frankie [their dog] sit on the carpet and scoot our butts across the floor." R. 102-3 (Hayes Notes at 2-7).[3]

Sidon disputes the accuracy of some of these observations in Hayes's notes. She testified in her deposition that " I have some concerns about the number of times that it says that [M.W.] said that dad put cream on her or dad put the tampon in. I personally do not remember it being that many times." R. 83 (Sidon Dep. at 30). Sidon also testified that she did not remember M.W. making the statements about cream, tampons or showering in the fall of 2011. Id. at 157. Finally, Sidon testified that she perceived Peter Wenk to be " joking" about the boyfriend comments at the meeting on February 18, 2010. Id. at 177-78.

A. Interactions between Nancy Schott and Peter Wenk

In the 2011-2012 school year, Defendant Nancy Schott became the Director of Pupil Services. Dawn Sayre became the Principal. Ed O'Reilly had been the Superintendent of the school district since 2006.

On September 2, 2011, Peter Wenk and Schott met for the first time at a meeting. Wenk advocated for the District to organize a " special ed prom" with students from a nearby school district because he felt M.W. had inadequate social opportunities. R. 46 (Schott Dep. at 112); R. 106 (P. Wenk Dep. at 29, 34). Schott testified in her deposition that Wenk was " very aggressive, very demanding, [and that he] wanted to make it clear that what he wanted is something that Dawn [Sayre] and [Schott] should respond to." R. 46 (Schott Dep. at 190).

Peter Wenk next met with Schott, as well as Sayre, on October 19, 2011, to discuss amendments that the Wenks had proposed to M.W.'s IEP. Wenk and Sayre ended up arguing. Wenk testified that Sayre got upset when he asked to discuss " inclusion" --" social opportunities in the school" --which Sayre said was beyond the scope of the meeting. R. 106 (P. Wenk Dep. at 45, 48). Schott " smoothed . . . over" the dispute and then Wenk left. R. 83

Page 589

(Sidon Dep. at 143); R. 106 (P. Wenk Dep. at 47).[4]

After that meeting, Schott participated in two email exchanges about Peter Wenk. On October 20, 2011, Schott emailed the staff present at the October 19 meeting to report that " [w]hile it was an emotion [sic] charged event, I am hopeful that we have laid groundwork for future meetings that will help eliminate his long time assumption that 'what he wants; he gets.'" R. 103-7 (Oct. 20, 2011 Email at 1). On October 24, 2011, Schott responded to an email from Hayes, which reported that Wenk had asked to be taken off an email notification system for parents, that Schott " wonder[ed] if he [is] purposely removing his email access as a way to force us to spoon feed [him] information." R. 103-8 (Oct. 24, 2011 Email Exchange at 2).

Apart from meetings with Schott, Peter Wenk contacted Cathy Csanyi at the Ohio Department of Education to discuss his concerns about M.W.'s inadequate social opportunities. On October 28, 2011, Joe Farry, a consultant for the Educational Service Center of Central Ohio who worked with the Ohio Department of Education, contacted Nancy Schott and " indicated [that] he had received a call from Mr. Wenk, and he wondered if [Schott] wanted any assistance in addressing the issues that Mr. Wenk had brought to his attention." R. 46 (Schott Dep. at 266-67); R. 106 (P. Wenk Dep. at 53). Schott declined Farry's assistance.

B. Report to Franklin County Children Services

In the fall of 2011, Hayes and Sidon approached Schott to discuss " concerns" Hayes had about Peter Wenk's treatment of M.W. R. 102-2 (Hayes Aff. ¶ 4). Hayes initiated the meeting on her own; neither Schott nor O'Reilly solicited this information from her. Id. Sidon testified that Hayes decided to come forward in part because of the allegations of child abuse by Jerry Sandusky at Penn State University, and that Hayes said " that she was not going to sit on the documentation any longer." R. 83 (Sidon Dep. at 156). Schott met with Sidon and Hayes together. Schott did not take written notes of their conversation, and she did not independently investigate the allegations.

On November 18, 2011, Schott called Franklin County Children Services (" FCCS" ). She testified that the " trigger" that prompted her to call FCCS was a comment relayed to her by Hayes and Sidon " either the day before I made the call or that day." R. 46 (Schott Dep. at 11); see also R. 103 (O'Reilly Dep. at 9). Schott claims that Hayes and Sidon told her that [M.W.] " made the comment that she wasn't going to have sex again because it hurt." R. 46 (Schott Dep. at 11).[5]

Schott testified that she relayed the following information to an intake worker at FCCS: (1) " past concerns that dad had [been] observed to kiss [M.W.] . . . open mouthed at school," id. at 78; (2) that M.W. ...


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