United States District Court, E.D. Kentucky, Central Division, Lexington
E.M.J., by and through his parents, Next Friends M.J. & D.J., Plaintiff,
GARRARD COUNTY BOARD OF EDUCATION, et al., Defendants.
OPINION & ORDER
E. Wier United States District judge
are the allegations: During 4th, 5th, and 6th grade, first
one and then several male classmates harassed EMJ, a disabled
child. In middle school, two boys, not content
with lesser torments, lewdly attacked EMJ in a bathroom
stall. EMJ's parents, MJ & DJ, believed their
son's school was not doing enough to protect him.
Ultimately, and on a pediatrician's advice, they pulled
EMJ out of school. This suit followed.
Court takes the facts and record in Plaintiff's favor: In
elementary school, one child, CD, mistreated EMJ, an
intellectually disabled child, on roughly ten alleged
occasions. DE 63-3 at 5-11 (EMJ Dep.). The 4th and 5th
grade events included name-calling, minor property
destruction, and three instances of (at least possible)
physical contact-during 4th Grade CD once kicked, punched,
and threw a basketball at EMJ. Id. EMJ reported
some, but not all of these events to his teacher, Kim Young.
Id. The timing, sequence, and frequency of the
events are unknown on this record.
6th grade, at a distinct school in the District, three boys,
JC, DM, and MS, picked up where CD left off. [All three
children had cognitive disabilities. See Lamb Dep.
at 82-83; Brogli Dep. at 34-35]. The trio cursed EMJ on
multiple occasions. EMJ Dep. at 22-23. But with DM and MS,
the attacks intensified during four subsequent events.
Id. at 24-28, 30-40. Most relevant, for current
purposes, was DM and MS's alleged assault on EMJ in a
restroom. Id. Among other alleged attacks, as EMJ
now tells it, MS touched EMJ's genitals and DM put a
finger in EMJ's rectum. Id. Upon receiving EMJ
and DJ's (somewhat sanitized) report of this event, a
week after the fact, the middle school investigated. Lamb
Dep. at 47-49, 51-52, 60-61. Video surveillance footage,
which did not show EMJ in the location with the claimed
perpetrators, failed to substantiate EMJ's claims.
Id. at 42. Nonetheless, the school arranged for
EMJ's use of a private bathroom. EMJ Dep. at 42. When DM
persisted with non-physical harassment, on one other
occasion, the school permanently separated the boys. Lamb
Dep. at 81. Following a final verbal bullying incident,
EMJ's parents, based on a pediatrician's report as to
stress the recent bullying was causing EMJ, removed him from
school. DE 60-3 (Letter); Lamb Dep. at 103.
claims that Defendant Garrard County Board of Education
(“Garrard” or the “Board”) was
deliberately indifferent to disability-driven peer bullying
of EMJ in violation of 28 U.S.C. § 1983, § 504 of
the Rehabilitation Act of 1974,  and KRS Chapter
(Counts II, III & IV). See DE 9 (Complaint) at
9-11. Plaintiff also claims that EMJ's elementary school
principal, Tracie Bottoms, 4th & 5th grade teacher, Kim
Young, 6th grade teacher, Elizabeth Brogli, middle school
vice principal, Kia Lamb, and the 2017-acting Garrard
Superintendent, Corey Keith, negligently failed to protect
EMJ from harm (Count I). See Id. at 9. Defendants
seeks summary judgment on all of EMJ's claims.
See DE 53 (Motion). The matter is fully briefed and
ripe for review. See DE 60 (Response) & DE 62
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A reviewing court must construe the
evidence and draw all reasonable inferences from the
underlying facts in favor of the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v.
Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally,
the court may not “weigh the evidence and determine the
truth of the matter” at the summary judgment stage.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
burden of establishing the absence of a genuine dispute of
material fact initially rests with the moving party.
Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553
(1986) (requiring the moving party to set forth “the
basis for its motion, and identify those portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate an
absence of a genuine issue of material fact”);
Lindsay, 578 F.3d at 414 (“The party moving
for summary judgment bears the initial burden of showing that
there is no material issue in dispute.”). If the moving
party meets its burden, the burden then shifts to the
nonmoving party to produce “specific facts”
showing a “genuine issue” for trial. Celotex
Corp., 106. S.Ct. at 2253; Bass v. Robinson,
167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule
56(c) mandates the entry of 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., 106 S.Ct. at 2552;
see also Id. at 2557 (Brennan, J., dissenting)
(“If the burden of persuasion at trial would be on the
non-moving party, the party moving for summary
judgment may satisfy Rule 56's burden of production in
either of two ways. First, the moving party may submit
affirmative evidence that negates an essential element of the
nonmoving party's claim. Second, the moving party may
demonstrate to the Court that the nonmoving party's
evidence is insufficient to establish an essential element of
the nonmoving party's claim.” (emphasis in
is “material” if the underlying substantive law
identifies the fact as critical. Anderson, 106 S.Ct.
at 2510. Thus, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Id. A “genuine” issue
exists if “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. at 2511; Matsushita Elec.
Indus. Co., 106 S.Ct. at 1356 (“Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'”) (citation omitted). Such
evidence must be suitable for admission into evidence at
trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428,
444-45 (6th Cir. 2006).
Rehabilitation Act & KRS 344.120
neither § 504 nor KRS 344.120 authorizes suits against
individuals. See Lee v. Michigan Parole Bd., 104
Fed.Appx. 490, 493 (6th Cir. 2004) (§ 504 does not
“impose liability upon individuals.”); Wathen
v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997)
(Generally, “an individual employee/supervisor . . .
may not be held personally liable under . . . KRS Chapter
344.”). EMJ does not contest this point. Thus, EMJ may
bring § 504 and KRS 344.120 claims only against Board
employees in their official capacity. Because “an
official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity” the Court,
for Rule 56 purposes, need only analyze whether EMJ has
created a triable issue as to the
Board's liability on Counts III &
IV. Kentucky v. Graham, 105 S.Ct. 3099, 3105
the Board, Plaintiff asserts “a disability-based
peer-on-peer harassment claim.” S.S. v. E. Kentucky
Univ., 532 F.3d 445, 453 (6th Cir. 2008). Under the
Sixth Circuit framework for such claims, EMJ must show that:
(1) he was an individual with a disability, (2) he was
harassed based on his disability, (3) the harassment was
sufficiently severe or pervasive that it altered the
condition of his education and created an abusive educational
environment, (4) [the Board] knew about the harassment, and
(5) [the Board] was deliberately indifferent to the
Id. at 454; see also DE 60 at 18 (EMJ
advocating for a virtually identical test). The inquiry is
the same under KRS 344.120. See R.K., 637 Fed.Appx.
at 925 (“We analyze claims under the Kentucky Civil
Rights Act the same way we analyze claims under the [ADA and
Rehabilitation Act].”). Thus, “[c]onsistent with
Sixth Circuit and Kentucky practice, ” the Court
jointly analyzes the § 504 and KRS 344.120 theories.
See H.C. v. Fleming Cty. Kentucky Bd. of Educ., No.
CV 5:16-235-DCR, 2017 WL 4249546, at *7 (E.D. Ky. Sept. 25,
2017) (citing Wathen, 115 F.3d at 404 n.5),
aff'd (July 11, 2018). There is no dispute (or
at least, there is a triable issue) that EMJ has a
disability, that he was harassed, or that (at least after the
fact) Defendants knew of several alleged events constituting
harassment. The Court sees genuine factual disputes as to
both the second and third prongs. Yet, because no reasonable
juror could find that the Board was deliberately indifferent
to EMJ's plight, the Court declines extensive treatment
of such elements.
deliberate indifference must, at a minimum, “cause
[students] to undergo” or “make them liable or
vulnerable” to harassment. Davis v. Monroe Cty. Bd.
of Educ., 119 S.Ct. 1661, 1672 (1999). Further, schools
need not purge “their schools of actionable peer
harassment” to avoid liability. Id. at 1673.
Nor are victims entitled to “particular remedial
demands.” Id. at 1674. “[C]ourts should
not second guess the disciplinary decisions that school
administrators make.” Vance, 231 F.3d at 260.
However, “where a school district has knowledge that
its remedial action is inadequate and ineffective, it is
required to take reasonable action in light of those
circumstances to eliminate the behavior.” Id.
at 261. The ultimate question is whether a defendant's
acts “or lack thereof is clearly unreasonable in light
of the known circumstances.” Davis, 119 S.Ct.
at 1674. With these principles in mind, the Court turns to
the specific alleged incidents and the relevant school
spent his 2014-15 & ‘15-‘16 school years in
Defendant Kim Young's 4th and 5th grade classes at
Lancaster Elementary School. During this time, CD was
EMJ's (sole) persecutor. See EMJ Dep. at 11-14,
16-18. EMJ claims that, during 4th grade, CD broke his
backpack, threw a basketball at him, kicked his leg, and
called him various expletives (including, as relevant to
alleged disability discrimination, “dumbass”).
Id. at 12-13. EMJ notified Ms. Young of only the
name calling. Id. at 13. After the report, CD only
cursed EMJ one other time that year. Id. Finally, CD
punched EMJ in the neck, but after reporting alerted a
non-defendant teacher (Ms. Yantz), CD never hit him again.
Id. at 14.
5th grade, EMJ and CD argued in the lunchroom over
Pokémon cards, and Ms. Young broke up the verbal
dispute. Id. at 16. After, at Young's direction,
EMJ and CD stopped bringing Pokémon cards to school.
Id. at 16-17; Young Dep. at 28. CD also called EMJ
expletives (including both “dumb ass” and
“retard”). EMJ Dep. at 17. EMJ reported the
cursing to Ms. Young; CD called EMJ names one other time.
Id. CD opened EMJ's backpack and tore his binder
in half. Id. at 18. EMJ reported the event to Ms.
Young. Id. CD, for unknown reasons and with unknown
results, got into EMJ's backpack one other time.
Id. at 19. EMJ evidently did not report the singular
post-intervention recurrences of CD's cursing or bag
pilfering. See Id. at 16-19. Finally, EMJ
denied ever notifying Principal Bottoms of any of the
elementary school events. Id. at 18.
during elementary school, CD harassed EMJ in several ways on,
as best the Court can tell, six occasions during 4th grade,
and five occasions in 5th grade. Of the three events that
involved physical contact, EMJ reported only one, the 4th
grade punch in the neck, with the report going to
non-defendant Yantz. CD never physically
bullied EMJ during 5th grade. EMJ's mother
testified that she reported-to Belinda Bowling, Garrard
County Director of Special Education- the earlier incident in
which EMJ was hit with a basketball and generally picked on.
DJ Dep. at 100. Bowling investigated and reported seeing
nothing. Id. Defendant Young testified that at the
beginning of EMJ's 5th grade year, DJ generally suggested
prior harassment and asked Ms. Young to prevent any
continuation-DJ did not provide any specifics. Young Dep. at
25. In sum, the record indicates that
certain elementary school personnel were aware of
general allegations that EMJ was being picked on,
but nothing in the record suggests that any elementary school
staff member was aware of more than one incident of CD
physically harming EMJ.
the 2016-17 school year, EMJ had 6th grade classes with,
among others, Defendant Brogli, a special education teacher
at Garrard Middle School. Three new male classmates (JC, DM,
and MS) soon targeted EMJ. EMJ Dep. at 19. It began as it did
in elementary school, with the trio cursing EMJ (including
calling him “retard”). Id. at 22. EMJ
informed Ms. Brogli of the contumely, but it did not stop.
Id. at 23. Though, evidently, EMJ did not report any
subsequent swearing. DM and MS, EMJ's primary abusers,
escalated their harassment in four subsequent events:
Salad Incident-In the first and only cafeteria-based
event, MS-at lunch-put orange juice, milk, ranch and ketchup
into EMJ's salad and forced his head into the mixture.
EMJ Dep. at 25-26. After, EMJ notified Ms. Brogli and
Assistant Principal Lamb. Id. Per EMJ, neither Ms.
Brogli or (though present) Ms. Lamb saw the incident.
Bathroom Incident-In the most appalling reported event,
DM and MS assaulted EMJ in a restroom. Id. at 30-32.
After climbing into EMJ's stall, MS reportedly pulled
down his own pants, held EMJ's throat, touched EMJ's
genitals, and kicked his knee while DM put a finger in
EMJ's rectum. Id. A week later, DJ and EMJ met
with Ms. Brogli. See DE 60-1 (2/14/17 Incident
Report - describing events from “last Tuesday”
and “Wednesday”). At that time, EMJ related
several of the events he described at his deposition but, per
the contemporaneous report and EMJ's testimony,
did not then report any rectal or genital contact.
See DE 60-1 at 2; EMJ Dep. at 33; Lamb Dep. at
47. Ms. Lamb, upon receiving the report, first had Ms. Brogli
and the school counselor conduct interviews of individuals
EMJ identified as involved or potentially nearby- from there,
Lamb took over the investigation. Lamb Dep. at 39; DJ Dep. at
140. Lamb tracked EMJ on school surveillance footage for the
full school day on the dates he identified but could not
locate any time when EMJ was in a bathroom with the alleged
perpetrators. Lamb Dep. at 39-44. Lamb advised DJ of her
inability to substantiate EMJ's claim and asked that she
bring EMJ in to meet the following morning to check on
possible alternative dates. Id. at 38. Lamb reviewed
additional tapes as to multiple days. Id. at 41.
Ultimately, Lamb was unable to find any footage showing that
EMJ was ever in a bathroom with the alleged assailants in the
period(s). Nonetheless, Lamb and Garrard developed a
“plan for EMJ to be able to use a restroom in Ms.
Brogli's [ ] classroom so that he could feel safe and
comfortable having a spot to go in the building.”
Id. at 51. EMJ used Brogli's bathroom and no
further restroom incidents occurred. EMJ Dep. at 30, 32-33.
Pencil Incident-Next, months later, DM
“tried” to put a pencil in EMJ's mouth during
a non-defendant's (Ms. Atallah) social studies class.
Id. at 34. EMJ reported the attempt to Lamb and
Brogli. Id. at 35-36. Lamb then removed DM
“from having any classes with EMJ[, ]” and
notified DJ of the event and the assigned consequences. Lamb
Dep. at 81, 103.
Kissing Incident-Finally, late in the year, MS
threatened to beat up EMJ if he did not kiss a female
classmate. EMJ Dep. at 39. Two non-defendant teachers were
present (Ms. Atallah and Ms. Crowe) but EMJ did not know if
they heard MS's threat. Id. at 39-40. EMJ,
fearful, kissed the girl and ran away. Id.
these events (on May 10, 2017), Dr. Manning-Courtney,
EMJ's Developmental / Behavioral Pediatrician, advised
that EMJ was experiencing stress “as a result of
recent reported bullying.” DE 60-3
(5/10/17 Letter) (emphasis added). Based on his
pediatrician's recommendation, DJ advised Ms. Lamb
“that EMJ would not be returning to school for the
remainder of the school year.” Lamb Dep. at 103
(“She gave me a note from . . . Dr.
the Board's Actions Clearly Unreasonable Under the Known
the Court considers the proper factual field for the
deliberate indifference analysis. The Court views the 4th and
5th grade incidents, though concerning, as insufficiently
severe or pervasive to constitute independently actionable
predicate conduct for EMJ's deliberate indifference
claims. Davis, 119 S.Ct. at 1676 (The behavior must
“be serious enough to have the systemic effect of
denying the victim equal access to an educational program or
activity.”). The question remains, however, what impact
(if any) should they have had on the Board's subsequent
handling of EMJ? Certainly, there are circumstances where
elementary school bullying, though not alone actionably
severe or pervasive, would inform a reasonableness inquiry
for subsequent more dire events. See, e.g.,
Vance, 231 F.3d at 261 (“Where a school
district has actual knowledge that its efforts to remediate
are ineffective, and it continues to use those same methods
to no avail, such district has failed to act reasonably in
light of the known circumstances.”). During 6th grade,
as here alleged, events for EMJ took a dark and cruel turn.
However, CD (the sole alleged primary-school tormentor) was
no longer EMJ's classmate during middle school. Further,
the only Defendant with knowledge of any specific prior
events, Young, was no longer teaching EMJ. Thus, as the
Court sees it, nothing about any successes or failures in
responding to 4th and 5th grade incidents could have (or did)
put Garrard on notice as to potential efficacy of efforts
regarding a completely new bully cohort.
it is not clear what, if anything, middle school officials
knew about CD bullying EMJ. Regardless, a jury could not
reasonably rely on any such knowledge as proof that Garrard
was deliberately indifferent to EMJ's middle school
welfare. CD did not matriculate with, and thus no longer
presented any risk to EMJ. Further, DM and MS's
subsequent maltreatment, save the verbal slurs, differed in
kind and degree. Accordingly, the Court limits its deliberate
indifference examination to the middle school events.
Court, conscious of the deliberate indifference rubric's
fourth step, next considers what Garrard knew and when it
knew it. “[T]he propriety of the [Board's] response
is measured by the known circumstances[.]”). See
McCoy v. Bd. of Educ., Columbus City Sch., 515 Fed.Appx.
387, 392 (6th Cir. 2013). Thus, timing and content are keys.
to the Salad Incident, Garrard officials, at most, knew that
MS, DM, and JC had cursed at EMJ once. The school had no
prior evidence that the trio posed a physical threat. Though
unobserved by any official, after the cafeteria report,
Garrard knew that MS (the sole identified actor) might pose a
minor threat to EMJ. The Salad Incident, though cruel and
sophomoric, carried no discernable sexual connotation. Prior
to the worst of the alleged conduct, the Bathroom Incident,
Garrard knew that one repeat offender, MS, had once (1)
verbally disparaged EMJ and (2) pushed his head into a salad
concoction in the cafeteria. Two events, one solely verbal,
do not amount to “pervasive” harassment.
S.S., 532 F.3d at 445; Davis, 119 S.Ct.
1675 (“Damages are not available for simple acts of . .
. name-calling among school children, ” even if
discriminatory.) Nor was either incident sufficiently
“severe [ ] and objectively offensive” enough to
undermine EMJ's educational experience.
Davis, 119 S.Ct. at 1675; id.
(“Courts, moreover, must bear in mind that schools are
unlike the adult workplace and that children may regularly
interact in a manner that would be unacceptable among
adults.”). If the record ended here, Garrard surely
would not be liable. Id. at 1673-74 (The deliberate
indifference standard “does not mean that recipients
can avoid liability only by purging their schools of
actionable peer harassment or that administrators must engage
in particular disciplinary action.”).
matters because one incident of name-calling and one event
that ostensibly caused EMJ no bodily harm is all Garrard knew
before matters escalated. Remember: “the
proportionality of the school's response in light of
available information lies at the heart of the indifference
analysis.” McCoy v. Bd. of Educ., Columbus City
Sch., 515 Fed.Appx. 387, 391 (6th Cir. 2013). As the
Court sees it, no reasonable juror could find that the prior
incidents, alone or in combination, were sufficient to
portend something as strikingly abhorrent as the described
Bathroom Incident. Cf. Bd. of Cty. Comm'rs of Bryan
Cty., Okl. v. Brown, 117 S.Ct. 1382, 1391 (1997)
(“‘[D]eliberate indifference' is a stringent
standard of fault, requiring proof that a municipal actor
disregarded a known or
obvious consequence[.]” (emphasis
added)). Put differently, Garrard, based on its post-Salad
Incident knowledge, had no basis to take the type of steps
that might have prevented the alleged Bathroom Incident,
e.g., ensuring no MS-EMJ contact or allowing EMJ to
use a private bathroom. Thus, no reasonable decider could
find that Garrard's conduct prior to the Bathroom
Incident caused or ...