Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

E.M.J. v. Garrard County Board of Education

United States District Court, E.D. Kentucky, Central Division, Lexington

September 11, 2019

E.M.J., by and through his parents, Next Friends M.J. & D.J., Plaintiff,

          OPINION & ORDER

          Robert E. Wier United States District judge

         These are the allegations: During 4th, 5th, and 6th grade, first one and then several male classmates harassed EMJ, a disabled child.[1] 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.

         I. BACKGROUND

         The 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.).[2] 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.

         During 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.

         Plaintiff 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, [3] and KRS Chapter 344[4] (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 (Reply).

         II. STANDARD

         A court “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, 2511 (1986).

         The 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 original)).

         A fact 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).

         III. ANALYSIS

         A. Rehabilitation Act & KRS 344.120

         Initially, neither § 504 nor KRS 344.120[5] 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 (1985).[6]

         As to 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 harassment.

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.[7] 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.

         Actionable 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).[8] 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 responses.

         Elementary School

         EMJ 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.

         During 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.

         In sum, 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[9] 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.[10] 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.[11] 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.

         Middle School

         During 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.[12] DM and MS, EMJ's primary abusers, escalated their harassment in four subsequent events:

         The 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. Id.

         The 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, [13] did not then report any rectal or genital contact. See DE 60-1 at 2;[14] 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.

         The 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.

         The 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.

         After 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. Manning[.]”).[15]

         Were the Board's Actions Clearly Unreasonable Under the Known Circumstances?

         Initially, 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[16] with knowledge of any specific prior events, Young, was no longer teaching EMJ.[17] 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.

         In sum, 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.

         The 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.

         Prior 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[18] 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.”).

         This 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.