United States District Court, M.D. Georgia, Macon Division
For JANE DOE, I, Individually and as Next Friend of, JANE DOE, II, a minor, Plaintiffs: Fred Bradford Wilson, Jr., LEAD ATTORNEY, JAROME E GAUTREAUX, Macon, GA; Harold S. Lewis, Jr., AIIKEN, SC.
For BIBB COUNTY SCHOOL DISTRICT, Defendant: RUSSELL A BRITT, LEAD ATTORNEY, JEFFREY R DANIEL, Kevin D Abernethy, Atlanta, GA; Andrea L. Jolliffe, Malcolm Charles McArthur, Hall, Booth, Smith & Slover, P.C., Athens, GA.
MARC T. TREADWELL, UNITED STATES DISTRICT JUDGE.
Plaintiffs Jane Doe I, Jane Doe II's parent and natural guardian, and Jane Doe II have sued Defendant Bibb County School District for an alleged violation of Title IX. Though the second amended complaint asserts a single cause of action, the Parties agree the Plaintiffs are asserting two separate theories of liability: one based on the Defendant's conduct before Jane Doe II's alleged assault and one based on the Defendant's conduct after Jane Doe II's alleged assault. Before the Court is the Defendant's motion for partial judgment on the pleadings on the Plaintiffs' first theory of liability. (Doc. 71). The Plaintiffs requested the Court to consider materials outside the pleadings and treat the motion as a motion for partial summary judgment. See Fed.R.Civ.P. 12(d). The Court has converted the motion to one for partial summary judgment and given the Parties time to file any additional materials they wish the Court to consider. See Text Only Entry, December 3, 2014. For the following reasons, the motion for partial summary judgment is GRANTED.
Plaintiff Jane Doe II was a special education student at Northeast High School, one of the schools in the public school system operated by Defendant Bibb County School District. (Doc. 44, ¶ ¶ 11, 14). During the relevant time period, Jane Doe II was a student in Oslynn Brown's fourth block class. (Doc. 44, ¶ 21). On January 19, 2012, a male student came to Brown's fourth block class and told her another teacher needed to see Jane Doe II. Brown allowed Jane Doe II to leave her classroom with the student. (Doc. 44, ¶ 22). The student then led Jane Doe II to a boys' restroom inside the school where he and at least five other male students raped and sodomized her. (Doc. 44, ¶ ¶ 23-24). These male students were allegedly members of a gang known as MOB, which stands for " Money over Bitches." (Doc. 44, ¶ 25). It is undisputed that Jane Doe II was never sexually assaulted by another Northeast student prior to the January 19 incident and that the male students involved were never previously accused of sexually assaulting another Northeast student.
The Plaintiffs' theory of liability concerning the Defendant's conduct before Jane Doe II's assault is primarily based on two prior incidents of student-on-student sexual assault and the Defendant's responses. The first incident occurred in 2002 when a female student was allegedly raped in a girls' restroom at Westside High School, another school in the public school system operated by the Defendant. After Assistant Principal Lynn Donehoo learned of the alleged assault, she watched surveillance video to confirm the report and informed the principal and William " Mitch" Mitchell, the Director of Student Safety. (Docs. 88 at 34:3-24, 36:1-18, 37:10-20, 39:6-13; 96-1, ¶ 7). After Mitchell investigated, the school administrators concluded a female student, B.H., stayed after school and agreed to have sex with a male student in the girls' restroom. (Doc. 96-1, ¶ 10). B.H. was then sexually assaulted by three or four other male students in the restroom. (Doc. 96-1, ¶ 10). According to Donehoo, locks were added to the bathroom doors and the doors across from the gym at Westside a month or two after the incident. (Doc. 88 at 43:23-44:11). The doors remained locked during and between classes, but a student could obtain a key from a teacher to use the restroom. (Doc. 88 at 44:12-17).
The second incident occurred in 2008 when T.B., a female special education student, was raped in the Practical Assessment Exploration Skills (" PAES" ) lab at Northeast High School. On the day the rape occurred, Ethel Glover, the lead special education teacher, and Khoriandre Watkins-Ware, T.B.'s special education teacher, were conducting Individual Education Program (" IEP" ) meetings. (Doc. 77-5 at 3-4). Glover generally unlocked the PAES lab in the morning because she was under the impression that doors in the school were to remain unlocked. (Doc. 77-5 at 4). Assistant Principal Jeffrey Ashley and Assistant Principal Elizabeth Ricks denied there was a policy against doors being locked. (Doc. 77-5 at 10-11). Because she had not arranged for supervision of her students during the IEP meeting, Watkins-Ware had her students go to the PAES lab. (Doc. 77-5 at 6-7). There were no adults in the lab at the time.
MaDonna Baker, an investigator for the Department of Student Safety, immediately informed Deputy Superintendent Sylvia McGee of the incident. (Docs. 96-2, ¶ 13; 81 at 56:24-57:10). McGee directed Baker to follow the normal protocol for a full investigation and to notify the Macon Police Department. (Docs. 96-2, ¶ 13; 81 at 58:13-22). Both Baker and Director of Student Safety Robert Sumowski participated in the investigation, though Baker was the lead investigator. Baker submitted reports to McGee and the School District's attorney, and Sumowski submitted his notes. (Docs. 96-2, ¶ ¶ 16-17; 80 at 34:23-36:25).
After these reports were submitted, McGee convened a meeting with Baker, Sumowski, a School District attorney, a representative of the District Campus Police Department, a representative of the District's Human Resources Department, and Donna Poole, Director of the District's Program for Exceptional Children. (Docs. 96-2, ¶ 18; 80 at 22:18-25, 37:1-6, 78:17-22). They determined Watkins-Ware violated school policy when she left a classroom unsupervised and unlocked. (Docs. 96-2, ¶ 19; 81 at 59:8-20; 79 at 46:1-16). Watkins-Ware tendered her resignation to the School District but was later reinstated under certain conditions. (Docs. 96-2, ¶ ¶ 19, 20; 81 at 61:14-22).
The team of District officials also determined that Glover violated school policy by failing to report the rape allegation immediately after she learned of it, but her failure did not hamper the school administration's ability to respond because the incident was reported by another source. (Doc. 96-2, ¶ 21). Glover was reprimanded in a memo from McGee and a memo from Poole on which McGee, Principal Sam Scavella, and Northeast Zone Coordinator Sabrenai Brown were copied. (Docs. 77-7; 77-8). Poole informed Glover that " failure by [her] to secure substitute teachers for special education teachers during their IEP meetings will result in further disciplinary action against [her] and/or [her] termination." (Doc. 77-8).
After the 2008 incident, Northeast implemented a policy requiring teachers to monitor the hallways during the first fifteen or twenty minutes of their planning periods. (Doc. 79 at 37:6-39:8). The Plaintiffs do not dispute this but contend it is immaterial because of " the absence of evidence that the District continued to require hall monitoring, including hall passes, at Northeast High School or elsewhere in its system." (Doc. 99 at 9-10). Northeast also retained additional campus police officers and ordered additional radios for faculty and police communication. (Doc. 79 at 37:6-21). However, the Plaintiffs also contend this is immaterial because of " the absence of evidence that the District continued to retain additional campus police[ ] or that staff members were required to use such radios to communicate." (Doc. 99 at 10).
In addition to evidence about the two prior assaults, the Plaintiffs have presented evidence regarding the Defendant's policies on sexual harassment prior to the alleged attack on Jane Doe II. Quintin Green, the principal at Northeast during the 2011-2012 school year, testified that teachers' training regarding sexual harassment consisted of his reading a District policy to them at the beginning of the school year. (Doc. 82 at 12:16-13:6, 15:19-16:5). Brown, Jane Doe II's teacher, did not receive this training because she did not start teaching at Northeast until midway through the school year in January 2012. (Docs. 82 at 23:23-25:21; 83 at 51:23-52:9).
The Plaintiffs have also submitted the affidavits of Dr. Jimmy Stokes, the Executive Director of the Georgia Association of Educational Leaders, and Dr. Emily Collins, the Pupil Services Coordinator (Special Education and School Psychology) for the Chattahoochee-Flint division of the Georgia Regional Education Service Agency. (Docs. 77-22; 77-23). Both Stokes and Collins give examples of policies they are familiar with, such as hall passes, which are implemented in Georgia ...