Gohl v. Livonia Pub. Sch. Sch. Dist.

Decision Date08 September 2016
Docket NumberNo. 15–2301,15–2301
Citation836 F.3d 672
Parties Lauren Gohl, as next friend of J.G., Plaintiff–Appellant, v. Livonia Public Schools School District ; Shellie Moore; Nancy Respondek; Sharon Turbiak; Dr. Randy Liepa; Maegan Sprow; Carol DeBaudry; Candy Sokol; Elizabeth Santer; Cynthia Deman; Tracey Crews; Diane Sloboda, Defendants–Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Christopher P. Desmond, Detroit, Michigan, for Appellant. Robert G. Kamenec, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellee DeMan. Jonathon A. Rabin, HALL, RENDER, KILLIAN, HEATH & LYMAN, Troy, Michigan, for Appellee Turbiak. Gouri G. Sashital, KELLER THOMAS, P.C., Southfield, Michigan, for Appellees Livonia Public Schools, Liepa, Sokol, and Santer. ON BRIEF: Christopher P. Desmond, Detroit, Michigan, for Appellant. Robert G. Kamenec, Karen E. Beach, PLUNKETT COONEY, Bloomfield Hills, Michigan, Jonathon A. Rabin, HALL, RENDER, KILLIAN, HEATH & LYMAN, Troy, Michigan, Gouri G. Sashital, Thomas L. Fleury, KELLER THOMAS, P.C., Southfield, Michigan, Martin C. Brook, Donelle R. Buratto, Benjamin A. Anchill, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PLLC, Birmingham, Michigan, Kaveh Kashef, CLARK HILL, PLC, Birmingham, Michigan, Megan K. Cavanagh, Boyd E. Chapin, Jr., Charles A. Harrison III, GARAN LUCOW MILLER P.C., Detroit, Michigan, for Appellees.

Before: BOGGS, CLAY, and SUTTON, Circuit Judges.

SUTTON

, J., delivered the opinion of the court in which BOGGS, J., joined. CLAY, J. (pp. 685–98), delivered a separate dissenting opinion.

OPINION

SUTTON

, Circuit Judge.

Sharon Turbiak, a twelve-year special education veteran, taught a preschool class that required sensitivity to mentally and physically disabled children. The allegations contained in this lawsuit, filed by the mother of one of her students, suggest she had considerable trouble on that score, as do the school district's actions in firing her. The question at hand is whether her conduct also violated the United States Constitution, two federal statutes (the Americans with Disabilities Act and the Rehabilitation Act), and Michigan law. Because Gohl did not provide sufficient evidence from which a reasonable jury could find in her favor, as the district court concluded in a thorough 39–page opinion granting summary judgment to the defendants, we affirm.

I.

J.G. was born with hydrocephalus

, a disorder that causes an unsafe buildup of fluid in the brain. He underwent numerous surgeries to correct or ameliorate the condition. At age three, his mother, Lauren Gohl, enrolled him in the morning session of the Moderate Cognitive Impairment Program at Webster Elementary School, which offered educational and therapeutic services for students like him. His teacher was Sharon Turbiak, a long-time special education teacher.

During the school year, Turbiak faced several complaints about her teaching (and her relationship with her colleagues) and one complaint about her teaching of J.G. In October 2011, a special-needs specialist approached the principal at Webster, Shellie Moore, and passed along some concerns from other staff members about Turbiak's classroom behavior. Moore looked into the issue and over the next few days catalogued concerns about Turbiak. According to Moore, an occupational therapist reported that Turbiak's class was “a very uncomfortable place to work” and that some on Turbiak's team thought she was overly “harsh with [the] children, holding their faces or chins tightly and yelling in their faces.” R. 184–9 at 2. A speech pathologist thought that Turbiak “used too much force by pushing on children's shoulders,” and that the “lower functioning children in the classroom were frustrating to Ms. Turbiak and ... were most vulnerable to possible rough treatment.” Id. A paraprofessional called Moore in tears, worrying that Turbiak's bad behavior was “escalating.” Id. An occupational therapist said that Turbiak was “gruff and abrupt”; that Turbiak once force-fed a gagging and crying student; and that Turbiak “picked up [children] from the floor by one arm and that there was the potential to dislocate a small shoulder.” Id. Not one of these incidents, the parties agree, involved J.G.

On the advice of Cynthia DeMan, the Director of Personnel for Livonia Public Schools, Moore met with Turbiak to discuss her teaching. During the meeting, Turbiak admitted that she was “feeling unappreciated at Webster” and that she was “stressed out because of the level of disability of her students and the reduction of support.” Id. at 3. Turbiak also explained that she was not as “touchy feely” as her co-workers, had high expectations for her students, and “wanted them to make gains while in her classroom.” Id. The next morning, even though Moore told Turbiak not to question the members of her team, Turbiak called a meeting to find out who had complained to the administration. This did not help matters. Members of Turbiak's team went to Moore again, telling her about the meeting and adding that they feared retaliation.

The next day, November 2, 2011, Turbiak and her union representative met with DeMan. The meeting focused on Turbiak's strained relations with her colleagues rather than on mistreatment of students. DeMan sent Turbiak home for a few days and followed up with a consultation letter, which explained, at heart, that, if Turbiak was not more professional with staff and students, she would be subject to disciplinary action. The letter urged Turbiak to follow “best practices” and to avoid “laps[ing] into inappropriate behaviors with either staff or students.” R. 123–8 at 2. But the letter did not specifically accuse Turbiak of abusing students.

The meeting helped. For four months, no one reported any mistreatment of students by Turbiak or complained about friction between her and other employees.

The peace ended on March 5, 2012, when a social worker, Diane Sloboda, saw Turbiak “grab [J.G.] by the top of his head and jerk it back quite aggressively. She also yelled ‘You need to listen’ very close to his face.” R. 123–9 at 2. Sloboda told Principal Moore about the incident. Moore called the central office and was instructed to send Turbiak over that afternoon. Turbiak and her union representative met with DeMan and Dorothy Chomicz, a director of human resources. Turbiak denied any “grab[bing] or “yell[ing].” R. 179–6 at 21. She said she was using a special education technique called “redirecting” to focus and hold J.G.'s attention after he threw a ring-stacking toy. Id. Consistent with this technique, she said she put her hand on the back of J.G.'s head “to keep [it] from bouncing around,”—a problem for J.G.—and [s]poke directly” to him. R. 179–6 at 21. Chomicz, trained as a special education teacher and familiar with this technique, thought this sounded reasonable and sent Turbiak back to her classroom.

Later in March, one of Turbiak's paraprofessionals, Nancy Respondek, was accused of spanking a student (not J.G.), after which the school investigated the incident and whether Turbiak was behaving “in accordance with [the] guidelines” set forth in DeMan's November consultation letter. R. 123–12 at 2. After the investigation, the district placed Turbiak and Respondek on administrative leave.

Gohl filed this lawsuit on J.G.'s behalf, alleging that Livonia Public Schools, Turbiak, Respondek, Moore, and other members of the school system violated J.G.'s rights under federal and state law. The district court granted summary judgment for the defendants on Gohl's federal claims and declined to exercise supplemental jurisdiction over the state law claims.

II.

On appeal, Gohl claims the district court should have allowed four sets of her claims to go to a jury: (1) the substantive due process claim against Turbiak; (2) the Americans with Disabilities Act and Rehabilitation Act claims against Livonia Public Schools; (3) the equal protection claims against all defendants; and (4) all of the claims involving municipal liability for Livonia Public Schools.

Our standard of review is not new. We construe the record in Gohl's favor. T.S. ex rel. J.S. v. Doe , 742 F.3d 632, 635 (6th Cir. 2014)

. To fend off summary judgment, Gohl must present evidence that would permit a reasonable jury to find in J.G.'s favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

(1) Substantive due process claim. Gohl maintains that Turbiak violated J.G.'s right to be “free from excessive force under the [Fourteenth] Amendment.” Appellant's Br. 28. She premises the argument on two types of alleged abuse: the March 5 head-grabbing incident and exposure to a psychologically abusive teacher. We address each one separately.

The Due Process Clause of the Fourteenth Amendment protects individuals from the arbitrary actions of government employees, but “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Cty. of Sacramento v. Lewis , 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)

(quotation omitted). The question is “whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking the conscience.” Webb v. McCullough , 828 F.2d 1151, 1158 (6th Cir. 1987) (quoting Hall v. Tawney , 621 F.2d 607, 613 (4th Cir. 1980) ); see

Domingo v. Kowalski , 810 F.3d 403, 411 (6th Cir. 2016).

Physical abuse. We recently applied the “shocks the conscience” test to allegations just like Gohl's. In Domingo

, the parents of disabled students challenged a similar use of physical force—a special education teacher's use of the redirection technique that Turbiak used on March 5 with J.G. 810 F.3d at 408 (explaining that the teacher was “grabbing the...

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