Campbell v. Dundee Cmty. Sch.
| Decision Date | 01 July 2015 |
| Docket Number | Case No. 12-cv-12327 |
| Parties | Pamela Campbell, individually and as Next Friend of Jane Doe, Plaintiff, v. Dundee Community Schools, Richard Alan Neff, Bruce Nelson, Aaron Carner, and West Educational Leasing, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Hon. Judith E. Levy
Mag. Judge David R. Grand
This case presents disturbing facts regarding a young girl whose life was inalterably changed and damaged by an adult basketball coach at her middle school. School should be a safe, nurturing, and positive environment for children. This was not the case for Jane Doe, and as a result, her mother sued the school and its administrators. Doe was thevictim of repeated sexual abuse in 2009 and 2010 by defendant Richard Alan Neff, her school basketball coach. In 2010, Neff was tried and convicted of accosting a child for immoral purposes and criminal sexual conduct in the first and second degree, and is currently serving a minimum of 15 years in the custody of the Michigan Department of Corrections. Neff refused to be deposed for this case.
Pending are defendants Dundee Community Schools, Bruce Nelson, and Aaron Carner's motion for summary judgment (Dkt. 39) and defendant West Educational Leasing's motion for summary judgment. (Dkt. 41.)
From 2001 until 2010, Dundee Community Schools ("DCS") employed Neff as a middle school girls' basketball coach. In January 2009, Doe was a twelve-year-old student at Dundee Middle School, and she joined the basketball team. Neff began texting Doe, along with other student players, after she joined the team. The parties agree that the texting began as a series of practical, non-sexual messages reflecting communications between the students and their coach. As the 2009 season ended in spring of that year, Neff texted Doe morefrequently, but the texts still lacked a sexual or otherwise intimate tone or purpose.
Around the end of June 2009, Neff began calling Doe on the telephone. He also began watching sports at Doe's home with her father, who was one of the team's assistant coaches. Near the end of the summer, Neff kissed Doe on the cheek. In the fall of 2009, Neff began visiting Doe's house before he went to work. Doe would sneak out of her home to speak with him. During these encounters, Neff would hug, kiss, and touch Doe. In November and December of 2009, Neff's texting with Doe became sexual in nature, and Neff began sneaking into Doe's home to visit her during her winter break. During this period, Neff instructed Doe not to tell anyone about these encounters and his abuse of her.
At the beginning of 2010, West Educational Leasing, doing business as Professional Contract Management, Inc. ("PMCI"), contracted with DCS to take over employment of the district's entire athletic department. Pursuant to the contract, PMCI required Neff to undergo a criminal background check, but did not interview him in person. (Dkt. 41-9.) The background check did not turn up anycriminal convictions or other indication of prior criminal activity. Nelson, the superintendent of the school district, also certified that no documentation of unprofessional conduct existed in Neff's personnel file. (Dkt. 41-7.)
Neff and Doe continued to text when the 2010 basketball season began. The team also took bus rides to games, and during those rides, Neff would sit in the back of the team bus with Doe. On at least one occasion, Neff engaged in sexual contact with Doe while sitting with her on the bus. Aaron Carner, the district's athletic director, heard complaints about Neff sitting with Doe in the back of the bus, which came to him either through communications with parents, or from the bus driver. None of these complaints indicated that Neff was having sexual contact with Doe on the bus or anywhere else. Carner discussed the complaints with Neff, and told him to stop sitting in the back of the bus with students. (Dkt. 48-9 at 4.) Carner's concern "was more to protect [Neff] at the time." (Id.) Carner also stated during Neff's criminal trial that he was contacted by various parents who complained that Neff was calling and texting other girls on the team. (Id. at 5.)
Jessica Burd, a parent of another student on the basketball team, alerted the school to concerns about Neff and Doe's relationship between January and March of 2010. (See Dkt. 50-1.) Burd's concerns were based on her daughter's reports that Neff favored Doe during practice. (Id. at 4.) Burd discussed with the vice principal of the school what she, other parents, and other students on the basketball team perceived as Doe's "crush" or infatuation with Neff. (Dkt. 48-27 at 16-17.) Burd also confronted Neff directly about the perceived infatuation, and Neff told Burd that "he was going to try to back off and not be such a father figure for [Doe]." (Id. at 17.)
Burd, however, did not see Neff "touch [Doe] inappropriately besides maybe the good job pat on the back type thing." (Dkt. 50-1 at 5.) Burd also did not see Doe's crush "reciprocated besides [Neff] being nice to her." (Dkt. 48-17 at 20.)
On April 23, 2010, a school custodian, Robert Kominek, caught Neff with Doe in a custodian's closet engaging in sexual contact. Kominek had seen Neff alone with Doe "five to eight times" previously, but he testified that he did not see them engage in intimate contact on those occasions. (Dkt. 47-1 at 3.)
Kominek immediately called Carner to report what he had seen in the closet. Carner then called Nelson, who instructed Carner to call both the police and Child Protective Services. Carner did so. (Dkt. 57 at 23.)
Neff was arrested, prosecuted, and convicted of criminal sexual conduct in the first and second degree and accosting a child for immoral purposes in Michigan state court. He is currently incarcerated, and has not been employed by DCS since 2010.
Plaintiffs filed suit against defendants on May 29, 2012, bringing the following claims against the following parties: (1) battery against Neff; (2) discrimination on the basis of sex in violation of Title IX, 20 U.S.C. § 1681, as to DCS, Nelson, Carner, and PMCI; (3) violation of plaintiff's equal protection rights under the Fourteenth Amendment as to DCS, Nelson, and Carner; (4) violation of the Elliott-Larsen Civil Rights Act ("ELCRA"), M.C.L. § 37.101 et seq., as to DCS, Nelson, Carner, and PMCI; (5) negligent hiring as to PMCI; (6) violation of M.C.L. § 722.621 et seq. as to DCS, Nelson, and Carner; (7) intentional and negligent infliction of emotional distress against Neff; (8) vicariousliability against DCS; and (9) loss of consortium by Pamela Campbell as to all parties.1
DCS, Nelson, and Carner moved for summary judgment on September 29, 2014. (Dkt. 39.) PMCI moved for summary judgment on September 30, 2014. (Dkt. 41.) Oral argument was held on the motions on March 4, 2015. On March 19, 2015, the Court issued an order permitting defendants to depose Elizabeth Mossoian, a witness on whom plaintiffs relied in their responsive briefing. (Dkt. 54.) That order also permitted the parties to file supplemental briefing regarding whether Mossoian's testimony revealed that Carner had actual knowledge that Neff was having sexual contact with Doe prior to the incident that led to his discharge from employment and prosecution. The parties filed supplemental briefing regarding her deposition and its impact on this case on May 4, 2015. (Dkts. 55-57.)
Summary judgment is proper where "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). The Court may not grant summary judgment if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248. The Court "views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party." Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).
The Court will first address plaintiffs' claims under federal law, then plaintiffs' claims under state law. Because defendant Neff has not appeared and has filed no dispositive motion in this matter, the Court will not address the claims against him.
Title IX states that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program oractivity receiving Federal financial assistance[.]" 20 U.S.C. § 1681(a). Title IX contains an implied private right of action for monetary damages. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 280-81 (1998) (citing Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)).
A Title IX action may be brought regarding the sexual harassment or abuse of a student. Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 363 (6th Cir. 2005). Such an action requires plaintiffs to show that (1) an act of abuse or harassment occurred; (2) a school official with sufficient authority had actual notice that the abuser posed a substantial risk of abuse to students, and (3) the school district was deliberately indifferent to that substantial risk. Gebser, 524 U.S. at 285. Plaintiffs claim that DCS, Nelson, Carner, and PMCI violated Title IX by virtue of their roles in the abuse Doe suffered at the hands of Neff.
Title IX does not permit individual liability for sexual harassment, however, as individuals are not recipients of federal funds. Soper v. Hobe...
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