D.T. by M.T. v. Independent School Dist. No. 16 of Pawnee County, Okl.

• Decision Date: 25 January 1990
• Docket Number: Nos. 88-1619,89-5037,s. 88-1619
• Citation: 894 F.2d 1176
• Parties: 58 Ed. Law Rep. 483 D.T., a minor, by his legally appointed guardians; M.T. and K.T. in their own behalf as parents and legal guardians of D.T.; F.H., Jr. a minor, by his legally appointed guardians; F.H. and L.T., in their own behalf as parents and legal guardians of F.H.; P.M., a minor, by his legally appointed guardian; R.T., in her own behalf as parent and legal guardian of P.M., Plaintiffs-Appellees, v. INDEPENDENT SCHOOL DISTRICT NO. 16 OF PAWNEE COUNTY, OKLAHOMA, Defendant-Appellant. , and 89-5077.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1176

894 F.2d 1176

58 Ed. Law Rep. 483

D.T., a minor, by his legally appointed guardians; M.T. and K.T. in their own behalf as parents and legal guardians of D.T.; F.H., Jr. a minor, by his legally appointed guardians; F.H. and L.T., in their own behalf as parents and legal guardians of F.H.; P.M., a minor, by his legally appointed guardian; R.T., in her own behalf as parent and legal guardian of P.M., Plaintiffs-Appellees, v. INDEPENDENT SCHOOL DISTRICT NO. 16 OF PAWNEE COUNTY OKLAHOMA, Defendant-Appellant.

Nos. 88-1619, 89-5037, and 89-5077.

United States Court of Appeals Tenth Circuit.

Jan. 25, 1990.

Frank A. Zeigler, Tulsa, Okl., for plaintiffs-appellees.

Edward J. Main (James K. Secrest, II on the briefs), of Secrest and Hill, Tulsa, Okl., for defendant-appellant.

Before LOGAN, BARRETT and EBEL, Circuit Judges.

BARRETT, Senior Circuit Judge.

This appeal arises out of a civil rights action brought by the plaintiffs-appellees, three male elementary students seeking damages from the defendant-appellant, Independent School District No. I-6 of Pawnee County, Oklahoma (School District) in connection with sexual acts committed against the plaintiffs by Stephen Lee Epps (Epps), a male teacher of School District, during summer vacation and in relation to fund raising for a summer basketball camp.

This 42 U.S.C. Sec. 1983 action was predicated upon a complaint that the School District was guilty of deliberate indifference or that it acted with reckless disregard of plaintiffs' constitutionally protected liberty/privacy interests in the hiring, supervision and investigation of Epps who sexually molested plaintiffs. The complaint charged that the wrongful conduct of the defendants constituted "[a] violation of the plaintiffs' Federal Constitutional and statutory rights of privacy, liberty, substantive due process, equal protection and is a violation of their Fourth Amendment right to be secure in their person and other rights protected by the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution...." (R., Supp. Vol. I, Tab 1, p. 8). Further, the complaint alleged that the hiring of Epps was the "moving force" behind the sexual abuse practiced by Epps upon plaintiffs and was, accordingly, state action taken under color of state law. Jurisdiction was predicated on 28 U.S.C. Secs. 1331 and 1343(a)(3) and 42 U.S.C. Sec. 1983.

The jury awarded damages of $42,000 each to D.T. and P.M. and $50,000 to F.H.

General Background

Prior to the commencement of the 1981 school term, Epps, then some thirty years of age, was hired to teach fifth grade and also coach the boys' basketball team at Terlton Elementary School, Terlton, Oklahoma. The application-screening interview process was conducted by Dr. Charles Clayton, Superintendent of the Cleveland, Oklahoma, Public Schools. Mr. Donald K. Daniels, Principal at Terlton Elementary School, participated in the interview of Epps with Dr. Clayton. Principal Daniels recommended to Dr. Clayton that Epps be hired, and Dr. Clayton made that same recommendation to the School District Board. For purposes of this litigation, Dr. Clayton and Principal Daniels were considered policy making officials representing the defendant-appellant School District.

In 1971, Epps had been, unbeknownst to Dr. Clayton or Principal Daniels, convicted of sodomy in Dallas County, Texas. His criminal file was maintained under the name of Steve Epps. Epps was on probation when hired to teach in 1972 at Houston Elementary School in Lancaster, Texas. He taught fourth and fifth grades there until 1977. When he was hired there, the school district did not make specific inquiry of Epps about a criminal record because, under Texas law, one could not hold a teaching certificate if he/she had a criminal record. The same was true in Oklahoma when Epps was hired in 1981.

Prior to the commencement of the school term in 1981 but after Epps had been hired, Dr. Clayton received a telephone call from Mrs. Diane Kelley, a cousin of Epps, from Phoenix, Arizona. Mrs. Kelley informed Dr. Clayton that Epps had visited her home in Phoenix that summer and had physically fondled her eleven-year-old son in his private parts.

Dr. Clayton considered the Kelley report as most serious. He proceeded to make a number of contacts and inquiries concerning Epps and requested that Principal Daniels make an investigation, including a personal confrontation with Epps concerning these charges. Principal Daniels did so, and Epps denied any wrongdoing. He claimed that Mrs. Kelley wanted him to remain in Phoenix at her home and that she made these charges because he did not stay with her.

During the fall of 1981, Principal Daniels was informed by two or three other individuals of similar rumors about Epps but no complaints had ever been lodged against Epps. Dr. Clayton requested that Principal Daniels keep close track of Epps. There were no additional rumors or reports of any kind adverse to Epps following those made in the fall of 1981. The incident between Epps and the three minor male plaintiffs occurred on June 13-14, 1984, when the three plaintiffs, each members of Epps' fifth grade class, went with Epps to Sand Springs and Tulsa, Oklahoma, to sell candy to raise money for summer basketball camp "scholarships" and stayed overnight at Epps' home.

Undisputed Facts

(Relative to the School District's Policy of Hiring and

Supervising Teachers)

Dr. Clayton accepted applications for a position of fifth grade teacher and boys' basketball coach at the Terlton Elementary School, during the summer of 1981 for a contract term from August, 1981, to the end of May, 1982. (R., Supp. Vol. II, pp. 74-75). The application and selection process followed by Dr. Clayton was the normal, accepted procedure used in the State of Oklahoma (R., Supp. Vol. II, pp. 160-64). The first step in the procedure was that of notifying four or five universities or colleges in Oklahoma of the vacancy and advising that applications would be accepted and screened (R., Supp. Vol. II, p. 74).

One of the applications received was from Epps who was then the Superintendent of Schools of Wann, Oklahoma. Id. The application form used in this case (just as all such forms in Oklahoma) did not contain any place thereon for reference to an arrest or criminal record because a teacher with a felony record cannot obtain or retain a teaching certificate from the State of Oklahoma. (Id. at 76; R., Supp. Vol. III, p. 1640; R. Supp. Vol. IV, p. 445). It was the policy of the school district, however, to ask "support" personnel whether they have been arrested. (R., Supp. Vol. III, p. 111). In the case of teachers, the school district relied on the certification process. Id.

The certificate relative to the Epps application, just as the certificates for all other applicants, came to Dr. Clayton from Oklahoma State University and contained confidential, complete information about the applicant's educational background, academic honors, and professional standing (R., Supp. Vol. II, p. 80). In addition, Dr. Clayton received from Oklahoma State University recommendations from college professors and principals-superintendents where Epps had taught or worked. Id. at 81. Dr. Clayton, prior to conducting the personal interview with Epps, conducted telephone interviews with those listed as recommenders. Id. at 81, 114. Both the certificate and recommendations were returned to Oklahoma State University following the personal interview of Epps conducted by Dr. Clayton and Principal Daniels. Id. at 82. The interview with Epps was conducted during the month of May, 1981, and lasted about one hour (R., Supp. Vol. III, p. 108). At the conclusion of the interview, Principal Daniels recommended to Dr. Clayton that Epps be hired. (R., Supp. Vol. IV, p. 444).

Dr. Clayton, who had served as Superintendent of the Cleveland Public Schools since 1979, and who supervises the entire educational program for the Cleveland schools, including principals (R., Supp. Vol. II, p. 73), recommended to the school board that Epps be hired as the fifth grade teacher and coach of boys' basketball at Terlton Elementary School for the school year September 1, 1981, to June 1, 1982 (R., Supp. Vol. III, pp. 104, 168-69). Terlton, Oklahoma, is a small town with a population not exceeding 300 persons. (R., Supp. Vol. V, p. 567).

A person convicted of a felony in Oklahoma cannot have a teaching certificate. (R., Supp. Vol. III, p. 164) (testimony of Dr. Clayton); (R., Supp. Vol. IV, p. 445) (testimony of Principal Daniels). Martin Allen Brown, a private investigator employed by the plaintiffs, testified that in checking the court records of Dallas County, he was only able to locate the Epps "sodomy case" file by using a computer and referencing to the name "S" Epps which directed him to a 1971 conviction of one Steve Epps. (R., Supp. Vol. III, pp. 197-99). He agreed that if the name Stephen Lee Epps had been used in the computer search that it would not have shown the conviction. Id. at 213. Furthermore, in 1981, there was no computer system available to conduct such an inquiry and it would have been a matter of diligence and competency of any person working in the clerk of court's office to equate the file of Steve Epps to Stephen Lee Epps. Id. at 208-09.

On or about August 11, 1981, Mrs. Diane Kelley of Phoenix, Arizona, mother of three minor children, phoned Dr. Clayton at his office in Cleveland, Oklahoma (R., Supp. Vol. II, p. 42, 116). Mrs. Kelley related that Epps, her cousin, had recently visited at her home in Phoenix and that Epps had physically fondled her eleven year old son in his private parts and that she was very afraid of the situation because she learned that Epps was to teach in Oklahoma. (R., Supp., Vol. II, p. 42, 55; R., Supp. Vol. III, p. 116). Dr. Clayton's notes indicate that Mrs. Kelley may have referred to Epps as a child molester. Dr. Clayton treated Mrs. Kelley's...