Doe ex rel. Doe v. Warren Consolidated Schools, 00-CV-72956-DT.

Citation307 F.Supp.2d 860
Decision Date13 February 2003
Docket NumberNo. 00-CV-72956-DT.,00-CV-72956-DT.
PartiesSally DOE, by her Next Friend Mother DOE 1, Jane Doe, by her Next Friend, Mother Doe 2, and Mary Doe, by her Next Friend Mother Doe 3, Plaintiffs, v. WARREN CONSOLIDATED SCHOOLS, a Michigan municipal corporation, James Kearly, Dr. James Clor, Dr. Paul Stamatakis, and Jerry Maiorano, Defendants.
CourtU.S. District Court — Eastern District of Michigan

William R. Seikaly, Seikaly & Stewart, Bloomfield Hills, MI, for Plaintiff.

Stephen J. Hitchcock, Timothy J. Mullins, Troy, MI, Gary J. Collins, Collins, Blaha, Southfield, MI, Suzanne P. Bartos, Plunkett & Cooney (Detroit), Detroit, MI, for Defendant.

ORDER

BORMAN, District Judge.

COUNT I: GRANTING DEFENDANTS WARREN CONSOLIDATED SCHOOLS, DR. JAMES CLOR, DR. PAUL STAMATAKIS AND JERRY MAIORANO'S MOTION FOR SUMMARY JUDGMENT AS TO COUNT I — GROSS NEGLIGENCE/INTENTIONAL MISCONDUCT; COUNT II: DENYING DEFENDANTS WARREN CONSOLIDATED SCHOOLS, DR. JAMES CLOR, DR. PAUL STAMATAKIS AND JERRY MAIORANO'S MOTION FOR SUMMARY JUDGMENT AS TO COUNT II — 42 U.S.C. § 1983; COUNT III:(1) GRANTING DEFENDANTS DR. JAMES CLOR, DR. PAUL STAMATAKIS AND JERRY MAIORANO'S MOTION FOR SUMMARY JUDGMENT AS TO COUNT III — TITLE IX; AND (2) DENYING DEFENDANT WARREN CONSOLIDATED SCHOOLS' MOTION FOR SUMMARY JUDGMENT AS TO COUNT III — TITLE IX

Now before the Court is (1) Defendants Warren Consolidated Schools, Dr. James Clor and Jerry Maiorano's motion for summary judgment and (2) Defendant Dr. Paul Stamatakis' motion for summary judgment. Plaintiffs' complaint sets forth three counts: Count I: gross negligence and intentional misconduct; Count II: 42 U.S.C. § 1983 — violation of the due process clause of the Fourteenth Amendment; and Count III: Title IX sexual harassment. Plaintiffs' complaint alleges that they suffered injuries as a result of being sexually molested by an elementary school teacher, Defendant James Kearly, while they were students at Siersma Elementary School in Warren, Michigan.

The Court heard oral argument on January 31, 2003. Having considered the entire record, and for the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the motions for summary judgment. Specifically, the Court

(1) GRANTS the Defendants' motions for summary judgment as to Count I;

(2) DENIES the Defendants' motions for summary judgment as to Count II;

(3) GRANTS Defendants Stamatakis, Clor and Maiorano's motion for summary judgment as to Count III; and

(4) DENIES Defendant Warren Consolidated Schools' motion for summary judgment as to Count III.

FACTS

Plaintiffs, three young girls,1 were sexually molested by Defendant James Kearly in 1998 while students at Siersma Elementary School in Warren, Michigan.2 Defendant Kearly has pled nolo contendere to charges of Fourth Degree Criminal Sexual Conduct related to the instant case, and is currently listed on the state of Michigan's Public Sex Offender Registry — see www.mipsor.state.mi.us. Defendant Kearly is not a party to the motions for summary judgment currently before the Court.

Plaintiffs' complaint, filed on June 30, 2000, sets forth three counts — Count I: Michigan gross negligence and intentional misconduct; Count II: Federal 42 U.S.C. § 1983 — violation of the due process clause of the Fourteenth Amendment; and Count III: Federal Title IX sexual harassment. In addition to Defendant Kearly, Plaintiffs seek relief from the Warren Consolidated School District ("District"), Dr. Paul Stamatakis ("Stamatakis"), former Superintendent of the Warren Consolidated Schools, Dr. James Clor ("Clor"), current Superintendent of the Warren Consolidated Schools and former Associate Superin4endent in charge of elementary education, and Jerry Maiorano ("Maiorano"), Principal at Siersma Elementary School.3 The Court must determine whether genuine issues of material fact exist with respect to whether the Warren Consolidated School District and Defendants Stamatakis, Clor and Maiorano are liable under the legal theories set forth in Plaintiffs' complaint.

Defendant Kearly began employment with the Warren Consolidated School District in 1966 as a physical education teacher at Pennow Elementary School.4 Kearly's official personnel file contains no reported incidents of misconduct until 1984. In 1984, numerous allegations of improper conduct, both sexual and non-sexual, began to surface against Kearly. These include, but are not limited to, the following:

In 1984, a complaint was lodged against Kearly by a male student alleging that Kearly grabbed him by the neck and slammed him into a locker. The allegation was confirmed, in part, by one of Kearly's gym aides; Kearly received a verbal reprimand. (District's Br. Exh. A, document 548.)

In 1985, Kearly was transferred to Flynn Middle School ("Flynn"). Allegations of improper sexual misconduct began surfacing almost immediately. On October 8, 1985, a female student alleged that Kearly looked down the front of her (as well as another female student's) top during class. No action was taken against Kearly. The assistant principal discounted the student's allegation, notwithstanding that more than one student made such an observation, because the student's accusation came after being disciplined by Kearly. (District's Br. Exh. A, document 494.)

On November 3, 1986, Flynn Principal Moy and Assistant Principal Weinberg met with Kearly to discuss numerous allegations/rumors of improper conduct, including, but not limited to: (1) having girls around his desk; (2) looking down female students' dresses; (3) keeping girls after class; and (4) teasing students and making improper comments such as "because you were over last night." (District's Br. Exh, A, document 440.) Kearly allegedly received another verbal warning. (District's Br. at 1.)

In 1986 or 1987, Kearly began sexually harassing a nineteen year-old former student, Tracy Stack, who was employed by the District as an assistant volleyball coach at Warren High — Kearly was the varsity volleyball coach. Kearly made inappropriate sexual comments to Ms. Stack, kissed her while conducting "meetings" at local bars, bought her alcoholic beverages, called her at home, and told her he could provide her with a furnished apartment. (Pl.'s Resp. Br. Exh. 3, documents 597-99, 611; Pl.'s Resp. Br. Exh. 14.) A deal was brokered by the District in which Ms. Stack, in order to keep her job, agreed not to file formal sexual harassment charges.5 (Id.) Plaintiff received a "strong" reprimand for exercising "extremely poor judgment," from Lawrence Beckett, Associate Superintendent for Personnel/Employee Relations. The reprimand noted that "[t]his poor judgment on your part could have led to a formal sexual harassment charge against you and the school district."6 (District's Br. Exh. A, document 522.)

In January, 1988, Flynn Principal Moy discussed several issues with Kearly, including an incident in which a female student slapped him after he touched her buttocks. Moy noted that students were "talking" and that he could lose it all. Apparently, no discipline was taken against Kearly. (District's Br. Exh. A, document 446.)

On October 5, 1989, Flynn Assistant Principal Chuck Kluka met with Kearly to discuss a parent's concern that her daughter would be placed in Kearly's class. Specifically, the parent heard rumors that Kearly "puts girls with large boobs in [the] front row" and "drops pen[s] to look up dress[es]." It is unclear what, if anything, transpired as a result of this concern.7

In January 1990, a crisis team met with a Flynn student, LW,8 af4er she wrote a letter signed "your death wish friend." In October, 1990, Principal Moy and others met after LW exhibited renewed depression. It was at this time that Principal Moy learned that LW's depressed state resulted, in part, from Defendant Kearly's teasing and inappropriate touching (touching LW on the buttocks). (District's Br. Exh. A, documents 495, 2085.) Several students were interviewed by school officials in response to this allegation. In addition to confirming LW's allegations of mistreatment, teasing and inappropriate contact (including touching her buttocks), (District's Br. Exh. A, documents, 418, 420-25), the eleven students also gave consistent accounts of highly inappropriate behavior by Defendant Kearly. This included conduct such as (1) picking girls as class favorites and asking them to sit by him during movies; (2) touching, hugging and tickling girls, including touching or pretending to touch their buttocks; (3) teasing students; (4) stating "smile if you love me"; and (5) pretending to spit on students. (District's Br. Exh. A, documents 416-27.)

Despite these assertions, Principal Moy, on November 5, 1990, sent a letter to Kearly, stating that Kearly would not be reprimanded for this misconduct. Instead, Moy issued a "letter of direct order," directing Kearly to refrain from physical contact with students, to refrain from teasing and other negative comments, and to refrain from showing favoritism. (District's Br. Exh. A, document 1599.) On December 17, 1990, the school made a report of abuse to the Michigan Department of Social Services regarding the LW matter. Defendant Kearly was not mentioned in this report. Instead, the District listed LW's mother as the alleged perpetrator of the abuse. (District's Br. Exh. A, document 497.)

The Sterling Heights Police Department commenced a criminal investigation into LW's accusations against Kearly, and criminal assault & battery charges were brought against him. (District's Br. Exh. A, documents 463, 520.) The District suspended Kearly with pay on May 1, 1991, stating that "[i]t would `appear' that the prosecutor's office has information that we do not have." (District's Br. Exh. A, document 502.) On December 10, 1991, Kearly was acquitted of the assault and battery charges. According to Thomas Dettloff, lead police investigator on the Kearly case, the Warren...

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  • Thorpe v. Breathitt Cnty. Bd. of Educ.
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    ...508–09 (emphasis added).Instead of providing support for its policymaking theories, Thorpe relies on Doe ex rel. Doe v. Warren Consolidated Sch., 307 F.Supp.2d 860, 887 (E.D.Mich.2003). In that case, the court denied summary judgment because instances of misconduct by a teacher had continue......
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