Doe v. Bd. of Educ.

• Docket Number: Civil Action 3:21-0031
• Decision Date: 15 September 2023
• Parties: JANE DOE and J. DOE, as parent, natural guardians and next friends of JOHN DOE, Plaintiffs, v. CABELL COUNTY BOARD OF EDUCATION and JASON CURRY, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

1

JANE DOE and J. DOE, as parent, natural guardians and next friends of JOHN DOE, Plaintiffs, v. CABELL COUNTY BOARD OF EDUCATION and JASON CURRY, Defendants.

Civil Action No. 3:21-0031

United States District Court, S.D. West Virginia, Huntington Division

September 15, 2023

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

Pending is Defendant Cabell County Board of Education's Motion for Summary Judgment. ECF No. 214. For the reasons that follow, the Defendant's motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

A. Factual Summary

John Doe is minor child with special needs. He has an autism diagnosis, is non-verbal, and requires assistance with tasks of daily living, including toileting. IEP (Jan 11, 2019) at 6, ECF No. 217, at 177-97. see J. Doe Dep 13:11-25:2, ECF No. 217-17. He has a history of self-harming behavior, and, at times, disruptive behaviors. IEP (Jan 11 2019), at 4, 6 (“When he is not being worked with one on one and there is something accessible he will often run, climb, tip chairs over, and dump materials onto the ground.”).

At all relevant times, John Doe has been a student of Cabell County Board of Education's (“CCBOE”) public schools. Due to his disability and high level of need, John Doe requires a one-on-one aide. See id. at 6.

John Doe started attending Milton Middle School in August of 2019, when he was 12 years old. He was placed in Kathleen Ridgeway's classroom, and CCBOE assigned Defendant Jason Curry as John Doe's one-on-one aide. Curry's Suppl. Ans. to Plfs' Req. for Admission 1, ECF No. 221-2; Curry Dep. 22:23-24:9, ECF No. 217-7. There were two other special needs students in the classroom. Chapman Dep. 8:11-20, ECF No. 217-4. Amy Chapman was assigned as the one-on-one aide for one of John Doe's classmates. Id. at 7:4-16. Shannon Cotton^[1] was assigned as the “classroom aide.” Id. at 7:22-8:10. Because there were only three students in the classroom, Cotton testified that she functionally served as a one-on-one aide for the remaining child; however, she also assisted with the other children, including John Doe. Cotton Dep. 28:1-15, 30:11-31:5, ECF No. 217-8.

It is undisputed that prior to October and November 2019, John Doe engaged in some behavior that could be characterized as sexual. For example, John Doe's parents agree that the child likes to “rub” the underarms of certain women, but he does not do that to men. Jane Doe Dep. 25:14-19, ECF No. 217-6; J. Doe Dep. 32:14-19.

He has a history of taking off his pants at school that dates back to August of 2017. See, e.g., 2017 I/DD Waiver Notes ECF No. 217, at 63-76. On occasion that behavior has been described as sexual and/or related to possible puberty. See, e.g., Dec. 2017 Note of Dr. Bryant Melvin 1, ECF No. 217, at 208-13. At other times, it is simply mentioned as one of his “behaviors.” See June 2018 IPP ¶ 6, ECF No. 217 at 79-111 (listing “takes off clothes at inappropriate times” as one of John Doe's behaviors); Sept. 2018 IPP at 11, ECF No. 217 at 112-40 (noting that John Doe “does often take off his clothes during visits but is always well dressed beforehand”).

CCBOE has also produced statements of school employees who have witnessed John Doe attempting to “hump” or “grind his genitals” on adults. See Armentrout Aff. ¶ 7, ECF No. 217-10; Brown Aff. ¶ 6, ECF No. 217-18; Chapman Aff. ¶ 7, ECF No 217-11; Holley Decl. ¶ 8, ECF No. 217-9;^[2] Mowdy Decl. ¶ 6, ECF No. 217-12.^[3] These accounts are generally vague and do not describe John Doe engaging in these behaviors while on an adult's lap. See Holley Decl. ¶ 7 (“[John Doe] never attempted to straddle me or sit with his pelvis towards my pelvis.”); Mowdy Decl. ¶ 6 (“During his older years at Milton Elementary, [John Doe] would sometimes attempt to press his pelvic area against teachers and aides [sic] leg[s] in the classroom.”).

It is also well documented that John Doe liked sitting on laps. See Id. at ¶ 5 (“[John Doe] was a lap-sitter based on my experience with him and would often attempt to sit on someone's lap, with legs to the side, if he came across aide or teacher seated close to him. This was age appropriate when he was with us in Elementary School.”); Wiseman Aff. ¶ 5, ECF No. 217-13 (“During my time with [John Doe] at Milton Middle School, I witnessed [John Doe] attempt to sit on other's laps at times.”); Eplin Aff. ¶ 7, ECF No. 217-14 (“I was the bus aide on the bus [John Doe] rides to and from school every day and he attempted to sit on my lap frequently.”); Chapman Aff. ¶¶ 6,9.

It is undisputed that the lap-sitting described by CCBOE's witnesses was not John Doe sitting in the laps of adults in the “straddle position.” Wiseman Aff. ¶ 5; Eplin Aff. ¶ 7.

Despite the statements of these CCBOE employees, John Doe's parents testified that although he engaged in lap-sitting when he was younger, he did not frequently sit on laps during the time in question. See Jane Doe Dep. at 23, 26; J. Doe Dep. at 37-38. Likewise, Cotton testified that while she witnessed him sitting on Curry's lap, she did not witness him sitting on the laps of others. Cotton Dep. 33:11-34:13.

Regardless of the frequency, it appears that once he matriculated to Milton Middle School, John Doe's lap sitting was not considered age appropriate at school and that behavior was targeted for extinction. See Ridgeway-Levisay Emails 1, ECF No. 217, at 2-3.

As early as October 30, 2019, Ridgeway began raising concerns about Curry to CCBOE's Special Education Supervisor Mindy Levisay via email, writing,

I think we need some observation in our room and some input on how we could improve. There is an aid[e] that may need more training. My attempts are failing. Please get back to me on this.

Ridgeway-Levisay Emails, at 2. Levisay responded, “Who is the aide and what problems are you having? Have you discussed this with Mr. Mann?” Id. at 2.

Ridgeway confirmed that she had spoken with Curt Mann, the principal of Milton Middle, continuing, “[h]e is just a young one on one aid with a very involved student that I just felt needed extra guidance. He is not receptive to my suggestions. Was looking for a different perspective on how to help him.” Id.

Two days later, Levisay asked for more specific information from Ridgeway. Id. On November 4, 2019, Ridgeway provided the following:

There just seems to be a lot he is not willing to do. He was given constant verbal reminders and then I gave him a written schedule that he never followed. He put it away in the student[']s work box right after I gave it to him and never referred to it or checked it off once. I am also trying to teach socially appropriate behavior to the student such as not just walking up to people and randomly tickling them and not sitting on adult laps. He will tickle the student and allow him to sit on his lap and those are behaviors I am trying to ride and replace and he has been reminded over and over. He has also been on his phone a lot when outside with the student. The student is a runner and cannot be trusted. He saw the original e-mail I sent you and claim it was on the overhead but I do not believe it was. His student is often behind my desk and I think he read it while moving him from the area. He then went and discussed the e-mail with Mr. Chapman. I have confronted him (aid[e]) about it. I let him know that it is nothing personal only work related. I had talked to Mr. Mann and Mrs. Cooley.^[4]

Id. at 1 (emphasis added).

On November 14, 2019, Levisay observed Curry in Ridgeway's classroom. See Levisay Observation Note, ECF No. 221-1 at 3-4. During that visit, Curry relayed to Levisay “that others in the room weren't happy with him.” Id. at 4. The only coaching Levisay provided Curry was to follow the instructions of the teacher. Id. Levisay's note concluded with the statement, “[a]fter the observation I stopped and talked to Mr. Manns [sic] and he ensured [sic] me he would keep an eye on the situation.” Id.

The record suggests that Ridgeway talked not only to Mann and Levisay regarding Curry but also to Assistant Principal Cooley. See Cooley Dep. 26-32 ECF No. 221-3. Cooley testified that she further reported concerns about Curry's unreceptiveness to Ridgeway's instruction to Mann. Id. at 31.

Whether or not Curry ever received any counseling from Ridgeway or Mann is contested. Ridgeway and Mann both testified that they talked to Curry about not allowing John Doe to sit on his lap. Ridgeway Dep. 9:20-10:6, ECF No. 217-1 (testifying that she had spoken to Curry about it multiple times); Mann Dep. 17:4-10, ECF No. 217-2 (testifying that he counseled Curry about not letting John Doe sit on his lap in October 2019). Curry, on the other hand, testified that he was not counseled by anyone about allowing students to sit on his lap. Curry Dep. 35:12-16, 90:2391:14.

Despite the foregoing, Curry received a favorable performance evaluation from CCBOE, signed by Cooley, on November 15, 2019. See Curry Evaluation, ECF No. 221-1, at 1-2.

One week later, on November 22, 2019, Cotton reported to Ridgeway that she walked into the sensory room contained within Ridgeway's classroom and found Curry molesting John Doe. Ridgeway Dep. 29:4-14.

At Ridgeway's insistence, the two women went to Assistant Principal Cooley's office. Id. Cooley then called Mann, who joined Cooley, Ridgeway, and Cotton in Cooley's Office. Mann Dep. 23:2-7. Mann testified that all three women were visibly upset. Id. at 23:4-5, 24:10-14.

Per Mann's written report, Cotton explained that when she entered the sensory room “[John Doe] was straddling Mr Curry, who was seated, and was ‘grinding on him.' She stated they were face to face. That Mr. Curry had his arms around [John Doe]'s waist and [John Doe] had his arms around Mr....