Doe v. Fairfax Cnty. Sch. Bd.

• Decision Date: 29 May 2019
• Docket Number: 1:18-cv-846 (LMB/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: John DOE 2, BY AND THROUGH his father and next friend, John DOE 1, Plaintiffs, v. The FAIRFAX COUNTY SCHOOL BOARD, et al., Defendants.

384 F.Supp.3d 598

John DOE 2, BY AND THROUGH his father and next friend, John DOE 1, Plaintiffs,

v.The FAIRFAX COUNTY SCHOOL BOARD, et al., Defendants.

1:18-cv-846 (LMB/TCB)

United States District Court, E.D. Virginia.

Filed May 29, 2019

Jesse R. Binnall, Paris Ratliff Sorrell, Harvey & Binnall PLLC, Edward John Ungvarsky, Ungvarsky Law PLLC, Alexandria, VA, Louise Tavey Gitcheva, Rees Broome PC, Tysons Corner, VA, for Plaintiffs.

Michael Eugene Kinney, Turner & Kinney, Leesburg, VA, for Defendants.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is defendant Fairfax County School Board's Motion for Summary Judgment [Dkt. No. 100], which has been fully briefed and argued. For the reasons stated in this Memorandum Opinion, the Motion will be granted.

I. BACKGROUND

Plaintiff John Doe 2 (the "Student"), a 16-year-old student, and John Doe 1, the Student's father and next friend (collectively, "plaintiffs"), have filed a five-count Complaint against the Fairfax County School Board (the "School Board" or "defendant"),¹ alleging violations of Title IX under 20 U.S.C. § 1681 (Count I), the First and Fourteen Amendments pursuant to 42 U.S.C. § 1983 (Counts II and III, respectively), and the Due Process and Free Speech Clauses of the Virginia Constitution (Counts IV and V, respectively). Compl. [Dkt. No. 1]. For relief, plaintiffs seek an injunction restraining defendant from continuing to enforce any punishment against the Student and including any of the hearing officers' findings and sanctions on the Student's academic record, as well as damages, attorneys' fees, and costs. Id. at 12–13.

This lawsuit arises out of allegations made by three of the Student's female classmates at Lake Braddock Secondary School ("Lake Braddock") concerning the Student's inappropriate touching and comments. Specifically, the girls alleged that on February 6, 2018, the Student touched the butt and crotch of Student A while they were in the library;² that he touched Student B on her breast, hip, and butt while in Spanish class and commented on Student B's fake fingernails by saying "you'd cut yourself if you fingered yourself with those nails"; and that at crew practice he touched his genitals through his spandex and asked Student C "how a girl doesn't orgasm when she puts a tampon in." Id. ¶ 10.

The three female students approached a vice principal to report the Student on February 12, 2018. Id. ¶ 9. Three days later, the Student was removed from class and he, along with his parents, met with school administrators to discuss the allegations. In that meeting, he explained that he had touched Student A accidentally,³ denied touching Student B, and admitted to making both the fingernail and tampon statements but stated that the tampon statement was a joke and was made to two other female friends, not to Student C. Id. ¶¶ 11–15; Def.'s Brief in Supp. of Mot. for Summ. J. [Dkt. No. 101] ("MSJ") ¶ 35, at 7. The Student was subsequently suspended for ten days. Compl. ¶ 16. The Student and his parents appealed the suspension on February 21, 2018. MSJ ¶ 40, at 7.

A hearing was held on March 9, 2018. Compl. ¶ 17. Plaintiffs, along with counsel, were present at the hearing conducted by hearing officers Nancy Kreloff and J.D. Anderson. Id. Assistant Principal Eileen Hoppock and Associate Principal Laura Waterman presented the allegations. Id. ¶ 18. In the Student's defense, plaintiffs provided a psychosexual risk assessment, two polygraph reports, and character reference letters. Id. ¶ 25.

On March 23, 2018, Kreloff issued a decision finding that the Student had "committed serious repeated offenses in violation of School Board policy by engaging in improper and offensive touching of female students and sexual harassment of female students." Id. ¶ 29. As a sanction, the Student was removed from Lake Braddock and reassigned to an "alternate educational setting within [the Fairfax County Public School] system." Id. ¶ 32. The Student successfully completed the 2017–2018 school year at Bryant Alternative Learning Center and was reassigned to South County High School for the 2018-2019 school year. MSJ ¶ 65, at 10.⁴

Plaintiffs appealed the hearing officers' decision to the School Board on March 29, 2018, which denied the appeal on April 12, 2018. Compl. ¶ 33; MSJ ¶ 66, at 10. On May 11, 2018, plaintiffs petitioned the Circuit Court of Fairfax County to review the School Board's decision. MSJ ¶ 73, at 11. Under Virginia law, a circuit court must sustain the School Board's action "unless the school board exceeded its authority, acted arbitrarily or capriciously, or abused its discretion." Id. ¶ 74 (citing Va. Code. Ann. § 22.1-87 ). At a hearing on December 14, 2018, the circuit court denied the Petition for Review, ruling that plaintiffs "failed to show that the School Board exceeded its authority, acted arbitrarily or capriciously, abused its discretion or violated any of John Doe 2's due process rights." Id. ¶¶ 75–76 (citing Dkt. No. 62-1). Although plaintiffs initially appealed the decision, they have abandoned that appeal. May 10 Hr'g Tr. [Dkt. No. 132] 8:20-24. On July 6, 2018, while the Fairfax Circuit Court matter was pending, plaintiffs filed this Complaint, and on March 22, 2019 defendant moved for summary judgment.

II. DISCUSSION

A. Standard of Review

Summary judgment is appropriate where the record demonstrates "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). Although the Court must view the record "in the light most favorable to the non-moving party," Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 324 (4th Cir. 2012), "[t]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient" to overcome summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see also Am. Arms Int'l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009). Rather, a genuine issue of material fact exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Moreover, "[t]he mere existence of some alleged factual dispute" cannot defeat a motion for summary judgment. Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). Instead, the dispute must be both "material" and "genuine," meaning that it must have the potential to "affect the outcome of the suit under the governing law." Id.

B. Analysis

1. Preclusive Effect of State Court Ruling⁵

Defendant first argues that the Fairfax County Circuit Court's conclusion that defendant had not violated the Student's due process rights precludes plaintiffs from relitigating the issue in this Court. In Virginia, "[t]he doctrine of collateral estoppel precludes the same parties to a prior proceeding from litigating in a later proceeding any issue of fact that actually was litigated and was essential to the final judgment in the first proceeding," and this doctrine applies notwithstanding that the causes of action or the relief sought in the two proceedings may differ. Whitley v. Commonwealth, 260 Va. 482, 489, 538 S.E.2d 296 (2000) (citations omitted). In Whitley, the Supreme Court of Virginia enumerated four elements that must be satisfied before a party can invoke the doctrine of collateral estoppel, or issue preclusion:

(1) the parties to the two proceedings must be the same; (2) the factual issue sought to be litigated must have been actually litigated in the prior proceeding; (3) the factual issue must have been essential to the judgment rendered in the prior proceeding; and (4) the prior proceeding must have resulted in a valid, final judgment against the party to whom the doctrine is sought to be applied.

Id. It is the party seeking to preclude a factual issue that bears the burden of demonstrating that these four elements are satisfied. See Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917 (1974). Issue preclusion applies "only when the issues in each action are identical, and the issues are not identical when the legal standards governing their resolution are significantly different." SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 380 (4th Cir. 2017) (citation omitted).

Under Rule 1:6(a) of the Rules of the Virginia Supreme Court, which addresses res judicata, or claim preclusion,

[a] party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction, or occurrence, whether or not the legal theory or rights asserted in the second and subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or third-party pleading.

Va. Sup. Ct. R. 1:6(a). Initially, plaintiffs argue that the proceeding before the state court was a petition under Virginia Code § 22-1.87, not a "claim for relief"; however, a judge in the Eastern District of Virginia has held that a petition under that same section of the Virginia Code was clearly a "civil proceeding" and thus was covered by Rule 1:6. See Davison v. Rose, No. 1:16cv540, 2017 WL 3251293, at *6 (E.D. Va. Jul. 28, 2017). To prevail on its preclusion claim, defendant must establish that "(1) there was a final judgment issued on the merits of a prior suit; (2) there is identity of parties between the prior and present suits; and (3) the claim was brought in the prior proceeding or arose out of the same conduct, transaction, or occurrence as the subject of the prior proceeding." I...