Gates v. Unified School Dist. No. 449 of Leavenworth County, Kan., 92-3218

• Decision Date: 21 June 1993
• Docket Number: No. 92-3218,92-3218
• Citation: 996 F.2d 1035
• Parties: 84 Ed. Law Rep. 91 Gina GATES, Plaintiff-Appellant, v. UNIFIED SCHOOL DISTRICT NO. 449 OF LEAVENWORTH COUNTY, KANSAS, Donald E. Simmons, individually and in his official capacity as Principal, Pleasant Ridge High School, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1035

996 F.2d 1035

84 Ed. Law Rep. 91

Gina GATES, Plaintiff-Appellant, v. UNIFIED SCHOOL DISTRICT NO. 449 OF LEAVENWORTH COUNTY KANSAS, Donald E. Simmons, individually and in his official capacity as Principal, Pleasant Ridge High School, Defendants-Appellees.

No. 92-3218.

United States Court of Appeals Tenth Circuit.

June 21, 1993.

Blaise R. Plummer of Carson & Fields, Overland Park, KS, for plaintiff-appellant.

Jeffrey L. Baxter (Jeffrey E. Goering with him on the briefs) of Chapman, Waters and Baxter, Leavenworth, KS, for defendants-appellees.

Before EBEL, BARRETT and KELLY, Circuit Judges.

BARRETT, Senior Circuit Judge.

Plaintiff Gina L. Gates (Gates or Plaintiff) appeals the district court's grant of summary judgment in favor of defendants, Unified School District No. 449 of Leavenworth County, Kansas (School District or Board) and Donald E. Simmons, Principal of Pleasant Ridge High School (Simmons). We affirm.

Background

Gates filed this suit pursuant to 42 U.S.C. § 1983 alleging that the School District and Simmons acted with deliberate indifference or reckless disregard in relation to a sexual assault committed against her on May 5, 1988, at Pleasant Ridge High School by teacher Michael Dragoo, who was hired in 1983 to teach Vocational Agriculture. On May 5, 1988, Gates was a junior, age 17. She sought damages in excess of $50,000, punitive damages, attorneys fees and costs.

In her complaint and in the Pretrial Order, Gates alleged that the School District, through its Board members, and Simmons, as Principal, were policymakers, and that on May 5, 1988, they either had knowledge of or reasonably should have known that Vocational-Agriculture teacher Michael Dragoo posed a threat to female students at the high school. Gates averred that the School District and Simmons knew of or should have known of the following: (1) Dragoo was counseled in 1984 concerning attending school functions with students and told that this could jeopardize his professional relationship; (2) in 1985, Dragoo became romantically involved with a female student, Cheryl Parker, and notwithstanding complaints to the school board concerning Dragoo's involvement with this student, his teaching contract was renewed; and (3) Donald Navinsky, a board member, had received information that Dragoo was pursuing Gates prior to the May 5, 1988, incident.

In their Answer and in the Pretrial Order, the defendants contended that (1) there was no evidence that the school board authorized or adopted any policy or custom tolerating inappropriate sexual conduct by teachers with female high school students, (2) there was no evidence that Superintendent Fagan or Principal Simmons authorized or tolerated inappropriate contact by teachers with female high school students; (3) Gates failed to satisfy a condition precedent to bringing suit by failing to provide notice pursuant to Kan.Stat.Ann. § 12-105b, and (4) although a former teacher at the high school had heard rumors regarding teacher Dragoo and female high school students prior to May 5, 1988, she did not report these rumors to the principal, superintendent or any board members.

Gates' basic complaint is that although the School District had no written policy authorizing, condoning or encouraging inappropriate sexual conduct between teachers and students, the defendants, by virtue of their conduct, impliedly authorized, condoned and encouraged such behavior by failing to thoroughly investigate, discipline and safeguard students from such conduct. Gates contends that such conduct became the custom or unwritten policy of the school district.

Gates' cause of action "[i]s for deprivation of the constitutional right of privacy and bodily security through the deliberate indifference and recklessness of the defendants in handling reports of prior incidents of sexual misconduct, failing to investigate other incidents and failing to remedy or safeguard students." (Appellant's Appendix, Pretrial Order, pp. 12-13). She further contends:

... [T]he school board members acted to retain the teacher (Dragoo) with knowledge of prior instances of sexual misconduct. The vote to retain the teacher provides a direct nexus to the sexual assault since the assault never would have occurred if the teacher's contract had not been renewed under conditions and safeguards to prevent any recurrence of sexual misconduct.

Under the facts of this case, at least one (and possibly more) instances of sexual misconduct of the teacher (Dragoo) were known to the school board. The teacher continued to receive good performance reviews after knowledge of sexual misconduct occurred. The prior instances of sexual misconduct were concealed due to the claim of executive privilege by the school board.

Public officials with notice of misbehavior by their subordinates must not take actions which communicate that they encourage or condone such behavior. Stoneking, 882 F.2d at 729. Such conduct as failing to discipline or failing to safeguard against a known danger establishes an unwritten policy or custom for purposes of section 1983.

A jury question remains as to whether defendants acted with deliberate indifference or reckless disregard in voting to retain this teacher, and failing to take any corrective measure, based upon the information which they had at the time, or acquired prior to May 5, 1988.

(Appellant's Appendix, Plaintiff's Suggestions in Opposition to Defendants' Motion for Summary Judgment, pp. 60-61).

A summary review of the depositional evidence and some exhibits follows:

Donald Navinsky, a former member and president of the school board (1981-89), testified that: during the spring of 1985, the board had to determine whether to grant Dragoo tenure; Cheryl Parker was then a senior at the high school, and her father, Richard Parker, appeared before the board in executive session and, in tears, reported that Dragoo was chasing his daughter, that Cheryl was infatuated with Dragoo, and that Dragoo was the first guy who had shown any interest in Cheryl; when the board convened to determine whether to retain or terminate Dragoo, no member of the Parker family appeared, but some thirty people appeared on Dragoo's behalf; the board was divided as to whether to retain Dragoo even though no one had appeared at the meeting opposing his retention; neither Superintendent Fagan nor Principal Simmons had any knowledge of Dragoo's relationship with Cheryl Parker, except Fagan had been contacted by Cheryl's mother who indicated that Dragoo had an affair with Cheryl, which Fagan related to the board; two of Navinsky's children had attended Pleasant Ridge High School and had enrolled in Dragoo's vocational agriculture classes and considered Dragoo a very good teacher; Gail Navinsky considered Dragoo a good teacher and she had no inappropriate contact with Dragoo; Navinsky considered Dragoo an outstanding teacher, and that his class was working great; the board members were concerned that Dragoo's new program would fall on its face if the board hired a new teacher; Superintendent Fagan stated to the board that he did not have sufficient knowledge of the Dragoo-Parker relationship to permit an opinion, and Principal Simmons stated that he had heard nothing critical of Dragoo; and the board voted to retain Dragoo, 5 to 2.

Navinsky knew of no other incident beyond that involving Cheryl Parker attributable to Dragoo from 1985 until the May 5, 1988, incident involving Dragoo and Gina Gates, but he had personal suspicions of Dragoo because he believed that if Dragoo "messed up" with Cheryl Parker there was a chance that he may have done so with other high school girls; he had no concrete evidence about Dragoo's actions after the 1985 incident, but he did hear scattered comments from a high school student, Danny Langley, that Dragoo was chasing after Gina Gates; Dragoo and Cheryl Parker were married shortly after her graduation from high school; there was no question in his mind that the board would not tolerate a teacher having inappropriate contact with a student, and certainly sexual contact would be inappropriate; after Dragoo's marriage to Cheryl Parker, he asked questions about Dragoo, and while he heard some rumors, there was no information provided the board between 1985 and May of 1988 regarding any inappropriate misconduct by Dragoo.

Leslie P. Gates, father of plaintiff Gina L. Gates, testified that in November of 1990 following the May 5, 1988, incident, he attended a town meeting during which Donald Navinsky informed him that Dragoo had been involved with other female students before Dragoo pleaded guilty to assault or abuse of Gina Gates. Gates stated that he could not believe what he was hearing. He stated that since the assault, his daughter's personality had changed in that she was angry, withdrawn and cried a lot.

Gina Louise Gates, plaintiff, testified that: in 1988, she was a senior and attended Dragoo's vocational agriculture class; earlier that year, probably the middle of March, 1988, after a class, Dragoo tickled her and touched her breasts, and when she asked him to stop, he did; she did not report this incident to anyone because she was scared that it would hurt other people and she was embarrassed; she saw Dragoo tickle and "play around" with other female students but she didn't report that; on May 5, 1988, after class, she went to Dragoo's desk for help concerning a class paper, and after he helped her, Dragoo fondled her breasts; she stated that after the May 5, 1988, incident, her friend, Carmen Stillian, while then a student in the high school, told her that Dragoo had assisted her in obtaining an abortion.

Louise Lind, who taught at Pleasant Ridge High School at the same time that Dragoo taught, testified that: during the 1983-84 school year, she heard rumors that Dragoo and Gail Navinsky, then a senior, were involved; during 1984-85, Dragoo told her that he was going to the home of former...