Gordon ex rel. Gordon v. Ottumwa Community School

• Decision Date: 23 August 2000
• Docket Number: Civil No. 4-99-cv-30167.
• Citation: 115 F.Supp.2d 1077
• Parties: Ginny GORDON by Sherry GORDON, her Mother and Next Friend, and Sherry Gordon, Individually, Plaintiffs, v. OTTUMWA COMMUNITY SCHOOL DISTRICT and Harold Francis Skinner, Defendants.
• Court: U.S. District Court — Southern District of Iowa

115 F.Supp.2d 1077

Ginny GORDON by Sherry GORDON, her Mother and Next Friend, and Sherry Gordon, Individually, Plaintiffs, v. OTTUMWA COMMUNITY SCHOOL DISTRICT and Harold Francis Skinner, Defendants.

Civil No. 4-99-cv-30167.

United States District Court, S.D. Iowa, Central Division.

August 23, 2000.

Michael P Mallaney, Steven H Shindler, Smith Schneider Stiles Hudson Serangeli Mallaney & Shindler PC, Des Moines, IA, for Ginny Gordon, Sherry Gordon.

Andrew J. Bracken, Ahlers Cooney Dorweiler Haynie Smith & Allbee, Des Moines, IA, for Ottumwa Community School District, Harold Francis.

RULING ON DEFENDANT OTTUMWA COMMUNITY SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGMENT

WALTERS, Chief United States Magistrate Judge.

This matter is before the Court on the motion for summary judgment filed by defendant Ottumwa Community School District (# 21). Plaintiffs allege that in April 1997 Ginny Gordon, an elementary school student, was sexually abused by defendant Harold Skinner, an employee at Lincoln Elementary School in the Ottumwa Community School District (hereinafter "the District"). The Complaint states claims (1) against both defendants for violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-1688; (2) against both defendants under 42 U.S.C. § 1983 for violating Ginny Gordon's constitutional rights; (3) under state law against defendant Skinner for intentional infliction of emotional distress and battery; (4) against the District under state law for respondeat superior liability and negligent hiring, retention and supervision of Skinner; and (5) for loss of parental consortium against both defendants.

Defendant Skinner has been served but has not appeared or answered. Default has been entered and proceedings against him have been bifurcated for separate determination. Plaintiff and the defendant District have consented to proceed before a United States Magistrate Judge and the case was referred to the undersigned for all further proceedings on August 25, 1999. See 28 U.S.C. § 636(c).

The District's motion came on for hearing on June 28, 2000. Attorney Andrew Bracken appeared for the defendant. Attorney Andrew Howie appeared for plaintiffs. The matter is fully submitted.

I.

The motion for summary judgment is subject to the following well-established standards. A party is entitled to summary judgment only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Helm Financial Corp. v. MNVA Railroad, Inc., 212 F.3d 1076, 1080 (8th Cir.2000)(citing Fed.R.Civ.P. 56(c)); accord Bailey v. U.S. Postal Service, 208 F.3d 652, 654 (8th Cir.2000). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A genuine issue of fact is material if it "might affect the outcome of the suit under governing law." Hartnagel, 953 F.2d at 395 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999).

In assessing a motion for summary judgment a court must determine whether a fair-minded jury could reasonably return a verdict for the nonmoving party based on the evidence presented. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Herring v. Canada Life Assurance Co., 207 F.3d 1026, 1030 (8th Cir.2000). The court must view the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences which can be drawn from them. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; accord Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir.1999); Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir.1993). The court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue meriting a trial. Gremmels v. Tandy Corp., 120 F.3d 103, 105 (8th Cir.1997) (citing Grossman v. Dillard Dep't Stores, Inc., 47 F.3d 969, 971 (8th Cir.1995)); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). A conflict in the evidence ordinarily indicates a question of fact to be resolved by the jury. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983).

II.

The following facts are either undisputed or represent the version favorable to plaintiffs. Ginny Gordon, now age 10, is the daughter of Sherry Gordon. They live in Ottumwa, Iowa. Ginny attended the District's Lincoln Elementary School in Ottumwa. The District is duly organized and existing under the laws of the state of Iowa, and it receives federal financial assistance for its public education program.

Defendant Harold Francis Skinner is a 72 year-old male. During the early to mid-1990's Skinner was a volunteer and later the volunteer coordinator at Lincoln. He volunteered hundreds of hours to the school. His grandchildren attended the school. He was well known and liked by students and staff who referred to him as "Grampa" or "Grampa Skinner."

Two incidents involving Skinner preceded his employment with the District. On Friday, September 29, 1995, a parent complained to the principal at Lincoln, Kevin Farmer, that after her daughter hugged Skinner, he kissed her on the lips, was slow to release her from his embrace, and patted her on the rear end. (Farmer Depo. at 22-23;¹ Def. Ex. 12).² Farmer initiated an investigation and called Skinner in for an interview that evening. (Farmer Depo. at 23; Def. Ex. 12). Skinner admitted he had been in the building to pick up his grandchild. While there a student approached him to give him a hug. Skinner denied making any facial contact or kissing the student, and asserted that any touching of the rear end, if it happened at all, was strictly an accident. (Farmer Depo. at 23; Def. Ex. 12). Farmer at that time told Skinner not to come into the school until further notice.

Farmer reported the results of his investigation to the parent on Monday, October 2, 1995. He met with the parent and explained what he found and told her she could call the police. Farmer initiated a conference call with the police and the parent so she could be advised of her options. The parent ultimately decided she would not file charges against Skinner. (Farmer Depo. at 23-24; Def. Ex. 11, 12).

Farmer did not think the student was credible and believed the complaint was unfounded. (Farmer Depo. at 48-49). Nonetheless, later on October 2, Farmer met with Skinner again, explained the District's expectation of how to return a hug to a student (patting the student on the back with one hand) and told him it is never appropriate to make facial contact with a student. (Def. Ex. 11; Def. Ex. 13).

About a week after this incident a fifth or sixth grade student raised a concern about Skinner's conduct during a car ride home from a skating party. (Farmer Depo. at 24, 28). The student had just listened to a talk on inappropriate touching and was not sure if Skinner's conduct was appropriate. (Id.) The student explained to Farmer and a school counselor that she had been riding next to Skinner in a carload of students and that Skinner slapped the top of her thigh. (Id.) Farmer, the counselor, and the student discussed the incident and concluded that the touch was not something to be concerned about. (Id.)

In March of 1996, the District hired Skinner as a substitute crossing guard. (Def.Ex. 9). After he was hired, Skinner also worked from time to time as a substitute custodian and teacher's aide or associate. (Def. Ex. 1, ¶ 7; Farmer Depo. at 5-6).

A third incident of reported inappropriate conduct by Skinner occurred before the incident with Ginny Gordon. In late March or early April 1997 a substitute teacher reported that Skinner, while substituting as a teacher associate in the "Severe and Profound" room, had slapped a student who had a "severe communication disorder." (Pl.Ex. 6). The student could not communicate what had happened and had been exhibiting "extreme behavior." (Id.) Farmer inquired if the student's teacher or other classroom aides had seen Skinner slap the student. They had not. Skinner denied slapping the student. Farmer examined the child and saw no marks on his face. Farmer was not convinced the incident had taken place, in part because Skinner and the reporting substitute were competing for a position in the classroom, but instructed that Skinner was not to substitute in that room again. (Farmer Depo. at 77-79; Pl.Ex. 6).

On or about April 15, 1997, while working as a substitute crossing guard, Skinner touched Ginny under her dress, on top of her underpants, in the vaginal area. (Def. Ex. 1 at ¶ 9; Def. Ex. 4 at 14-19). Skinner allegedly shortly afterward asked Ginny to raise her legs and spread them apart, and she said no. (Def. Ex. 4 at 19-21). On a prior occasion while Skinner was working as a substitute teacher's aide in Ginny's classroom, he allegedly took Ginny's hand and made her hand touch his groin area, on the outside of his clothes. (Def. Ex. 4 at 24-29; Def. Ex. 8 at Interrogatory No. 12).³

Ginny reported both of these incidents to her mother, Sherry Gordon, after school was dismissed on April 23, 1997. (Def. Ex. 3 at 12). Ms. Gordon then reported the allegations to the police and called Farmer on April 23. (Def. Ex. 1 at ¶ 10; Farmer Depo. at 6). The same day Farmer received the report from Ms. Gordon, Farmer reported the allegations of abuse to Superintendent Joe Scalzo, and they took steps to ensure that Skinner was not used as a substitute employee at the school until the allegation was cleared up. (Farmer Depo. at 10-11). Farmer also notified Skinner that the school could not use him as a substitute employee at the school until...