Hurt v. Shelby Cnty. Bd. of Educ., Case No.: 2:13-CV-230-VEH

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Writing for the Court: VIRGINIA EMERSON HOPKINS, United States District Judge
• Citation: 198 F.Supp.3d 1293
• Parties: Kristin HURT, et al, Plaintiffs, v. SHELBY COUNTY BOARD OF EDUCATION, et al, Defendants.
• Docket Number: Case No.: 2:13-CV-230-VEH
• Decision Date: 27 July 2016

198 F.Supp.3d 1293

Kristin HURT, et al, Plaintiffs,
v.
SHELBY COUNTY BOARD OF EDUCATION, et al, Defendants.

Case No.: 2:13-CV-230-VEH

United States District Court, N.D. Alabama, Southern Division.

Signed July 27, 2016

198 F.Supp.3d 1300

Daniel E. Arciniegas, Jon C. Goldfarb, L. William Smith, Rachel L. McGinley, Wiggins Childs Pantazis Fisher & Goldfarb, LLC, Birmingham, AL, for Plaintiffs.

Donald B. Sweeney, Jr., Anne R. Yuengert, Bradley Arant Boult Cummings LLP, Robert M. Ronnlund, Scott Sullivan Streetman & Fox PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, United States District Judge

This case arises from Daniel Acker, Jr.'s horrific twenty-five year practice of exploiting his position as an elementary school teacher to convert the Shelby County school system into his personal sexual hunting ground. It is an action under Title IX of the Education Amendments of 1972 (codified at 20 U.S.C. § 1681 –88 ), 42 U.S.C. § 1983, and Alabama law by Plaintiffs Kristin Hurt ("Hurt") and six Jane Does, named in the caption Jane Doe # 1–Jane Doe # 6 (collectively, "Jane Does"), alleging sex discrimination and conscience-shocking conduct in violation of the Constitution of the United States, the failure to prevent the same, sex discrimination in violation of federal statutes, and tortious conduct under Alabama law. The Plaintiffs have named as defendants the Shelby County Board of Education ("the Board"), Lee Doebler, Steve Martin, and Dan Acker. Doebler and Martin are named in both their individual and official capacities as

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members of the Shelby County Board of Education. Doebler, Martin, and the School Board (collectively, "Defendants") have filed motions for summary judgment. The School Board's motion is due to be GRANTED IN PART AND DENIED IN PART. Doebler's and Martin's motion will be GRANTED.

STATEMENT OF FACTS ^{1 ,2}

Daniel Acker, Jr., was a fourth grade teacher in Shelby County from 1985 until 2009 and a bus driver from 1992 until 2009, when he retired. (Doc. 71-19 at 23–24, 134). From 2009 to 2012, he worked as a substitute bus driver. (Id. at 134, 136). His father, Daniel Acker, Sr., was the principal of a vocational school in Shelby County and a county commissioner "for a long time," doc. 71-4 at 29:22–30:2, including between the years of 1988 to "1991-ish." (See id. at 29:13–32:11). When the name "Acker" is used in this opinion, the court is referring to "Daniel Acker, Jr." His father is denoted by "Acker, Sr.," and the court will occasionally refer to Acker the Younger as "Acker, Jr." when doing so would promote clarity.

For most of Acker, Jr.'s career in education, he used his position to sexually abuse female children in his class or on his bus route. (Doc. 71-19 at 313:13–15, 319:7–15). Aside from one girl who complained as early as 1991—more on that shortly—no one came forward to Acker's superiors or the police until December 2011. He was arrested the following month and terminated from his employment immediately thereafter. Acker later pleaded guilty to molesting each of the plaintiffs in this case and is currently serving a seventeen year prison sentence. (Id. at 13:15–20, 9:19–10:2, 12:17–13:14). By the time his predation ended, he estimated that he had sexually abused at least twenty young girls. (Doc. 85-1 at 58:14–20, 60:15–21, 82:11–22).

Lee Doebler served as an elected member of the Shelby County Board of Education from 1988 until 2012, and served as Board president, who conducts the Board meetings, from 1992 until 2012. (Doc. 71-4 at 11, 19–20). Doebler had met Acker, Sr. at a Republican committee meeting in 1988; Acker, Sr. was running for a seat as a commissioner at the same time Doebler ran for a seat on the School Board. (Id. at 29:18–21). Doebler was not close to Acker, Sr. and did not interact with him or work with him, aside from a one-time tour of Acker, Sr.'s school. (Id. at 30:3–32:11).³

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Steve Martin was an elected member of the board from 1988 until 2014. (Doc. 71-5 at 16, 18). In February 1993, there were three other board members: Donna Morris, Cindy Forrester, and Susan Bagley. (Doc. 71-4 at 46–47). The Board members are charged with the administration and management of Shelby County's schools, but their power is limited to approving or disapproving the recommendations of the superintendent. (Id. at 23–24). This process also applies to personnel decisions. (See id. ). Norma Rogers was the superintendent from 1991 until 1995. (Doc. 71-3, 9:22–10:1). Forrester and Martin did not know Acker. (Doc. 71-9 at 23; doc. 71-6 at 193).

Prior to 2013, the Board had no sexual harassment policy addressing teacher student sexual harassment, and did not provide students or parents with any instructions regarding what to do if a student was being molested by a teacher or staff member. (Doc. 71-4 at 161:20-22, 164:15-23; doc. 71-6 at 27:5-10, 131:19-132:5).

I. Acker, Jr.'s Molestation of Kristin Hurt, née Lopez

Kristin Hurt was born in March 1980, doc. 71-1 at 8:9–17, and she had the misfortune of having Acker, Jr. as her fourth grade reading and science teacher from 1989 to 1990. (Id. at 33:17–35:13; doc. 71-2 at 18:10–15). She was between nine and ten years old when Acker abused her for his sexual gratification. (Id. ). He often rubbed Hurt's buttocks in class, especially when she came to his desk and sought his assistance with reading (a skill with which Hurt struggled). (Doc. 71-1 at 28:4-17, 34:13-35:4). On other occasions, he would approach Hurt's desk, ask that she stand, and proceed to stroke her rear. (Id. ). As a perverse way of saying goodbye when Hurt left the classroom, Acker would place one hand on her shoulder and the other on her buttocks, rubbing it for an extended period of time; in some of these valedictions, Acker would also reach under Hurt's shirt and rub her pants line. (Id. at 40:8-17).

Although Hurt initially did not find Acker's conduct objectionable—she "just thought it was something that was okay," id. at 35:15–13—she eventually "tried everything to do—not to go next to him." (Id. at 141:19-21). Hurt told her mother, Linda Lopez, about Acker touching her rear, and Lopez wanted to report the incidents to Hurt's principal. (Id. at 41:3–6). Hurt was unsure in her 2015 deposition whether she asked her mother not to contact the principal, id. at 42:7–13, but Lopez did not report it to anyone during Hurt's fourth grade year. (Doc. 71-2 at 19:9-17; 21:23-22:8). The decision was motivated, at least in part, by Hurt's fear that her friends would "pick on [her]." (Doc. 71-1 at 42:3–13). Hurt told no one other than her mother during the 1989–90 school year. (Id. at 43:21–23).

One day, while in fourth grade, some boys in class were trying to look up Hurt's skirt, so she complained to Acker. He responded that "maybe they think there will be a test question about the color of your underwear." (Id. at p. 59). The following day, Acker administered a test to his class, and when Hurt reached the last question, she saw that it was: "[W]hat color are Kristin's underwear[?]"(Id. at 45:19–23). She looked up at Acker, and "he gave [her] this smirk that made [her] feel very uncomfortable." (Id. at 46:3–5). Hurt later testified that "[a]fter I finished the test, I passed it in to him and I wouldn't even look at him, I was so embarrassed. I just

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wanted out of the classroom at that point in time." (Id. at 46:10-13).

After the test was graded and because Hurt had to show the graded test to her mother, id. at 47:9–12, Acker attached a note to it that said:

I thought the last question might need some explanation. Kristin came to me complaining about some boys trying to look up her dress while we were studying. I kidded her saying the boys must think I was going to have a question about her underwear since that was the only thing they were studying. I promise I'm not a pervert, I just have a strange sense of humor. I assure you this question was only on her copy of the test.

(Doc. 71-2 at 42). Lopez did not report this incident. (Id. at 27:19–28:11).

In 1990, Acker moved into a house on the same street where Hurt and Lopez lived. (Doc. 71-1 at 50:19-52:10, p. 59; doc. 71-2 at 30:21-31:11). Between Hurt's fifth and sixth grade years, which was the summer of 1991, Lopez asked Acker if he could be available for Hurt and Hurt's younger brother as an emergency contact while Lopez was away from the house. (Doc. 71-1 at p. 59). Acker decided to do her one better and check on the children at home. (Id. ).

On August 5, 1991, Acker came, his baby in tow, to the Lopez residence to check on the kids. (Id. ). Hurt's brother was playing Nintendo in his bedroom during Acker's visit, and Acker and Hurt watched television while the baby sat in Acker's lap. (Id. ). Prefacing his actions by saying "this is our secret," id. at 142:16-19; doc. 71-19 at 165:9-16, Acker put his hand under Hurt's shirt, reached under her brassiere, and rubbed her right breast. (Doc. 71-1 at p. 59). At the same time, Acker tried to get Hurt to play with the infant's foot because it was resting...