John Doe v. Jackson Local Sch. Dist. Bd. of Educ.

• Decision Date: 14 December 2018
• Docket Number: CASE NO. 5:17-cv-1931
• Parties: JANE AND JOHN DOE, Individually and as the natural parents and next of kin of MINOR DOE, their minor child, et al., PLAINTIFFS, v. JACKSON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., DEFENDANTS.
• Court: U.S. District Court — Northern District of Ohio

JANE AND JOHN DOE, Individually and as the natural parents and next of kin of

MINOR DOE, their minor child, et al., PLAINTIFFS, v. JACKSON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et al., DEFENDANTS.

CASE NO. 5:17-cv-1931

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

December 14, 2018

JUDGE SARA LIOI

MEMORANDUM OPINION

Plaintiffs Jane and John Doe (collectively, the "Does") individually and as the natural parents and next of kin of Minor Doe ("Minor Doe"), bring this civil rights action against defendants Jackson Local School District ("JLSD") Board of Education ("Board"), Jimmie Singleton ("Singleton"), Susanne Waltman ("Waltman"), Harley Neftzer ("Neftzer"), Tamara Neff ("Neff"), and Michelle Krieg ("Krieg") (collectively, individuals referred to as "JLSD Employees"). Each party has moved for summary judgment. (Doc. No. 61 ["Does MPSJ"]; Doc. No. 63 ["Board MSJ"]; Doc. No. 64 ["JLSD Employees MSJ"].) The dispositive motions are fully briefed and ripe for resolution. (Doc. No. 73 ["Does MPSJ Opp'n"]; Doc. No. 70 ["Board MSJ Opp'n"]; Doc. No. 72 ["JLSD Employees MSJ Opp'n"]; Doc. No. 78 ["Does MPSJ Reply"]; Doc. No. 80 ["Board MSJ Reply"]; Doc. No. 79 ["JLSD Employees MSJ Reply"].)

I. PRELIMINARY MOTIONS

Before the Court can reach the merits of the substantive motions, it must address two preliminary motions raised by the Does. First, the Does seek an order striking the affidavits of Neftzer and Waltman, claiming that the affidavits contain information that contradicts prior deposition testimony offered by these individuals. (Doc. No. 68 (Motion to Strike Affidavits ["Mot. Strike Aff."]).) The Board and JLSD Employees oppose the motion, insisting that the subsequent affidavit averments merely elaborate or supplement testimony these individuals gave during their depositions. (Doc. No. 76 (Opposition to Motion to Strike Affidavits ["Mot. Strike Aff. Opp'n"]) at 2348.¹)

It is well settled that a party may not contradict earlier deposition testimony by subsequently offering an inconsistent affidavit. See Lockard v. Gen. Motors Corp., 52 F. App'x 782, 789 (6th Cir. 2002) (citing, among authority, Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997)). Having reviewed the briefing and the underlying discovery, the Court finds that the cited testimony is either not contradictory, or contains minor factual inconsistencies that have no bearing on the issues presented in the dispositive motions. Nonetheless, in an abundance of caution, the Court will disregard those portions of the affidavits of Neftzer and Waltman that can be viewed as potentially inconsistent with earlier deposition testimony. Therefore, the Does' motion to strike the affidavits is GRANTED IN PART.

Second, the Does request that the Court strike the replies of the Board and JLSD Employees offered in support of their respective motions for summary judgment, noting that each brief exceeds the permitted page limit. (Doc. No. 83 (Motion to Strike Replies ["Mot. Strike Replies"]).) On August 21, 2018, the Board and JLSD Employees sought leave to exceed the page limitations on their motions for summary judgment. The Court subsequently granted the motion in a non-document order providing that "[a]ll summary judgment motions may exceedthe local rules limitation by 15 pages. All response briefs may exceed the local rules limitation by 10 pages." (Non-Document Order, dated 8/23/2018.) Each defense reply brief exceeded 20 pages.² The Board and JLSD Employees insist that they reasonably interpreted the Court's language "[a]ll response briefs" to include reply briefs. They argue that, according to this interpretation, their reply briefs comply with the Court's grant of leave. (Doc. No. 84 (Motion to Strike Replies ["Mot. Strike Replies"]) at 3040.)

Given that Local Rule 7.1(f) draws no distinction between response and reply briefs—and, in particular, does not provide a separate page limitation in the first instance for reply briefs—the Court accepts defendants' collective interpretation of the Court's non-document order as reasonable. While the better course would have been to ask the Court for clarification before filing a reply brief that clearly exceeded the limitation set forth in the local rules, the Court finds no basis to grant the Does' motion. Moreover, as is often the case with reply briefs, the Court notes that the reply briefs filed by all parties in this action largely repeat arguments raised in the initial motions and are of only limited assistance. Accordingly, the Court finds that the Does will not be prejudiced by declining to permit them to provide further briefing on these dispositive motions. The Does' motion to strike defendants' reply briefs is DENIED.

II. BACKGROUND

During the 2016-2017 school year, Minor Doe was a five-year old kindergarten student attending Strausser Elementary, a school located in the JLSD. C.T. was an eleven-year old fifth grade student who also attended Strausser. It is undisputed that over the course of several weeksbetween the end of October and the middle of November 2016, C.T. performed multiple sexual acts on Minor Doe and made Minor Doe perform sexual acts on him while the two rode a JLSD bus on their way home from school.

Bus Drivers, Routes, and Seating Charts

In fact, the parties agree as to most of the salient facts surrounding these unfortunate and disturbing events. During this same period, Singleton was employed by JLSD as a bus driver, and he was assigned to Minor Doe and C.T.'s bus route. (Doc. No. 63-1 (Affidavit of Harley Neftzer ["Neftzer Aff."]) ¶ 9.) The main function of a JLSD bus driver is to operate his vehicle safely. (Id. ¶ 4.) Bus drivers are required to attend training provided by the Ohio Department of Education ("ODE"), the school district, and the Stark County Educational Service Center ("Stark County ESC"). (Id. ¶ 5; see Doc. No. 57-1 (Deposition of Jimmie Singleton ["Singleton Dep."]) at 625-31.) In addition to bus safety, training topics include a variety of student-related issues, such as pupil management and the accommodation of special needs. (Neftzer Aff. ¶ 5(a).) Singleton, however, received no training relative to sexual harassment or sexual abuse. (Singleton Dep. at 604.) Though he received a "satisfactory" rating as to pupil management in his 2015 performance appraisal, the record demonstrates that, within a year of the incidents giving rise to this litigation, Waltman, Strausser's Building Principal, received parent complaints regarding Singleton's pupil management on his routes.³ (Doc. No. 56-1 (Deposition of Harley Neftzer ["Neftzer Dep."]) at 481-83.)

As the Director of Transportation & Safety, Neftzer was responsible for developing thebus routes prior to the start of each school year. (Neftzer Aff. ¶¶ 3, 6.) After the routes are established and the bus drivers are assigned, bus drivers are provided with copies of information pertaining to students, times, calendars, routes, and vehicle assignments. (Id. ¶ 7.) With respect to students, bus drivers receive a route sheet that lists each student's name, address, age, and grade level. (Id.; Singleton Dep. at 636-37.) Bus drivers use this information to become familiar with the students assigned to their routes and to create seating charts. (Neftzer Aff. ¶ 7; Singleton Dep. at 637-38.)

When developing seating charts, bus drivers are encouraged to assign students according to age and gender, with younger students sitting together in the front of the bus, and older students sitting in the back of the bus. (Neftzer Aff. ¶ 7; Singleton Dep. at 636; Neftzer Dep. at 514-15.) The primary purpose of grouping the students by age and gender is that topics of discussion differ between different age groups, and older students may discuss topics that are not suited for younger students. (Neftzer Dep. at 514-15; Neftzer Aff. ¶ 7.) Copies of completed seating charts are maintained by the Department of Transportation ("DOT"). (Neftzer Aff. ¶ 7.)

Throughout the school year, it may be necessary to move a student to a different seat for a variety of reasons, including behavioral problems and conflicts between students. (Neftzer Aff. ¶ 8.) Given that bus drivers generally lack the authority to discipline students, a bus driver that identifies a need for a student seat reassignment must submit a referral directed to the DOT or the building principal. (Neftzer Aff. ¶ 8; Doc. No. 63-2 (Affidavit of Susanne Waltman ["Waltman Aff."]) ¶ 4.) The building principal generally conducts an investigation relative to the request—which may entail discussions with the DOT, interviews of students and drivers, and review of bus video surveillance—after which, the building principal determines the appropriatecourse of action. (Waltman Aff. ¶ 4; Singleton Dep. at 632-34; Neftzer Aff. ¶ 8.) Depending on the violation, the building principal may place the offending student in detention or an alternative day assignment, suspend his bus riding privileges or move his seat to the front of the bus or to some other seat, suspend him from school, or recommend expulsion. (Waltman Aff. ¶ 4.)

Match Lighting Incident

On September 15, 2016, Dean of Students Krieg received a call from C.T.'s teacher that a student had reported that C.T. lit a match on the school bus during the afternoon bus route the day before. (Doc. No. 63-3 (Affidavit of Michelle Krieg ["Krieg Aff."]) ¶¶ 2, 5.) Krieg contacted Neff, a guidance counselor, and the two spoke with another student who confirmed the incident, noting that C.T. lit a match, blew it out, and threw it out the bus window. This second student also indicated that, when she stood up to report the incident to Singleton, C.T. blocked her seat. (Id. at ¶ 5.) Video surveillance confirmed the incident, including that C.T. lit a match and threw it out the window. (Id.)

Shortly after meeting with the second student, Krieg removed C.T. from class, took him to the school office, and spoke with him concerning the...