Larson by Larson v. Miller

• Decision Date: 20 February 1996
• Docket Number: No. 94-2691,94-2691
• Citation: 76 F.3d 1446
• Parties: 107 Ed. Law Rep. 84 Angela LARSON, a minor, by Joseph and Gail LARSON, her father and mother and next friends, Plaintiff-Appellant, v. Roger MILLER; George Spilker; Harvey Bulli; The Papillion-LaVista School District, a Political Subdivision, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1446

76 F.3d 1446

107 Ed. Law Rep. 84

Angela LARSON, a minor, by Joseph and Gail LARSON, her father and mother and next friends, Plaintiff-Appellant, v. Roger MILLER; George Spilker; Harvey Bulli; The

Papillion-LaVista School District, a Political

Subdivision, Defendants-Appellees.

No. 94-2691.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1995.

Decided Feb. 20, 1996.

Bruce G. Mason, Omaha, Nebraska, argued (Vincent P. Sutera, Omaha, Nebraska, on the brief), for appellant.

John R. Douglas, Omaha, Nebraska, argued (Terry J. Grennan, Omaha, Nebraska, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.

HANSEN, Circuit Judge.

Joseph and Gail Larson, individually and on behalf of their daughter Angela, who was sexually abused by a school van driver, brought suit against three school officials and the Papillion-LaVista School District (PLSD). The suit alleged a 42 U.S.C. § 1983 claim for violations of Angela's constitutional rights, a 42 U.S.C. § 1985(3) claim for injury arising from a conspiracy to violate the Larsons' constitutional rights, and a pendent state negligence claim. The Larsons appeal the district court's ¹ order granting the school officials' and PLSD's posttrial motion for judgment as a matter of law on the Larsons' constitutional claims and dismissing their pendent state negligence claim.

A panel of this court initially affirmed the judgment on the § 1983 claim and reversed both the judgment on the § 1985(3) conspiracy claim and the dismissal of the pendent state negligence claim. We vacated the panel's opinion and granted the school officials' and PLSD's suggestion for rehearing en banc. We now affirm the judgment of the district court in all respects.

I. BACKGROUND

Viewing the evidence and reasonable inferences from the evidence in the light most favorable to the party prevailing at trial, McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir.1994), a jury could reasonably find the following facts. Angela Larson was born on December 3, 1979, and was diagnosed as anophthalmic in her left eye and microthalmic in her right eye, meaning she had no left eye and her right eye was extremely small. Because of Angela's disability, her family relocated to the Omaha metropolitan area in order to take advantage of Omaha's medical and special educational facilities. At age two, Angela began receiving home services arranged for her by George Spilker, PLSD's Director of Special Services. Those home services continued until she was five years old. When Angela reached kindergarten age, her school district, PLSD, contracted Angela's special educational services out to the Omaha Public Schools due to the severity of her impairment.

When Angela was nine years old and not progressing to her parents' satisfaction in her placement in the Omaha public schools, Mr. Spilker arranged for an outside vision consultant to observe and evaluate Angela. Mr. Spilker then arranged for her to begin attending District 66's Oakdale school, where Angela did quite well in a special educational program devised in part by Mr. Spilker. The Larsons and Mr. Spilker lived in the same neighborhood and have known each other for years. Mr. Spilker has spent more than 25 years as an educator of special needs children, he supervises the education of over 600 special education students, and as indicated he has been personally involved in developing and implementing Angela's individual education plan since she was two years old.

Angela's parents dropped her off each morning at the Children's Corner Day Care Center, where she was transported in a PLSD van driven by a PLSD employee to Oakdale school. After school, a PLSD van would transport Angela back to the Children's Corner, where she waited for her parents. The only other student on the van was a severely and profoundly handicapped youth who possessed minimal communicative abilities. The van driver, Eugene Szynskie, had been a part-time PLSD employee for three years before he was hired as a van driver in 1986. Three PLSD supervisory personnel interviewed Szynskie when he was first hired but did not conduct a background check.

In the spring of 1988, Angela told her teacher, Jennie Grieb, that Szynskie had been asking her whether she had been breast fed and whether she was wearing silk panties. Ms. Grieb, a District 66 employee, promptly apprised Mr. Spilker of these inappropriate comments. Mr. Spilker passed this information on to Harvey Bulli, PLSD Director of Transportation, who in turn warned Szynskie not to engage in improper conversations with students. Szynskie continued to transport Angela to and from Oakdale without further complaint until January of 1989.

En route home from piano lessons on Thursday evening, January 26, 1989, Angela informed her mother that Szynskie had fondled her vaginal area while putting on her seat belt. On Friday morning, January 27, Mrs. Larson called Mr. Bulli, PLSD's Transportation Director and the van driver's supervisor, to tell him that Angela would not be riding the van that day. She did not tell Mr. Bulli why. Mrs. Larson then called Mr. Carr, the principal of Angela's Oakdale School, and informed him of the touching incident. Knowing that Mr. Spilker would be at a meeting in Lincoln, Nebraska, that day, Mr. Carr arranged for a colleague of his who was also attending the Lincoln meeting to relay Mrs. Larson's information to Mr. Spilker.

When Mr. Spilker returned to Omaha on Friday evening, he called Mrs. Larson, who informed him of Angela's complaint. Mr. Spilker cautioned the Larsons about broadcasting the allegations, which he said might bring on a slander suit by the driver, and told the Larsons that the matter was a serious one which pitted Angela's word against the driver's. Mr. Spilker indicated that bringing charges against Szynskie might also cause problems for the family and for Angela's brother, Eric, who was a sophomore at the local high school. He told the Larsons that he would contact the local Chief of Police (also a neighbor). He called Chief Engberg that night and, without divulging any names, discussed the matter in general terms.

On Monday morning, the PLSD superintendent, Roger Miller, held his regular staff conference at 9:00 a.m. Mr. Spilker informed him of Angela's allegations and of the need for a criminal records check. Mr. Miller gave orders that immediately removed Szynskie from his van driving job and assigned him to warehouse duty pending further investigation. He also directed the assistant superintendent for personnel to provide Szynskie's name, date of birth, and social security number to the Chief of Police for a records check. He told Mr. Spilker to tell the Larsons what was being done, and Mr. Spilker did so in a 9:30 a.m. phone call to Mrs. Larson. Specifically, Mr. Spilker told Mrs. Larson that Szynskie had been taken off the van and that a criminal records check had been ordered. He reiterated that it was Angela's word against Szynskie's. Mr. Spilker called a second time on Monday to tell Mrs. Larson that the other van drivers had reported that Angela had made sexual comments to them. Mrs. Larson became irate and called her husband, who became "equally irate" (Trial Tr. at 380) when he learned of Spilker's second call. The Larsons concluded that "the tables were turning" on Angela (id. at 485) because she was a handicapped female who was making a complaint of sexual abuse.

Mrs. Larson called Mr. Spilker at home about 7:00 p.m. on Monday night to tell him that they would not be using the school van until the matter was settled. Mr. Spilker once again told her it was Angela's word against the driver's and that there was the risk of a slander suit by Szynskie. The Larsons then called their personal attorney who told them that the Nebraska child abuse reporting statute gave them protection from civil suits for reporting the matter to police authorities. The Larsons decided then to call the prosecuting authorities the next morning.

Early Tuesday morning, Mr. Larson called the Sarpy County Attorney's office. That office refused to take the complaint and told him to call the police. Mrs. Larson then called a local police officer whom she knew and made a report of the touching incident. The officer immediately deduced that the touching had occurred at a location outside of his jurisdiction, and he called the sheriff's office, which sent investigators. ²

While Mrs. Larson was reporting the matter to the police department on Tuesday morning, the PLSD was terminating Szynskie's employment. The Chief of Police had reported back that Szynskie had a previous arrest but no conviction for an alleged sexual assault on his stepdaughter. The Chief had also told the school authorities that the arrest information was confidential. Superintendent Miller instructed Mr. Spilker to tell the Larsons that the school had terminated the driver, that the police had done a records check (without revealing the results), and that the law enforcement authorities would have to prosecute the case, not the school district. Mr. Spilker did so.

Six months after the incident, Mr. Spilker asked Chief Engberg to approve a press release stating that PLSD had reported the alleged abuse on Friday, January 27, 1989. Engberg refused to approve the release, stating that, in his view, their conversation that night did not constitute a report.

Angela and her parents sued PLSD, Mr. Miller, Mr. Spilker, and Mr. Bulli, alleging that PLSD and the school officials deprived Angela of her civil rights, 42 U.S.C. § 1983, and conspired to deny Angela's and her family's civil rights, 42 U.S.C. § 1985(3). The complaint also included a pendent state negligence claim. After a trial on the Larsons' constitutional claims, the jury returned a verdict in favor of the...