Marcum ex rel. C.V. v. Bd. of Educ. of Bloom-Carroll Local Sch. Dist.

• Decision Date: 23 July 2010
• Docket Number: Case No. 2:08-cv-909
• Citation: 727 F.Supp.2d 657
• Parties: Nancy MARCUM, on behalf of herself and her minor daughter, C.V., Plaintiffs, v. BOARD OF EDUCATION OF BLOOM-CARROLL LOCAL SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

727 F.Supp.2d 657

Nancy MARCUM, on behalf of herself and her minor daughter, C.V., Plaintiffs,

v.BOARD OF EDUCATION OF BLOOM-CARROLL LOCAL SCHOOL DISTRICT, et al., Defendants.

Case No. 2:08-cv-909.

United States District Court,

S.D. Ohio,

Eastern Division.

July 23, 2010.

Edward Joel Wesp, Wesp/Barwell, LLC, Attorneys at Law, Dublin, OH, for Plaintiffs.

William Charles Curley, Weston Hurd, LLP, Columbus, OH, for Defendants.

MEMORANDUM OPINION & ORDER

JOHN D. HOLSCHUH, District Judge.

After Plaintiff C.V. was expelled from Bloom-Carroll Middle School, her mother, Nancy Marcum, filed suit on behalf of herself and C.V. against the Board of Education of Bloom-Carroll Local School District ("Board of Education") and Bloom-Carroll Middle School Principal Mark Fenik, seeking relief under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and 42 U.S.C. § 1983. This matter is currently before the Court on motionsfor summary judgment filed by those defendants. (Docs. 36, 37).

I. Background and Procedural History

At the time the events giving rise to this lawsuit took place, C.V. was 12 years old and was a 7th grader at Bloom-Carroll Middle School. The middle school and high school were on the same campus but in separate buildings. Students from the two schools shared the same school buses. Rosemary Costello was a high school student assigned to sit at the back of Bus 16. After school on the afternoon of September 27, 2006, as she was exiting the bus, Costello told bus driver Pam Seymour that she had just observed C.V. engaging in oral sex with Ryan Gueli, a 17-year old high school student, in the back seat of the school bus. (Costello Dep. at 35). C.V. and Gueli were friends and, on one occasion earlier that summer, had engaged in sexual intercourse at C.V.'s house.¹

When Seymour finished her bus route that afternoon, she told her supervisor, Steve Kennedy, of Costello's allegations. Early the next morning, Kennedy notified Roger Mace, the principal at Bloom-Carroll High School, and Mace contacted Mark Fenik, the principal at Bloom-Carroll Middle School. (Mace Dep. at 108). Mace, Fenik, and Jan Wisecarver, the assistant principal at the high school, interviewed Costello who confirmed that she had witnessed C.V. performing oral sex on Gueli. (Mace Dep. at 111; Fenik Dep. at 64). They then called Ryan Gueli to the office. At first he denied that anything had happened, but eventually he admitted that C.V. had performed oral sex on him on the bus the previous afternoon. (Gueli Dep. at 45-50; Mace Dep. at 115-118; Fenik Dep. at 72, 78).

The administrators then went to the middle school and interviewed C.V. She eventually admitted to engaging in oral sex with Gueli, but said that he had forced her to do it. (C.V. Dep. at 109-112, 130; Mace Dep. at 142; Fenik Dep. at 80, 87, 90). At Fenik's request, C.V. signed a written statement that "I performed oral sex with Ryan on the bus [sic] home from school on 9/27/06." (Ex. 4 to C.V. Dep.; Fenik Dep. at 92-93). Mace then went back to the high school and told Gueli that C.V. told them that Gueli had forced her to perform oral sex. Gueli denied these allegations. (Mace Dep. at 152). ²

Mace then called the police, who came to the school to take Gueli's statement. (Gueli Dep. at 50-51; Mace Dep. at 167).³ He also contacted Fairfield County Children's Services. Fenik and Mace decided to suspend C.V. and Gueli for 10 days for violating the student code of conduct which prohibited inappropriate displays of affection. (Mace Dep. at 167-68). They contacted C.V.'s and Gueli's parents and directed them to come to school to pick up their children. (Mace Dep. at 144, 178-79, 190-92; Fenik Dep. at 96-98; 106-07).⁴

C.V. alleges that during the time she was serving her suspension at home, her fellow students often yelled out the bus windows as the bus drove past her house in the afternoon, calling her a "whore" and a "slut." After her stepfather called the school to complain, the taunting stopped. (C.V. Dep. at 207-08). Following the 10-day suspension, Gueli was moved to a different bus. (Mace Dep. at 188, 195-96). C.V. was also required to sit in the front seat of her bus where the bus driver could keep an eye on her. (Fenik Dep. at 117-19; C.V. Dep. at 147-48).

On Tuesday, October 17, 2006, C.V. returned to school. She testified that over the course of the next three days, some of her fellow students at school taunted her, calling her names like "whore" and "cum guzzling gutter slut." Each day, she went to the office, called her mother and asked her to come to school to get her because she was so upset. Her mother, however, was working and was not able to pick her up.

On the first day, her mother suggested that C.V. report the taunting to Mr. Fenik. C.V. testified that she talked to Mr. Fenik and gave him the names of students who were harassing her. He allegedly said that he would take care of it. (C.V. Dep. at 189-94). C.V.'s mother advised her to "give it a couple of days and see what happens." (C.V. Dep. at 195). The taunting allegedly continued on Wednesday and Thursday. On Wednesday, C.V. again allegedly talked to Mr. Fenik, who again said he would take care of it. On Thursday, when she reported that she was still being harassed, Fenik allegedly said that he had talked to some of the students, but did not know what else he could do. C.V. admitted that "he did what he could" and she didn't "know what else he could have done." (C.V. Dep. at 196-98, 203-05).

Mrs. Marcum testified that she called the school and left voice mail messages after hours on numerous occasions but no one ever called her back. (Marcum Dep. at 173, 184, 190). She also testified that she personally talked to Mr. Fenik on three of the four days C.V. was back in school. (Marcum Dep. at 229).

Fenik, however, testified that no one reported to him that C.V. was being harassed by her fellow students, either during her suspension or when she returned to school. He testified that he first learned of the alleged harassment at the expulsion hearing. Accordingly, he denies that he investigated the problem or talked to any of the students who were allegedly taunting C.V. (Fenik Dep. at 125-28).

On Wednesday or Thursday of that week, just after C.V. returned to school following her first suspension, Tiffany Violette reported to Mr. Fenik that her wallet had been stolen and she thought that C.V. had it because another student had seen her with it. (Fenik Dep. at 147-51). That same Wednesday, C.V. was given a bathroom pass during 9th period. While in the hall, she saw her clarinet sitting outside the band room and decided to take it to her locker. C.V. testified that, on the way to her locker, she noticed an iPod lying on the floor just inside the gym door. She picked it up, and then noticed Ashley Doss, a high school student who was in the building helping one of the middle school teachers, standing nearby. C.V. told Ashley that she had found the iPod. According to C.V., Ashley said that she thought she knew whom it belonged to. Therefore, instead of turning the iPod into the office, C.V. gave it to Ashley to return to its rightful owner. Ashley took it home with her. (C.V. Dep. at 162-71). The next morning, one of the middle school students reported that her iPod had been stolenduring 9th period the previous day. Fenik polled the teachers to find out which students had been given permission to leave class during that time. C.V.'s name was on the list. (Fenik Dep. at 154-55, 198-200).

Ashley Doss returned the iPod to Fenik on Thursday, October 19, 2006. Because she did not want anyone to get in trouble, she initially said that she had found it at the bus. Another teacher then convinced her to tell the truth. So Ashley went back to talk to Mr. Fenik. She said that she had been in the hallway during 9th period on Wednesday. C.V. allegedly "asked her if she wanted an iPod. Ashley said sure. She went in the auditorium, came back out with one and gave it to her." When Ashley got home that night, she felt guilty, talked to her parents, and decided to return the iPod to school. (Fenik Dep. at 152, 161-75, 191). Ashley also told Fenik that C.V. told her that she had taken someone's wallet and a cell phone. (Fenik Dep. at 170).

On Friday, October 20, 2006, C.V. was called to Mr. Fenik's office. He set the iPod on his desk and asked her if it looked familiar. She admitted that she had found it in the auditorium and had given it to Ashley. (C.V. Dep. at 174-75; Fenik Dep. at 189-90). C.V. signed a written statement that read, "I took an iPod from the auditorium and gave it to another student on Wednesday 10/18/06." (Ex. 5 to C.V. Dep.). C.V. testified that she told Fenik that she gave it to Ashley "to return" to its rightful owner. (C.V. Dep. at 174). Fenik, however, denies that C.V. told him that Ashley knew who owned the iPod and offered to return it. (Fenik Dep. at 190-91).

In addition to admitting that she had given the iPod to Ashley, C.V. also admitted to Fenik that she had Tiffany Violette's wallet at home. (Fenik Dep. at 185). C.V. maintains that her friend, Erica, had given it to her to return to Tiffany. When C.V. did not see Tiffany at school, she took the wallet home with her, intending to return it the next day. (C.V. Dep. at 46-47).⁵

Mr. Fenik suspended C.V. from school for another 10 days for stealing the iPod and lying to administrators. Based on these infractions and previous disciplinary situations, he recommended that she be expelled. (Ex. 26 to Fenik Dep.). Mrs. Marcum testified that when she challenged him about his investigation into the alleged theft of the iPod, "he smirked, pushed his seat back and said, well, she's getting-I usually always get what I want. I'm going for expulsion." (Marcum Dep. at 276).

An expulsion hearing was held on October 27, 2006. Interim Superintendent Lynn Dildine presided over the hearing. C.V. was then expelled from Bloom-Carroll Middle School for theft of the iPod, disruption of the...