McAllister v. Kent State Univ.
| Decision Date | 16 April 2020 |
| Docket Number | Case No. 5:19CV2207 |
| Citation | 454 F.Supp.3d 709 |
| Parties | Elizabeth MCALLISTER, Plaintiff, v. KENT STATE UNIVERSITY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Avery S. Friedman, Friedman & Associates, Jared S. Klebanow, Cleveland, OH, for Plaintiff.
Jack Morrison, Jr., Richard P. Schroeter, Thomas A. Marino, II, Amer Cunningham, Akron, OH, for Defendants.
Pending is Defendants’ motion to dismiss. ECF No. 6. The matter has been briefed. ECF Nos. 6, 16, and 17. For the reasons explained below, Defendants’ motion is granted. Plaintiff's claims are dismissed.
Plaintiff Elizabeth McAllister was a pre-school teacher employed at Defendant Kent State University's Child Development Center. ECF No. 1 at PageID #: 4, ¶ 9. Plaintiff claims that when she was hired in the fall of 2018, she was told she would be hired on a permanent basis the following year as a kindergarten teacher. Id. ¶¶ 12-13. This litigation centers on actions Plaintiff allegedly took out of concern for the safety of a child1 in McAllister's classroom during her tenure.
Plaintiff was working with a college student, identified as AF, in the pre-school classroom. Id. at PageID #: 5, ¶ 16. In late September 2018, AF approached Plaintiff and informed Plaintiff that AF was concerned about some troubling comments of a graphic sexual nature one of the children made to her at nap time.2 Id. ¶¶ 17-20.
On September 21, 2018, Plaintiff met with her supervisor, Defendant Dr. Monica Miller Marsh, to report this incident. Id. at PageID #: 6, ¶ 21. Plaintiff inquired how to report the comments made by the three-year-old to children's protective services ("CPS"). Id. ¶ 22. Dr. Miller Marsh allegedly told Plaintiff that she would "take care" of it. Id. ¶ 23.
On October 18, 2018, Plaintiff saw the same child being dropped off at school and approached the mother to see if she would like to schedule a conference. Id. ¶¶ 24-25. When the child's mother left, he pulled his pants down, squatted down, screamed for his mother, and urinated on himself. Id. ¶ 26. The mother agreed to have a conference with Plaintiff the following day. Id. ¶ 27.
During the conference, the child's father asked why he was not receiving more photographs of the children in his child's classroom. Id. at PageID #: 7, ¶¶ 29-31. The father allegedly showed a picture of other children in the classroom to Plaintiff stating that the picture was "beautiful." Id. ¶ 32. Plaintiff was uncomfortable with the father's request for pictures of the children in her classroom. Id. ¶¶ 33-34. The mother indicated at the meeting that she "would routinely yell at and threaten the [child] all night if he were not cooperative." Id. ¶ 35.
After the conference with the parents, Plaintiff again approached Dr. Miller Marsh and informed her that Plaintiff believed another call to CPS was warranted. Id. at PageID #: 7-8, ¶¶ 36-39. Plaintiff alleges that Dr. Miller Marsh was "surprisingly unresponsive to" Plaintiff's suggestion. Id. at PageID #: 8, ¶ 40. During the meeting, Dr. Miller Marsh informed Plaintiff that she had never made a call to CPS regarding the September incident. Id. ¶¶ 42-43.
Concerned for the child's safety, Plaintiff reached out via email to Defendant Pamela Hutchins, a director at the Child Development Center. Id. at PageID #: 9, ¶ 47. Three days later, Defendants Dr. Miller Marsh and Hutchins held a meeting with Plaintiff and informed her that they did not believe calling CPS was warranted and that her concerns might not "hold up in a court of law." Id. ¶¶ 49-50. Plaintiff believed that she was being discouraged from "fulfilling what she believed was her statutory duty to children to report suspected child abuse as a mandatory reporter." Id. at PageID #: 10, ¶ 52. Defendants allegedly acknowledged that the child's father is a "bully," but told Plaintiff he should not be under suspicion of potential child abuse. Id. ¶ 53. Plaintiff retorted that she suspected abuse and believed she needed to report her observations to CPS and that her job as a mandatory reporter was to report suspected abuse under Ohio Rev Code § 2151.421, not to prove it. Id. at PageID #: 10-11, ¶¶ 54-58. Defendant Dr. Miller Marsh asked Plaintiff to give her one day to "put a plan in place." Id. at PageID #: 11, ¶ 59. During the next three days, Plaintiff reached out to Dr. Miller Marsh but was never told what the plan was. Id. ¶¶ 60-63.
On October 29, 2018, Plaintiff had a meeting with some members of the school's leadership team and the Kent State University Chief of Police. Id. at PageID #: 12, ¶ 64. Some staff members had learned about the child's behavior and comments in September and raised concerns about Dr. Miller Marsh's decision not to contact CPS. Id. ¶ 65. The meeting agenda included discussing safety procedures in the event that an angry parent came to school in response to a report to CPS and stationing an extra officer at the school after a report was made. Id. ¶ 66. According to Plaintiff, Dr. Miller Marsh "appeared to downplay the incidents and still appeared to be in favor of not reporting." Id. ¶ 68. After the meeting, Plaintiff contacted CPS to report suspected child abuse. Id. ¶¶ 69-70.
The day after the meeting, Plaintiff did not show up to work because she was scheduled to be absent that day. Id. ¶ 71. During her day off, she received a call from EB, another assistant teacher in the classroom. Id. ¶ 72. EB reported that during drop-off, she had observed the child screaming and saw the father threaten to hit the child. Id. at PageID #: 13, ¶¶ 73-74. EB informed Plaintiff that she told Dr. Miller Marsh what occurred but Dr. Miller Marsh informed EB it was "not reportable." Id. ¶ 75. Plaintiff approached Dr. Miller Marsh asking how the teacher should handle aggressive parents. Id. at PageID #: 13-14, ¶¶ 80-81. Dr. Miller Marsh allegedly offered no suggestions. Id. at PageID #: 14, ¶ 82.
On March 12, 2019, Plaintiff heard the same child make some sexually explicit remarks regarding content on his mother's phone. Id. ¶ 86. The next day, Plaintiff heard the mother threaten to call the police and have the child put in jail if he refused to cooperate. Id. ¶ 87. Two days later, a teacher's aide in Plaintiff's classroom reported that the child screamed each night prior to being picked up by his parents. Id. ¶ 88.
On April 4, 2019, a field student reported to Plaintiff that the child had said he was not hungry but that he needed to finish all of his food or he would be in trouble at home. Id. at PageID #: 15, ¶ 92. A teaching assistant told Plaintiff that the child never wanted to go home with the father. Id. ¶ 93. She informed Plaintiff that she heard the mother telling the child, "this better not be a crying day or it is going to be bad" and "[i]f you keep crying, you are going to have a very, very bad night." Id. ¶¶ 94-96.
After learning of these events, Plaintiff again called CPS regarding the child. Id. at PageID #: 16, ¶ 97. Plaintiff informed Defendant Hutchins about her intent to call and Hutchins responded, "Remember, you only pass along what you witnessed." Id. ¶¶ 98-99. Plaintiff believed Hutchins was discouraging her from reporting the suspected abuse. Id. ¶ 100. CPS contacted Plaintiff a few hours later and informed her they were opening a full investigation. Id. 101.
On April 12, 2019, Plaintiff pulled the child aside after he began crying loudly in class. Id. ¶¶ 102-03. The child told Plaintiff and another school employee that he did not like home because he was afraid of sexual content on the father's phone.3 Id. ¶¶ 104-07. Plaintiff called CPS that same day. Id. at PageID #: 17, ¶ 108.
On the same day that Plaintiff reported her concerns to CPS, the child's parents met with Dr. Miller Marsh. Id. ¶ 109. Dr. Miller Marsh allegedly told the parents that she was not the one who had contacted CPS. Id. ¶ 110. After the meeting, Plaintiff alleges that Dr. Miller Marsh "allowed the parents to roam the school unescorted." Id. ¶ 111. The child's parents approached Plaintiff and apologized for their child's behavior. Id. ¶ 112. Plaintiff was "[s]haken" by this interaction with the child's parents. Id. ¶ 113. Plaintiff went to the teacher's lounge, where she found Dr. Miller Marsh, who informed Plaintiff that the parents were pulling the child out of the school. Id. ¶¶ 114-15.
A few days later, Plaintiff was called into a meeting with Defendants Dr. Miller Marsh and Hutchins and other school staff and teachers. Id. ¶ 116. Defendants told those attending the meeting that the child had been re-enrolled in the school. Id. at PageID #: 18, ¶ 117. Plaintiff was told that if she was approached by an unhappy parent, she should use de-escalation techniques. Id. ¶ 118.
Plaintiff met with the chief of campus police the following day and informed the individual what Hutchins had said about the de-escalation techniques. Id. ¶ 119. The chief allegedly told Plaintiff that she should not attempt to use de-escalation techniques if she had to interact with the child's parents for her own safety. Id. Later that same day, Plaintiff, along with other teachers, met with Kent State University's Human Resources Department concerning their safety and well-being. Id. ¶ 120.
On April 17, 2019, Defendant Hutchins met with one of the teachers in attendance of the previous day's meeting and questioned that individual about the meeting. Id. ¶ 121. Plaintiff alleges the other teacher was intimidated by Hutchins’ questions. Id. ¶ 122.
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Aultman v. Shoop
...the Eleventh Amendment bars Plaintiff's § 1983 claims against the State of Ohio and/or the ODRC. McAllister v. Kent State Univ., 454 F. Supp. 3d 709, 717 (N.D. Ohio 2020). Likewise, Plaintiff's state law claim against Ohio and/or the ODRC asserting a violation of the Ohio Constitution is ba......