Sandra T.E v. Grindle

• Decision Date: 17 March 2010
• Docket Number: No. 09-2920.,09-2920.
• Citation: 599 F.3d 583
• Parties: Sandra T.E., Janet Roe, Marcielo G., Sara K., G. G., Rufus E., Deborah K., Lynn A., Mike A., Alicia B., Emanuele B., Judith B., George K., Elevi S, Raymond S, C.E., T.A., R.A., Jon Roe, Jane Roe, and Francisco G., PlaintiffAppellees, v. Karen GRINDLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

599 F.3d 583

Sandra T.E., Janet Roe, Marcielo G., Sara K., G. G., Rufus E., Deborah K., Lynn A., Mike A., Alicia B., Emanuele B., Judith B., George K., Elevi S, Raymond S, C.E., T.A., R.A., Jon Roe, Jane Roe, and Francisco G., PlaintiffAppellees, v. Karen GRINDLE, Defendant-Appellant.

No. 09-2920.

United States Court of Appeals Seventh Circuit.

Argued: Jan. 14, 2010.

Decided: March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Jonathan I. Loevy (argued), Samantha Liskow, Loevy & Loevy, Chicago, IL Plaintiffs-Appellees.

Robert S. Grabemann (argued), Daspin & Aument, LLP, Chicago, IL, for Defendant-Appellant.

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge.

The appellant, Karen Grindle, was principal of Pershing Elementary School at a time when the school district's band teacher, Robert Sperlik, molested several young girls there. Sperlik was arrested once his abuse came to light. Plaintiffs subsequently brought suit against Sperlik and Grindle, among others, alleging violation of 42 U.S.C. § 1983 on both equal protection and substantive due process theories. Grindle moved for summary judgment claiming she was entitled to qualified immunity because plaintiffs had failed to establish a violation of a clearly established right. The district court denied her motion, and this appeal followed. Because the plaintiffs have put forth evidence which, if credited by the jury, is sufficient to create liability under the clearly established law of this circuit, we affirm.

I. Background

In May 2001, three classmates, referred to as C.E., Jane Doe # 2, and E.S., attended a seminar at their elementary school about inappropriate touching. After the presentation, they wrote a letter to the presenter. The text of the letter raised concerns about their band teacher, Sperlik. The text of the letter reads:

Dear Mrs. Fick,

[Jane Doe # 2 and C.E.] have a band teacher named Mr. Sperlik. When we are in band we feel very uncomfortable because he does the following:

Rubs our legs sometimes; Rubs our back to feel for a bra if we mess up and says it's ok; comments [to] me [C.E.] about my hair and how nice it looks when it's down; comments [to] [Jane Doe # 2] about how she dresses [and] that she could be a model; there is another girl in our class and he doesn't do anything to her.

P.S. Please don't tell him we told you and if you do please don't mention any names!!! We're afraid to tell our parents!

The counselor forwarded this note to Grindle, who met with Sperlik and showed him a copy. Grindle then met with Jane Doe # 2 individually. Jane Doe # 2 and Grindle disagree about what took place during that meeting. Jane Doe # 2 maintains that she told Grindle that Sperlik rubbed the girls' legs, touched them on their private areas through their clothes and pulled against them, pressing his penis into their backs. Grindle claims Jane Doe # 2 told her only that Sperlik would place his hand on her knee and make a tapping motion to keep the beat.

Shortly after meeting with Jane Doe # 2, Grindle met with Jane Doe # 2's parents. Grindle told the parents about the girls' letter, but refused to let them see it instead telling them that their daughter had attended a "good touch, bad touch" seminar that had led her to overreact and write the letter. Grindle also told the parents that Sperlik had innocently touched their daughter on her shoulder and legs to help her keep time with the music.

Grindle spoke with C.E. the week after she met with Jane Doe # 2. Grindle claims that C.E. only confirmed what was written in the letter and, like Jane Doe # 2, only indicated that she had been tapped on the knee. C.E., however, maintains that she told Grindle that Sperlik would touch her private areas when he rubbed her back and would also touch her breasts when he would stand behind her. When Grindle subsequently met with C.E.'s mother, Sandra T.E., she told her that C.E. had complained about Sperlik and demonstrated the touching as a tapping on the knee in order to keep the beat.

After meeting with the girls and their parents, Grindle spoke with the school's social worker, Nancy Ohalla. Grindle told Ohalla that the girls had complained about Sperlik touching their knees, but did not show Ohalla the letter.

At some point, Grindle authored an undated incident report about the girls' complaints. Grindle claims that she prepared this report at the direction of the school's director of human resources, Karen Uhren, but Uhren does not recall meeting with Grindle or telling her to write the report. In the report, Grindle describes Sperlik's conduct as she had described it to the parents. Grindle also wrote an undated memorandum to Sperlik, informing him of the complaints and advising him that the complaints could be considered sexual harassment. In the memorandum, Grindle directed Sperlik to avoid making physical contact with students and to refrain from comments regarding students' appearance.

In January 2002, Grindle received another complaint about Sperlik. A student referred to as M.K., and her mother, Deborah K., met with Grindle to complain about Sperlik forcefully grabbing M.K.'s arm to restrain her. Grindle met with Sperlik and informed M.K. that Sperlik would no longer be allowed to teach with his classroom doors closed. Although this was the second complaint against Sperlik in less than a year. Grindle did not alert any other school personnel to Sperlik's ongoing behavior.

The next incident occurred in April 2002. Grindle received an anonymous call from a parent who stated that her daughter felt uncomfortable when Sperlik put his fingers over hers while demonstrating proper fingering technique. Grindle informed the district's superintendent, William Jordan, about the call. Grindle also informed Jordan about the complaints made by Jane Doe # 2 and C.E. the year before, butpresented them as a "pedagogical issue" rather than potential sexual harassment. At Jordan's direction, Grindle met with Mary Lee Bocwinski, the district's director of curriculum. Grindle told Bocwinski that there had been an "incident" with Sperlik the previous year that had been resolved to everyone's satisfaction, but did not inform Bocwinski about the contents of the letter written by C.E. and Jane Doe # 2. Grindle and Bocwinski addressed the anonymous complaint as a teaching methods issue rather than sexual harassment.

In January 2005, C.E. told her mother that Sperlik used to bind her with duct tape during band class. Sandra T.E. reported Sperlik's behavior to the Berwyn Police Department, which launched a criminal investigation and shortly thereafter arrested Sperlik. As a result of Sperlik's arrest, several other victims were identified. Each of these students reported that Sperlik bound them with duct tape—typically this was presented by Sperlik as a "game"—and several reported that he had rubbed their thighs or touched their breasts. This abuse took place between 2001 and 2005, much of it after C.E. and Jane Doe # 2 wrote to Grindle. Sperlik has since pleaded guilty to multiple counts of aggravated kidnaping and aggravated criminal sexual abuse, admitting that he abused his students for sexual gratification based on his interest in bondage pornography.

Plaintiffs began the present suit on January 26, 2005. On February 27, 2009, the parties filed cross-motions for summary judgment. On July 23, 2009, the district court granted summary judgment in favor of all individual defendants except for Grindle and Sperlik.¹ Grindle appeals, arguing that the plaintiffs' substantive due process and equal protection claims are barred by the doctrine of qualified immunity.

II. Analysis

We review de novo a district court's denial of summary judgment on qualified immunity grounds. Baird v Renbarger, 576 F.3d 340, 343-44 (7th Cir. 2009). In so doing, we view the facts in the light most favorable to the plaintiffs. Shipman v. Hamilton, 520 F.3d 775, 778 (7th Cir.2008). When determining if an official is entitled to qualified immunity, we first ask if the facts show that the official conduct violated a constitutional right. If they do, we ask whether the violated right was "clearly established" at the time of alleged violation. If so, the official is not entitled to qualified immunity from suit. See Michael C. v. Gresbach, 526 F.3d 1008, 1013 (7th Cir.2008).

We begin with plaintiffs' equal protection claim. We have previously held that sexual abuse by a teacher can deprive a student of his or her right to equal protection under the law. See Doe v. Smith, 470 F.3d 331, 334 (7th Cir.2006).²Grindle concedes that under this court's decision in Nanda v. Moss, 412 F.3d 836 (7th Cir.2005), she could be held liable for the equal protection violation of a subordinate that occurred with her knowledge and consent. Nanda, however, was decid-ed in June 2005, four years after Grindle's meetings with C.E. and Jane Doe # 2, and several months after Sperlik's arrest. Because her conduct pre-dated Nanda, she argues, the constitutional right she allegedly violated was not clearly established at the time. Grindle argues that she could not be held liable under the equal protection analysis in an earlier case, Nabozny v. Podlesny, 92 F.3d 446 (7th Cir.1996). In Nabozny, we relied on the plaintiffs' allegation that male-on-female harassment was punished differently than male-onmale harassment to reverse a grant of summary judgment, noting that "[i]f Nabozny's evidence is considered credible, the record taken in conjunction with the defendants' admissions demonstrates that the defendants treated male and female victims differently." 92 F.3d at 454-55.

The fact that Nanda was decided after her allegedly unconstitutional conduct does not entitle Grindle to qualified immunity. Nanda was a straightforward application of the standard of supervisory liability articulated in Jones v. City of Chicago, 856 F.2d 985 (7th Cir.1988). In Jones, we held that while there is no theory of respondeat superior for constitutional...