Shrum v. Kluck, No. 4:97CV3366.

• Citation: 85 F.Supp.2d 950
• Decision Date: 23 February 2000
• Docket Number: No. 4:97CV3366.
• Parties: Kimberly Ann SHRUM, as next friend of Justin Patrick Kelly, a minor, Plaintiff, v. Michael KLUCK, David Wade, as Superintendent of the Elwood, Nebraska, Public School District, and the Elwood, Nebraska, Public School District, Defendants.
• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska

85 F.Supp.2d 950

Kimberly Ann SHRUM, as next friend of Justin Patrick Kelly, a minor, Plaintiff, v. Michael KLUCK, David Wade, as Superintendent of the Elwood, Nebraska, Public School District, and the Elwood, Nebraska, Public School District, Defendants.

No. 4:97CV3366.

United States District Court, D. Nebraska.

February 23, 2000.

COPYRIGHT MATERIAL OMITTED

Susan K. Sapp, Cline, Williams Law Firm, Lincoln, NE, Bettina J. Richardson, Rusty Hardin, Bob Galatas, Rusty Hardin & Associates, P.C., Houston, TX, for Plaintiff.

John A. Svoboda, Gross, Welch Law Firm, Omaha, NE, Stephen L. Ahl, Dean J. Sitzman, Wolfe, Snowden Law Firm, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on the motion for partial summary judgment filed by the defendants Elwood, Nebraska, Public School District and David Wade (filing 89). For the reasons discussed below, I shall grant the motion in part and deny it in part. Upon reconsideration of the school district's previous motion for summary judgment (filing 43), I shall also grant summary judgment as to these defendants with respect to the claim brought under 42 U.S.C. § 1983, and shall dismiss them from the action.

I. BACKGROUND

The plaintiff, Kimberly Ann Shrum ("Shrum"), brings this action on behalf of her minor son, Justin Patrick Kelly ("Kelly"), to recover damages for the sexual molestation of Kelly by the defendant Michael Kluck ("Kluck") in 1994 while Kelly was a student and Kluck was a teacher at La Porte Junior High School ("La Porte") in Texas. Kluck was formerly employed by the defendant Elwood, Nebraska, Public School District ("Elwood"). The defendant David Wade ("Wade") is Elwood's superintendent, and is sued only in his official capacity.

Shrum's second amended complaint generally alleges that Kluck was terminated by Elwood in March 1994 based on inappropriate conduct with students, but that Elwood, pursuant to a settlement agreement, agreed to keep Kluck's conduct a secret and to provide Kluck with a letter of recommendation stressing his positive qualities as a teacher. It is alleged that La Porte relied on Elwood's letter of recommendation when it hired Kluck to teach beginning in the fall of 1994.

Four "causes of action" are set out in the second amended complaint. These seek recovery of damages based on the following theories: (1) violation of Kelly's constitutional rights under 42 U.S.C. § 1983; (2) violation of Title IX, 20 U.S.C. § 1681 et seq.; (3) assault; and (4) negligence. The third "cause of action" for assault is alleged only against the defendant Kluck, while the other three "causes of action" are alleged as against all defendants. The pending summary judgment motion pertains to the second and fourth "causes of action," and to the plaintiff's request for special damages (i.e., costs and expenses incurred by Shrum in obtaining psychological counseling and medical treatment for Kelly).

II. DISCUSSION

Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir.), cert. denied, 513 U.S. 929, 115 S.Ct. 319, 130 L.Ed.2d 280 (1994). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir.1997), cert. denied, 523 U.S. 1004, 118 S.Ct. 1186, 140 L.Ed.2d 316 (1998).

In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with "`sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992), cert. denied, 507 U.S. 913, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A. Title IX Claim

Title IX provides, with certain exceptions, that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance...." 20 U.S.C. § 1681(a). A recipient of federal funds may be liable in damages under Title IX only for its own misconduct. The recipient itself must "exclud[e] [persons] from participation in, ... den[y] [persons] the benefit of, or ... subjec[t] [persons] to discrimination under" its "program[s] or activit[ies]" in order to be liable under Title IX. Davis v. Monroe County Bd. of Education, 526 U.S. 629, 119 S.Ct. 1661, 1670, 143 L.Ed.2d 839 (1999).

Sexual harassment or sexual abuse of a student by a teacher clearly constitutes "discrimination" under Title IX, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), and Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), but a school district is liable only if it "subjected" the student to the harassment or abuse "under" its operations.

The statute's plain language confines the scope of prohibited conduct based on the recipient's degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference "subject[s]" its students to harassment. ... Moreover, because the harassment must occur "under" "the operations of" a funding recipient, see 20 U.S.C. § 1681(a); § 1687 (defining "program or activity"), the harassment must take place in a context subject to the school district's control, Webster's Third New International Dictionary of the English Language, supra, at 2487 (defining "under" as "in or into a condition of subjection, regulation, or subordination"; "subject to the guidance and instruction of"); Random House Dictionary of the English Language, supra, at 1543 (defining "under" as "subject to the authority, direction, or supervision of").

These factors combine to limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to "expose" its students to harassment or "cause" them to undergo it "under" the recipient's programs.

Davis, 526 U.S. 629, 119 S.Ct. at 1672.

In Gebser, the Supreme Court held that "in cases ... that do not involve official policy of the recipient entity, ... a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond." Id., at 290, 118 S.Ct. 1989. The Court further stated that it "will not hold a school district liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference." Id., at 292-93, 118 S.Ct. 1989.

In the present case, Shrum argues that a Title IX damages claim exists because Elwood had actual knowledge of inappropriate conduct by Kluck while he was employed by Elwood, and that Elwood was deliberately indifferent to sexual harassment by aiding Kluck, or at least not impeding his ability, to obtain employment at another school district. This argument ignores the Supreme Court's holding in Davis that a federal funds recipient can be held liable for damages only where it "exercises substantial control over both the harasser and the context in which the known harassment occurs." Kelly was never a student at Elwood, and, at the time of the alleged abuse, Kluck was no longer employed by Elwood. Kelly therefore was not subjected to discrimination "under" Elwood's programs or activities, and does not have an actionable claim against Elwood or Wade under Title IX.

B. Tort Claim

It is undisputed that notice of Kelly's tort claim was not given to Elwood in the manner prescribed by Neb.Rev.Stat. § 13-905 (Reissue 1997)¹ before this suit was filed. "The filing or presentment of a claim under the [Political Subdivisions Tort Claims] Act is a condition precedent to commencement of a negligence action against a political subdivision." Polinski v. Omaha Public Power Dist., 251 Neb. 14, 554 N.W.2d 636, 639 (1996). Noncompliance with the notice requirement has been raised as an...