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Doe v. USD No. 237, The Smith Center School District

United States District Court, D. Kansas

October 29, 2019

JANE DOE and ANGELA HARRISON, Plaintiffs,
v.
USD No. 237, the Smith Center School District, and BROCK HUTCHINSON, Defendants.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

         In this case, plaintiff Jane Doe and her mother, plaintiff Angela Harrison, assert federal and state-law claims against defendants USD No. 237 (“the District”) and Brock Hutchinson, arising from Mr. Hutchinson's alleged sexual harassment of Ms. Doe while serving as a teacher and coach at her high school. The matter presently comes before the Court on various motions filed by defendants. For the reasons set forth below, the Court rules as follows. The Court grants in part and denies in part the motions for summary judgment on plaintiff Doe's claims filed by Mr. Hutchinson (Doc. # 200) and the District (Doc. # 202). The motions are granted with respect to Ms. Doe's claims for Title IX retaliation; her claims for invasion of privacy, other than a claim for intrusion upon seclusion based on the snapping of her bra strap; her negligence claims against the District, other than a claim for injuries directly resulting from the snapping of her bra strap; and her claims for medical expenses, and defendants are awarded judgment on those claims. The motions are otherwise denied. The Court grants the District's motion for summary judgment on plaintiff Harrison's claim against it (Doc. # 195), and the District is awarded judgment on that claim. The Court denies defendants' motion to strike certain declarations submitted by plaintiffs in opposition to the summary judgment motions (Doc. # 223). Finally, the Court grants defendants' motion to determine the place of trial (Doc. # 193), and it designates Topeka as the place of trial for this matter.

         I. Defendants' Motion to Strike Declarations

         As a preliminary matter, the Court addresses defendants' motion to strike five declarations submitted by plaintiffs in opposition to defendants' summary judgment motions. The declarations at issue are by the following witnesses: Jade Colclasure, a former student; Drew Mann, a former student and Ms. Doe's sister; John McDonald, Ms. Harrison's father and Ms. Doe's grandfather; Z. Doe, a former student; and Beth Fischer, Z. Doe's mother. Defendants argue that plaintiffs failed to disclose those witnesses sufficiently in their disclosures pursuant to Fed.R.Civ.P. 26(a), which requires a party to provide, for any individual likely to have discoverable information that the party may use to support a claim or defense, the individual's name, his or her address and telephone number (if known), and the subjects of the information. See Id. Defendants further argue that the Court should strike the declarations pursuant to Fed.R.Civ.P. 37(c)(1), which provides that if a party has failed to provide information about a witness required by Rule 26(a), the party may not use that witness to supply evidence on a motion unless the failure was substantially justified or was harmless. See Id. The Court concludes that any failure by plaintiffs in this case was harmless, and it therefore denies the motion to strike.

         On September 13, 2017, plaintiffs served their initial Rule 26(a)(1) disclosures. Plaintiffs identified Beth Fischer, gave her telephone number (but not an address), described her as a substitute teacher and parent at the high school, and stated that she “has information regarding Coach Hutchinson, Principal Greg Koelsch and Smith Center's handling of complaints against Coach Hutchinson.” Plaintiffs also identified Z. Doe (Ms. Fischer's son) without any contact information, described him as a former student at the school, and stated that he “has information concerning Coach Hutchinson's conduct.” Plaintiffs also included Mr. Doe's “social media post” among the documents listed in the disclosure, and plaintiffs later produced such posts to defendants in discovery. On March 20, 2019, plaintiffs served supplemental disclosures pursuant to Rule 26(e). The disclosures included the following persons likely to have discoverable information, although without any contact information: Jade Colclasure, identified as a former student, who “may have knowledge regarding Brock Hutchinson's conduct;” Drew Mann, identified as plaintiff Doe's sister, who “may have knowledge regarding Plaintiffs' claims and damages;” and John McDonald, identified as plaintiff Harrison's father, who “may have knowledge regarding reports made to the School District about Brock Hutchinson's conduct and Plaintiffs' damages.”

         On April 29, 2019, defendants' counsel sent plaintiffs' counsel a letter requesting further supplementation of disclosures to include full contact information and subjects of knowledge, as required by Rule 26(a)(1), although the letter did not call out any disclosure of a particular witness. At a status conference the following day, and as memorialized in the third amended scheduling order, the Magistrate Judge instructed the parties to supplement their Rule 26(a) disclosures to include the information required by the rule. Plaintiffs did not provide any additional supplementation, however. Defendants now argue that the Court should strike these five witnesses' declarations because plaintiffs did not provide information about those witnesses sufficient to comply with the rule and the Magistrate Judge's order.

         The Court has broad discretion in applying Rule 37(c)(1). See HCG Platinum, LLC v. Preferred Product Placement Corp., 873 F.3d 1191, 1200 (10th Cir. 2017). The Court considers the prejudice to the party against whom the evidence is offered, as well as the offering party's bad faith or willfulness. See id.

         The Court does not minimize any non-compliance with the rule and the Magistrate Judge's order. The Court notes, however, that plaintiffs did include all five witnesses in their disclosures. Defendants nevertheless argue that they did not have contact information and more detailed subject descriptions, and thus that they were denied the opportunity to seek discovery from those witnesses before the discovery deadline. The Court does not agree, however, that defendants suffered any such prejudice from any deficiency in plaintiffs' disclosures. Defendants were told that these individuals may have relevant information, and they were told the general subjects of that information. Moreover, discovery had provided more information to defendants concerning these witnesses' knowledge. Defendants had already received Ms. Fischer's declaration in February 2019, and that declaration included information received from her son, Z. Doe. Defendants had been provided with Z. Doe's social media posts. There had been deposition testimony about Ms. Colclasure, Ms. Mann, and Mr. McDonald, and plaintiffs had produced Mr. McDonald's notes. If defendants were truly in the dark about the subject of a witness's knowledge, they could have sought such information specifically from plaintiffs' counsel.

         Defendants have also failed to show that they were denied the opportunity to contact these witnesses or to seek discovery from them. Defendants have not stated that counsel tried and failed to contact a witness. Plaintiffs had disclosed Ms. Fischer's telephone number, and defendants could have contacted her to locate Z. Doe, her son. Ms. Mann and Mr. McDonald are plaintiffs' relatives, and plaintiff Harrison identified Mr. McDonald's city of residence in her deposition, but defendants apparently made no attempt to locate those witnesses; nor did defendants take the simple step of requesting that plaintiffs' counsel produce them for depositions. Finally, defendants do not dispute that in June 2019 their counsel did contact Ms. Colclasure, who answered counsel's questions; defendants have not explained why they were not able to make such contact earlier, or why they could not have used school records to attempt to contact former students and parents.

         Finally, the Court notes that defendants never asked plaintiffs for additional information, even after plaintiffs failed to provide additional supplementation after the status conference. If defendants believed that they lacked sufficient information to determine whether to undertake any discovery, they were obliged to make such a request of plaintiffs or to seek relief from the Court in a timely fashion, prior to the close of discovery. For these reasons, the Court concludes that plaintiffs substantially complied with the rule and that defendants have not shown any prejudice from any technical violation. The Court also does not agree with defendants that there is any basis to conclude that plaintiffs acted in bad faith. Accordingly, the Court denies the motion to strike.

         II. Defendant Hutchinson's Motion for Summary Judgment

         A. Governing Standards

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact is “genuine” if “the evidence allows a reasonable jury to resolve the issue either way.” See Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is “material” when “it is essential to the proper disposition of the claim.” See id.

         The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. See Id. (citing Celotex, 477 U.S. at 325).

         If the movant carries this initial burden, the nonmovant may not simply rest upon the pleadings but must “bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof.” See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence pertinent to the material issue “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” See Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir. 2002).

         Finally, the Court notes that summary judgment is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” See Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         B. Section 1983 Claim

         Plaintiff Doe asserts a claim against defendant Hutchinson under 42 U.S.C. § 1983 for sexual harassment. Ms. Doe was a student at Smith Center High School from August 2013 to October 2016. Mr. Hutchinson was a teacher and coach at the school during that period.

         In affirming this Court's denial of Mr. Hutchinson's motion to dismiss this claim based on qualified immunity, the Tenth Circuit set forth the governing law as follows:

Denials of equal protection by a municipal entity or any other person acting under color of state law are actionable under 42 U.S.C. § 1983. It is well established in this circuit that sexual harassment by a state actor can constitute a violation of the equal protection clause.
One form of actionable sexual harassment is “hostile environment harassment.” To prevail on such a claim, a plaintiff must show that the defendant's conduct was sufficiently severe or pervasive as to interfere unreasonably with her school performance and create a hostile or abusive educational environment. The severe or pervasive inquiry should be judged from the perspective of a reasonable person in the plaintiff's position, considering all of the circumstances. Accordingly, the analysis depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Two such considerations are the ages of the harasser and the victim.

See Doe v. Hutchinson, 728 Fed.Appx. 829, 832 (10th Cir. 2018) (citations, internal quotations, and footnote omitted). The Tenth Circuit further discussed certain principles concerning the type of conduct that could contribute to the totality of the circumstances on which liability may be based, as follows:

First, facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant environment.
Second, incidents of sexual harassment directed at students other than the plaintiff can be used as proof of the plaintiff's claim of a hostile environment. Doe may rely on evidence that Hutchinson directed gender-based comments to other students to help establish a general atmosphere of harassment provided she was aware of such conduct.
Third, Hutchinson's argument fails to recognize that sexually charged comments, even if not directly about gender, qualify as gender-related under our case law. Although we do not impose a general civility code, we include comments and actions that are inherently sexual in nature under the rubric of “gender-related.”

See Id. at 832-33 (citations and internal quotations omitted).[1]

         In response to Mr. Hutchinson's summary judgment motion, Ms. Doe has submitted evidence that, viewed in the light most favorable to her, adequately supports her claim of sexual harassment under the standards set forth above. Accordingly, the Court concludes that a question of fact remains concerning Mr. Hutchinson's liability on this claim.

         Mr. Hutchinson first renews his argument that his alleged conduct was not based on gender, but he has not addressed the Tenth Circuit's explicit rejection of that argument. As that court noted, gender-neutral abusive conduct can contribute to a hostile environment, and comments that are sexual in nature are considered gender-related. Ms. Doe has submitted evidence of comments by Mr. Hutchinson that are sexual in nature.

         The Court also rejects Mr. Hutchinson's argument that the alleged conduct was not sufficiently severe or pervasive, as Ms. Doe has submitted evidence sufficient to create a question of fact on that issue. More specifically, Ms. Doe has submitted evidence to support the following allegations of inappropriate conduct by Mr. Hutchinson in Ms. Doe's presence.[2] Mr. Hutchinson would routinely snap the bra straps of Ms. Doe in the hallways of the school, leaving welts on her back, and he would also snap other girls' straps.[3] He would also smack students on their rear end, pat students' shoulders, and on at least one occasion he popped Ms. Doe's back in a way that made her uncomfortable. He made frequent sexual jokes and comments, including relating to his own sexual experiences with his wife. On one occasion, after a ball bounced between Ms. Doe's legs in gym class, Mr. Hutchinson stopped the game and made a sexually-crude comment about her to the class. He referred to other girls in sexual terms. He would encourage girls to practice in sports bras or to take their shirts off if they were hot, and he would boast about having convinced girls to do so. When Mr. Hutchinson witnessed his son making a sexually-explicit comment to Ms. Doe, he told his son to refrain from making such comments not because they were inappropriate, but because he would “have her mom riding [Mr. Hutchinson's] ass in here again.” Mr. Hutchinson told Ms. Doe's boyfriend's father that the boy should not date Ms. Doe. Mr. Hutchinson sat on Ms. Doe's feet at a volleyball game in an attempt to intimidate her. In addition, Mr. Hutchinson's proclivity for making inappropriate sexual comments was so well known that such conduct was commonly referred to as “Brock being Brock.”

         In his reply brief, Mr. Hutchinson argues that any such conduct occurred before January 2015 and that Ms. Doe did not suffer her alleged emotional harm until May 2016. Any such argument concerning causation of harm was not raised in the initial brief, however, and the Court therefore will not consider it. See, e.g., U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2008 WL 3077074, at *9 n.7 (D. Kan. Aug. 4, 2008) (citing Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir. 2003)). Moreover, Ms. Doe did not testify that no inappropriate conduct occurred after her mother's first complaint in January 2015, during Ms. Doe's sophomore year. In the testimony on which Mr. Hutchinson relies, Ms. Doe was asked whether he did “anything specific” to her “after he received this e-mail on January 28th, 2015, ” and she replied “Not that I can remember.” That testimony may reasonably be interpreted (in the light most favorable to Ms. Doe) to mean that he did not do anything specifically in response to the email, in the immediate aftermath. In fact, Ms. Doe testified multiple times about conduct occurring through her junior year of high school (for instance, snapping of bra straps, smacking of rear ends, suggestive comments, encouraging girls to remove their shirts).

         When considered with the age difference between Mr. Hutchinson and Ms. Doe and the power dynamic inherent in their roles as teacher and student, the evidence is sufficient to create a triable issue concerning whether sexual harassment by Mr. Hutchinson was sufficiently severe or pervasive. See Doe, 728 Fed.Appx. at 834 (ages and nature of relationship should be considered in assessing the requisite degree of severity or pervasiveness). Indeed, the Tenth Circuit has already ruled in this case that such conduct is sufficient to allow the claim to proceed. See Id. at 833-34. Accordingly, the Court denies Mr. Hutchinson's motion for summary judgment on Ms. Doe's Section 1983 sexual harassment claim.

         C. State-Law Tort Claims

         1. SUPPLEMENTAL JURISDICTION

         Plaintiff Doe asserts claims against Mr. Hutchinson under Kansas law for invasion of privacy and intentional infliction of emotional distress. Mr. Hutchinson argues that the Court should decline supplemental jurisdiction over these claims if no federal claim against him remains. As discussed above, Ms. Doe's federal claim under Section 1983 remains for trial; thus, the Court will continue to exercise supplemental jurisdiction over her state-law claims.

         2. SUFFICIENCY OF NOTICE OF CLAIM

         In his initial brief, Mr. Hutchinson notes that the Court has ruled on two occasions that plaintiffs complied sufficiently with the notice requirement of the Kansas Tort Claims Act (KTCA), K.S.A. § 12-105b(d), and he states that Ms. Doe “should not be permitted to expand her claims beyond what was contained in her notice of claim.” He does not indicate in that brief, however, any reason for the Court's reconsideration of its prior rulings or any particular manner in which the notice was insufficient. In his reply brief, Mr. Hutchinson argues that the notice fails to address any alleged conduct occurring after July 2016. As the Court has previously noted, however, the notice need not contain all facts in support of the claims. See Doe v. USD 237, 2017 WL 5134005, at *6 (D. Kan. Nov. 6, 2017) (Lungstrum, J.). The Court again concludes that the notice was sufficient, for the same reasons previously stated.

         3. INVASION OF PRIVACY

         Ms. Doe asserts a claim under Kansas law for invasion of privacy. Ms. Doe seeks to assert two separate types of privacy claims recognized by Kansas law: publicity given to private life and intrusion upon seclusion. See Froelich v. Adair, 213 Kan. 357, 358-59 (1973) (citing Restatement (Second) of Torts (tentative draft) §§ 652D, 652B). In the pretrial order, Ms. Doe does appear to have preserved both claims, alleging as follows:

Hutchinson unreasonably intruded upon Jane Doe's seclusion when he sought to elicit details of her sexual practices from other minor male students in front of an audience of other male students. Hutchinson also caused to be public private details regarding Jane Doe's sexuality.

         The Court addresses each privacy claim in turn.

         a. The Restatement provides as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” See Restatement (Second) of Torts § 652D. In support of this claim in her brief, Ms. Doe cites only the following conduct:

Hutchinson asked his wrestlers about her sexual activity with her boyfriend on district property or in connection with district programs. This was the subject of “locker room” talk among a group of students that was then leaked to students outside the locker room.

         In support of those alleged facts, Ms. Doe cites only to her own testimony (or that of her mother, who heard these facts from Ms. Doe). Ms. Doe did not witness any such statements by Mr. Hutchinson, but testified that her then-boyfriend told her this information. That evidence of the boyfriend's statements to Ms. Doe is inadmissible as hearsay, however, as the evidence is offered for the truth of the matter asserted, namely that Mr. Hutchinson did in fact ask those questions and disseminate the information. See Fed. R. Evid. 801(c), 802. Ms. Doe has not identified any reason why the boyfriend's statements are not hearsay or fit within a hearsay exception. Nor has Ms. Doe offered any other evidence that Mr. Hutchinson made such statements (the boyfriend states in a sworn declaration that no such conduct by Mr. Hutchinson occurred).

         Thus, Ms. Doe has not provided any admissible evidence to support the allegation on which she bases this claim. Accordingly, Mr. Hutchinson's motion is granted, and he is awarded summary judgment on ...


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