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Doe v. Madison Metropolitan School District

United States District Court, W.D. Wisconsin

November 16, 2016

JANE DOE NO. 55, by and through JANE DOE'S MOTHER and JANE DOE'S FATHER, Plaintiff,
v.
MADISON METROPOLITAN SCHOOL DISTRICT, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge

         Plaintiff Jane Doe No. 55 is suing defendant Madison Metropolitan School District under Title IX of the Education Amendments of 1972 and Wisconsin common law for failing to prevent a school district employee from sexually abusing her while she was a student. Defendant has moved for summary judgment on both claims. Dkt. #30. Also before the court are defendant's motion for a protective order, dkt. #50, and plaintiff's motion for leave to file an additional expert report, dkt. #87.

         With respect to defendant's motion for summary judgment, it is undisputed that defendant was not aware of any sexual abuse while it was occurring. However, plaintiff argues that defendant should be held liable for the abuse because it was aware of frequent hugs and other excessive touching between plaintiff and the employee and it was aware that plaintiff had a crush on the employee. These facts might allow a reasonable jury to find that defendant was aware of inappropriate conduct and acted unwisely by failing to take more aggressive steps to stop it. However, not all inappropriate conduct violates the law. Rather, both of plaintiff's claims require proof that defendant knew about the sexual abuse or at least was aware of facts that would make it obvious that abuse would occur. Because I conclude that no reasonable jury could make that finding, even if it viewed the evidence in the light most favorable to plaintiff. she cannot prevail on her claims.

         In its motion for a protective order, defendant objects to a discovery request for certain personnel records related to the principal of plaintiff's school, Deborah Ptak. Although Magistrate Judge Stephen Crocker has not yet ruled on this motion, plaintiff has not filed a motion under Fed.R.Civ.P. 56(d) to stay a summary judgment decision pending a determination regarding the protective order and she does not argue in her summary judgment submissions that she needs the information for the purpose of opposing summary judgment, so I am denying defendant's motion for a protective order as moot. Plaintiff does not argue that her request to file an additional expert report is relevant to summary judgment either, so I am denying that motion as moot as well.

         Before setting forth the undisputed facts, I note a prevalent problem in the parties' proposed findings of fact. Both sides referred repeatedly to the observations, beliefs, statements and perceptions of various school employees as well as plaintiff's mother, but plaintiff's claim is premised on the view that it was knowledge of the principal, Deborah Ptak, that triggered defendant's duty to act. Therefore, unless someone communicated an observation to Ptak or a party pointed to admissible evidence showing that Ptak was otherwise aware of particular conduct, I have not included observations of others in the undisputed facts section.

         From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

         UNDISPUTED FACTS

         At the time relevant to this case (2013 to 2014), plaintiff Jane Doe No. 55 was a student in seventh or eighth grade at Whitehorse Middle School, which is part of defendant Madison Metropolitan School District. Willie Collins was a “security assistant” at the school. His duties included supervising lunch and recess, monitoring students in detention and keeping the school safe and secure. (The parties dispute whether “mentoring students” and “providing emotional support to students” are part of a security assistant's job duties.)

         Deborah Ptak was the principal of the school at all relevant times. She had supervisory authority over Collins, who was also supervised by Luis Yudice, the school safety and security coordinator.

         A. Ptak's Responsibilities Related to this Case

         Under school district policy, staff who suspect sexual harassment or abuse are required to report it to the principal, the Title IX coordinator or the school district's legal department. Ptak conducts investigations on sexual harassment and sexual abuse at the school. If someone else, such as a social worker, conducts an investigation, Ptak asks to be notified of updates because “all employee matters come to” her. Ptak Dep., dkt. #40, at 41. “If there's a student issue, the buck stops with [Ptak].” Id. However, if Ptak determines that harassment or abuse occurred, she does not have “autonomy to discipline an employee, ” id. at 42, with the exception of a verbal reprimand. If more is needed, she contacts the school district's legal department. If the department determines that corrective action is needed, Ptak implements that action.

         B. Ptak's Observations of Collins

         Ptak observed Collins having personal conversations with students. He was a “mentor” and “confidant” to many of them. Ptak Dep., dkt. #40, at 161-62.

         Ptak saw Collins giving hugs to students, both boys and girls. Most of these hugs, if not all of them, were initiated by the students. The school safety and security coordinator trains security assistants to give students a “sideways hug” that was “a brief touching arm around the shoulder.” Yudice Dep., dkt. #64 at 38. However, Collins sometimes gave “bear hugs” and “strong, full hugs” to students.

         While plaintiff was in seventh grade, Ptak “occasionally” observed Collins rubbing students' shoulders in the cafeteria at lunch time. Tracy Warnecke, an employee who also supervised the cafeteria, saw Collins give many students shoulder rubs, both boys and girls, “three to four times a week.” Warnecke Dep., dkt. #39, at 54-55.

         At unspecified times, Ptak observed Collins rubbing plaintiff's shoulders in the cafeteria. He “would walk up behind her, take both of his hands and just rub the top of her shoulders.” Ptak Dep., dkt. #40, at 104. Ptak observed this “a few” times. Id. Plaintiff testified that, at the time, Collins's conduct did not make her feel uncomfortable.

         C. Reports to Ptak from Other School Employees about Collins

         In 2013, while plaintiff was in seventh grade, school employee Warnecke observed that plaintiff would “seek[] . . . out” Collins, stand by him outside during recess and visit him in his office. In addition, Warnecke observed plaintiff asking Collins for hugs “many” times and on one occasion kissing him on the cheek. In describing Collins's response to the kiss, Warnecke stated: “He redirected her when-after the first kiss I saw. The second time she went to go kiss him on the cheek, she-he stopped it and then took her for a private conversation because we were in the hallway.” Dkt. #39 at 41. Later, Warnecke told Ptak that she had observed plaintiff kiss Collins on the cheek. Warnecke also told Ptak that plaintiff was hugging Collins “a lot” and that Collins was hugging her back. Ptak said that she would “follow up” with Collins. Id. at 47.

         Also during plaintiff's seventh grade year, at a pupil services committee meeting, Karen Wydenven (the school psychologist) and Mary McCauliffe (a school counselor) told Ptak about their concern that some female students were “hugging [Collins] a lot.” Wydeven Dep., dkt. #70, at 41. Ptak said, “that's just Willie's personality . . . because he's a coach . . . and . . . the kids know him.” Id. (Other than this statement, the parties say nothing in their proposed findings of fact about Collins's status as a coach at the school.) When others at the meeting expressed support for Wydeven's concern, Ptak said that she would talk to Collins.

         Some time between February and May 2013, Jamie Duckert, a school social worker, told Ptak that she was concerned because “frequently girls in the school would give [Collins] hugs.” Duckert Dep., dkt. #81, at 56.

         In April 2013, Ptak spoke with school counselor McCauliffe about plaintiff's and Collins's relationship. McCauliffe said that a teacher had raised concerns because plaintiff was seeking out Collins and hugging him “a lot.” In addition, during lunch duty with Collins, McCauliffe saw plaintiff “running to [Collins] frequently, jumping on him, hanging-attempting to hang on his arm trying to hug him.” Ptak Dep., dkt. #40, at 165. Collins would give plaintiff shoulder rubs. Like Warnecke, McCauliffe saw ...


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