United States District Court, W.D. Wisconsin
JANE DOE NO. 55, by and through JANE DOE'S MOTHER and JANE DOE'S FATHER, Plaintiff,
MADISON METROPOLITAN SCHOOL DISTRICT, Defendant.
OPINION AND ORDER
BARBARA B. CRABB District Judge
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.
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.
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
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
the parties' proposed findings of fact and the record, I
find that the following facts are undisputed.
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.)
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
Ptak's Responsibilities Related to this Case
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.
Ptak's Observations of Collins
observed Collins having personal conversations with students.
He was a “mentor” and “confidant” to
many of them. Ptak Dep., dkt. #40, at 161-62.
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.
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.
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.
Reports to Ptak from Other School Employees about
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.
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
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.
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