C.H. v. Howard

1

C.H., Plaintiff, v. PATRICK HOWARD, et al., Defendants.

Civ. No. 21-574 GBW/JHR

United States District Court, D. New Mexico

November 3, 2023

ORDER GRANTING DEFENDANTS LCPS'S AND DANA CRITCHLOW'S MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM

GREGOORY B. WORMUTH, CHIEF UNITED STATES MAGISTRATE JUDGE

THIS MATTER comes before the Court on Defendants LCPS's and Dana Critchlow's^[1] Motion for Summary Judgment and Supporting Memorandum. Doc. 180. Having reviewed the Motion and its attendant briefing (docs. 226, 237), and being otherwise fully advised, the Court will GRANT the Motion.

I. Background

Plaintiff C.H. attended Las Cruces High School in Las Cruces, New Mexico, graduating in 2020. See doc. 62 ¶ 45; Defendant's Statement of Undisputed Relevant Material Facts (“DUMF”) 1. Defendant Las Cruces Public Schools (“LCPS”), which is a state municipal corporation within the state of New Mexico and a recipient of federal funding, operates the public school system in Las Cruces, New Mexico, including Las Cruces High School. Plaintiff's Statement of Additional Material Facts (“PUMF”) A; doc. 237 at 9. Plaintiff initiated this case on June 23, 2021, see doc. 1, and filed the operative First Amended Complaint for Damages for Violations of Civil Rights and State Torts on January 28, 2022, see doc. 62, bringing claims for sexual abuse perpetrated on her during the 2016-2017 and 2017-2018 school years by Defendant Patrick Howard, an agriculture teacher and Future Farmers of America (FFA) faculty advisor at LCHS. Relevant to this Motion, Plaintiff brings claims against Defendant LCPS for sexual discrimination in violation of Title IX, First Amendment retaliation, violation of her right to equal protection pursuant to the Fourteenth Amendment, and state claims under the New Mexico Tort Claims Act for negligent operation of a building and intentional infliction of emotional distress.

Defendants LCPS and Dana Critchlow filed their Motion for Summary Judgment and Supporting Memorandum on December 1, 2022, requesting the Court to enter summary judgment in their favor on all Plaintiff's claims against them. Doc. 180 at 1-2. Plaintiff filed her Response in Opposition to Defendants LCPS'[s] and Dana Critchlow's Motion for Summary Judgment on April 3, 2023. Doc. 226. The Motion was fully briefed on June 20, 2023, see doc. 238, with the filing of Defendant LCPS's reply, see doc. 237.

II. Undisputed Material Facts

The Court finds the following material facts to be undisputed for purposes of the Motion:

1. During the 2016-2017 and 2017-2018 school years, Defendant Howard gave Plaintiff full frontal hugs, massaged her shoulders, touched her low back, and slapped her on the back of her leg. See doc. 244 at 3-4.

2. At 9:30 a.m. on January 19, 2018, Las Cruces High School (“LCHS”) Principal Jed Hendee received an email from Kathleen Gardner, an LCPS employee and the mother of a LCHS student, informing him that she had heard students report that Defendant Howard had “spanked [a student] on the butt” in front of other students and that he had a group text message with several female FFA students in which he invited them to his house. DUMF 18; doc. 180-1 at 49; doc. 226 at 4.

3. On the afternoon of January 19, 2018, Defendant LCPS placed Defendant Howard on administrative leave, began an internal investigation into the incident, and reported the incident to the New Mexico Children, Youth, and Families Department and the New Mexico Public Education Department. DUMF 19-21; doc. 226 at 6.^[2]

4. Also on January 19, 2018, Plaintiff was pulled out of class and interviewed by Principal Jed Hendee in a common area of the high school regarding her interactions with Defendant Howard. DUMF 38; PUMF UU. Plaintiff testified that Principal Hendee told her at the end of this interview that “Mr. Howard would know that [Plaintiff] was the one that reported.” PUMF VV; doc. 226-1 at 60, 75:13-19.

5. Plaintiff was a member of FFA for all four years while she attended LCHS. PUMF III.

6. Defendant LCPS's ACA Policy titled “Sexual Harassment,” contains an excerpt which reads:

It is the responsibility of every supervisor and principal to recognize acts of sexual harassment and take necessary action to ensure that such instances are addressed swiftly, fairly, and effectively. Consequently, all LCPS administrators, teachers, and staff in schools, offices, and other facilities shall be cognizant of, and responsible for, effectively implementing the sexual harassment complaint resolution procedures established in this policy.

Doc. 180-1 at 112.

7. Defendant LCPS's JICK Policy on Sexual Harassment of Students contains an excerpt which reads:

School officials, employees and volunteers shall not permit or tolerate sexual harassment of students and shall immediately report, intervene or stop sexual harassment of students that is threatened, found or reasonably known or suspected to be occurring.

Doc. 180-1 at 94. This language is included under a section titled: “Standards of Conduct” and a subheading titled “Duty under the Policy." Id.

8. Vice Principal Dana Critchlow did not have the authority to hire, fire, or suspend teachers. DUMF 68; doc. 226 at 10-11 (disputing DUMF 68 but failing to specifically controvert that the LCHS Vice Principal did not have authority to hire, fire, or suspend teachers, see D.N.M.LR-Civ. 56.1(b)).

III. Legal Standards

Under Federal Rule of Civil Procedure 56(a), this Court must “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of showing “that there is an absence of evidence to support the nonmoving party's case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this burden, the non-moving party is required to designate specific facts showing that “there are . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Celotex, 477 U.S. at 324. “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal citation omitted).

In applying this standard, the Court must draw all “reasonable inferences” in the light most favorable to the non-moving party. Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998). Summary judgment is appropriate only “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record ....” Fed.R.Civ.P. 56(c)(1)(A). All material facts set forth in the motion and response which are not specifically controverted are deemed undisputed. D.N.M.LR-Civ. 56.1(b).

IV. Analysis

Defendant LCPS moves for summary judgment on all of Plaintiff's claims against it, which are: (1) a Title IX claim based on theories of teacher-student harassment, retaliation, and peer-on-peer retaliation; (2) First Amendment retaliation; (3) a Monell equal protection claim based on an alleged school district custom or policy of failing to investigate student complaints of sexual misconduct and failing to provide sufficient training to school staff on sexual grooming, Title IX, and educator sexual misconduct; and (4) two state law tort claims for negligent operation of a building and intentional infliction of emotional distress. See generally docs. 62, 180. The Court addresses each in turn.

A. Title IX Claims

Title IX provides, in relevant part, “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving financial assistance. . .” 20 U.S.C. § 1681(a). The provisions of Title IX are enforceable through an implied private right of action which encompasses actions for damages against a school district. See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 65, 76 (1992). Here, it is undisputed that Defendant LCPS is subject to the requirements of Title IX based on its receipt of federal funding.

Plaintiff's Title IX claim against Defendant LCPS is based on three theories of liability. They include: (1) Defendant LCPS was deliberately indifferent to Defendant Howard's sexual harassment and sexual abuse of Plaintiff and other female students, (2) Defendant LCPS retaliated against Plaintiff for reporting sex discrimination, and (3) Defendant LCPS was deliberately indifferent to peer-on-peer retaliation directed at Plaintiff.

i. Teacher-Student Harassment

Title IX provides a cause of action for a teacher's sexual harassment of a student. Franklin, 503 U.S. at 75. To prevail on a claim against a school district under Title IX, a plaintiff must establish that the district (1) had actual knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe, pervasive, and objectively offensive that it (4) deprived the victim of access to the educational benefits or opportunities provided by the school. Murrell v. Sch. Dist. No. 1, Denver, 186 F.3d 1238 1246 (10th Cir. 1999); see also Ross v. Univ. of...