Hewes v. Pangburn

1

LIBBY HEWES, Plaintiff, v. SAMANTHA PANGBURN et al., Defendants.

No. 1:21-cv-00125-JDL

United States District Court, D. Maine

May 5, 2024

ORDER ON THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

JON D LEVY, U.S. DISTRICT JUDGE

Under advisement are two motions for summary judgment filed by separate groups of Defendants: (1) Healy Chiropractic, LLC and its owner, Patrick Healy (the “Healy Defendants”) (ECF No. 163); and (2) the Brewer School Department and Samantha Pangburn, a former Brewer High School administrator (the “School Defendants”) (ECF No 165). The Plaintiff, Libby Hewes, brought an eighteen-count Amended Complaint (ECF No. 4) against these Defendants, as well as other Defendants who were previously dismissed as parties to this case. Many of the original claims against the remaining Defendants have also been dismissed, leaving eleven claims against the Healy Defendants and three claims against the School Defendants for consideration at the summary judgment stage of this proceeding.^[1]For reasons I will explain, I grant the Healy Defendants' and the School Defendants' Motions for Summary Judgment.

I. FACTUAL BACKGROUND

The following facts are drawn from the assertions properly presented and supported in the Defendants' statements of material fact (ECF Nos. 164, 166), Hewes's opposing statements and additional statements of material fact (ECF Nos. 171, 172, and 182), and the Defendants' replies to Hewes's additional statements (ECF Nos. 178, 186). See Fed.R.Civ.P. 56(c); D. Me. Local R. 56. These facts are undisputed unless otherwise noted and I treat them as true solely for the purpose of deciding the pending motions. The facts also incorporate non-material information from the stipulated summary judgment record (ECF Nos. 156, 158) beyond those statements as needed to contextualize the parties' undisputed assertions.

A. Hewes's Involvement with Defendant Ben Pushard

The Plaintiff, Libby Hewes, was born in May 2001, attended Brewer High School from the fall of 2015 through 2019, and played on sports teams while there. Hewes and Defendant Ben Pushard met in approximately July 2014. Pushard engaged in unlawful sexual contact with Hewes, then a minor, starting in April 2015 and ending in May 2017. Pushard also sexually assaulted Hewes during that period.^[2]Pushard was 20 years old when the conduct underlying those crimes began; he was 22 years old when the criminal conduct ended. Hewes alleges that she and Pushard had sexual intercourse on the premises of Brewer High School only once, during the summer of 2016, in an unlocked closet inside an unlocked equipment building located behind Coffin Field. No sexual activity between Hewes and Pushard ever took place in any of the Healy Defendants' offices.

Hewes kept her involvement with Pushard a secret from most people; the only other person with actual knowledge of the situation beyond rumors was a friend of Hewes's, another Brewer High School student.^[3]By her own account, Hewes lied to people “countless times” about her involvement with Pushard while their physical intimacy was ongoing. ECF No. 156-2 at 28:4. Pushard told Hewes to lie about their involvement to protect him from going to jail. After the unlawful contact between them ended, Hewes had no in-person contact with Pushard from May 2017 until June 2020,^[4] although Pushard sent Hewes Instagram messages about his new girlfriend in the fall of 2017.

B. The Healy Defendants

Defendant Patrick Healy (“Healy”) is a Doctor of Chiropractic Medicine and the sole owner of Defendant Healy Chiropractic, LLC (“Healy Chiropractic”). The Brewer School Department first entered a services contract with Healy Chiropractic in 2011, under which Healy became the Department's “Team Doctor.” ECF No. 164 at 1, ¶ 2.

As Team Doctor, Healy attended and provided necessary services during most Brewer High School sporting events, including those involving the women's basketball and men's baseball teams. Healy Chiropractic did not employ any athletic trainers when it first entered into a contract with the Brewer School Department, and Healy personally performed all the services of Team Doctor until 2014.

Eventually, Healy brought on help. Jacob Cross was an intern for Healy Chiropractic during the spring of 2014 and was hired as an athletic trainer in August 2014. After substantial on-the-job training, Cross took over many of Healy's duties for the Brewer School Department. Cross continued working as an athletic trainer for Healy Chiropractic through 2019.

Defendant Pushard also joined Healy's practice. While serving as Team Doctor, Healy became acquainted with Pushard's father, who coached baseball and basketball for Brewer High School. During that time, Pushard and his younger brother attended and played sports for Brewer High School. Later, while at college to become an athletic trainer, Pushard often returned to Brewer High School to join his father and, incidentally, Healy on the sidelines during sporting events, including to watch his brother's games. Pushard also volunteered as an assistant coach for the Brewer High School junior varsity baseball team for the spring seasons in 2014, 2015, and 2016. Healy became aware of Pushard's professional goal and encouraged him to pursue it because, according to Healy, qualified trainers were in short supply.

Hewes and the Healy Defendants agree that Pushard job-shadowed Healy and Cross in the spring of 2018. However, Hewes disputes when Pushard was first formally associated with the Healy Defendants and asserts that Pushard began as the Healy Defendants' “intern, agent, employee or representative” in 2015. ECF No. 171 at 5, ¶ 18. Hewes and the Healy Defendants also dispute whether Pushard worked directly with students, including Hewes, while he was job shadowing. Relevant to those disputes, Hewes alleges that Healy permitted Pushard to wrap her ankle once in a training room during a basketball game in her freshman basketball season on an unspecified date in the winter of 2015. Hewes also alleges that Pushard had no certification at that time, and that Healy and Cross were both present in the room when Pushard wrapped her ankle. Hewes does not recall Pushard doing anything inappropriate when he taped her ankle in 2015.^[5] Hewes never saw Pushard perform physical training duties on any other students at Brewer High School prior to becoming certified as an athletic trainer.

Healy Chiropractic hired Pushard as an athletic trainer on August 15, 2018, after entering into an athletic training services agreement with the Brewer School Department for the three school years spanning 2018 to 2021. The 2018-2021 agreement states: “TEAM DOCTOR/ATHLETIC TRAINER and its employees who provide services to students shall pass required fingerprinting and backgrounds checks conducted by the Maine Department of Education and the SCHOOL. A copy of the DOE certification (CHRC) card shall be submitted to the Superintendent's Office.” ECF No. 164 at 4, ¶ 20 (quoting ECF No. 156-17 at 14). After hiring Pushard, Healy sent him to the Brewer Superintendent's office to get his credentials. Pushard was given keys and an access card that allowed him to enter school buildings. Healy assumed the Brewer School Department would run a background check on Pushard.

Pushard was laid off by Healy Chiropractic on March 23, 2020, due to COVID; he resumed his position with Healy Chiropractic on April 27, 2020. On April 15, 2021, Healy received a phone call from the Brewer School Department's superintendent, who told Healy about certain allegations against Pushard. Healy then went to the field where Pushard was working and told him that he needed to leave immediately and that Pushard could no longer cover the Brewer School Department's athletic events. Pushard was placed on administrative leave that same day and remained on leave until Healy Chiropractic fired him on May 12, 2021.

Healy did not know about the sexual contact between Hewes and Pushard at any time before April 15, 2021. By the time Pushard became employed as an athletic trainer for Healy Chiropractic in August 2018, physical contact between him and Hewes had been completely over for approximately one year. There is no record evidence that Healy knew about the sexual contact when he hired Pushard or, for that matter, that Healy ever knew Pushard was likely to have inappropriate contact with a student. Both Healy and Cross were unaware of any rumors that Pushard was having sexual contact with a student. Likewise, neither Healy nor Cross had heard rumors that Hewes was having sexual contact with an older man while she was a Brewer High School student, including from Defendant Samantha Pangburn. Healy and Cross never saw Pushard interact with Hewes or any student in a sexual or inappropriate manner. Hewes did not tell Healy or any employee of Healy Chiropractic about her sexual contact with Pushard. Cross only became aware of the allegations that Pushard had sexual contact with Hewes when these proceedings began.

At some point, the Healy Defendants received a copy of the Brewer School Department Handbook and were provided periodic training sessions directly through the school. The Handbook provides that “[a]n individual performing a service for Brewer School Department must be employed by Brewer School Department . . . unless (1) the individual is employed by another organization . . . or (2) the individual is a bona fide independent contractor.” ECF No. 172 at 3, ¶ 17 (quoting ECF No. 156-23 at 49). At no point was Pushard ever an employee of the Brewer School Department.

C. The School Defendants

Defendant Brewer School Department is a Maine school district in Brewer, Maine. Brewer High School is a school within the Brewer School Department for...