Nace v. Pennridge Sch. Dist., CIVIL ACTION NO. 15-333

185 F.Supp.3d 564

James Nace and April Nace as Guardians of E.N., a Minor, Plaintiffs,

v.Pennridge School District, Eric Romig, Thomas Creeden, David Babb, Faith Christian Academy, Ryan Clymer and Russell Hollenbach, Defendants.

CIVIL ACTION NO. 15-333

United States District Court, E.D. Pennsylvania.

Signed May 6, 2016

David J. Groth, Louis F. Hornstine, Hornstine Pelloni & Hornstine LLC, Philadelphia, PA, for Plaintiffs.

Robert M. Cox, Erin N. Kernan, Joanne D. Sommer, Eastburn & Gray PC, Jonathan J. Russell, Drake Hileman and Davis, Doylestown, PA, Carla E. Connor, Donnelly & Associates, P.C., Conshohocken, PA, David Salazar, Joseph J. Santarone, Jr., Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, Sean V. Kemether, Kelly Grimes Pietrangelo & Vakil, Media, PA, for Defendants.

Eric Romig, Hunlock Creek, PA, pro se.

OPINION

WENDY BEETLESTONE, District Judge.

This case concerns the civil liability of a high school softball coach who engaged in an unlawful sexual relationship with a sixteen-year-old player on his team, the school district that employed the coach and was unaware of the relationship, and a private school that had previously forced the coach to resign due to allegations of sexual harassment but never reported those allegations to outside authorities. Defendant Eric Romig was a softball coach at Pennridge High School when he used text messages to cultivate a relationship with Plaintiff E.N.—a relationship that became physically sexual during the summer between E.N.'s sophomore and junior years. Two years before he was hired at Pennridge, Romig had been asked to resign from his position as girls' basketball coach at Faith Christian Academy following allegations of sexually inappropriate text messages with a student—communications that Faith Christian did not report to any enforcement authority. Romig is currently in jail having pled guilty to six criminal charges arising from his conduct with E.N.

E.N. and her parents have sued Romig for violation of E.N.'s constitutional due process rights, pursuant to 42 U.S.C. § 1983 ; intentional infliction of emotional distress; and assault and battery. Their claims against Pennridge School District, Pennridge Principal Thomas Creeden, and Pennridge Athletic Director David Babb (collectively, the "Pennridge Defendants") are for a violation of E.N.'s constitutional due process rights, pursuant to 42 U.S.C. § 1983 ; a Title IX sexual harassment claim, brought pursuant to 20 U.S.C. § 1681 ; and a state-law claim for willful misconduct. And, finally, their claims against Faith Christian Academy, Faith Christian Headmaster Ryan Clymer, and Faith Christian Athletic Director Russell Hollenbach (collectively, the "Faith Christian Defendants") are for negligence and negligence per se under Pennsylvania law. The Pennridge Defendants and each of the Faith Christian Defendants have filed motions for summary judgment on all claims against them, respectively, while Plaintiffs have filed a motion for summary judgment on their claims against Romig.¹ For the reasons described below, all Defendants' motions shall be granted and Plaintiffs' motion shall be granted in part and denied in part.

I. BACKGROUND

A. Romig's Coaching Career

Defendant Eric Romig ("Romig") served as part-time athletic coach at three southeastern Pennsylvania high schools between 2003 and 2013. It was never his full time job: While he was coaching, he held down a position as the manager of a local automobile service station.

1. Faith Christian Academy

Romig began his career as a high school coach at Faith Christian Academy ("Faith Christian") first as an assistant for the boys' baseball team from 2003 to 2004, and then as the head coach of the girls' basketball team from 2005 until his resignation on January 5, 2010, for "health reasons." In fact, although he cited health reasons, his resignation came at the request of Headmaster Ryan Clymer ("Clymer") after Clymer conducted a two-week investigation into reports from a girl on the basketball team that Romig had sent her thousands of personal text messages, some of which were allegedly sexual. During the investigation, Clymer interviewed the accusing student who provided him with a list of topics that were allegedly included in the text messages, including explicitly sexual content, but not the messages themselves which had already been deleted. He also interviewed two other female students who were rumored to have engaged in sexual communication or contact with Romig, and consulted with an acquaintance in the law enforcement community as well as Faith Christian's legal counsel. He kept the results of his investigation close, not informing anyone in the Faith Christian administration of the details. Even the school's Athletic Director Russell Hollenbach ("Hollenbach") only learned about the sexual nature of the allegations against Romig well after the close of the investigation. No report of the incident was made to law enforcement or child protection authorities. Clymer did, however, ask Romig to resign because of his "excessive texting" to the student.

2. Quakertown High School

In Spring 2008, while Romig was still coaching girls' basketball at Faith Christian, David Babb ("Babb"), the athletic director of Quakertown High School ("Quakertown") hired Romig to coach the Quakertown girls' softball team.² Romig resigned from Quakertown on January 5, 2010 (the same day he resigned from Faith Christian), citing health problems as the reason. In the meantime, Babb had left Quakertown to become the athletic director at Pennridge.

3. Pennridge High School

a. Initial Hiring as Assistant Softball Coach

In early 2012, when Babb needed to fill an open assistant softball coaching position at Pennridge, he and Pennridge's head softball coach Paul Koehler ("Koehler") encouraged Romig to apply. In filling out an application, Romig did not mention his prior coaching positions at Quakertown or Faith Christian. Nevertheless, Babb contacted the person who had replaced him as athletic director at Quakertown to ask why Romig left Quakertown and was told that Romig had resigned for heart-related health reasons. He then conducted the required criminal history and sexual abuse background checks on Romig which revealed no history of criminal activity or child abuse. That done, in early 2012 he offered Romig a position as "Softball Assistant Varsity (JV) Coach" for the "2011-2012 school year only," a contract which Romig accepted.

b. Application Coach girls' Basketball

Shortly after Romig started coaching softball at Pennridge, the school's head girls' basketball coaching position for the 2012-2013 season opened up and he applied for the job. This time, Romig's application did list his work at Faith Christian—the first formal disclosure to Pennridge that he had coached there. There is some dispute as to what happened next. Babb testified that, with this new information available to him, he approached Hollenbach (who was still the athletic director at Faith Christian), at a meeting and asked about Romig's basketball coaching qualifications. Hollenbach, says Babb, replied that Romig was an excellent basketball coach, but had "some texting issues" and that Romig had left Faith Christian due to a "difference in opinion." Hollenbach, however, does not recall this conversation at all, and testified that he last spoke with Babb years before. Babb claims that he reported the information he learned from Hollenbach to Pennridge Principal Thomas Creeden ("Creeden") and that Creeden responded by proposing a "let's-keep-an-eye-on-it-strategy." Creeden, however, does not recall any of this. He testified that he first learned of Romig's "texting issue" after Romig's arrest in October 2013.

In any event, Romig did not get the basketball coaching job.

c. Retained as Assistant Softball Coach for 2012-2013

He was, however, offered a contract to return to Pennridge as a softball coach for the "2012-2013 school year only," which he accepted in January 2013. That contract was not renewed for the 2013-2014 school year, but the record is unclear as to when Romig's employment at Pennridge ended. Both Babb and Romig contend that it ended no later than when he received his final paycheck at the end of the season, but two letters sent by Pennridge to Romig after the season was over suggest that his job continued beyond the end of the 2012-2013 school year and into the 2013-2014 school year. More specifically, on October 1, 2013, Pennridge's superintendent sent Romig a letter informing him that he was "suspended from any duties in connection with your position as girls' junior varsity softball coach" in light of his arrest. And, after he pled guilty in January 2014, Pennridge sent him a letter terminating him from his position.

B. Romig's Abuse of E.N.

Romig coached E.N. during both the 2012 and 2013 seasons while she was a member of the Pennridge girls' softball team. During the 2012 season, they had little communication outside of softball activities. However, during E.N.'s sophomore season, Romig began texting her about non-softball topics. She described the texts as efforts to "get to know me more," but, in May 2013, a few weeks before her sixteenth birthday, they became flattering and complimentary and, by June 2013, after the softball season was over, they became sexual. The first time they met outside of softball activities was at the very end of the 2012-2013 school year when Romig took E.N. to a park: they talked for about an hour, then Romig drove E.N. home. After that, they saw each other approximately twice per week during the summer, frequently exchanging several hundred text messages per week. Beginning in July, Romig would pick up E.N. near her home and take her to his house, where they had sex. These sexual encounters, some of which were overnight, occurred between 8 and 12 times throughout July, August, and September 2013. E.N. testified that Romig never asked her to do anything that she did not want to...