Robert R. v. Jefferson Cnty. Sch. Dist. R-1

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ROBERT R. and JULIE R., as Parents and Guardians of Dylan, a disabled adult, Plaintiffs, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, Defendant.

Civil Action No. 1:20-cv-01558-CNS-NRN

United States District Court, D. Colorado

September 8, 2022

ORDER

CHARLOTTE N. SWEENEY JUDGE

Before the Court is Defendant's Motion for Summary Judgment. (ECF No. 67). The Court GRANTS IN PART AND DENIES IN PART the motion for the following reasons.

I. FACTS

This civil action arises from the alleged sexual assault of Dylan, then a minor, by K.G., a fellow minor classmate, in a Jefferson County public school. On August 19, 2020, Plaintiffs filed their Amended Complaint alleging: (1) violation of Title IX, 20 U.S.C. § 1681, et seq.; (2) state-created danger, in violation of 42 U.S.C. § 1983; (3) failure to train, in violation of 42 U.S.C. § 1983; and (4) violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Americans with Disabilities Act (ADA), 42 U.S.C. § 12102, et seq., on behalf of Dylan and (5) violation of parental rights under Section 504. (ECF No. 24). On September 9, 2020, Defendant answered, raising affirmative defenses of (1) failure to minimize or mitigate damages; (2) damages not to the extent and nature as alleged; and (3) non-derivative damages sought by Plaintiffs being barred. (ECF No. 29, p. 15).

In the instant motion, Defendant moves for summary judgment arguing that there is no genuine dispute of material facts that (1) Dylan was not discriminated against in violation of Title IX; (2) Defendant did not affirmatively act to endanger Dylan; (3) Dylan's due process rights were not violated; (4) Defendant did not engage in disability discrimination under Section 504 and the ADA; and (5) Robert and Julie lack standing under Section 504. (ECF No. 67).

II. LEGAL STANDARD

Summary judgment is warranted when (1) the movant shows that there is no genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The factual record and reasonable inferences must be construed in the light most favorable to the nonmoving party. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The moving party bears the initial burden, but once met, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986). Ultimately, the Court's inquiry on summary judgment is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. “[Q]uestions of intent, which involve intangible factors including witness creditability, are matters for consideration of the fact finder after a full trial.” Prochaska v. Marcoux, 632 F.2d 848, 851 (10th Cir. 1980).

III. UNDISPUTED FACTS

Dylan and K.G. are people with disabilities, both physical and intellectual. Both Dylan and K.G. received special education services at Bear Creek High School within its Significant Support Needs (SSN) classroom. Cindy Dominguez and Brian Grudowski were special education teachers who taught and supervised Dylan and K.G. Dominguez was also Dylan's case manager, who oversaw, among other things, his Individualized Education Programs (IEPs).

On October 12, 2016, K.G. yelled to Dylan and another classmate, “I hate you [J.M.], I hate you, Dylan, I'm going to hurt you, Dylan.” (ECF No. 76-1, pp. 11-12). That same day at lunch, when Dylan and J.M. did not want to sit with K.G. she yelled “I hate you, Dylan,” “I am going to kill you,” “I am going to hurt you, [J.M.].” K.G. charged at Dylan, hands out, and yelled, “I will kill you, Dylan, get over here so I can kill, you.” (Id., pp. 13-14; ECF No. 67, p. 6). School Psychologist Lisa Pontine and Principal Lynn Torr stepped in front of K.G. to physically shield Dylan. (ECF No. 67, p. 6). Later in October 2016, Dylan and K.G. went missing from a drama class together and were found in the school theater. Defendant admits that K.G. was discovered lying on top of Dylan and kissing him. (ECF No. 29, pp. 6-7).

In November 2016, K.G. again had an outburst in gym class and yelled “I hate you” at Dylan and J.M. A teacher removed K.G. from the gym. In February 2017, K.G. yelled at Dylan “I hate you, Dylan,” and “I'm going to stab you, Dylan.” (ECF No. 76-1, p. 17; ECF No. 67, pp. 7-8). On March 1, 2017, a teacher confiscated a note from K.G. which said “I'm going to hurt you, I'm going to stab (blank) and Dylan . . . I am going to kill myself.” K.G. was escorted to see Pontine, the school psychologist. (ECF No. 76-1, p. 163). That same day, during a math test, Grudowski confiscated a pair of scissors from K.G. because she was staring at the blades “in an almost trance like state” and not focusing on the test. (ECF No. 68-2, p. 20). On March 1, 2017, Grudowski reported the scissor incident to Elizabeth Cole, Assistant Principal. (ECF No. 68-2, p. 21).

During this time, K.G. also wrote several notes to Dylan regarding her feelings, having sex, and having children. Some of these notes were found by Dylan's parents. (ECF No. 67, p. 9; see ECF No. 68, pp. 1-5). On May 2, 2017, Assistant Principal Cole emailed Robyn Klein, the school social worker, to have a conversation with K.G. and stop her from sending unsolicited notes and comments to Dylan. (ECF No. 68-2, p. 22). On May 2, 2017, Klein emailed Grudowski and Assistant Principal Cole stating: “I pulled Dylan aside today and told him he is not to engage in this sort of behavior and that if [K.G.] is trying to get him to, he is to say that it is not appropriate for him to talk about at school and go sit somewhere else not around her.” (Id., p. 23).

On May 10, 2017, Dylan's mother emailed Klein, Pontine, Dominguez, Grudowski, and Assistant Principal Cole: “We are furious that this continues to be an ongoing thing with this girl . . . We can't just ignore this behavior and have this go on for the rest of high school. What are the next steps here?” (ECF No. 68, p. 34). On December 14, 2018, Grudowski emailed Katie Cooper, a District Board Certified Behavior Analyst, noting that “[K.G.] is in a tailspin with her behaviors.” (ECF No. 76, p. 46; ECF No. 68-3, pp. 23-24). On December 17, 2018, Erin Reiner, an art teacher, reported to Assistant Principal October Minnotte that on December 13, 2018, a classmate had witnessed K.G. watching videos in class regarding, among other things, how to perform fellatio. (ECF No. 76, p. 45; ECF No. 76-1, p. 178).

On December 18, 2018, at approximately 11:57 a.m., Dylan and K.G. left the cafeteria and arrived in front of a boy's bathroom. At approximately 12:02 p.m., Dylan entered the bathroom, soon followed by K.G. At approximately 12:14 p.m., school security officer Mark Bridges found K.G. and Dylan in a bathroom stall after being alerted to the situation by two other students. (ECF No. 69). Dylan climbed out from underneath the stall and was instructed to go back to his class. Bridges watched him return to his class. Bridges then saw K.G. exit the stall and sent her back to her class. (ECF No. 68, p. 27; ECF No. 68-3, pp. 272-73).

A student reported to Reiner that she overheard K.G. discussing the alleged sexual assault. Reiner then reported this information to Dominguez and Grudowski. (ECF No. 67 p. 16; ECF No. 68-3, pp. 21-22). Assistant Principal Minnotte interviewed K.G. on December 18, 2018, who admitted that she had sexual contact with Dylan. (ECF No. 68-3, p. 159). Minnotte also interviewed the two students who had initially overheard the encounter in the bathroom. (Id.). The same day, Minnotte reported the incident to Robert R., Dylan's father, and provided a summary of the preliminary investigation. (ECF No. 68, p. 96). On December 19, 2018, Assistant Principal Minnotte informed Dylan's parents that she had opened a Title IX investigation into the incident and referred the issue to the police to conduct an investigation. (ECF No. 68, p. 6). The District closed the Title IX investigation on or about March 22, 2019. (ECF No. 76, p. 8).

IV. ANALYSIS

Having reviewed the Amended Complaint, the motion for summary judgment, the related briefing, and the relevant legal authority, the Court finds that there are disputed questions of material fact that preclude summary judgment on some of the claims.

1. Violation of Title IX

A recipient “of federal funds may be liable under Title IX for its own conduct in being deliberately indifferent to student-on-student harassment.” Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008). A school district is liable under Title IX if it “(1) has actual knowledge of, and (2) is deliberately indifferent to, (3) harassment that is so severe, pervasive and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school.” Id.; see also Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999). Specifically, Defendant argues that (1) no appropriate person knew about K.G.'s notes or “angry yelling”; (2) none of these instances constitute harassment under Title IX; (3) staff were not deliberately indifferent; and (4) Dylan suffered no loss of educational opportunity.

“To be severe, pervasive, and objectively offensive, the behavior must be serious enough to have a ‘systemic effect' of denying equal access to an education.” BPS v. Bd. of Trustees for Colorado Sch. for the Deaf & Blind, No. 12-CV-02664-RM-KLM, 2015 WL 5444311, at *13 (D. Colo. Sept. 16, 2015). A single, serious sexual assault can satisfy the severe, pervasive, and offensive standard. Doe 1 v. Howard Univ., 396 F.Supp.3d 126,...