T.R. v. Howard

1

T.R., Plaintiff, v. PATRICK HOWARD, et al., Defendants.

Civ. No. 20-276 GBW/JHR

United States District Court, D. New Mexico

November 3, 2023

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

GREGORY B. WORMUTH CHIEF UNITED STATES MAGISTRATE JUDGE

THIS MATTER comes before the Court on Defendants LCPS and Dana Critchlow's^[1] Motion for Summary Judgment and Supporting Memorandum. Doc. 153. Having reviewed the Motion and its attendant briefing (docs. 199, 211) and being otherwise fully advised, the Court will GRANT the Motion IN PART and DENY the Moton IN PART.

I. Background

Plaintiff T.R. attended Las Cruces High School in Las Cruces, New Mexico, graduating in 2019. See doc. 94 ¶ 86; 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. 211 at 7. Plaintiff initiated this case on March 27, 2020, 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. 94, 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. 153 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. 199. The Motion was fully briefed on June 20, 2023, see doc. 212, with the filing of Defendant LCPS's reply, see doc. 211.

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 touched Plaintiff's hair, shoulders, low back, upper thigh, and buttocks, and he gave Plaintiff several full frontal hugs. See doc. 217 at 4-6. In 2021, Defendant Howard pled guilty to Criminal Sexual Contact of a Minor in the Third Degree. Id. at 7.

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 20; doc. 199 at 5, 45; doc. 211 at 22.

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 21-22, 24; doc. 199 at 6.^[2]

4. Also on January 19, 2018, Plaintiff was “pulled out of class . . . via loudspeaker, interrogated about Howard's sexual harassment and physical abuse, and then sent back to class without inquiry whether she was ready or able to return to class.” PUMF VV; doc. 211 at 12. Plaintiff testified that being called out of class by name made her feel like she was a “criminal” and like she had done something wrong. PUMF WW; doc. 211 at 12; doc. 199-1 at 76, 214:17-215:01.

5. After Defendant Howard was arrested, Plaintiff and other victims were indirectly referred to as “bitches” by certain students at LCHS. Plaintiff was also directly called a “bitch” on at least one occasion. Plaintiff testified that she was called derogatory names during the Spring semester of her junior year and her entire senior year at LCHS. PUMF XX (citing doc. 199-1 at 118:12-119:18); doc. 211 at 12.

6. Plaintiff testified that another female student at LCHS, C.H., told Plaintiff that after Defendant Howard was arrested, students removed a photo of Plaintiff that Howard had kept in his desk drawer and put it on the board in his classroom and wrote “nasty” things on the board, such as that Plaintiff “was just doing it for attention” and “was a slut.” PUMF XX (citing doc. 199-1 at 68, 119:20-120:04); doc. 211 at 12.

7. In addition, students would write “Free Howard” on whiteboards, doors, walls, and staircases at LCHS. Doc. 199-1 at 67, 116:11-18; doc. 211 at 12; doc. 211-3 at 139:14-23. Plaintiff testified that she saw at least 25 “Free Howard” signs posted at school after Howard's arrest and that the signs were “all over the place, and I kind of had to shut it out to get through the day.” Doc. 199-1 at 67, 116:11-18; doc. 199-1 at 72, 174:24-175:24. Students also wrote “Free Howard” on sidewalks on school grounds, which stayed for “weeks on end” until it was washed off by rain.^[3] Doc. 199-1 at 163, 66:03-11; doc. 199-1 at 153, 106:19-21; doc. 211 at 13. C.H. testified that Petitions to “Free Howard” or “get Howard back to teaching” were posted in classrooms and not taken down. Doc. 199-1 at 163, 66:05-08.

8. After LCPS's investigation into Patrick Howard started, LCPS created a “safety plan” which included a “pressure pass.” The pressure pass permitted Plaintiff to leave class without explanation if she was having anxiety or otherwise needed to “get out of class for a few moments.” Defendant LCPS provided this pass to Plaintiff upon the request of Plaintiff's mother. Doc. 153-1 at 35, 22:20-23:03; id. at 49, 176:01-19.

9. Plaintiff's “safety plan” also designated teacher Pamela Cort as Plaintiff's “safety person,” which meant that Ms. Cort was available to talk to Plaintiff if Plaintiff needed support and that Plaintiff could use Ms. Cort's office as a “safe space” if she wanted to “be away from other people” at LCHS. Doc. 153-1 at 89, 46:16-47:09.

10. Prior to Defendant Howard's arrest, Plaintiff was a judge and a leader in LCHS's FFA program, of which she had been a member since her sophomore year. During her sophomore year, Plaintiff was on the FFA Wildlife CDE judging team that placed first in the state. PUMF DDD; doc. 211 at 7.

11. Plaintiff testified that although she had planned to participate in FFA during her senior year, she withdrew from FFA after Defendant Howard's arrest in early 2018, during her junior year. PUMF DDD; doc. 211 at 7.

12. Plaintiff testified that a reason she stopped participating in FFA was the bullying she endured from other LCHS students after Defendant Howard was suspended from teaching. PUMF EEE (citing doc. 199-1 at 51, 52:0109); doc. 211 at 13-14.

13. Because of the bullying that was occurring in FFA, school administrators reviewed the code of conduct with FFA members and Assistant Principal Grubbs attended one FFA meeting and rode on bus to one judging trip “to help make sure there weren't any bullying or threats of bullying going on.” Doc. 199 at 9; doc. 153-1 at 86-87, 28:17-29:04. Teacher Jessica Gute also “addressed” the “Free Howard” posters with students in her classroom.

Doc. 199 at 9.

14. 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. 153-1 at 116.

15. 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. 153-1 at 98. This language is included under a section titled: “Standards of Conduct” and a subheading titled “Duty under the Policy." Id.

16. Vice Principal Dana Critchlow did not have the authority to hire, fire, or suspend teachers. DUMF 73; doc. 199 at 11 (disputing DUMF 73 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...