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Thomas v. Board of Trustees of Nebraska State Colleges

United States District Court, D. Nebraska

July 28, 2015

LATANYA THOMAS, Special Administrator of the Estate of Tyler Thomas, Plaintiff,


JOHN M. GERRARD, District Judge.

In the fall of 2010, Tyler Thomas (Tyler) was a freshman at Peru State College (PSC). She was 19 years old and lived in a dormitory on campus. Defendant Joshua Keadle, then 29 years old, was also a student at PSC, and lived next door to Tyler, in the same dormitory. Tyler was last seen in the early hours of December 3, 2010. The complaint alleges that shortly thereafter, Tyler was abducted, sexually assaulted, and murdered by Keadle. Filing 123 at 1-4. Although Tyler's body has never been recovered, she has been declared dead by a Nebraska court.

Tyler's mother, Latanya Thomas (Thomas), brings this case, asserting wrongful death claims on behalf of Tyler's next of kin, and survival claims on behalf of Tyler's estate. Thomas's claims are premised on Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) et seq. Thomas also brings state tort claims against Keadle, who has not appeared or otherwise defended this action to date. Thomas's claims against Keadle are not before the Court at this time. Rather, this matter is before the Court on the Motion for Summary Judgment (filing 181) filed by the defendant Board of Trustees of the Nebraska State Colleges (the Board), which is the governing body for PSC. The Board asks the Court to grant it summary judgment on Thomas's Title IX claims.

To state a claim under Title IX, Thomas must show that the Board had actual knowledge that Keadle posed a substantial risk of harm to Tyler, and that the Board, through deliberate indifference, exposed Tyler to that harm. This is a considerably more demanding standard than negligence. The question before the Court is not whether the Board acted reasonably. It is not enough for Thomas to show that the Board could, or should, have done more to discipline Keadle or to protect Tyler and other young women at PSC. Rather, the law requires Thomas to show that the Board disregarded a known or obvious risk. The Court has carefully considered the parties' evidence and arguments, and concludes that the Board's conduct, while perhaps negligent, falls well short of deliberate indifference to a known or obvious risk.

Accordingly, the Board's motion for summary judgment will be granted. The Board's motion to strike and its objections to various exhibits (filing 227) will be denied as moot-the Court has considered the entire record and nonetheless finds that summary judgment is appropriate. Likewise, Thomas's motions in limine (filings 171, 173, and 218) and her motion to find Keadle unavailable as a witness (filing 230) will be denied as moot.

With Thomas's claims under Title IX dismissed, only Thomas's statelaw claims against Keadle remain. The Court suspects (but, on the current record, is not certain) that diversity is lacking. However, the Court is now quite familiar with this case and will (unless Thomas wishes otherwise) exercise its supplemental jurisdiction over Thomas's remaining claims.


Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.


Between 2007 and 2010, Keadle transferred among several different Nebraska colleges. At one point prior to 2010, Keadle attended PSC for 1 year. See filing 209-2 at 13. When Keadle arrived at PSC in the fall of 2010, he was already on academic probation, due to his poor grades. Filing 204-1 at 5. At that time, Keadle was 29, and was living in the same dormitory as 18and 19-year old female students, including Tyler, who was his next-door neighbor. Filing 211-2 at 25; filing 203-1 at 7.

Keadle's academic performance in 2010 was quite poor, to say the least. And before long, it was apparent that Keadle's academic performance would not improve; in fact, he was essentially failing all of his classes. See, e.g., filing 204-1 at 6-7. And by the end of September, he had been accused of sexually harassing two female students. Filing 183-15 at ¶ 5; filing 183-17; filing 183-19. Thomas argues that, based on these incidents and several other red flags, the Board should have realized that Keadle posed a threat of sexual violence to young women at PSC.

Before moving forward, it will help to provide an overview of the PSC staff who are involved in this case. Michaela Willis served as PSC's Vice President for Enrollment Management and Student Affairs. Filing 183-15 at ¶ 2. Eulanda Cade was PSC's Director of Human Resources and its Title IX coordinator. Filing 183-4 at 4, 8. William Stonebarger was the Director of Housing and Security. Filing 183-10 at 4. And Steve Schneider was PSC's athletic director. Filing 183-6 at 4. Among these administrators, Willis was the final decisionmaker when it came to Keadle's continued presence at PSC. Schneider controlled the athletic department, but he reported to Willis. Filing 183-6 at 5, 9. And Stonebarger and Cade both lacked the authority to remove Keadle from PSC. See, filing 183-10 at 6, 14; filing 183-4 at 8.

A. The Athletic Department's Background Checks on Keadle

On August 31, 2010, Keadle applied to serve as a volunteer strength and conditioning assistant for the PSC women's basketball team. Filing 183-2 at 7; filing 183-16 at 13. School policy required anyone applying to become a voluntary staff member to undergo a criminal background check and be approved by PSC administration. Filing 183-2 at 7. However, the women's basketball coach allowed Keadle to serve as an assistant prior to the background check being completed. When Schneider learned of this, Keadle's involvement with the women's basketball team was terminated pending completion of the background check. Filing 183-2 at 7-8. Cade was responsible for completing the background check, which she did between August 31 and September 10. That check revealed only minor traffic offenses. Filing 183-15 at ¶ 4; filing 183-16 at 15-45.

Around the same time, PSC security came to suspect that Keadle had stolen a laptop. Filing 203-2 at 3. The matter was investigated by Stonebarger, but at some point the Nemaha County Sheriff's Department became involved. See, filing 203-2 at 3-4; filing 183-10 at 4. On September 12, 2010, Stonebarger received an email from Greg Conz, one of his employees (the "Conz email"). Filing 183-2 at 35. In the email, Conz informed Stonebarger that a sheriff's deputy had located criminal records relating to Keadle from Fremont, Nebraska. Filing 183-2 at 35. Keadle had previously attended Midland Lutheran College, which is located in Fremont. Filing 208-2 at 14.

The email stated, in relevant part: "[Keadle] was convicted of robbery of $300 and stealing a purse, in '09[, ] also [he] has other burglary's [sic] but he was not charged for them, also has a forcible fondling (RAPE) on a 18-yrold female charge on record, but the charges were droped [sic]." Filing 183-2 at 35. Stonebarger testified that he verbally informed Willis, Cade, and Schneider about the contents of the email.[2] Filing 202-4 at 15-16.

After learning that nothing significant was revealed by the first background check, Stonebarger "wasn't comfortable" and talked to the sheriff, who told Stonebarger that he needed to run a check using Nebraska's online "JUSTICE" system (a database of state trial court information). Filing 183-10 at 5-7, 15. Stonebarger then persuaded Cade to run an additional background check using that system. Filing 183-10 at 15; filing 183-4 at 6. The second check was conducted on or around September 17, 2010. See filing 183-16 at 2-12. In addition to minor traffic offenses, the second check revealed a misdemeanor theft conviction from 2009 in Dodge County, Nebraska (where Fremont is located). Filing 183-2 at 8; filing 183-4 at 6; filing 183-15 at ¶ 4; filing 183-16 at 4-5. But it did not contain any mention of the allegation of forcible fondling; and there is no evidence that PSC officials learned anything more about that allegation prior to Tyler's disappearance.

In addition to the background checks, Schneider contacted Midland's athletic director. The Midland athletic director did not recommend hiring Keadle. Filing 183-2 at 8; filing 183-6 at 6. Schneider testified that he asked the Midland director why "and they said - they didn't share any specifics, just didn't feel it would be a good fit for their program." Filing 183-6 at 6. Based on this lackluster recommendation and the results from the background checks, PSC determined that Keadle would not be allowed to serve as a voluntary coaching assistant. Filing 183-2 at 8.

Schneider testified that, during this process, the women's basketball coach had "kind of put together a, I guess for lack of a better term, kind of an appeal for, you know, Josh and advocating [to] have him on the team." Filing 208-2 at 32. But Schneider stood by his initial decision. Filing 208-2 at 20-21. Schneider also told the coach that Keadle was not to have any contact with the women's basketball team and was not to be associated with the women's basketball team or the athletic department. Filing 208-2 at 28-30, 45, 46.

B. Incidents of Sexual Harassment

In September 2010, Keadle was charged with two separate violations of PSC's Code of Conduct based upon allegations of Keadle's inappropriate sexual behavior toward two female students at PSC. Filing 183-15 at ¶ 5. The Court will refer to them as "student 1" and "student 2." Both students submitted written statements.[3]

1. The Incident Involving Student 1

Student 1's statement was dated September 22, 2010, and stated, in full:

I first ran into Josh, he asked me for a ride. I told him if he could tell me my name, I would. He could not remember my name, so I told him to walk and he did. The next time I saw Josh, he held the door opened [sic] for me, and asked if I was engaged. I told him no. He then replyed [sic] with good. He told me he had moved across the hall from me and I told him I knew that. Josh then said he would be up to hit on me later. I walked up to my room, set my bags down and heard a knock on the door. It was Josh, he said he came to hit on me. He told me that I was very pretty, I had a good body, just the way he liked. I just laughed it off. He then asked me if he had a chance with me, I told him to walk back across the hall to his room. Josh then left and I shut the door behind him. The last time I talked to Josh, he came down to the [dormitory] office when I was on duty. He told me again that I was good looking and had the type of body he liked. I once again ignored him. He then went into the game room and tried to get me to help him with his homework. I told him I did not have time because I was doing my own. He stayed down in the gameroom until I had to lock it up at 11 pm. When I locked up the office he came to the door and asked for a good night kiss. I told him no and walked up to my room. Josh was verbal [sic] harassing me every time I talked to him. I never felt uncomfortable until he asked me for a kiss and I was downstairs by myself. I was very clear when I told him no and since then he has not bothered me, other than telling me hello when he sees me in the hallway or around campus.

Filing 183-17 at 2-3.

In his written response, Keadle admitted that student 1's statement was true. But he explained that his actions (apparently referring to the kiss incident) had been taken the wrong way and were meant as a joke. Filing 183-18. Keadle pleaded "responsible" to the charge and was issued sanctions consisting of ...

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