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KD v. Douglas County Public School District No. 001

United States District Court, D. Nebraska

November 1, 2019




         This matter is before the Court on the Motions for Summary Judgment filed by Defendant Douglas County Public School District No. 001, a/k/a Omaha Public Schools (OPS), ECF No. 124, and Defendant Daniel Bartels, ECF No. 132. Also before the Court are Plaintiffs' Motion in Limine, ECF No. 148, and Defendants' Joint Objection to the Magistrate Judge's Preliminary Pretrial Order, ECF No. 167. The Motions for Summary Judgment will be granted and the Motion in Limine and Objection will be denied as moot.


         The following facts are those stated in the parties' briefs, supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56. The Court has also drawn from the parties' joint statement of uncontroverted facts.

         I. The Parties

         Plaintiff LD was a student in her 7th and 8th Grade years in OPS at Alfonza Davis Middle School (“Davis Middle School”) from August 14, 2013, through May 22, 2015. The 2013-14 school year was the first year that Davis Middle School was open. LD attended Marian High School beginning in the fall semester 2015 as a freshman and graduated with honors in May 2019. At Marian High School, LD was a member of the National Honor Society, Mu Alpha Theta Math Society, the Quill & Scroll journalism honorary society, and participated in various clubs and sports. Plaintiffs KD and JD are LD's parents. MD is LD's older sister and was three grades ahead of LD in school. ND is LD's younger sister.

         OPS is a political subdivision and school district. Daniel Bartels is an administrator employed by OPS and during the relevant time was Principal of Davis Middle School.

         Defendant Brian Robeson was formerly employed by OPS and taught at Davis Middle School. OPS interviewed Robeson and received satisfactory written references for him before he was hired. Robeson disclosed on his application that he had a DUI, which did not disqualify him from teaching, because he was not being hired to drive students.[2] Before hiring Robeson, OPS checked the child abuse registry, which showed no entries for Robeson, and checked for criminal background through a private agency. By 2006, Robeson had a Master of Science Degree in Elementary Education with a concentration in math and science.

         Robeson taught from August 2003 to 2013 at OPS's Prairie Wind Elementary School and received satisfactory evaluations. He taught sixth grade for several years. In 2013, he transferred from Prairie Wind Elementary to Davis Middle School, because Prairie Wind Elementary was eliminating its 6th Grade. After transferring, Robeson taught 7th Grade pre-algebra and algebra, and a “Take Flight Class.” Bartels did not know Robeson until he was assigned to teach at Davis Middle School. Robeson's classroom was Room 150, which was the first classroom in the 7th Grade wing of the school. In 2013-14, Robeson taught algebra to LD. She was also in Robeson's “Take Flight Class.” Robeson was not LD's teacher in 2014-15 when she was in 8th Grade.

         II. Overview of OPS Policies

         The OPS Board of Education (BOE) has the power to hire, suspend and terminate teachers. Neb. Rev. Stat. §79-827. In order to exercise its rights and duties, the BOE prepared and published policies and regulations covering organization, policies, and procedures of the school system. OPS had policies in effect for the 2013-15 school years which prohibited sexual harassment and provided a complaint system for the reporting of sexual harassment.

         During the relevant time, no formal OPS policies prohibited teachers from hugging students or being alone in a classroom with a student. Yet OPS had specific policies related to employee-to-student harassment, teacher boundaries, reporting of suspected child abuse, and educator misconduct. These policies were included in several publications distributed to principals, teachers, and other employees.

         OPS had a specific policy regarding teacher boundaries, independent of the employee-to-student harassment policy, including guidelines for electronic communication, romantic relationships, gift giving, special treatment, and other signs of grooming. The policy made clear that students cannot consent to such conduct. In the 2013-14 school year, OPS implemented district-wide training for all staff regarding prevention of adult sexual misconduct and reporting of child abuse and neglect. OPS refreshed the training annually.

         The OPS Department of Student and Community Services periodically issued “Intercommunications Memos” to Principals, Assistant Principals, Deans of Students, Counselors, and others regarding “Reporting of Abuse and Neglect, ” which also included procedures for reporting harassment and abuse. Recipients were instructed to review the reporting procedures with all staff. For the 2014-15 and 2015-16 school years, OPS distributed a “Principal Packet” to all district principals. The Principal Packet included a memo with flow charts for the reporting of harassment. Principals were to review the procedures in a staff meeting at the beginning of each school year.

         The Davis Middle School Student Handbooks for 2013-14 and 2014-15 included a definition of sexual harassment. The Handbooks also described the process for reporting sexual harassment by an employee or visitor, the options and process for reporting abuse and neglect, and the phone number for the Assistant Superintendent for Student and Family Services. The policies applied to all school-sponsored activities on or off campus, and included an explanation of confidentiality, a prohibition of retaliation, and an appeal process.

         The parties agree that the OPS superintendent had primary responsibility for enforcing school policies for teachers. The superintendent delegated that responsibility to OPS Human Resources and school principals, depending on the situation and the context. Principals enforced policies with the support of Human Resources. Bartels considered it his job to investigate reports of misconduct and to use his discretion and skills as a principal to determine whether reports were substantiated.

         III. Reports of Robeson's Behavior During the 2013-14 School Year

         In August 2013, Counselor Jen Walker reported to Bartels that staff members, herself included, witnessed Robeson hugging many students, male and female. Bartels Dep. 57:24-58:16, 58:20-62:1, ECF No. 128-1. Bartels responded by coaching Robeson on proper interactions with students, including a physical demonstration of how to use a side hug and high five. Bartels Dep. 40:19 - 41:5, ECF No. 128-1.

         Later in the 2013-14 school year, teacher Christine Jurgens spoke to Bartels about Robeson giving prolonged hugs to students, not including LD. Jurgens stated that she and Bartels together once observed Robeson give a prolonged hug. Jurgens Dep. 50:24- 53:7, ECF No. 128-5. Bartels responded by having a discussion with Robeson which stopped the hugging for a few days.

         LD transferred from the Westside School District to OPS for her 7th Grade year. She had been reluctant to attend Davis Middle School because she would miss her friends. She was randomly assigned to Robeson's “Take Flight Class” in 7th Grade and was transferred from pre-algebra to algebra as a result of placement testing and her parents' request. Robeson was the only algebra teacher at Davis Middle School. Robeson knew LD and her family because they attended the same church.

         On April 23, 2014, Bartels was informed that Robeson was mentoring LD in his classroom. Bartels told Robeson to stop immediately and explained that Robeson needed to seek permission from LD's parents. Robeson told Bartels that LD's parents wanted Robeson to mentor her. At some point, LD's parents gave permission for Robeson to have lunchtime meetings with LD outside the classroom. The lunches were to take place somewhere in the administrative office area.

         IV. Reports of Robeson's Behavior During the 2014-15 School Year

         Early in September 2014, Instructional Facilitator Jennie Meyer reported that LD, now in 8th Grade, and several of her friends were going to the 7th Grade floor. Later in the fall of 2014, Meyer reported that she saw LD in Robeson's classroom with the door open. Because LD was crying, Assistant Principal Amy Ellis went to the classroom and inquired why LD was at that location and why she was crying. Robeson responded that LD was okay and on her way to class. Ellis suggested that LD see a counselor, but LD went on to her class.

         On October 20, 2014, LD spoke to Walker about the way counselor Chris Johnson looked at her. Later, Walker spoke to Bartels and to LD's mother to address the situation. Bartels visited with Johnson.

         In November 2014, Bartels walked by Robeson's classroom and observed Robeson and LD eating lunch in his classroom with the door open. Bartels asked them what they were doing, and both responded they were having lunch and doing their mentoring. Bartels reminded them that mentoring needed to take place in the administrative office. Later that day, Bartels met with Robeson and reminded him that it was his responsibility as a mentor to make sure mentoring occurred in the office, and not his classroom. Later that semester, Bartels gave permission for the mentoring to take place in the conference room next to the principal's office, provided that the door was open and both Robeson and LD could be viewed from the hallway.

         Sometime in late winter of the 2014-15 school year, likely February 2015, Walker, informed Bartels that a coach[3] saw Robeson tie LD's shoe in the hallway by the girl's locker room when other athletes and coaches were present. Bartels asked Robeson about the incident and he denied it happened.

         On March 4, 2015, an unsigned handwritten note was left in Bartels's mailbox. It said, paraphrased, “I find it curious that LD is absent on the same day as Mr. Robeson.” Bartels Dep. 82:25-83:18, ECF No. 128-1. Bartels discussed the note with Assistant Principal Amy Ellis but they could not identify the author from the handwriting. The note was discarded. On the same day, Bartels called LD's father to verify LD's absence. LD's father informed Bartels that LD was home ill.

         In April 2015, paraprofessional Chantalle Galbraith reported that she saw Robeson grab LD's phone from her back pocket. Galbraith was concerned because staff had just received training about possessing student property. Bartels asked Robeson to explain what happened. Robeson's report was consistent with Galbraith's. Bartels warned Robeson not to engage in that type of conduct.

         Later in the spring of 2015, Galbraith saw Robeson hug[4] LD in the hallway and saw him eating lunch with LD in his classroom, with the door closed and lights dim. In response, Bartels instructed the security guard to walk by Robeson's classroom. The security guard reported that no one was in the classroom. Nevertheless, Bartels advised Robeson that his conduct was inappropriate and counseled him about proper interactions with students.

         On May 1, 2015, Rebecca Stichler, special education resource teacher, emailed Walker, stating: “I am concerned with [LD] and the amount of time that she is spending with Mr. Robeson, her mentor. I am thinking if she needs this much support from him, she should be receiving support or help beside what he can offer her. I meant to catch you earlier.” ECF No. 127-21; Bartels Dep. 253:24 - 254:7, ECF No. 128-1. Walker responded later that day, stating: “I agree that is a concern. I have worked with her a little bit on some friendship issues but have not seen her lately. I will call [LD's] family and offer some additional resources.” ECF No. 127-21. Bartels was copied on Walker's response. Walker also informed Bartels that she had noticed LD in Robeson's classroom and in the hallway outside that room very frequently in the week before May 1, 2015. Bartels understood that Walker contacted LD's parents to discuss the activity. Bartels Dep. 22:12-23:1, 42:14-19, ECF No. 128-1.

         Friday, May 22, 2015, was the last day of school for students and the day before Memorial Day weekend. On that day, Stichler observed Robeson touch female students and saw him give a “full frontal” hug, chest to chest, with both arms around a female student's body, for approximately 60 seconds. Robeson also kissed a female student on her head. Stichler reported her observations to Bartels. That night, Bartels emailed Stichler, thanking her for sharing her concerns and stated “In addition, if you believe there is wrong doing you probably need to call cps [Child Protective Services] let me know if you do so I can do what I need to do with the information. ECF Nos. 127-23, 127-24. Stichler contacted CPS about the hug and also reported “other behaviors I have seen this school year between [Robeson] and one female student in particular, [LD]. . . . I have observed him poking her in the ...

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