United States District Court, D. Nebraska
KD, PARENT, NATURAL GUARDIAN AND NEXT FRIEND OF LD; AND JD, PARENT, NATURAL GUARDIAN AND NEXT FRIEND OF LD; Plaintiffs,
DOUGLAS COUNTY SCHOOL DISTRICT NO. 001, DANIEL BARTELS, BRIAN ROBESON, JOE DOE, and JANE DOE, Defendants.
MEMORANDUM AND ORDER
SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE
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.
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 and Federal Rule
of Civil Procedure 56. The Court has also drawn from the
parties' joint statement of uncontroverted facts.
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
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.
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. 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
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.
Overview of OPS Policies
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.
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.
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.
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.
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.
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
Reports of Robeson's Behavior During the 2013-14 School
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.
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
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
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
Reports of Robeson's Behavior During the 2014-15 School
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
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.
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.
in late winter of the 2014-15 school year, likely February
2015, Walker, informed Bartels that a coach 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.
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.
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.
in the spring of 2015, Galbraith saw Robeson
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.
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.
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 ...