Opinion
Civil Action No. 1:19-cv-917 (RDA/WEF)
2024-04-22
B.R., Plaintiff, v. F.C.S.B., et al., Defendants.
Alison Anderson, Pro Hac Vice, Boies Schiller Flexner LLP, Los Angeles, CA, Andrew S. Brenner, Pro Hac Vice, Samantha Licata, Pro Hac Vice, Brittany Zoll, Pro Hac Vice, Robert Keefe, Pro Hac Vice, Samantha Pedersen, Pro Hac Vice, Boies Schiller Flexner LLP, Miami, FL, Bernard Joseph DiMuro, DiMuroGinsberg, P.C., Alexandria, VA, David Alan Warrington, Gary Lawkowski, Jonathan Mark Shaw, Dhillon Law Group, Inc., Alexandria, VA, Jason Matthew Hart, Kelly N. Stevenson, Pro Hac Vice, Melissa Fry Hague, Pro Hac Vice, The Joel Bieber Firm, Richmond, VA, Jonathan Leo Fahey, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, Karin Moore Sweigart, Pro Hac Vice, Dhillon Law Group, San Francisco, CA, Vanessa Bernstein Tussey, Pro Hac Vice, Boles Schiller Flexner LLP, Fort Lauderdale, FL, for Plaintiff. Kevin Spencer Elliker, Hunton Andrews Kurth LLP, Richmond, VA, Ryan Bates, Scott Wallace Burton, Sona Rewari, Hunton Andrews Kurth, LLP, Washington, DC, for Defendant F.C.S.B. Michael Eugene Kinney, The Law Office of Michael E. Kinney, PLC, Reston, VA, Ryan Bates, Hunton Andrews Kurth LLP, Washington, DC, for Defendants S.T., A.F., P.A.H., T.B., B.H., M.P.F., M.C., F.T., J.F. James Francis Davis, James F. Davis, P.C., Fairfax, VA, for Defendant C.K. Bruce Michael Blanchard, James Paul Menzies Miller, Odin, Feldman & Pittleman, PC, Reston, VA, for Defendant J.O.
Alison Anderson, Pro Hac Vice, Boies Schiller Flexner LLP, Los Angeles, CA, Andrew S. Brenner, Pro Hac Vice, Samantha Licata, Pro Hac Vice, Brittany Zoll, Pro Hac Vice, Robert Keefe, Pro Hac Vice, Samantha Pedersen, Pro Hac Vice, Boies Schiller Flexner LLP, Miami, FL, Bernard Joseph DiMuro, DiMuroGinsberg, P.C., Alexandria, VA, David Alan Warrington, Gary Lawkowski, Jonathan Mark Shaw, Dhillon Law Group, Inc., Alexandria, VA, Jason Matthew Hart, Kelly N. Stevenson, Pro Hac Vice, Melissa Fry Hague, Pro Hac Vice, The Joel Bieber Firm, Richmond, VA, Jonathan Leo Fahey, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, Karin Moore Sweigart, Pro Hac Vice, Dhillon Law Group, San Francisco, CA, Vanessa Bernstein Tussey, Pro Hac Vice, Boles Schiller Flexner LLP, Fort Lauderdale, FL, for Plaintiff. Kevin Spencer Elliker, Hunton Andrews Kurth LLP, Richmond, VA, Ryan Bates, Scott Wallace Burton, Sona Rewari, Hunton Andrews Kurth, LLP, Washington, DC, for Defendant F.C.S.B. Michael Eugene Kinney, The Law Office of Michael E. Kinney, PLC, Reston, VA, Ryan Bates, Hunton Andrews Kurth LLP, Washington, DC, for Defendants S.T., A.F., P.A.H., T.B., B.H., M.P.F., M.C., F.T., J.F. James Francis Davis, James F. Davis, P.C., Fairfax, VA, for Defendant C.K. Bruce Michael Blanchard, James Paul Menzies Miller, Odin, Feldman & Pittleman, PC, Reston, VA, for Defendant J.O. ORDER Rossie D. Alston, Jr., United States District Judge
This matter comes before the Court on Defendants' renewed motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 (Dkt. Nos. 955; 960; 962) and Plaintiff B.R.'s motion for judgment as a matter of law pursuant to the same (Dkt. No. 956). In lieu of oral argument on their motions, the parties agreed to submit written briefs in support of their motions. For the reasons that follow, (i) FCSB's motion is DENIED; (ii) the Individual School Defendants' motion is DENIED with respect to S.T., A.F., P.A.H., and T.B. and TAKEN UNDER ADVISEMENT with respect to M.C., F.T., M.P.F., J.F., and B.H.; (iii) J.O.'s motion is DENIED; and (iv) Plaintiff's motion is DENIED.
I. BACKGROUND
The Court assumes familiarity with the underlying facts of this case from the Court's various opinions on prior motions to dismiss (Dkt. Nos. 85; 236), the Fourth Circuit's opinion, B.R. v. F.C.S.B., 17 F.4th 485 (4th Cir. 2021), and Magistrate Judge William E. Fitzpatrick's various orders, including his most recent order denying Defendants' motion for sanctions (Dkt. 612).
Plaintiff (also referred to as "B.R.") alleges that she was repeatedly sexually assaulted and harassed from October 2011 to February 2012, when she was a seventh grader at Rachel Carson Middle School ("RCMS")—a Fairfax County Public School ("FCPS"). Dkt. 155 ¶¶ 1, 98, 102-03. Plaintiff asserts that two of the perpetrators of the assaults and harassment were C.K. and J.O., two other students at RCMS. Id. ¶¶ 127-132. Plaintiff asserts that she repeatedly sought the assistance of RCMS and FCPS school officials and that, despite doing so, she continued to suffer harassment. Id. ¶¶ 132-181.
C.K. was originally a defendant in this case, but B.R. settled her claims with C.K. immediately prior to trial.
Plaintiff has asserted claims against F.C.S.B. under Title IX, which provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Plaintiff claims that three of the Individual School Employee Defendants—S.T., A.F., and P.A.H.—while acting "under color" of state law, intentionally deprived Plaintiff of her rights under the First Amendment of the U.S. Constitution by retaliating against her for reporting the sexual harassment and sexual assaults. A.F. was the principal of Rachel Carson Middle School. S.T. and P.A.H. were assistant principals at the school. Plaintiff has asserted claims that all nine of the school officials—Defendants A.F., B.H., F.T., J.F, M.C., M.P.F., P.A.H., S.T., and T.B.—acted in a grossly negligent manner in responding to her reports of sexual harassment and sexual assaults. T.B. was an assistant principal at the school. B.H. and J.F. were guidance counselors at the school. F.T., M.C., and M.P.F. were teachers at the school. Finally, Plaintiff has asserted a claim of assault and battery against the Individual Former Student Defendant, J.O.
On March 18, 2024, a jury was empaneled to hear the remaining claims in this case. Plaintiff rested her case on April 8, 2024. At that time, each of the Defendants moved for judgment pursuant to Rule 50. It is this Court's practice to delay argument on Rule 50 motions until the taking of all evidence is completed. Accordingly, each of the motions was taken under advisement and Defendants were informed that they could renew and argue their motions after they rested their case.
On April 19, 2024, Defendants each rested. Plaintiff indicated that she would present no rebuttal case. The parties were offered the choice of oral argument on their Rule 50 motions or the opportunity to brief the issues. The parties chose to brief their motions. Each of the parties filed their motions and briefs in support on April 21, 2024. Dkt. Nos. 955; 955-1; 956; 957; 960; 961; 962; 963.
There remains outstanding one issue pertaining to two exhibits that Plaintiff has offered as rebuttal evidence.
The Individual School Defendants have also filed a motion to dismiss based on qualified immunity that will be decided by separate Order of the Court. Dkt. 958.
II. LEGAL STANDARD
Under the federal rules, "if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Fed. R. Civ. P. 50 (a)(1). Put differently, the Court may grant a motion for judgment as a matter of law only when "there can be but one reasonable conclusion as to the proper judgment." Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996) (citations omitted). In evaluating a Rule 50(a) motion, the Court "should review all of the evidence in the record," "draw all reasonable inferences in favor of the nonmoving party," and refrain from making "credibility determinations or weight[ing] the evidence." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). And this is precisely what the Court do here, analyze the facts in the light most favorable to the non-moving party. Accordingly, the analysis contained herein should not be construed as the Court's evaluation of the facts. The Fourth Circuit has held that judgment as a matter of law is appropriate "if the verdict in favor of the non-moving party would necessarily be based upon speculation and conjecture" Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005), or if the non-moving party "failed to make a showing on an essential element of his case," Wheatley v. Wicomico Cnty., 390 F.3d 328, 332 (4th Cir. 2004), cert. denied, 544 U.S. 1032, 125 S.Ct. 2253, 161 L.Ed.2d 1058 (2005) (internal quotation marks omitted).
III. ANALYSIS
Each of the Defendants has moved for judgment as a matter of law pursuant to Rule 50. Because Plaintiff proceeds on different legal theories and slightly different facts against each of the Defendants, the Counts will be analyzed separately.
A. Title IX Claim Against F.C.S.B.
To establish a Title IX claim based on student-on-student sexual harassment, a plaintiff must show that: (1) she was a student at an educational institution receiving federal funds; (2) she suffered sexual harassment that was so severe, pervasive, and objectively offensive that it deprived them of equal access to the educational opportunities or benefits provided by her school; (3) the school, through an official who has authority to address the alleged harassment and to institute corrective measures, had actual notice or knowledge of the alleged harassment; and (4) the school acted with deliberate indifference to the alleged harassment. Doe v. Fairfax County Sch. Bd, 1 F.4th 257 (4th Cir. 2021). Sexual harassment can be verbal—meaning that it involves sex-specific language aimed to humiliate, ridicule, or intimidate—or physical—meaning that it involves unwanted sexual touching. Id. at 267, 275 (noting a prior decision that a jury could reasonably find that the "verbal sexual abuse" allegedly suffered by the college-student plaintiff "was sufficiently severe or pervasive to" deprive her of equal access to educational opportunities or benefits).
F.C.S.B. argues that Plaintiff has failed to present sufficient evidence that the School was deliberately indifferent to Plaintiff's claims of sexual harassment. Dkt. 963 at 3-4. A reasonable jury could also find that F.C.S.B. was deliberately indifferent to the sexual harassment and nonconsensual touching about which B.R. provided actual notice. A reasonable jury could determine that school administrators unfairly considered B.R.'s allegations "unverified" within 24 hours of her making her initial complaint despite the corroborating references to rumors about B.R. by C.K. and D.N. and J.O.'s admission to S.T. that she called B.R. a bitch. Moreover, a reasonable jury could decide not to credit the Individual School Defendants' testimony that there was never any incident of bullying or sexual harassment at RCMS, especially when contrasted with the testimony of J.O., J.S., B.R., Co.K. and C.K. A reasonable jury could also credit testimony from B.R. and Mrs. R. that B.R.'s complaints were dismissed as a "boy/girl thing" and that S.T. indicated that pursuing the allegations against C.K. could "ruin a boy's life." A reasonable jury could also credit testimony from Co.K. and J.S. that they were discouraged from supporting B.R. and that an administrator attempted to influence them to change their supportive statements. From this testimony, a reasonable jury could determine that F.C.S.B. was deliberately indifferent to the sexual harassment that B.R. alleged and that such deliberate indifference resulted in ongoing sexual harassment and enabled C.K. and others to continue harassing B.R.
The jury does not need to specifically find that C.K. raped B.R., as alleged by B.R., in order for B.R. to prevail on the Title IX claim. After B.R. withdrew from RCMS, she remained a student on homebound instruction within the FCPS system. A reasonable jury could find that, after B.R. withdrew from school, the school learned that B.R. had alleged that C.K. had raped her and, based on the testimony of A.F., that the school took no action with respect to investigating the rape allegation after they learned that the Fairfax County Police Department had closed the police investigation.
A reasonable jury could also determine that the efforts by the school to increase monitoring and shadowing were no more than half-hearted and ineffective remedies. A reasonable juror could find that, even after the school stopped its shadowing, the school was aware of multiple occasions where B.R. was sent to guidance counselors crying. Moreover, it appears that no steps were taken to address the rumors circulating about B.R. of which the administrators were aware. Indeed, T.B. testified that there were rumors regarding B.R. circulating the school, but a reasonable jury could determine that administrators dismissed those claims as unverified and took no action to address those rumors. Indeed, a reasonable jury could determine that, despite the statements of B.R., C.K., D.N., J.O., Co.K., and J.S., the School took no actions to investigate or discipline C.K., D.N., or J.O. after the November 21, 2011 meeting. Moreover, based on the testimony of A.F. and B.R., a reasonable jury could determine that the School was deliberately indifferent by sending B.R. back to class after she had reported receiving death threats in February 2012. Thus, a reasonable jury could find that F.C.S.B. was deliberately indifferent. See Doe, 1 F.4th at 268 ("While deliberate indifference is a high standard that requires more than a showing of mere negligence, half-hearted investigation or remedial action will not suffice to shield a school from liability." (internal citations omitted)); S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76-77 (4th Cir. 2016) (holding that "it is not enough that a school has failed to eliminate student-on-student harassment or to impose the disciplinary sanctions sought by a victim," but where "a school has knowledge that a series of 'verbal reprimand' is leaving student-on-student harassment unchecked, then its failure to do more may amount to deliberate indifference"). Whether F.C.S.B. was deliberately indifferent is an example of a decision to be left to the jury, and the Court will not substitute its judgment for the judgment of the jury. Accordingly, F.C.S.B.'s motion is denied in this regard.
B. Title IX Retaliation Claim Against F.C.S.B.
Plaintiff's next claim on which F.C.S.B. moves for judgment is Count 2, Title IX retaliation. To establish a prima facie case of retaliation, a plaintiff is required to show (1) that she engaged in protected activity; (2) that the school took an adverse action against her; and (3) that a causal connection existed between the adverse activity and the protected action. Feminist Majority Found. v. Hurley, 911 F.3d 674, 694 (4th Cir. 2018) (Title IX retaliation plaintiffs must show "that they engaged in protected activity under Title IX" and "that—as a result of their protected activity—they suffered an adverse action attributable to the defendant educational institution"). The Fourth Circuit has held that a school may be liable for retaliation based on student-on-student harassment. See Hurley, 911 F.3d 674, 694-95 (4th Cir. 2018); Nelson v. Christian Bros. Univ., 226 F. App'x 448, 453 (6th Cir. 2007) (identifying intimidation, threats, coercion, and discrimination as prohibited retaliatory conduct); Danvers ex rel. Danvers v. Loudoun Cnty. Sch. Bd., 2022 WL 4585524, at *8-9 (E.D. Va. Sept. 29, 2022) (Alston, J.) (discussing retaliatory harassment and citing Hurley, 911 F.3d at 695).
Here, F.C.S.B. makes a conclusory argument that Plaintiff has failed to prove retaliatory harassment or evidence that the School responded to Plaintiff's complaints in a manner that would dissuade a student from reporting sexual harassment. Dkt. 963 at 5. However, a reasonable jury could conclude that B.R. was retaliated against because she reported sexual harassment to school administrators. A reasonable jury could credit Mrs. R.'s and B.R.'s testimony that the harassment at school escalated after B.R. made her November 2011 complaints, including that the harassment escalated to include death threats. Defendant A.F. and B.R. both testified that B.R. reported receiving a death threat and that A.F. and a counselor (B.H.) nevertheless sent B.R. back to class. Additionally, a reasonable jury could conclude, based on Mrs. R.'s testimony, that B.R. was retaliated against by administrators while she was on homebound instruction because the administrators made accusations of cheating, refused to allow B.R. to attend field trips, and required B.R. to complete a project alone, while other students were permitted to work as a group. A reasonable jury could also credit Mrs. R.'s testimony that P.A.H. called B.R. a "liar" and was irritated with B.R. and that P.A.H. was the administrator in charge of overseeing B.R.'s homebound instruction. Courts of appeals have recognized that similar acts can constitute adverse actions. See, e.g., Gordon v. Traverse City Area Pub. Schs., 686 F. App'x 315, 322 (6th Cir. 2017) (holding that "threat of social alienation" by moving to a different neighborhood and preventing participation in desired course qualifies as adverse). Here again, whether F.C.S.B. retaliated against B.R. is an example of a decision to be left to the jury, and the Court will not substitute its judgment for the judgment of the jury. Because a reasonable jury could find that F.C.S.B. retaliated against B.R. in violation of Title IX, F.C.S.B.'s Rule 50 Motion will be denied with respect to the Title IX retaliation claim.
C. Title IX Actual Notice
In her Rule 50 Motion, Plaintiff seeks judgment as a matter of law "on the notice element of her Title IX sex discrimination claim because a reasonable jury could reach only one conclusion based on the evidence of her reports to the school." Dkt. 957 at 2. In support of her motion, Plaintiff points to numerous statements and complaints that she made to the School as well as school officials' correspondence with her and her family. See id. at 2-3. Although a reasonable jury certainly could find from the evidence cited by Plaintiff that there was actual notice to the School of sexual harassment, taking all of the evidence in the light most favorable to F.C.S.B. a reasonable jury could also determine that the School was only aware of isolated incidents of name-calling insufficient to qualify as sexual harassment. See Adusumilli v. Illinois Inst. of Tech., 191 F.3d 455, at *1 (7th Cir. 1999) (Unpublished Table Decision) (holding that two "isolated incidents" did not constitute sexual harassment under Title IX). Alternatively, a reasonable jury could determine that what Plaintiff reported to the School was not sufficiently severe to constitute actual notice of harassment. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ("Damages are not available for simple acts of . . . name-calling . . . ."). Moreover, a reasonable jury could credit the school administrators' testimony that they were not aware of any allegations of inappropriate touching or of sexual assault. Much like F.C.S.B.'s motion, Plaintiff seeks to have this Court substitute its judgment for the jury's judgment as to the issue of notice. It is inappropriate for the Court to do so and, accordingly, Plaintiff's Rule 50 motion is denied with respect to actual notice.
D. Title IX Damages
F.C.S.B. argues that Plaintiff has failed to present sufficient evidence of damages such that it is entitled to judgment as a matter of law in three respects: (i) no reasonable jury could find that post-traumatic stress disorder ("PTSD") is a compensable injury under Title IX; (ii) no reasonable jury could distinguish between permissible and impermissible damages; and (iii) Plaintiff failed to offer evidence of economic damages exceeding $64,242.94. Dkt. 963 at 6-10. On the other hand, Plaintiff argues that there is uncontroverted evidence that PTSD is a physical injury such that Plaintiff's alleged PTSD does not fall under the category of emotional damages pursuant to Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212, 142 S.Ct. 1562, 212 L.Ed.2d 552 (2022) and such that Plaintiff is entitled to judgment as a matter of law. Dkt. 957 at 5. The Court will deny both motions in this regard.
With respect to Plaintiff's PTSD, the jury heard testimony from competing experts regarding whether Plaintiff has been properly diagnosed with PTSD: (i) Dr. Eileen Ryan, who determined that Plaintiff has PTSD; and (ii) Dr. Jonathan DeRight, who diagnosed Plaintiff as malingering. Thus, whether Plaintiff has PTSD is properly left to the determination of the jury over which expert to believe. Plaintiff also put on Dr. Joshua Cisler to opine regarding how individuals with PTSD have undergone physical changes to the brain as a result of trauma. Taking the evidence in the light most favorable to Plaintiff, Dr. Cisler opined that PTSD is caused by physical changes to the brain and that anyone diagnosed with PTSD would have such changes. See Trial Tr. at Vol. 12 (A.M.) at 66 ("a patient who suffers from PTSD, by definition, ha[s] physical injury in the form the form of physical changes to the structural and functional properties of her brain"). Taking the evidence in the light most favorable to F.C.S.B., Dr. Cisler could not opine that Plaintiff's brain underwent those changes because he did not review any images of her brain, and, on cross-examination, Dr. Cisler struggled with the use and implication of the word injury (although he had used that term in his testimony on direct). See id. at 79-80. Thus, on the facts of this case, it remains that a reasonable jury could find that, if Plaintiff has PTSD, her PTSD was the result of a physical injury attributable to F.C.S.B. under Title IX; but it is also the case that a reasonable jury could go the other way. Accordingly, the Court denies both Plaintiff's motion and F.C.S.B.'s motion with respect to the PTSD diagnosis.
With respect to F.C.S.B.'s other arguments regarding available compensatory damages, F.C.S.B.'s argument that Plaintiff has presented no evidence of economic harm is incorrect. Plaintiff put on life-care expert, Alex Karras, to establish Plaintiff's future medical expenses associated with her PTSD. Moreover, a reasonable jury could determine from the testimony of Dr. Cisler, Dr. Ryan, and Mr. Karras that the life-care plan that Mr. Karras developed was designed to treat the symptoms of her PTSD and that Plaintiff does not suffer from "non-PTSD" related disorders. Thus, the jury is not presented with a choice between permissible or impermissible damages, but can determine whether all of Plaintiff's damages are associated with her PTSD. Accordingly, F.C.S.B.'s motion is denied with respect to its arguments regarding damages.
E. First Amendment Claims Against S.T., A.F., and P.A.H.
The First Amendment right to free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right. See ACLU v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir. 1993) ("Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights."). To establish a First Amendment violation, the Plaintiff must establish: First, that "[s]he engaged in protected First Amendment activity . . . ." Davison v. Rose, 19 F.4th 626, 636 (4th Cir. 2021) (cleaned up). Second, that S.T., A.F., and P.A.H. "took some action that adversely affected h[er] First Amendment rights . . . ." Id. (cleaned up). And third, that "there was a causal relationship between h[er] protected activity and" the conduct. Id. (cleaned up).
The First Amendment "provides protection from retaliation for speaking out against" sexual discrimination. Whitehurst v. Bedford Cty. Sch. Bd., 6:19-cv-10, 2020 WL 535962, at *12 (W.D. Va. Feb. 3, 2020); see also Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994) (holding that the First Amendment protects the right of an individual to speak out against sexual discrimination). As discussed above, a reasonable jury could credit B.R.'s and others' testimony that she made numerous complaints about sexual harassment to administrators at RCMS.
Because inaction cannot constitute an adverse action in the First Amendment context, the Court must examine whether a reasonable jury could determine that each of the three Defendants—P.A.H., S.T., and A.F.—took actions that adversely effected B.R.'s First Amendment rights and that there was a causal relationship between those acts and B.R.'s protected activity. The Individual School Defendants dispute that there is any evidence to support the adverse actions identified by the Court in its Memorandum Opinion on the motion to dismiss. B.R. v. F.C.S.B., 2023 WL 2464975, at *15-*16 (E.D. Va. Mar. 10, 2023). A reasonable jury could find that there was sufficient evidence against each Defendant and the Court will discuss each in turn.
A reasonable jury could determine from A.F.'s testimony that he investigated B.R.'s elementary school record to determine whether she had a history of being troubled, but not the history any of B.R.'s alleged harassers. A reasonable jury could infer a retaliatory motive based on the temporal relationship of Plaintiff's allegations and the fact that A.F. testified that he had only once previously investigated a student's elementary school record and that he only sought the records of B.R. as the accuser but not the records those accused. Accordingly, a reasonable jury could find that A.F. retaliated against B.R. based on her protected First Amendment activities.
With respect to S.T., the Individual School Defendants agree that Plaintiff and her mother testified that S.T. told them that B.R.'s complaints would "ruin a boy's life," but argue that this does not establish an retaliatory animus or adverse action. To the contrary, a reasonable jury could determine that S.T. informing Plaintiff that her accusations would "ruin a boy's life" and dismissing her complaints as a "boy/girl thing" and then determining B.R.'s complaints to be "unverified" such that no action would be taken on B.R.'s November 21, 2012 complaints against J.O., D.N., or C.K. or her future complaints was retaliation for First Amendment speech. Accordingly, a reasonable jury could find that S.T. retaliated against B.R. based on her protected First Amendment activities.
With respect to P.A.H., the Individual School Defendants argue that there is no evidence supporting a First Amendment retaliation claim. A reasonable jury could, however, credit Mrs. R's testimony that P.A.H. accused B.R. of cheating, refused to permit B.R. to participate in a field trip, and required B.R. to work alone on a project that all other students were permitted to complete as a group. A reasonable jury could also find evidence of retaliatory animus by crediting B.R. and Mrs. R's testimony that P.A.H. was irritated and angry about B.R.'s complaints, as indicated by him calling B.R. a liar. Accordingly, a reasonable jury could find that P.A.H. retaliated against B.R. based on her protected First Amendment activities.
S.T., A.F., and P.A.H. also seek Rule 50 judgment on damages. As the Defendants' concede, however, "[c]ompensatory damages for emotional injuries are recoverable under § 1983." Knussman v. State, 272 F.3d 625, 639 (4th Cir. 2001) (citations omitted). A reasonable jury can rely on Mrs. R. and B.R.'s testimony regarding the emotional injuries that B.R. suffered based on these administrators' actions and determine appropriate damages.
In sum, a reasonable jury could determine that Plaintiff has established a First Amendment retaliation claim against S.T., A.F., and P.A.H., and therefore their Rule 50 Motion is denied.
F. Gross Negligence Claims Against All Individual School Defendants
"Gross negligence is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person." Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004). Gross negligence "requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness." Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) ("Ordinary and gross negligence differ in degree of inattention." While "[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . it is something less than . . . willful, wanton, and reckless conduct."). Because "the standard for gross negligence [in Virginia] is one of indifference, not inadequacy, a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care." Elliott v. Carter, 292 Va. 618, 622, 791 S.E.2d 730, 732 (2016) (alteration in original)."
To begin with, the Individual School Defendants collectively argue that they did not owe B.R. a special duty of care. Dkt. 961 at 6. Although the Individual School Defendants correctly assert that there is no "special relationship," the Supreme Court of Virginia has held that school officials have a responsibility to "supervise and ensure that students could have an education in an atmosphere conducive to learning, free of disruption, and threat to person." Burns v. Gagnon, 283 Va. 657, 671, 727 S.E.2d 634 (2012) (cleaned up). In that context, the Supreme Court of Virginia remanded the case for a determination that a school administrator assumed a duty regarding a fight because he told a student that he would "alert security and "take care of it." Id. at 673, 727 S.E.2d 634. Furthermore, judges within this District have held that, "[b]ecause a school has an obligation to adequately supervise the activities of students within its charge and may be held liable for a foreseeable injury proximately related to the absence of such supervision, whether a duty of care exists may turn on the factual circumstances of the case." DJ ex rel. Hughes v. Sch. Bd. of Henrico Cnty., 488 F. Supp. 3d 307, 340-41 (E.D. Va. 2020). A reasonable jury could credit the testimony of B.R., Mrs. R., and others that they repeatedly told school officials that B.R. was subjected to ongoing bullying and harassments that the administrators and teachers undertook a duty of care with respect to B.R. when they reassured B.R. and her parents that they would provide a safe environment for her. Accordingly, to the extent the Individual School Defendants' motion rests on the premise that the teachers and administrators owed B.R. no duty, the motion is denied.
With respect to each of the administrators, a reasonable jury could credit the testimony by B.R., Mrs. R., Co.K., and J.S. that RCMS was a hostile environment and that students specifically targeted B.R. for harassment. A reasonable jury could determine that A.F., S.T., P.A.H., and T.B. were grossly negligent by determining that B.R.'s complaints were "unverified" despite the statements by B.R., C.K., D.N., J.O., J.S., and Co.K. and refusing to take action to protect her other than shadowing B.R. for two days. Although the testimony at trial focused on the actions of S.T., A.F., and P.A.H., a reasonable jury could credit the testimony of the individual administrators that they worked together as a team and made decisions jointly regarding actions to take with respect to B.R. In particular, a reasonable jury find an utter disregard for B.R.'s safety by the response of these individual administrators when B.R. reported being inappropriately touched at her lockers, especially in light of J.F.'s observation of B.R. being surrounded by students at her lockers, and when B.R. reported receiving death threats and B.R. was still sent back to class. A reasonable jury could also find that the administrators had an impossibly high standard for sexual harassment, such that even a student's exposure of his genitals to female students was determined not to be sexual harassment. A reasonable jury could also find an utter disregard for B.R.'s safety by the administrator's determination that B.R.'s complaints were unverified and refusing to take action to protect B.R. beyond a few days of shadowing in light of testimony by Mrs. R., B.R., Co.K., J.S., J.F., A.F., S.T. and statements by B.R., C.K., D.N., J.O., J.S., and Co.K. If the jury credits B.R.'s testimony that she was only shadowed for two days, "[r]easonable minds could differ as to whether shadowing Plaintiff for two days is exercising 'some degree of care' in response to her various reports." B.R., 2023 WL 2464975, at *22. Moreover, a reasonable jury could find that the administrators dismissed B.R.'s allegations as a "boy/girl thing" and that none of the actions that the administrators took were designed to have any impact on stopping the harassing behavior; rather, a reasonable jury could determine that the administrators' proposed solutions were to force B.R. to go out of her way to avoid the harassers. Accordingly, a reasonable jury could determine that the administrators were grossly negligent with respect to their care of B.R. Therefore, the administrators' Rule 50 Motion is denied.
B.R.'s allegations with respect to the individual teachers and guidance counselors (B.H., M.P.F., M.C., F.T., J.F.) present a closer question. During B.R.'s testimony, she testified that each of her teachers and guidance counselors were aware of the sexual harassment directed at her and that they did nothing to assist her. Based upon the testimony of several witnesses, a reasonable jury could reject that suggestion. Moreover, individual teachers in the context of Title IX have limitations on what corrective actions they can be expected to undertake. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 263-64 (4th Cir. 2021) (under Title IX for student-on-student sexual harassment "the school, through an official who has authority to address the alleged harassment and institute corrective measures, [must have] had actual notice or knowledge of the alleged harassment . . . ."). The Court takes under advisement the Rule 50 motion of the individual teacher and guidance counselor defendants.
With respect to damages, the parties' agreed upon jury instruction regarding damages for the Virginia Common Law claims provides that B.R. may recover for any "physical injury" that B.R. suffered and for "any shame, humiliation, embarrassment, or indignity" that B.R. suffered. Dkt. 855-1 at 36. B.R. testified extensively about the shame, humiliation, and embarrassment that she suffered due to the alleged sexual harassment. Thus, there is sufficient evidence for the jury to make an intelligent and probable estimate of damages and it is for the jury to determine what damages are attributable to any gross negligence by the Individual School Defendants. Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 241, 360 S.E.2d 841 (1987) ("When damages are occasioned by a combination of causes originating from different courses, the jury must determine from the evidence the part attributable to the defendant and the part traceable to other causes.").
G. Assault and Battery Claims Against J.O.
Count X is an assault and battery claim against J.O. B.R. testified to two incidents involving J.O.: (i) the incident in her neighborhood where J.O. is alleged to have pushed B.R. and sexually assaulted her; and (ii) a slap in gym class. J.O. denied those incidents. A reasonable jury could credit B.R.'s testimony.
As the Fourth Circuit has repeatedly held, a Rule 50 motion "should be granted if a district court determines, without weighing the evidence or considering the credibility of the witnesses, that substantial evidence does not support the jury's findings." Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999). Put another way, when considering a Rule 50 motion, a district court "may not substitute [its] judgment for that of the jury or make credibility determinations." Price v. City of Charlotte, N.C., 93 F.3d 1241, 1249 (4th Cir. 1996). J.O.'s Motion seeks to have the Court do exactly that. J.O.'s motion is premised on her determination that "Plaintiff has been untruthful, and her testimony is unreliable." Dkt. 955 at 1. But whether Plaintiff has been untruthful is a determination for the jury to make. Moreover, there is at least some corroborating evidence of Plaintiff's testimony. J.O. placed herself at the park with C.K. and B.R. on the day the alleged sexual assault happened and there was a contemporaneous picture of J.O. with a skinned knee on that day. Accordingly, a reasonable jury could determine that J.O. assaulted or battered B.R. and therefore J.O.'s Rule 50 Motion is denied.
J.O. also seeks a determination that a reasonable jury would be unable to determine B.R.'s damages attributable to J.O. and that without "some particularization of the 'injuries' the Plaintiff sustained in the J.O. assault, there is simply no basis for a calculation of damages attributable to J.O.'s alleged conduct." Dkt. 955 at 2. The parties agreed upon jury instruction regarding damages for the Virginia Common Law claims provides that B.R. may recover for any "physical injury" that B.R. suffered and for "any shame, humiliation, embarrassment, or indignity" that B.R. suffered. Dkt. 855-1 at 36. A reasonable jury could determine from B.R.'s testimony that she was injured by the alleged assault and battery by J.O. and could credit B.R.'s testimony regarding the shame, humiliation, embarrassment, and indignity of the incident when committed by someone she formerly considered a friend. A reasonable jury could also determine that J.O.'s actions contributed to B.R.'s PTSD and other mental health conditions. Accordingly, there is a basis for a reasonable jury to calculate damages as to J.O.
* * *
Accordingly, it is hereby ORDERED that F.C.S.B.'s Rule 50 Motion (Dkt. 962) is DENIED; and it is
FURTHER ORDERED that the Individual School Defendant's Rule 50 Motion (Dkt. 960) is DENIED-IN-PART AND TAKEN-UNDER-ADVISEMENT-IN-PART. The Motion is denied with respect to S.T., A.F., P.A.H., and T.B. and it is taken under advisement with respect to B.H., M.P.F., M.C., F.T., J.F.; and it is
FURTHER ORDERED that J.O.'s Rule 50 Motion (Dkt. 955) is DENIED; and it is
FURTHER ORDERED that B.R.'s Rule 50 Motion (Dkt. 956) is DENIED.
It is SO ORDERED.