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Johnson v. Northeast School Corp.

United States District Court, S.D. Indiana, Terre Haute Division

September 4, 2019

SARAH JOHNSON, et al. Plaintiffs,
v.
NORTHEAST SCHOOL CORPORATION, et al. Defendants.

          ORDER ON SUMMARY JUDGMENT MOTION

          JAMES R. SWEENEY II JUDGE.

         Plaintiffs Sarah Johnson and Rebekah Johnson sue Defendants Northeast School Corporation and its North Central High School in Sullivan County, Indiana, alleging they subjected Plaintiffs to discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681(a). Plaintiffs allege Defendants failed to respond appropriately when Sarah reported she had been sexually assaulted by another student and then when Rebekah was subjected to harassment and bullying because she was Sarah's sister. Plaintiffs also bring a state-law claim alleging that Defendants failed to have an anti-bullying policy. Defendants have moved for summary judgment on all claims.

         While sexual harassment should not be tolerated in any environment and any sexual assault is to be condemned, NCHS is not a proper defendant in this action. Plaintiffs have come forward with insufficient evidence to hold the School Corporation liable under Title IX for any alleged sexual harassment of Sarah or Re-bekah. Therefore, Defendants' Motion for Summary Judgment will be granted.

         I. Background

         Sarah Johnson claims that while she was a student at North Central High School ("NCHS") in Sullivan County, Indiana, she was sexually assaulted off campus on December 17, 2014, by another student, Garrett Froshauer, and his friend, Romeo Ris-ley. Sarah did not report the alleged sexual assault until November 5, 2015. She alleges that Garrett bullied her in school and that she withdrew from NCHS because of that bullying. Rebekah is Sarah's younger sister and was also a student at NCHS. Rebekah alleges that she too was bullied by Garrett and his friends.

         Northeast School Corporation (the "School Corporation") is an Indiana public school corporation within the Southern District of Indiana. At all relevant times, Monty Kirk was the high school principal. During the 2014-15 academic year, Sarah was a high school sophomore. Garrett Froshauer was a sophomore that year too; he and Sarah had three classes together. Ms. Hawker is Sarah's and Rebekah's grandmother.

         The NCHS School-Family Handbook, which is provided to students each year, sets forth a "Code of Conduct" and prohibits harassment and bullying by students. (ECF No. 47-11. 37-38.) Harassment/bullying is defined to include "any speech or action that creates a hostile, intimidating, or offensive learning environment." (ECF No. 47-11. 37.) Students who believe they are victims of harassment or bullying are instructed to report the matter to school staff. (ECF No. 47-11, 38.) Students may make such a report in writing, over the phone, or in person.

         Sarah's alleged sexual assault by Garrett was first reported to school authorities on November 5, 2015, when her grandmother, Ms. Hawker, reported it to Principal Kirk. Ms. Hawker advised Kirk that she and Sarah were going to report the incident to the authorities. They reported the incident to the Sullivan County Sheriffs Department and were told that Deputy Carl Melchert would be handling the case. Deputy Melchert and Child Protective Services went to Ms. Hawker's house the next day, and Ms. Hawker reported that Sarah had been raped by Garrett.

         The next day, November 6, 2015, Principal Kirk confirmed with Ms. Hawker that the authorities had been notified. (ECF No. 47-2 ¶ 29.) Ms. Hawker advised Kirk that she wanted Garrett immediately removed from school. Principal Kirk explained to her that there needed to be an investigation before a decision about potential disciplinary action could be made. (ECF No. 47-2 ¶ 30.) Ms. Hawker also advised Principal Kirk that Sarah was going to be interviewed by a trained child interviewer at Susie's Place and informed him that she did not want school officials to interview Sarah. (ECF No. 47-2 ¶ 30.) The principal confirmed with Deputy Melchert that the matter was being investigated and that Sarah was to be interviewed at Susie's Place.

         Also on November 6, Principal Kirk issued a No Contact Order between Sarah and Garrett to remain in effect for the remainder of the school year. (ECF No. 47-2. ¶¶ 26-28.) The No Contact Order was explained to both Garrett and Sarah (ECF No. 47-23. ¶¶ 2-3; ECF No. 47-3. 109) and the order was distributed to their teachers to make them aware of it and to have the teachers assist in enforcing it (ECF No. 47-2, ¶ 27). Although Sarah testified that she never saw the No Contact Order, she admitted she was informed of it and understood that Garrett was to have no contact with her. (ECF No. 47-33. 91.) Principal Kirk discussed the No Contact Order with Ms. Hawker and Garrett's parents that day to make sure they knew that Sarah and Garrett were not to have contact with each other at school. (ECF No. 47-2. ¶ 28; 47-24, 33.)[1]

         During the month of November, Principal Kirk contacted Deputy Melchert on several occasions-"at least a dozen times"-requesting to be kept informed of the investigation into the allegations against Garrett. (ECF No. 47-24. 35.) The deputy did not share the details of the investigation with Principal Kirk, other than to advise that the complaining student was going to give a forensic interview. On November 24, 2015, Sarah was interviewed at Susie's Place about the alleged rape. Deputy Melchert observed the interview from another room. As a result of the investigation, the interviewer, the Child Protective Services case worker assigned to the case, and the deputy concluded that no criminal charges needed to be filed with the Prosecutor's Office. After the decision was made, Principal Kirk learned that no charges would be filed against Garrett. (ECF No. 47-2. ¶ 68.)

         In late January 2016, Principal Kirk sent a letter to Ms. Hawker to attempt to give her the opportunity to allow the school to interview Sarah as part of its Title IX investigation. (ECF No. 47-2, ¶ 69.) Ms. Hawker would not allow Sarah to be interviewed by school officials, however. (ECF No. 47-29. 87-89.)

         After Sarah's allegation against Garrett was reported on November 5, the first harassment incident that Ms. Hawker brought to the school's attention did not involve Garrett. (ECF No. 47-2. ¶¶ 46-47.) On January 8, 2016, she emailed Mr. Kirk to advise that on January 6, Sarah had received a report from someone that a girl (CD.) had told "others" that she was going to "kick Sarah's ass." Principal Kirk ensured that Sarah could eat lunch in the office and otherwise sit in the office if she wanted a break from class. He spoke with CD., and even though CD. denied making the threat, he instructed her not to have any contact or communication with Sarah that could be perceived as negative or hostile. (ECF No. 47-2. ¶ 47.)

         On February 28, 2016, Ms. Hawker emailed Principal Kirk to advise that one of Sarah's fellow female cheerleaders (M.S.) sent an unkind tweet. (ECF No. 47-2 ¶ 75.) The next day, Ms. Hawker and Sarah met with Mr. Kirk to discuss the matter. (ECF No. 47-2 ¶ 75.) During their meeting, Principal Kirk asked Sarah and Ms. Hawker if anyone was harassing her-whether in person or on social media. They responded that nothing else had been happening at school. (ECF No. 47-2 ¶ 75.) Mr. Kirk reminded them that if something else happened, to report it immediately.

         From November 6, 2015, through February 28, 2016, neither Sarah nor Ms. Hawker made any complaint that Garrett was harassing Sarah at school or off campus. It was not until February 29, 2016, that Sarah and Ms. Hawker made a complaint about Garrett. (ECF 47-2, ¶¶ 46, 49.) Ms. Hawker called Principal Kirk that day to report that Sarah was upset because she had been confronted by auto shop students and harassed by Garrett and another boy in the hallway. (ECF 47-2, ¶ 57.) However, video of the incident shows that Garrett was not involved. (ECF 47-2, ¶¶ 58-59, 63-64.) When a videotape of the alleged incident contradicts the plaintiffs version of the incident, the court may properly find that no reasonable trier of fact could believe plaintiffs version of the incident. See Scott v. Harris, 550 U.S. 372, 380-81 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment" and the court should have relied on the videotape). Sarah's own testimony is that Garrett was not involved. She testified that while returning from using the restroom during choir class, she heard students knocking on an entry door close to the choir room. (ECF 47-33, 67.) When Sarah opened the door, she did not see any students she recognized and did not see Garrett among the students. (ECF 47-33, 72.) After opening the door, Sarah turned her back to the students and heard some whispering and laughing. (ECF 47-33, 68.) She thought the students were laughing at her simply "[b]ecause they were laughing." (ECF 47-33, 73.) Sarah admits they could have been laughing about anything and that she was not "chased," but it "kind of felt that way because there were a lot of people around her. (ECF 47-33, 73, 76.) This was one of the few incidents that Sarah characterized as harassment and bullying at school. (ECF 47-33, 78.)

         On March 15, 2016, Ms. Hawker and Sarah claimed that Garrett had violated the protective order by glaring at her, getting "real close," and brushing by her as he passed her in the hallway near the principal's office. (ECF 47-29, 47; ECF No. 47-33. 93, 98.) Deputy David Holmes responded to NCHS where he met with Ms. Hawker and Mr. Kirk in the principal's office. (ECF 47-19, ¶ 4.) The deputy found Mr. Kirk cooperative and willing to provide information, including video footage from a hallway surveillance camera of the area where Sarah described that she encountered Garrett. (ECF 47-19, ¶ 6.) Deputy Holmes reviewed the video and observed Sarah walking down the middle of the hallway and observed a male in a gray sweatshirt (identified as Garrett) walking in the opposite direction. (ECF 47-19, ¶ 7) Garrett was close to the wall and did not get closer to Sarah or appear to turn his head, look in Sarah's direction, or glare ...


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