Sutton v. Kiefer Public Schools

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

JESSICA SUTTON, individually and )

on behalf of minor child, A.M.R. )

)

Plaintiff, )

)

v. )

)

KIEFER PUBLIC SCHOOLS, an )

independent public school district; ) Case No. 21-CV-369-TCK-JFJ

)

KIEFER PUBLIC SCHOOLS BOARD )

OF EDUCATION, a governmental )

subdivision; and )

)

MARY MURRELL,1 individually and in )

her official capacity, )

)

Defendants. )

OPINION AND ORDER

Before the Court is a Motion for Summary Judgment filed pursuant to Fed. R. Civ. P. 56(a)

by Defendants Kiefer Public Schools (KPS), Kiefer Public School Board of Education (KPS

Board), and Mary Murrell, in her individual and official capacity as KPS Superintendent

(collectively, Defendants) (Doc. 42). Plaintiff Jessica Sutton (Plaintiff), individually and on behalf

of her minor child, A.M.R., filed a Response to Defendant’s Motion (Doc. 47) and separately filed

the exhibits for her Response (Doc. 48). Defendants filed their Reply (Doc. 51), and Plaintiff filed

an Errata to her Response Exhibits (Doc. 55), which provided two deposition transcripts that were

missing from the record.

1. The Court notes that the Notice (Doc. 2), Complaint (Doc. 2-1), and subsequent filings have

spelled Defendant Murrell’s last name as “Murell.” The Court’s docket also spells Defendant’s

last name as “Murell.” However, the parties’ motions and briefing spell Defendant’s name as

“Murrell.” Notably, Defendant passed away on October 4, 2021, and the Statement of Death spells

her name as “Murrell.” (Doc. 8 at 1). Thus, the Court changes the spelling of Defendant’s last

name in the caption, and the Clerk of the Court shall note this change on the record.

This case arises from an incident in which A.M.R., a minor child, was exposed to an

intellectually disabled boy with his pants down in the girls’ restroom during an after-hours school

carnival at KPS. After the school carnival incident, the boy—who was not a KPS student—

continued to attend various non-school sponsored events held on KPS property with his family.

Although there were no further incidents involving the boy, Plaintiff, who is the mother of A.M.R.,

contends that KPS inadequately responded to the school carnival incident and should have banned

the boy from entering KPS property. To that end, Plaintiff, individually and on behalf of A.M.R.,

filed suit against Defendant KPS, the KPS Board, and Mary Murrell, the superintendent of KPS at

the time of the school carnival incident. Plaintiff’s Complaint asserts claims against all Defendants

for negligence; discrimination and retaliation under Title IX, 20 U.S.C. § 1681(a); intentional

infliction of emotional distress; and punitive damages.

Defendants now move for summary judgment, requesting dismissal of the Complaint in its

entirety. Plaintiff concedes that the Board and Murrell are not proper parties; that the intentional

infliction of emotional distress claim should be dismissed; and that punitive damages are not

available in this case. (Doc. 47 at 20-21). Accordingly, Plaintiff’s negligence and Title IX claims

against KPS are the only issues remaining for the Court’s consideration on summary judgment.

I. UNCONTROVERTED MATERIAL FACTS2

2. Although Plaintiff at least partially objected to many of the 31 Uncontroverted Statements of

Fact in Defendants’ Motion, the lion’s share of her objections are contrary to the requirements of

Fed. R. Civ. P. 56 and Local Rule 56.1(c). Specifically, Local Rule 56.1(e) provides that “[e]ach

individual statement . . . shall be followed by citation, with particularity, to any evidentiary material

that the party presents in support of its position.” Here, not only are there instances in which

Plaintiff disputes facts in the record without any citation to the record, but Plaintiff also makes

statements that are not supported by the record cited. Additionally, at several points in her

Response, Plaintiff admits to the substance of a statement of fact but partially objects to the

statement merely to recharacterize it. Thus, the Court includes only facts that are supported by the

record before the Court or facts not genuinely in dispute. Facts proposed by the parties that the

Court finds irrelevant to the issues addressed herein are omitted.

A. School Carnival Incident

On October 24, 2019, Plaintiff and her, A.M.R., attended a school carnival that was being

held in the KPS cafeteria, where A.M.R. attended school. (Doc. 2-1 at, 2; Sutton Dep. 51:1-3).

Based on the timestamps from KPS surveillance video of the carnival, at some point before

19:42:00, A.M.R. went into the girls’ restroom.3 (Doc. 42-2). At 19:43:07, a boy entered the same

girls’ restroom. (Id.) At 19:43:19—approximately 12 seconds after the boy is seen entering the

restroom—a visibly distraught A.M.R. exits the restroom. (Id.) Based on the same security video,

the boy can be seen in the distance prior to entering the girls’ restroom, casually talking with two

adults and two kids, who are ostensibly the boy’s family. (Id.) The boy then casually makes his

way to the restroom, and as he exits the restroom at 19:44:03, he is greeted by his apparent family.

(Id.) It was later determined that the boy was not a KPS student, but that his mother was in a

relationship with Darrin Nance (Nance), whose children were enrolled in KPS, (Sutton Dep. 88:24-

25, 104:1-3; Doc. 42-6 at 1), thus explaining the boy’s presence at the school carnival.

According to A.M.R., who was nine years old at the time of the incident, while she was in

the restroom, she heard someone banging on the door, and as she walked out of the bathroom stall,

she saw the boy with his pants down (Doc. 2-1 at ¶¶ 12, 16; A.M.R. Dep. 17:23-18:18) and

exposing himself. (Sutton Dep. 58:25-59:4). A.M.R. testified that the boy did not say anything to

her, nor did the boy try to touch or grab her. (A.M.R. Dep. 18:23-19:3). A.M.R. told Plaintiff about

the incident after they had returned home from the carnival later that evening. (Doc. 2-1). Plaintiff

then contacted Cory Campbell (Campbell), who was the KPS high school principal and the

district’s Title IX coordinator at the time of the incident, and Plaintiff informed him of what had

taken place during the carnival. (Sutton Dep. 63:20-23; Doc. 46-7 at 3).

3. The security video begins at timestamp 19:42:00, and A.M.R. is not seen entering the restroom.

Upon learning of the incident—that same evening—Campbell met with Plaintiff and her

daughters at the school to discuss the incident and review the security camera video. (Sutton Dep.

65:15-66:21; Campbell Dep. 95:23-96:5). Two Kiefer Police Department officers, including the

Kiefer Chief of Police Johnny Omara (Omara), and a school employee, Donny Murrell, were also

present at the school that evening to review the security camera video with Plaintiff and Campbell.

(Sutton Dep. 68:4-10). In addition to reviewing the security camera video, the police officers

interviewed Plaintiff and A.M.R. that evening. (Id.) According to a letter from Omara to Mary

Murrell, the Kiefer Police Department further investigated the incident, interviewing persons

involved in the incident, and confirmed that the boy was a juvenile with a mental disability that

significantly limited his mental capacity. (Doc. 42-4).4 The Kiefer Police Department forwarded

the case file to the Creek County District Attorney’s Office and notified the Department of Human

Services, Child Welfare Division. (Id.) No charges were filed against the boy by the District

Attorney’s Office. (Id.)

B. Subsequent Events on KPS Property

4. Plaintiff objects to the undated and unsigned letter from Omara to Mary Murrell, (Doc. 42-4),

arguing that the document is inadmissible hearsay because the document is unauthenticated with

no independent indicia of reliability. (Doc. 47 at 5). While Plaintiff maintains that the letter was

not included in the production of documents from the Kiefer Police Department, (Doc. 47 at 5),

Defendants respond that it was produced in discovery, (Doc. 51 at 2). Fed. R. Civ. P. 56(c)(2)

provides that “[a] party may object that the material cited to support or dispute a fact cannot be

presented in a form that would be admissible in evidence.” However, materials in support of a fact

need only be admissible in content. Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006). Given

that Plaintiff does not dispute the majority of the letter’s content and that the letter is printed on

the Kiefer Police Department letterhead, there is “at least . . . a prima facie aura of reliability”

justifying the Court’s consideration of the letter. Oglesby v. Coca-Cola Bottling Co. of

Chicago/Wisconsin, 620 F. Supp. 1336, 1345 (N.D. Ill. 1985) (quoting Olympic Ins. Co. v. H. D.

Harrison, Inc., 418 F.2d 669, 670 (5th Cir. 1969)). Furthermore, Plaintiff’s objection to the exhibit

does not itself create a genuine issue of fact, particularly because the thrust of the letter’s content

is not disputed. Spatz v. Nascone, 364 F. Supp. 967, 970-71 (W.D. Pa. 1973) (“[T]he Court is

authorized to examine proferred [sic] materials extraneous to the pleadings not for the purpose of

trying an issue but to determine whether there is a genuine issue of material fact to be tried.”).

On October 26, 2019—the weekend after the school carnival incident—Plaintiff claims

that the boy and his mother were observed attending a little league football game held at the KPS

football stadium. (Doc. 2-1 at ¶ 20; Sutton Dep. 86:9-16, 87:3-24). The parties agree that, although

the game was being played at the KPS football stadium, it was not a school-sponsored activity.

(Doc. 42 at 5, ¶ 11; Doc. 47 at 7, ¶ 11; Campbell Dep. 63:9-64:2). A.M.R., a little league football

cheerleader at the time (and still is), was also at the game with Plaintiff. (A.M.R. Dep. 15:14-16:6;

Sutton Dep. 86:15-16). Plaintiff texted Campbell to inform him that the boy was at the football

game and told him that she was uncomfortable with the boy being there. (Sutton Dep. 88:15-17).

Campbell, whose daughter was also a little league football cheerleader, happened to be in

attendance at the game as well. (Campbell Dep. 97:19-21). Campbell responded to Plaintiff, telling

her that he “would get with the superintendent and ask what [the] next step would be and . . . left

it at that.” (Campbell Dep. 97:24-98:2). After conferring with Superintendent Mary Murrell, it was

Campbell’s understanding that nothing further could be done because the football game was not a

school-sponsored event. (Campbell Dep. 98:3-25).

When A.M.R. observed the boy in the bleachers at the stadium, she was under the bleachers

and then cheering on the field. (Sutton Dep. 92:7-21). Plaintiff stated that, upon seeing the boy,

A.M.R. became tearful, stopped cheering, and walked over to Plaintiff to ask why the boy was at

the game. (Sutton Dep. 93:4-22). The situation deescalated when Plaintiff’s husband had a

“cordial” discussion with Nance at the game, in which Plaintiff’s husband explained to Nance that

A.M.R. was upset by the boy’s presence at the game. (Campbell Dep. 146:24-147:2; Sutton Dep.

88:24-89:13). After the conversation between Plaintiff’s husband and Nance, the boy and his

mother left the game without further incident, and A.M.R. continued to cheer at the game. (Sutton

Dep. 89:15-22, 95:9-12; Campbell Dep. 147:2-4).

Subsequently, the boy was present at other non-school-sponsored little league football

games. (Sutton Dep. 179:3-6, 180:5-17; Campbell Dep. 63:9-64:2, 209:6-15). A.M.R. stated that,

when she was cheering at subsequent football games and observed the boy with his parents at those

games, she did not leave and continued to cheer. (A.M.R. Dep. 23:22-25:11). A.M.R. further

testified that, if she saw the boy at football games, she would just avoid him by turning around and

going in a different direction, but notably, she did not leave the game because he was there.

(A.M.R. Dep. 23:22-24:5, 24:20-25:11). In fact, following the incident involving the boy, A.M.R.

has not been prevented from participating in any school activities, such as band, basketball, cross-

country, or cheerleading, (Sutton Dep. 169:1-9, 175:3-176:1, 194:25-195:1; A.M.R. Dep. 11:18-

20, 14:13-15, 15:11-16, 27:24-28:10, 38:11-15), nor has A.M.R. had any problems at school

because of the incident with the boy, (A.M.R. Dep. 27:24-28:24). While A.M.R. testified that she

still thinks about the incident and gets “a little nervous” about attending school events, A.M.R.

stated that she did not have any fears about going back to school. (A.M.R. Dep. 27:24-28:14,

36:24-37:1). To the extent that A.M.R. articulated any limitations related to the school carnival

incident, she testified that she wanted someone to accompany her when she uses the restroom.

(A.M.R. Dep. 26:1-5).5 Lastly, while A.M.R. believes someone should have been present to make

sure the boy went into the correct restroom during the school carnival, she testified that she did

not believe the boy meant to go into the wrong restroom. (A.M.R. Dep. 20:13-19).

5. Plaintiff asserts that A.M.R. “lives in fear everyday” and that she “refused to use the restroom

at school for the remainder of the 2019-2020 school year.” (Doc. 47 at 9). Neither of these

assertions contain cites to the record, nor do they find support in the record before the Court.

Further, Plaintiff’s statement regarding A.M.R.’s use of the restroom is misleading, at best. When

specifically asked whether there was ever a time in which she was not able to use the restroom at

school, A.M.R. responded, “no.” (A.M.R. Dep. 26:12-14).

Plaintiff acknowledged that she does not feel like A.M.R. is in danger while at school, but

that her fear is limited to afterschool activities in which A.M.R. participates because the boy “could

be there at any time.” (Sutton Dep. 170:25-171:10). Despite A.M.R.’s continued enrollment at

KPS and participation in after-school activities following the incident, Plaintiff maintained that the

boy should have been banned from attending after-school activities on KPS property. (Sutton Dep.

107:22-108:5).

C. Alleged Retaliation

Plaintiff claims that, rather than address her concerns about the boy’s presence at after-

school events, Superintendent Mary Murrell refused to speak with Plaintiff about the situation and

that Mary Murrell retaliated and “engaged in a campaign of harassment against Plaintiff.” (Doc.

2-1 at ¶¶ 25-29). Specifically, Plaintiff asserts that she was precluded from substitute teaching in

retaliation for speaking out about the incident. (Docs. 2-1 at ¶ 25; 42 at 7, ¶ 22; 47 at 10). Plaintiff

evidences this assertion with Campbell’s testimony that Mary Murrell enjoined KPS principals

from having Plaintiff substitute teach in their buildings. (Doc. 47 at 11-12; Campbell Dep. 83: 3-

13). With respect to the claimed harassment following the incident, Plaintiff testified that teachers

ceased their “open-door” policy with her and that she was no longer allowed to participate in the

Parent Teacher Association (PTA) under Mary Murrell’s instructions. (Sutton Dep. 147:2-149:10).

In particular, Plaintiff testified that two KPS principals verbally communicated to her that Mary

Murrell instructed them not to allow Plaintiff to participate in the PTA. (Id.) Such PTA

participation included volunteering and decorating at the school. (Sutton Dep. 144:6-23). The

Complaint alleges that the harassment and retaliation were “so severe” that Plaintiff and her family

were forced “to sell their home and leave the Kiefer community.” (Doc. 2-1 at ¶ 32).

Notwithstanding her allegations of harassment and retaliation, Plaintiff testified that she

may have been used as a substitute teacher after the incident and that she knew there was never a

guarantee that she would be used as a substitute. (Sutton Dep. 35:2-7, 37:3-9). Moreover, Campbell

equivocated about whether Mary Murrell’s instruction to ban Plaintiff from substitute teaching

was before or after the school carnival incident—first testifying that it was before the school

carnival incident and later relenting that he could not say for certain that it was. (Campbell Dep.

82:20-83:10, 205:7-212:20). Additionally, Plaintiff stated in an email that “[Mary Murrell] has

made it her duty to personally black list me from being able to volunteer or substitute teach at the

school because I have voiced my concerns about her leadership of our school,” among which

include nepotism, a “homecoming float situation,” and the 2018 hiring of Jayson Larremore. (Doc.

42-6 at 1-2). The record also reflects that Plaintiff sold her house at a profit, continued A.M.R.’s

enrollment at KPS at all times, moved to an apartment for two months during the summer, and

purchased a new home in Kiefer—though Plaintiff attributes her purchase of a home in Kiefer to

Mary Murrell resigning, as “she was the source” of Plaintiff’s issues, (Docs. 42 at ¶ 30; 47 at 13;

Sutton Dep. 194:11-15). Lastly, Plaintiff concedes that the alleged actions taken by KPS had

nothing to do with A.M.R.’s gender. (Docs. 42 at ¶ 26; 47 at 12).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The movant bears the burden of showing that no genuine issue of material fact exists.

See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). The Court resolves all

factual disputes and draws all reasonable inferences in favor of the non-moving party. Id.

However, the party opposing a motion for summary judgment may not “rest on mere allegations”

in its complaint but must “set forth specific facts showing that there is a genuine issue for trial.”

Fed. R. Civ. P. 56(e). The party opposing a motion for summary judgment must also make a

showing sufficient to establish the existence of those elements essential to that party’s case. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).

A movant who “will not bear the burden of persuasion at trial need not negate the

nonmovant’s claim, “but may “simply . . . point[] out to the court a lack of evidence for the

nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima

facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth

specific facts’ that would be admissible in evidence in the event of trial from which a rational trier

of fact could find for the nonmovant.” Id. In response to a motion for summary judgment, the

nonmoving party “may not escape summary judgment in the mere hope that something will turn

up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (internal citations omitted).

“The mere possibility that a factual dispute may exist, without more, is not sufficient to overcome

convincing presentation by the moving party.” Id.

III. ANALYSIS

A. Plaintiff’s Title IX Claim

Title IX provides that “[n]o person ... 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.” 20 U.S.C. § 1681(a). A funding

recipient may be liable for damages under this statute in cases of peer-based sexual harassment,

where the funding recipient “acts with deliberate indifference to known acts of [sexual] harassment

in its programs or activities.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). The

Tenth Circuit has articulated a four-part test to establish a Title IX violation by a school district:

(1) the school district had actual knowledge of, and (2) is deliberately indifferent to, (3) harassment

that is so severe, pervasive, and objectively offensive, as to (4) deprive access to the educational

benefits or opportunities provided by the school. Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch.

Dist., 511 F.3d 1114, 1119 (10th Cir. 2008) (citing Murrell v. Sch. Dist. No. 1, Denver, Colo., 186

F.3d 1238, 1246 (10th Cir. 1999)).

As a preliminary matter, the Court notes that Defendants’ Motion for Summary Judgment

briefly addresses the issue of whether this case rises to the level of sex-based harassment

contemplated under Title IX. (Doc. 42 at 16). Plaintiff responds that the “gravamen of any sexual

harassment claim is that the alleged sexual advances were unwelcome.” (Doc. 47 at 16) (quoting

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986)). Because the boy’s exposure to A.M.R.

was “a form of sexual advance and . . . certainly unwelcome,” Plaintiff argues, the case falls within

the purview of sexual harassment under Title IX. (Doc. 47 at 16-17).

“Title IX does not provide for liability to be imposed due to any type of [peer] harassment

. . . [i]t must be gender-oriented.” Whitley v. Indep. Sch. Dist. No. 10 of Dewey Cnty., Oklahoma,

2019 WL 7667329, at *5 (W.D. Okla. Apr. 22, 2019) (citing Davis, 536 U.S. at 651); see also

Wolfe v. Fayetteville, Arkansas School District, 648 F.3d 860, 862 (8th Cir. 2011) (holding that

“proof of sex-based motivation is required for a Title IX deliberate indifference claim”). Here,

Plaintiff does not seek Title IX liability against Defendants for the school carnival incident, and

she concedes that Defendants’ actions were not gender-based. (Docs. 42 at ¶¶ 26, 31; 47 at 12-13).

Further, Plaintiff has not propounded any evidence that the boy’s conduct was sexually motivated

and, thus, remediable under Title IX. To the contrary, A.M.R. testified that she did not believe that

the boy intended to enter the wrong restroom on the night of the school carnival, and that anytime

she saw him after the incident, it was at an after-school activity and the boy was with his parents.

(A.M.R. Dep. 20:13-19, 23:22-25:11; Docs. 42 at ¶ 21; 47 at 10). In short, the undisputed material

evidence in the record shows that a mentally handicapped boy attended a school event with his

family, entered the wrong restroom, and then continued to attend non-school sponsored activities

with his family, and A.M.R. also happened to attend those same non-school sponsored activities

with her family.

The Court is not convinced that “on the basis of sex” under 20 U.S.C. § 1681(a) imports

such an expansive meaning that it would include an isolated and unintentional act by a person with

a mental disability, and a school’s subsequent decision not to prohibit that person from school

property. Simply stated, Plaintiff has not established that the boy’s “underlying motivation” in

exposing himself was hostility toward A.M.R.’s gender. Wolf, 648 F.3d at 867. That A.M.R. was

“scarred from th[e] incident” does not establish gender-based conduct actionable under Title IX,

nor does the fact that Plaintiff was “very upset” and “felt the boys [sic] mother should be held

responsible.” (Doc. 42-6).

Even if the Court were to employ Plaintiff’s expansive definition of “sexual harassment,”

Plaintiff’s claim fares no better when evaluating the elements of Title IX liability. The parties do

not dispute the “actual knowledge” element, and thus, the Court turns to whether Defendants were

“deliberately indifferent” to Plaintiff’s sexual harassment claim.

A school district is deliberately indifferent to acts of student-on-student harassment “only

where the [district’s] response to the harassment or lack thereof is clearly unreasonable in light of

the known circumstances.” Davis, 526 U.S. at 648. This standard requires more egregious conduct

than required for simple or even heightened negligence. See Bd. of Cnty. Comm’rs of Bryan Cnty.,

Okla. v. Brown, 520 U.S. 397, 407 (1997). “Actions and decisions by officials that are merely

inept, erroneous, ineffective, or negligent do not amount to deliberate indifference.” Doe v. Dallas

Ind. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998).

As to remedial measures, schools need not expel every student accused of sexual

harassment to protect themselves from liability, and “victims of peer harassment [do not] have a

Title IX right to make particular remedial demands.” Rost, 511 F.3d at 1123 (quoting Davis, 526

U.S. at 648) (alteration original). “The standard is not that schools must ‘remedy’ peer harassment,

but that they ‘must merely respond to known peer harassment in a manner that is not clearly

unreasonable.’” Id. (quoting Davis, 526 U.S. at 648-49). Additionally, as to a school’s

investigation, Title IX does not require “flawless investigations [or] perfect

solutions.” Id. (quoting Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 174 (1st Cir. 2007))

(alteration original).

The Supreme Court has indicated that, in applying the deliberate indifference standard,

courts should not second guess school disciplinary decisions. Davis, 526 U.S. at 648. In addition,

a school district’s failure to implement a sexual harassment policy or follow its own policy does

not establish a violation of Title IX. See Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 291-

92 (1998); C.T. v. Liberal Sch. Dist., 562 F. Supp. 2d 1324, 1340 (D. Kan. 2008) (explaining that

the failure to implement sexual harassment policies and procedures is insufficient to establish Title

IX liability “because this failure does not imply the school district’s actual notice of any sexual

harassment or its deliberate indifference thereto”).

Here, Plaintiff contends that KPS acted with deliberate indifference by failing to investigate

the school carnival incident, refusing to take any remedial measures, and retaliating against

Plaintiff for her complaint. (Doc. 47 at 17). In particular, Plaintiff contends that KPS took no action

after the meeting on the night of the school carnival, instead relying “wholly” on the police

investigation, and even then, did not keep Plaintiff apprised of the investigation status. (Id.)

Further, Plaintiff asserts that Defendants “ignore[e] the broader scope of potential remedial

measures available” to them in their decision to “d[o] nothing” following the school carnival

incident. (Id.) Lastly, Plaintiff argues that retaliation against a complainant of sex discrimination

is a violation of Title IX because “such retaliation is intentional discrimination on the basis of sex.”

(Id. at 18) (quoting Doe v. Sch. Dist. No. 1, Denver, Colorado, 970 F.3d 1300, 1315 (10th Cir.

2020)). From this, Plaintiff concludes that “[a] reasonable jury could conclude Defendants’ refusal

to respond at all and retaliation” was clearly unreasonable. (Id.) The Court disagrees.

The undisputed material facts establish that, on the very same night he was notified of

potential sexual harassment, the KPS Title IX coordinator, Cory Campbell, assembled a meeting

with another KPS employee and two Kiefer police officers—including the Kiefer Police Chief—

to review the security camera video. Plaintiff and A.M.R. reviewed the video with Campbell, the

officers, and Donny Murrell; then, Plaintiff and A.M.R. provided a statement to the Kiefer police

officers as part of their investigation. It was during this meeting that the identity of the boy and his

mental disability was discovered. (Doc. 42-6 at 1) (“Through [the] investigation that evening . . .

it was found out who the person was . . . he was actually a 17 year old boy who lives in another

school district [and] has a mental disability.”). The record patently reflects that Defendants

investigated the incident, and given the boy’s age and mental disability, Defendants believed no

further action was necessary after turning the matter over to law enforcement. (Campbell Dep.

95:19-96:8) (“I felt like I did what I was supposed to do and then . . . pass it on from there.”).

Plaintiff merely confuses a failure to investigate with her desire for a more robust investigation.

However, as explained above, Title IX does not require “flawless investigations.” Rost, 511 F.3d

at 1123. Thus, the Court finds that, based on the uncontroverted material facts, no reasonable juror

could conclude that Defendants’ investigation of the school carnival incident was clearly

unreasonable.

Plaintiff’s insistence that Defendants failed to take remedial measures following the school

carnival incident is similarly misguided. The parties do not dispute that the boy was not a KPS

student, nor do the parties dispute that none of the afterschool activities the boy attended after the

school carnival incident were school-sponsored. Further, Plaintiff concedes that her Title IX claim

relates only to the adequacy of Defendants’ response to the school carnival incident—not the

incident itself. While Plaintiff urges that Defendants “ignore[ed] the broader scope of potential

remedial measures available,” (Doc. 47 at 17), the record is devoid of any action within the

Defendants’ control that could have been taken—short of banning a mentally handicapped boy

from school property. The record is, however, replete with Plaintiff’s insistence that Defendants

should have banned the boy from school property.6

As the Supreme Court explained in Davis, a private cause of action under Title IX for peer-

based harassment will lie only when a district “exercises substantial control over both the harasser

and the context in which the known harassment occurs.” 536 U.S. at 645. Given that the boy was

not a KPS student and that the activities related to Plaintiff’s complaint were not-school sponsored,

the undisputed material facts establish that the only context over which Defendants had control

was the boy’s presence on KPS property. Thus, Plaintiff’s Title IX claim essentially presents itself

as a Hobson’s Choice: Defendants could have implemented any remedial measures, as long as it

6. See e.g., Sutton Dep. 108:4-5 (“I wanted him completely banned from the school”); Doc. 42-6

at 1 (“The police said the school needed to file a no trespassing order on the child so he could not

attend events any longer and I felt it was the schools [sic] duty to do this . . . .”); Doc. 42-8 at 3

(“Defendants should have banned the non-student perpetrator from school property . . . .”).

entailed banning a mentally handicapped boy from KPS property. However, the Supreme Court

has admonished courts to “refrain from second-guessing the disciplinary decisions made by school

administrators.” Id. at 648. To the extent that Plaintiff claims that Defendants’ inaction was a

violation of its own sexual harassment policy, (Doc. 47 at 17), such failure “would sound in

negligence, not deliberate indifference” under Title IX. Rost, 511 F.3d at 1122. Considering the

undisputed facts and construing them in favor of Plaintiff, no reasonable jury could conclude that

the Defendants’ refusal to ban a mentally handicapped boy from KPS property was clearly

unreasonable in light of the known circumstances.

Finally, Plaintiff has failed to produce evidence demonstrating that Defendants acted in

retaliation against her for reporting alleged harassment. Plaintiff testified that, based on her

conversations with KPS principals, she was told that the principals were prohibited from hiring

her as a substitute teacher for the 2021 school year—after she “became more vocal about things

not being done at the school.” (Sutton Dep. 130:20-25, 150:4-5). The record also reflects that

Plaintiff’s complaint about the Defendants, and Mary Murrell specifically, involved a great deal

more than simply her displeasure with their handling of her Title IX complaint. (See Doc. 42-6).

Viewed in a light most favorable to Plaintiff, the evidence reflects only a loose correlation between

the time of her Title IX complaint and the time when she was no longer allowed to substitute teach.

To the extent that Defendants did refuse to have Plaintiff substitute teach on account of her

becoming “more vocal about the things not being done at the school,” the record reveals that

Plaintiff took exception with KPS administration’s handling of several other issues, in addition to

its handling of her Title IX complaint. (Id.) Without evidence connecting Defendants’ alleged

refusal to have Plaintiff substitute, the alleged ban is no more attributable to Plaintiff’s Title IX

complaint than it is to Plaintiff speaking out about Mary Murrell’s “shear [sic] nepotism” or the

“homecoming float situation.” (Id. at 2). Accordingly, based on the evidence viewed in a light

most favorable to Plaintiff, the Court cannot say that a reasonable juror could conclude that

Defendants’ alleged refusal to hire Plaintiff as a substitute teacher was in retaliation for making a

Title IX complaint.

Plaintiff’s failure to establish the boy’s conduct as gender-oriented or motivated is

sufficient to dismiss Plaintiff’s Title IX claim because she has failed to establish that the conduct

complained of was “on the basis of sex,” as is required for liability under § 1681(a). And even

assuming that the school carnival incident was sexual harassment actionable under Title IX,

Plaintiff has not established that Defendants were deliberately indifferent to the alleged sexual

harassment. To this point, Plaintiff’s Title IX claim has been wrong at every turn, and the Court

need not analyze the remaining elements of the claim. Because Plaintiff has failed to show that the

alleged conduct was gender-motivated and because Defendants’ actions were not clearly

unreasonable in light of the circumstances, Plaintiff’s Title IX claim must be dismissed.

Accordingly, Defendants’ Motion for Summary Judgment on Plaintiff’s Title IX claim is

GRANTED.

B. Plaintiff’s Negligence Claim

Plaintiff’s only remaining cause of action is based on the same factual circumstances as

her Title IX claim but sounds in state-law negligence. The Court’s subject matter jurisdiction over

this state-law claim is based on 28 U.S.C. § 1367. (See Doc. 2 at ¶¶ 6-7). However, because the

sole federal claim has been dismissed, this Court no longer has original subject matter jurisdiction

under § 1331, and the Court has discretion to remand the state-law claim. See 28 U.S.C. §

1367(c)(3).

“[A] district court should normally dismiss supplemental state law claims after all federal

claims have been dismissed, particularly when the federal claims are dismissed before trial.”

Foxfield Villa Assocs., LLC v. Robben, 967 F.3d 1082, 1103 (10th Cir. 2020), cert. denied, 209 L.

Ed. 2d 128, 141 S. Ct. 1385 (2021) (quoting United States v. Botefuhr, 309 F.3d 1263, 1273 (10th

Cir. 2002) (alteration original)); Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151,

1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually

should, decline to exercise jurisdiction over any remaining state claims.”) (emphasis added). While

a district court has discretion to exercise supplemental jurisdiction, a court should consider the

“the nature and extent of pretrial proceedings, judicial economy, convenience, and fairness” when

exercising its discretion. Thatcher Enterprises v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th

Cir. 1990).

Here, the case has been pending for approximately 17 months, Defendants’ Motion in

Limine is the only motion currently pending in this case, (Doc. 49), and the parties have filed their

deposition designations and counter-designations, (Docs. 50, 52), as well as their pretrial

disclosures, (Docs. 58, 59). However, the parties have not submitted a proposed pretrial order, the

pretrial conference has not been held, and the original trial date has already been continued due to

a scheduling conflict, (Doc. 54). Moreover, Plaintiff has only one claim remaining, and it

implicates an important state-law issue of immunity under the Oklahoma GTCA, namely whether

Defendants’ conduct is characterized as discretionary or ministerial for purposes of immunity

under Okla. Stat. tit. 51, § 155(5)—an issue which has been described as “difficult” and has

received divergent treatment between Oklahoma state and federal courts. J.W. v. Indep. Sch. Dist.

No. 10 of Dewey Cnty., 2021 OK CIV APP 34, ¶ 66, 500 P.3d 649, 664 (“Distinguishing between

discretionary and ministerial activities can be difficult.”) (quoting Johnson v. Independent School

District No. 89 of Oklahoma County, 2016 WL 1270266, *8 (W.D. Okla., March 31, 2016). Lastly,

this Court is already laboring under the administrative strain on its docket following the Supreme

Court decision McGirt v. Oklahoma, 207 L. Ed. 2d 985, 140 S. Ct. 2452 (2020). Because of the

administrative demands on this Court, the important state-law issue that is best resolved by the

Oklahoma courts, and the disfavor of retaining supplemental jurisdiction over state-law claims

prior to trial, the Court finds that declining to exercise supplemental jurisdiction is appropriate in

this case.

Because this case was removed from the District Court of Creek County, State of

Oklahoma, the Court may dismiss Plaintiff’s remaining claim or remand it to the state court for

further proceedings. Robles v. City of Fort Wayne, 113 F.3d 732, 738 (7th Cir. 1997) (“[I]t is clear

that a district court retains the discretion to dismiss as well as to remand such claims.”) (citing

Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 353–54 (1988)); Thompson v. City of Shawnee,

464 F. App’x 720, 726 (10th Cir. 2012) (“The district court had discretion either to remand the

claims to the state court or to dismiss them.”). Given that “remand may best promote the values of

economy, convenience, fairness, and comity,” Cohill, 484 U.S. at 353, the Court finds that remand

is appropriate in this case.

IV. CONCLUSION

Plaintiff has conceded her state-law intentional infliction of emotional distress claim and

her request for punitive damages, (Doc. 47 at 20), and thus, those claims are dismissed.

Additionally, Plaintiff has conceded that Mary Murrell (now deceased) and the Kiefer Public

Schools Board of Education are not proper parties, and therefore, those parties are dismissed from

this case. Because Defendants’ actions were not clearly unreasonable as a matter of law, Plaintiff’s

Title IX claim must be dismissed. Further, because Plaintiff’s only remaining claim sounds in

state-law negligence and because the Court declines to exercise supplemental jurisdiction over that

claim, the case is remanded to the District Court of Creek County, Oklahoma. The school carnival

was an unfortunate incident, and the Court is neither unmindful nor unsympathetic to the distress

A.M.R. may feel in having to see the boy at subsequent after-school events. However unfortunate

the situation may be, the fact remains that A.M.R.’s injury 1s not redressable under Title IX.

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc.

42) is GRANTED in part and DENIED in part. Specifically, Defendants’ Motion for Summary

Judgment is granted with respect to the punitive damages claim, intentional infliction of emotional

distress claim, and Title IX claim. Similarly, Defendants’ Motion for Summary Judgment is

granted with respect to the dismissal of Mary Murrell (now deceased) and the Kiefer Schools

Board of Education as parties in the case. Lastly, Defendants’ Motion for Summary Judgment on

Plaintiff's state-law negligence claim is denied.

IT IS FURTHER ORDERED that Plaintiffs negligence claim is REMANDED to the

District Court of Creek County, State of Oklahoma, pursuant to 28 U.S.C. § 1367(c)(3). The Clerk

of the Court is directed to take all necessary actions required to remand the remaining portion of

this case to the District Court of Creek County, State of Oklahoma.

IT IS SO ORDERED this 2nd day of December, 2022.

—

/ Eh ftcec CAE

TERENCE C. KERN

United States District Judge

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