# Armenta v. Independent School District No 5 of Garvin County

> District Court, W.D. Oklahoma · June 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10390938

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** June 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

GAYLA ARMENTA, as parent and next )
friend of H.A., a minor child, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-00659-JD
)
INDEPENDENT SCHOOL DISTRICT NO. 5 )
OF GARVIN COUNTY, a political subdivision )
of the State of Oklahoma also known as Paoli )
Public Schools, and DAVID MORRIS, )
)
Defendants. )

ORDER

Before the Court are Motions to Dismiss filed by Defendant David Morris
(“Morris”) [Doc. No. 15] and Defendant Independent School District No. 5 of Garvin
County, also known as Paoli Public Schools (“PPS”) [Doc. No. 16] (collectively the
“Motions”), which seek dismissal of Plaintiff’s Second Amended Complaint
(“Complaint”) [Doc. No. 13] for failure to state a claim for relief under Federal Rule of
Civil Procedure 12(b)(6). Plaintiff filed responses to the Motions [Doc. Nos. 18, 19], and
Defendants filed replies [Doc. Nos. 20, 21]. For the following reasons, the Court grants
the Motions in part and denies them in part.
I. BACKGROUND
At the time of the events in question, H.A. was an eighth-grade student at PPS.
She had been diagnosed with an intellectual disability and received special education
services at PPS.1 Morris was the superintendent at PPS. Chase Parker (“Parker”) was a
high school senior and student teacher at PPS. He helped teach H.A.’s middle school
physical education (“PE”) class along with other PPS teachers and coaches. Parker was

also the starting quarterback for the high school football team and a starter on the
basketball team.
In December 2020 during one of H.A.’s PE classes, a dodgeball rolled into the
school’s weight room so H.A. went in to retrieve it. Parker followed H.A. into the weight
room. He engaged her in conversation, then asked her for a hug. When H.A. hugged him,

he began groping her. After, Parker asked H.A. for her phone number and snapchat
username. By text and snapchat, Parker told H.A. to send him nude photographs.
At a PE class in February 2021, H.A. sat with several other middle school girls on
the bleachers. Parker walked over to H.A. and slipped her a note asking her to meet him
in the weight room. Once together in the weight room, Parker again began groping H.A.

for approximately five minutes.
PPS learned of the assault when H.A. inadvertently sent an email about it to
Morris after the second incident. Morris met with H.A. and the school counselor to
discuss the incident. During the meeting, H.A. told them about Parker’s behavior. Morris
contacted Plaintiff, H.A.’s mother, and requested that H.A. complete her schooling online

until the investigation was completed. Morris confirmed what happened and learned that
Parker had assaulted other middle school girls in addition to requesting and receiving

1 Plaintiff is not alleging “that H.A. was denied a Free and Appropriate Education
[FAPE] pursuant to the IDEA.” [Doc. No. 13 at 9 n.4].
nude photographs from them. When Morris finished the investigation, he concluded
Parker was guilty of the conduct alleged by H.A. However, Parker received “a slap on the
wrist” for his conduct.2 [Doc. No. 13 at 7]. He was allowed to attend his prom,

baccalaureate, and graduation despite Morris’ findings. PPS never advised Plaintiff or
H.A. of the results of the investigation. H.A. was required to complete her coursework
from home for the duration of the Spring 2021 semester.
Plaintiff filed this suit. Against Morris and PPS, she brings Fourteenth
Amendment claims for violations of H.A.’s equal protection, substantive due process,

and procedural due process rights. She also brings claims of negligence and violations of
Title IX solely against PPS.3
II. LEGAL STANDARD
“Rule 12(b)(6) dismissal ‘is appropriate if the complaint alone is legally
insufficient to state a claim.’” Serna v. Denver Police Dep’t, 58 F.4th 1167, 1169 (10th

Cir. 2023) (quoting Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,
1104–05 (10th Cir. 2017)). The Court must “view the allegations and all reasonable
inferences in favor of the plaintiffs.” Hubbard v. Okla. ex rel. Okla. Dep’t of Hum. Servs.,
759 F. App’x 693, 696 (10th Cir. 2018) (unpublished).

2 The Complaint does not state exactly what punishment Parker received, only that
it was “a slap on the wrist.” [Doc. No. 13 at 7]. Taking all reasonable inferences in favor
of Plaintiff, the Court concludes Parker’s punishment was minimal.

3 Originally, Plaintiff also brought claims against Parker. However, Plaintiff
voluntary dismissed the claims against him under Federal Rule of Civil Procedure 41.
[Doc. No. 25].
In considering a motion to dismiss under Rule 12(b)(6), the inquiry is “whether the
complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible
‘when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Doe v. Woodard, 912
F.3d 1278, 1299 (10th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
However, “the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions” and “whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678, 679.
III. ANALYSIS
A. Plaintiff has not plausibly alleged equal protection or substantive due
process claims against Morris.

1. Plaintiff’s equal protection claim against Morris fails.
Plaintiff argues that Morris violated the Equal Protection Clause because he was
deliberately indifferent to Parker’s sexual assault of H.A. as evidenced by his failure to
promulgate training and procedures that ensured his staff knew how to prevent and
respond to sexual assault. Plaintiff premises her argument on Morris’ liability as a
supervisor. [Doc. No. 18 at 13] (“Plaintiff does not allege that Defendant Morris himself
engaged in harassment based on sex. Rather, she alleges that Morris is a state actor whose

supervisory inaction violated the Equal Protection Clause . . . .”).
Since “vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir.

2010) (quoting Iqbal, 556 U.S. at 676). In such situations, “the plaintiff must plausibly
plead and eventually prove not only that the official’s subordinates violated the
Constitution, but that the official by virtue of his own conduct and state of mind did so as
well.” Id. “[T]o establish supervisory liability, a plaintiff must show that ‘(1) the
defendant promulgated, created, implemented or possessed responsibility for the

continued operation of a policy that (2) caused the complained of constitutional harm,
and (3) acted with the state of mind required to establish the alleged constitutional
deprivation.’” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (quoting Dodds,
614 F.3d at 1199).
Here, Plaintiff has not plausibly pled that Morris acted with the state of mind

required to establish the alleged equal protection violation—i.e., purposeful
discrimination. Dodds, 614 F.3d at 1198 (“Ashcroft and Mueller’s alleged deliberate
indifference to or knowledge and acquiescence in their subordinates’ unconstitutional
conduct . . . did not amount to the state of mind required to establish Ashcroft and
Mueller violated equal protection guarantees—purposeful discrimination—and the

[Supreme Court] dismissed Iqbal’s claims against them.” (citing Iqbal, 556 U.S. at 683)).
Nothing in the Complaint suggests Morris purposefully discriminated against H.A. Nor
does Plaintiff argue that he did so. Instead, Plaintiff mistakenly argues he was
deliberately indifferent to H.A.’s harassment.4 Because Plaintiff has not sufficiently
alleged that Morris, by virtue of his own conduct and state of mind, violated the Equal
Protection Clause, the Court dismisses this claim against Morris.5

2. Plaintiff’s substantive due process claim against Morris fails.

Plaintiff alleges a substantive due process claim against Morris, stating that
“Morris’ decision to banish H.A. from attending PPS in-person is the exact kind of
arbitrary governmental decision that the substantive due process clause of the Fourteenth
Amendment seeks to protect.” [Doc. No. 18 at 21].

4 The Court understands Plaintiff’s mistake. Before Iqbal, deliberate indifference
would have been the appropriate standard. See Murrell v. Sch. Dist. No. 1, Denver, 186
F.3d 1238, 1250 (10th Cir. 1999) (“[A] governmental official or supervisory employee
may be held liable under section 1983 upon a showing of deliberate indifference to
known sexual harassment.”). But “after Iqbal, Plaintiff can no longer succeed on a § 1983
claim against Defendant by showing that as a supervisor he behaved ‘knowingly or with
deliberate indifference that a constitutional violation would occur’ at the hands of his
subordinates, unless that is the same state of mind required for the constitutional
deprivation he alleges.” Dodds, 614 F.3d at 1204 (quoting Serna v. Colo. Dep’t of Corr.,
455 F.3d 1146, 1151 (10th Cir. 2006)). To add to Plaintiff’s confusion, the Tenth Circuit
stated in dicta of an unpublished opinion “that deliberate indifference to known sexual
harassment can, under certain circumstances, serve as a basis for supervisory liability
under an equal-protection theory.” Burke v. New Mexico, 696 F. App’x 325, 330 (10th
Cir. 2017) (unpublished). It is unclear to the Court what “certain circumstances” Burke
refers to, but, in light of Dodds’ and Iqbal’s binding authority, it concludes no such
circumstances are present here.

5 Even if the Court construes Plaintiff’s argument to be that Morris directly
violated H.A.’s equal protection rights, this claim similarly fails because Plaintiff has not
alleged Morris purposefully discriminated against H.A. Bird v. W. Valley City, 832 F.3d
1188, 1208 (10th Cir. 2016) (“[P]urposeful discrimination is an essential element of an
equal protection violation.” (alternation in original) (quoting Lewis v. City of Ft. Collins,
903 F.2d 752, 755 n.1 (10th Cir. 1990))).
Plaintiff’s arguments require the Court “to wade into the murky waters of § 1983–
based” substantive due process claims. Williams v. Berney, 519 F.3d 1216, 1220 (10th
Cir. 2008) (quoting Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007)). “[T]he Supreme

Court recognizes two types of substantive due process claims: (1) claims that the
government has infringed a ‘fundamental’ right, and (2) claims that government action
deprived a person of life, liberty, or property in a manner so arbitrary it shocks the
judicial conscience.” Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir. 2019) (internal
citations omitted). “The concept of substantive due process is not fixed or final, . . . but

generally is accorded to matters relating to marriage, family, procreation, and the right to
bodily integrity . . . .”Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., No. 19,
77 F.3d 1253, 1257 (10th Cir. 1996) (citations omitted).
“As a general matter, the [Supreme Court] has always been reluctant to expand the
concept of substantive due process because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended.” Id. (quoting Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992)). Thus, “[t]he doctrine of judicial self-restraint
requires [the Court] to exercise the utmost care whenever [it is] asked to break new
ground in this field. It is important, therefore, to focus on the allegations in the complaint
to determine how [Plaintiff] describes the constitutional right at stake . . . .” Collins, 503

U.S. at 125.
Here, Plaintiff makes it very clear that she is not seeking to hold Morris liable for
Parker’s sexual harassment. See [Doc. No. 18 at 21] (“Plaintiff’s substantive due process
claim is not based on Defendant Morris’ conduct before February 2021. Rather,
Plaintiff’s substantive due process claim is based on Defendant Morris’ arbitrary and
conscious shocking decision to punish H.A. after learning that she had been victimized
by Chase Parker.”). It is less clear what substantive right forms the underlying basis for

Plaintiff’s substantive due process claim.6 Plaintiff’s briefing seems to indicate it is
H.A.’s “substantive due process right to a free public education.” Butler v. Rio Rancho
Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003). “[E]ven assuming
[Plaintiff’s] interest in a public education triggers substantive due process guarantees,”
the Complaint does not include allegations showing that right has been violated. Id.

Despite not being allowed to attend regularly scheduled classes, H.A. was allowed to
complete her schoolwork remotely and occasionally attend tutoring sessions on campus.
Therefore, H.A. was not deprived of her right to a free public education. The Court
dismisses Plaintiff’s substantive due process claims against Morris.

6 Because Plaintiff does not argue Morris should be held liable for Parker’s assault
and Morris himself did not assault H.A., sexual assault cannot serve as the underlying
basis for Plaintiff’s claims even though “[s]exual assault or molestation by a school
teacher violates a student’s substantive due process rights.” Abeyta, 77 F.3d at 1255.

At certain points, Plaintiff seems to be arguing that H.A.’s punishment itself (i.e.,
completing her schoolwork remotely) violated her substantive due process rights.
Notably, “excessive corporal punishment violates the pupil’s substantive due process
rights.” Garcia by Garcia v. Miera, 817 F.2d 650, 653 (10th Cir. 1987). But here, there
are no allegations of corporal punishment. And Plaintiff points the Court to no binding
authority where non-corporal punishment has formed the basis of a successful substantive
due process claim.
B. Plaintiff has not plausibly alleged procedural due process claims
against Morris or PPS.

Plaintiff argues H.A. was deprived of procedural due process by PPS and Morris
because she was required to complete the remainder of the Spring 2021 semester from
home. She claims “H.A. had a protected property interest in attending public school and
pursuing her education, of which she cannot be deprived of without due process.” [Doc.
No. 13 at 27]. Plaintiff also alleges H.A. “had a protected liberty interest in her good
name, reputation, honor, and integrity, which cannot be deprived without due process.”
Id.
“[T]he range of interests protected by the procedural due process clause is not
infinite . . . .” Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1256

(10th Cir. 2008) (alteration in original) (quoting Board of Regents v. Roth, 408 U.S. 564,
570 (1972)). “[R]ather, ‘[a] person alleging that he has been deprived of his right to
procedural due process must prove two elements: that he possessed a constitutionally
protected liberty or property interest such that the due process protections were
applicable, and that he was not afforded an appropriate level of process.’” Id. (second

alteration in Couture) (quoting Zwygart v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 483
F.3d 1086, 1093 (10th Cir. 2007)).
In their Motions, Defendants argue Plaintiff has not plausibly alleged a procedural
due process claim because she has not shown H.A. was deprived of constitutionally
protected property interest. They contend that no legal authority supports the assertion

that “H.A. had a property interest in physically attending school.” [Doc. No. 15 at 5]
(emphasis added). In her response, Plaintiff says the first element of the procedural due
process analysis is met because “it is clearly established that students, such as H.A., have
protected property interests in pursuing a public education.” [Doc. No. 18 at 17]. This is,

of course, true. See Albach v. Odle, 531 F.2d 983, 985 (10th Cir. 1976) (“Goss recognizes
a student’s entitlement to a public education as a property interest which is
constitutionally protected.” (citing Goss v. Lopez, 419 U.S. 565 (1975))).
But under a procedural due process analysis, Plaintiff must have a constitutionally
protected interest in the right she was deprived of. The right Plaintiff claims H.A. was

deprived of is not entitlement to public education in general, but entitlement to attend in-
person classes during normal classroom hours. And Plaintiff, in no way, addresses
whether this is a constitutionally protected property interest despite Defendants explicitly
arguing it is not. The Court declines to make Plaintiff’s arguments for her and only
addresses the arguments Plaintiff raises. Hayes v. SkyWest Airlines, Inc., 12 F.4th 1186,

1201 (10th Cir. 2021) (“Forfeiture occurs when a party fails to raise a theory, argument,
or issue before the district court.”).
Plaintiff contends she meets the first element of the procedural due process
analysis because H.A. had a property interest in pursuing and receiving a public
education. But Plaintiff’s allegations reflect that H.A. was permitted to continue her

coursework, attend live-streaming of classes, view pre-taped lessons, ask teacher’s
questions via email, and attend occasional tutoring sessions on PPS’s campus. Even
making reasonable inferences in favor of Plaintiff, the Complaint does not show that H.A.
was deprived of her right to a public education.
Therefore, the Court dismisses her procedural due process claims against Morris
and PPS. Because the Court determines that Plaintiff has not plausibly alleged a
procedural due process claim on the merits, it does not address whether Plaintiff

adequately alleged municipal or supervisor liability for this claim.7
C. Plaintiff has not plausibly alleged equal protection or substantive due
process claims against PPS.

Plaintiff argues that H.A.’s sexual harassment violated her equal protection and
substantive due process rights. PPS maintains it cannot be held liable for her sexual
harassment and assault because Plaintiff has not established municipal liability.
“[A] municipality can be found liable under § 1983 only where the municipality
itself causes the constitutional violation at issue. Respondeat superior or vicarious
liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989)
(emphasis omitted) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658
(1978)). “[A] plaintiff seeking to impose liability on a municipality under § 1983” must
“identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cnty.
Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). An entity is not

liable under § 1983 “unless deliberate action attributable to the municipality itself is the

7 Plaintiff’s arguments regarding H.A.’s reputation fail because she has not
successfully alleged a violation of some other tangible property or liberty interest.
Seamons v. Snow, 84 F.3d 1226, 1235 (10th Cir. 1996) (“The Supreme Court, in Paul v.
Davis, 424 U.S. 693, 701 (1976), concluded that damage to an individual’s reputation
alone, apart from some more tangible interest, is not enough to establish a due process
violation.”).
‘moving force’ behind the plaintiff’s deprivation of federal rights.” Id. at 400 (emphasis
omitted).
Any of the following constitute an official policy: ‘(1) a formal regulation
or policy statement; (2) an informal custom amounting to a widespread
practice that, although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a custom or usage
with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final policymakers of
the decisions—and the basis for them—of subordinates to whom authority
was delegated subject to these policymakers’ review and approval; or (5)
the failure to adequately train or supervise employees, so long as that
failure results from deliberate indifference to the injuries that may be
caused.’

Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1145 (10th Cir. 2023) (quoting
Crowson v. Washington Cnty., 983 F.3d 1166, 1184 (10th Cir. 2020)).
“After establishing a municipal policy or custom, a plaintiff must demonstrate ‘a
direct causal link between the policy or custom and the injury alleged.’” Waller v. City &
Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (quoting Bryson v. City of Okla.
City, 627 F.3d 784, 788 (10th Cir. 2010)). “Where a plaintiff claims that the municipality
has not directly inflicted an injury, but nonetheless has caused an employee to do so,
rigorous standards of culpability and causation must be applied to ensure that the
municipality is not held liable solely for the actions of its employee.” Id. (quoting Brown,
520 U.S. at 405).
The injury that is the basis for Plaintiff’s equal protection and substantive due
process claims is H.A.’s sexual harassment. See [Doc. No. 13 at 24] (“Under the Equal
Protection Clause of the Fourteenth Amendment, H.A. had the right to equal access to an
educational environment free from harassment and discrimination on the basis of sex.”);
[Id. at 28–29] (“H.A. has a constitutional right to personal security, bodily integrity, due
process, and to be secure and to be left alone, all protected by the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.”).

The Court acknowledges that sexual assault and harassment can serve as the
underlying equal protection and substantive due process violations for municipal liability.
Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1255
(10th Cir. 1996) (“Sexual assault or molestation by a school teacher violates a student’s
substantive due process rights.”); Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist.,

511 F.3d 1114, 1124 (10th Cir. 2008) (“A school district’s liability for sexual harassment
under the Equal Protection clause is analyzed under a municipal liability framework.”).
But, as alleged, none of the school’s policies or customs were the “moving force” behind
H.A.’s sexual harassment or assault.
For example, although Plaintiff argues PPS’s policy for addressing sexual

harassment was deficient because it did not include a clear description of how PPS
students were supposed to report sexual harassment, such a policy does not meet the
municipal liability causation standard. An unclear policy regarding how to report sexual
harassment does not cause sexual harassment. Additionally, Plaintiff contends PPS’s
disparate treatment of female students downplayed Parker’s sexual harassment and

enabled him to engage in continued sex discrimination, harassment, and assault of female
students. But Plaintiff does not give specifics regarding how PPS downplayed sexual
assault in the past or allowed it to occur to other students before H.A.’s incidents.8
Without such allegations, Plaintiff cannot show that PPS’s prior failure to take sexual
harassment seriously caused H.A.’s harassment.9

Plaintiff’s arguments pertaining to PPS’s inadequate training of its employees is
similarly unsuccessful. “[F]or claims of inadequate hiring, training, or other supervisory
practices, a plaintiff ‘must demonstrate that the municipal action was taken with
deliberate indifference as to its known or obvious consequences.’” Waller, 932 F.3d at
1284 (quoting Brown, 520 U.S. at 407). “Deliberate indifference is a stringent standard of

fault, requiring proof that a municipal actor disregarded a known or obvious consequence
of his action . . . .” Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “The
deliberate indifference standard may be satisfied when the municipality has actual or
constructive notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard the risk of

harm.” Id. (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)).

8 Only conclusory statements are included in the Complaint for these allegations.
See, e.g., [Doc. No. 13 at 14] (“By ignoring allegations and discouraging female students
from reporting sexual assaults committed by student athletes, PPS created an
environment where football and basketball players can sexually assault female students
without repercussion.”).

9 The Court premises much of its analysis on Plaintiff’s failure to establish a direct
causal link between PPS’s policies and customs and H.A.’s injuries. However, it is also
important to note that for an informal custom to qualify as an official policy for purposes
of municipal liability, “[p]roof of a single incident of unconstitutional activity is not
sufficient.” Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Plaintiff has
not plausibly alleged the existence of an official policy.
Here, PPS had no such notice prior to any of H.A.’s assaults. Plus, as previously
stated, Plaintiff does not detail any prior incidents of sexual assault that took place at PPS
that would have put it on notice. The Court concludes that Plaintiff’s allegations do not

show that PPS had notice that its failure to provide its employees with specific training
regarding how to prevent or respond to incidents of sexual assault was substantially
certain to result in a constitutional violation.10
Thus, Plaintiff has failed to plausibly allege the elements needed to show
municipal liability is appropriate. The Court therefore does not reach the merits of

Plaintiff’s equal protection or substantive due process claims against PPS. These claims
are dismissed.
D. Plaintiff has not plausibly alleged negligence claims against PPS.11
Plaintiff argues that PPS negligently supervised Parker, negligently investigated
H.A.’s assault, and negligently hired, retained, and trained its employees. PPS argues

these claims are barred by the Oklahoma Governmental Tort Claims Act (“OGTCA”)
because its actions were discretionary. Okla. Stat. tit. 51, § 151 et seq.

10 According to the Complaint, PPS’s policies dictated that “any employee or
student found to have engaged in sexually harassing behavior, shall be subject to
punishment.” [Doc. No. 13 at 16]. But PPS “failed to provide training or education to
administrators, staff, students, or parents on protecting students from sexual harassment
and violence.” [Id. at 17].

11 The Court structures its negligence analysis a little differently than Plaintiff’s
briefing. However, viewing Plaintiff’s allegations in her favor, the Court thinks this
format more clearly addresses Plaintiff’s claims.
The State of Oklahoma adopted the doctrine of sovereign immunity for “[t]he
state, its political subdivisions, and all of their employees acting within the scope of their
employment.” Id. § 152.1(A). PPS is considered a political subdivision. Id. § 152(11)(b)

(“‘Political subdivision’ means . . . a school district . . . .”). “The [OGTCA] provides ‘the
exclusive remedy for an injured plaintiff to recover against [an Oklahoma municipality]
in tort.’” Clark v. Colbert, 895 F.3d 1258, 1264 (10th Cir. 2018) (second alteration in
Clark) (quoting Nail v. City of Henryetta, 911 P.2d 914, 917 (Okla. 1996)). Under the
OGTCA, “a political subdivision shall not be liable if a loss or claim results from . . .

[a]doption or enforcement of or failure to adopt or enforce a law, whether valid or
invalid, including, but not limited to, any statute, charter provision, ordinance, resolution,
rule, regulation or written policy” or “[p]erformance of or the failure to exercise or
perform any act or service which is in the discretion of the state or political subdivision or
its employees.” Okla. Stat. tit. 51, § 155(4), (5).

1. Plaintiff has not plausibly alleged a negligent failure to supervise
claim against PPS.

Plaintiff argues that PPS negligently supervised Parker and H.A., which resulted in
an unsafe school environment. She contends that OGTCA immunity does not apply
because “PPS policies are clear that PPS staff has a duty to supervise the students in its
care,” and PPS breached that duty. [Doc. No. 19 at 16].
“A great deal of discretion is involved in determining what security measures are
needed . . . . The decisions required to be made by the School Board and its employees
and agents called for legitimate judgment calls.” Truitt v. Diggs, 611 P.2d 633, 635
(Okla. 1980). But once a specific policy or regulation is adopted and enforced, the
political subdivision (i.e., its employees) must do so without negligence. See J.W. v.
Indep. Sch. Dist. No. 10 of Dewey Cnty., 500 P.3d 649, 659 (Okla. Civ. App. 2021) (“But

having made the decision to enforce the policy in this case, [the school officials] must do
so in a manner consistent with the applicable standard of care.”).
Here, Plaintiff does not allege what policies PPS had in place regarding the
supervision of its students and student teachers during PE class.12 Without knowing what
policies PPS chose to adopt and enforce, the Court cannot determine whether it was

negligent in its implementation of those policies based on the facts alleged in Plaintiff’s
Complaint. Additionally, “[c]laims for failing to maintain a safe school premises and
negligent supervision of students and teachers in the high school gymnasium are
equivalent to a claim for negligent supervision during the lunch period” which the
Oklahoma Supreme Court has determined falls within the discretionary function

12 In her Response, Plaintiff cites to PPS’s Student Discipline Activities Policy and
Teacher Job Description. She then says that “[c]itation to this public record does not
convert Defendants’ motion to one for summary judgment. . . . Moreover, these policies
are not offered as evidence at this time but rather to give the Court context for the claims
asserted in this case which will be proved in discovery.” [Doc. No. 19 at 17]. Plaintiff
also cites to Johnson v. Spencer, 950 F.3d 680, 705 (10th Cir. 2020), which discuses
judicial notice. However, Plaintiff did not actually request, via motion or otherwise, that
the Court to take judicial notice of these polices and it is not required to do so sua sponte.
Id. (“A district court, however, may ‘take judicial notice of its own files and records, as
well as facts which are a matter of public record . . . .’” (emphasis added)). But even if
the Court were to take judicial notice of these polices, it is not convinced they mandate
certain non-discretionary conduct regarding what type of supervision teachers must give
to students and student teachers.
exception of the OGTCA. Najera v. Indep. Sch. Dist. of Stroud No. 1-54 of Lincoln Cnty.,
60 F. Supp. 3d 1202, 1206 (W.D. Okla. 2014) (citing Truitt, 611 P.2d at 635).
Accordingly, the Court holds that PPS is immune to Plaintiff’s claim for negligent

supervision. The Court dismisses this claim.
2. Plaintiff has not plausibly alleged a negligent investigation claim
against PPS.

Plaintiff argues PPS failed to investigate H.A.’s claims in accordance with its
existing policies and procedures. She maintains PPS, through Morris, was negligent
because it did not comply with its own policies for investigations.
The relevant OGTCA language here is nearly identical to the Federal Tort Claim
Act’s discretionary function exception language. Compare Okla. Stat. tit. 51, § 155(5)
(exempting “[p]erformance of or the failure to exercise or perform any act or service
which is in the discretion of the state or political subdivision or its employees”), with 28
U.S.C. § 2680(a) (exempting “performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the
Government”). Given the minimal number of Oklahoma state court negligent

investigation cases, the Court considers how this language has been applied and
interpreted in the federal context for guidance.13 See Nguyen v. State, 788 P.2d 962, 964
(Okla. 1990) (applying “[t]he majority approach under the Federal Tort Claims Act”).

13 The most similar case the Court could find is J.W. v. Indep. Sch. Dist. No. 10 of
Dewey Cnty., 500 P.3d 649 (Okla. Civ. App. 2021). Although the Court attempts to apply
its reasoning here, the facts and posture of J.W. are significantly different. In J.W., the
school district had adopted and chosen to enforce an anti-bullying policy, and the Court
Here, Plaintiff’s only allegation regarding the contents of PPS’s sexual harassment
policy is that it “provides absolute autonomy to the PPS superintendent to investigate and
render a punishment/decision.” [Doc. No. 13 at 13]. As alleged, this policy appears to

give the superintendent, in this case Morris, “virtually complete discretion to investigate
in any manner [he] sees fit.” Cooper v. Am. Auto. Ins. Co., 978 F.2d 602, 612 (10th Cir.
1992). The Court “is mindful that a litigant may have a valid [OGTCA] claim when there
is a demonstrated negligent breach in the performance of specified actions mandated by
[policy].” Id. at 612 n.8. But as alleged, the policy gives a vast amount of discretion to

Morris regarding how to conduct the investigation. This kind of policy is explicitly
accounted for in the OGTCA. Okla. Stat. tit. 51, § 155(5) (stating that “[p]erformance of
. . . any act or service which is in the discretion of the . . . political subdivision or its
employees” shall not give rise to liability). As such, Morris’ performance of the
investigation was inherently discretionary, and as alleged, PPS cannot be held liable for

his decisions. See United States v. Gaubert, 499 U.S. 315, 324 (1991) (“When established
governmental policy, as expressed or implied . . . , allows a Government agent to exercise
discretion, it must be presumed that the agent’s acts are grounded in policy when
exercising that discretion.”).
Thus, the Court holds that PPS is immune from suit for Plaintiff’s negligent

investigation claim. Nguyen, 788 P.2d at 965 (“[T]he discretionary function exception is
‘designed to bar tort litigation challenging governmental decisions which are founded on

of Civil Appeals remanded the case so the lower court could determine if the policy was
negligently enforced.
a balancing of competing policy considerations . . . .’” (quoting Lipari v. Sears, Roebuck
& Co., 497 F. Supp. 185, 195 (D. Neb. 1980))). The Court dismisses this claim. See
Cooper, 978 F.2d at 612 (“With respect to the claims that the investigation of [the victim]

itself was negligently performed, we could find no regulations mandating particular
inquiries to be made or methods of making them.”).
3. Plaintiff has not plausibly alleged a negligent hiring, supervising,
retention, or training claim against PPS.

Plaintiff argues PPS “fail[ed] to properly hire, train, supervise and retain Chase
Parker.” [Doc. No. 13 at 19]. Defendants argue PPS is entitled to immunity on this claim.
The Court does not decide whether immunity is appropriate in this scenario
because even if not, Plaintiff has not adequately stated a claim for negligence on this
basis under Rule 12(b)(6). Under Oklahoma law,
Employers may be held liable for negligence in hiring, supervising or
retaining an employee. In such instances, recovery is sought for the
employer’s negligence. The claim is based on an employee’s harm to a third
party through employment. An employer is found liable, if—at the critical
time of the tortious incident—, the employer had reason to believe that the
person would create an undue risk of harm to others. Employers are held
liable for their prior knowledge of the servant’s propensity to commit the
very harm for which damages are sought.

N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999) (footnotes
omitted). Here, Plaintiff has not alleged any facts showing that PPS “had reason to
believe that [Parker] would create an undue risk of harm to others.” Id. Nothing in the
Complaint suggests PPS was put on notice regarding Parker’s abusive propensities prior
to H.A. sending an email to Morris. Because at the time of H.A.’s assault PPS had no
reason to suspect Parker would harm others, it cannot be found negligent on this basis.
Therefore, the Court concludes Plaintiff fails to state a claim for negligent hiring,
training, and retention and dismisses this claim.
E. Plaintiff has plausibly alleged Title IX violations against PPS.

Plaintiff argues that PPS violated Title IX because it did not reasonably respond to
H.A.’s reports of sexual harassment. She also contends PPS retaliated against her for
reporting the discrimination.
1. Plaintiff has plausibly alleged that, under Title IX, PPS was
deliberately indifferent to her sexual harassment.

PPS argues it could not be deliberately indifferent to Parker’s sexual assaults
because it did not have notice before they happened, and after PPS investigated, H.A. was
not assaulted again. Plaintiff explains that PPS’s deliberate indifference is evidenced by
the way it responded to the harassment.
Section 901(a) of Title IX states, “No 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.” 20 U.S.C. § 1681(a). “Sexual harassment is a form of discrimination on the

basis of sex and is actionable under Title IX.” Escue v. N. Okla. Coll., 450 F.3d 1146,
1152 (10th Cir. 2006). However, a school district “is not vicariously liable to its students
for all sexual harassment caused by teachers, and the Supreme Court has held that, under
Title IX, a student may hold a school liable ‘only for its own misconduct.’” Id. (quoting
Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640 (1999)).
“A school district may be liable under Title IX provided it (1) has 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). “A 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.’” Id. at 1121
(alteration in Rost) (quoting Davis, 526 U.S. at 648).

After hearing of Parker’s predatory behavior, Morris investigated by talking with
other middle school students, Parker, and Plaintiff. Morris learned that Parker had
solicited and received nude photographs from other middle school girls. He also found
out that Parker had physically assaulted other girls at the school. After Morris’
investigation, PPS concluded Parker was guilty of sexually assaulting and harassing H.A.

and other students. However, Parker’s punishment was minimal and H.A. was forced to
complete her schoolwork at home for the remainder of the semester.
This alleged response is clearly unreasonable considering the investigation’s
outcome. After learning of the assault, PPS investigated and concluded that Parker was
guilty of sexually harassing and assaulting minors—specifically H.A. But he was not

punished in any major way. Instead, PPS responded by disallowing H.A. from attending
in-person classes which then deprived her of access to the educational benefits or
opportunities provided by PPS. At this stage, the Court determines Plaintiff has
adequately stated a Title IX violation based on PPS’s deliberate indifference to Parker’s
sexual assault of H.A.14
2. Plaintiff has plausibly alleged a retaliation claim under Title IX.

“Retaliation against a person because that person has complained of sex
discrimination is another form of intentional sex discrimination encompassed by Title
IX’s private cause of action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173
(2005). When analyzing retaliation claims under Title IX, “[t]he McDonnell Douglas
framework applies.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 n.8 (10th Cir. 2017).

Under this framework,
the plaintiff must first make out a prima facie case of retaliation by showing
(1) that [s]he engaged in protected opposition to discrimination, (2) that a
reasonable [person] would have found the challenged action materially
adverse, and (3) that a causal connection existed between the protected
activity and the materially adverse action.

Berry v. Mission Grp. Kan., Inc., 463 F. App’x 759, 766 (10th Cir. 2012) (unpublished)
(first alteration in original) (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987,

14 The analytical framework for Title IX claims is different than the standards
applied to constitutional claims. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
257–58 (2009) (“Even where particular activities and particular defendants are subject to
both Title IX and the Equal Protection Clause, the standards for establishing liability may
not be wholly congruent. For example, a Title IX plaintiff can establish school district
liability by showing that a single school administrator with authority to take corrective
action responded to harassment with deliberate indifference. Gebser v. Lago Vista
Independent School Dist., 524 U.S. 274, 290 (1998). A plaintiff stating a similar claim
via § 1983 for violation of the Equal Protection Clause by a school district or other
municipal entity must show that the harassment was the result of municipal custom,
policy, or practice. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694
(1978).”).
998 (10th Cir. 2011) and citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)).
The only argument PPS offers in support of its motion to dismiss Plaintiffs
retaliation claim is that H.A. did not complain of the harassment. Instead, it claims
“Morris discovered documentary evidence of the assaults and initiated an investigation
himself.” [Doc. No. 16 at 10]. Taking all reasonable inferences in favor of Plaintiff, this
is not supported by the allegations in the Complaint. Regardless, H.A. only needed to
engage in protected opposition to discrimination. So, agreeing to meet with Morris and
sharing about the two assaults qualifies under the McDonnell Douglas framework. The
Court denies PPS’s Motion as to this claim.
IV. CONCLUSION
The Court concludes that Plaintiff has failed to plausibly state Fourteenth
Amendment and negligence claims. Thus, the Court GRANTS Defendants’ Motions as to
Plaintiff's equal protection, substantive due process, procedural due process, and
negligence claims. These claims are dismissed without prejudice, and Morris is dismissed
as a party.'> The Court also concludes Plaintiff has plausibly alleged Title [X claims. The
Court DENIES PPS’s Motion as to these claims.
IT IS SO ORDERED this 21st day of June 2024.

UNITED STATES DISTRICT JUDGE

'S Because the Court determines that Plaintiff failed to state claims for relief
against Morris, it does not reach the issue of whether he is entitled to qualified immunity.
24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390938. Public record. Not legal advice.