Bynum v. Independent School District No. 1 of Kiowa County Oklahoma

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

CASIE and ED BYNUM, as parents and )

next friend of M. B., a minor, )

)

Plaintiffs, )

)

v. )

) Case No. CIV-23-1003-PRW

INDEPENDENT SCHOOL DISTRICT )

NO. 1 OF KIOWA COUNTY )

OKLAHOMA, a/k/a HOBART HIGH )

SCHOOL, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Motion to Dismiss (Dkt. 3). The matter is fully

briefed, and for the reasons that follow, the Motion (Dkt. 3) is GRANTED IN PART and

DENIED IN PART.

Background

This case concerns allegations of an incident of sexual harassment of a student,

M.B., by his coach, and sexual harassment and retaliation by other students in response to

the incident. According to the Complaint, in early 2022, the basketball coach for Hobart

High School, Jeff Tompkins (“Coach Tompkins”), was addressing his team after the

conclusion of an away game. While explaining to one of the players why his conduct

resulted in a technical foul, Coach Tompkins stated “There’s a lot of things you can’t do.

Like I can’t make him suck my d*ck.” While making this statement, Coach Tompkins

made thrusting gestures towards M.B.’s mouth. Following this incident, M.B. was

ridiculed by other students on the bus ride home with statements including “d*ck sucker”

and “Coach’s little b*tch.” Plaintiffs, M.B.’s parents, contacted the Hobart High School

principal, Mark Harmon, the next morning. But the harassment of M.B. by other students

did not subside. He continued to face similar harassment from other students, along with

physical threats.

At the next home game three days later, Coach Tompkins was not present. But his

wife entered the locker room and made a statement regarding her husband potentially

losing his job based on the incident with M.B. M.B. was again taunted and threatened by

fellow students. Plaintiffs again contacted Principal Harmon, but were told that there was

nothing he could do about the harassment and threats to M.B. The Complaint does not

detail where Coach Tompkins was following the initial incident, but it alleges that Coach

Tompkins returned to school the following week and walked by M.B. in the hallway.

Nothing was said by Coach Tompkins, but other students again taunted M.B., saying “your

boyfriend is back.” Plaintiffs contacted the superintendent of Hobart High School, Cathy

Hunt. She told Plaintiffs and M.B. that Coach Tompkins’ behavior was not sexual, and so

she would not give him a paid vacation. Coach Tompkins resigned from being the boys’

basketball coach a week later.

Yet, the other students’ harassment of M.B. continued. Students created photos of

M.B. with his “head in compromising situations” and then shared them with other students

and on social media. After no action was taken by the school district, M.B. transferred out

of Hobart Public Schools. Plaintiffs allege that even after M.B. transferred to a new school,

he was harassed by Hobart High School students when his new basketball team played

against Hobart.

Plaintiffs brought this action in the District Court of Kiowa County against

Independent School District No. 1 of Kiowa County (the “District”). The Complaint lists

three causes of action: alleging (1) violations of Title IX, (2) deprivation of constitutional

rights in violation of 42 U.S.C. § 1983; and (3) negligence and negligence per se. Defendant

District removed to this Court on the ground of federal question jurisdiction over the Title

IX and § 1983 claims, and supplemental jurisdiction over the state law claim. The District

then filed this present Motion to Dismiss (Dkt. 3).

Legal Standard

In reviewing a Fed. R. Civ. P. 12(b) motion to dismiss, the Court must satisfy itself

that the pleaded facts state a claim that is plausible.1 All well-pleaded allegations in the

complaint must be accepted as true and viewed “in the light most favorable to the

plaintiff.”2 While factual allegations are taken as true, a court need not accept mere legal

conclusions.3 “Labels and conclusions” or “a formulaic recitation of the elements of a cause

of action” are not enough.4

1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

2 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.

City & Cnty. of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)).

3 Khalik v. United Air Lines, 671 F.3d 1188, 1190–91 (10th Cir. 2012).

4 Id.

Analysis

I. Title IX Claims

Title IX requires that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination

under any education program or activity receiving Federal financial assistance . . . .”5

School districts can only be liable for their own misconduct, so to allege a violation of Title

IX against a school district, a plaintiff must allege facts showing “the district (1) had actual

knowledge of, and (2) was deliberately indifferent to (3) harassment so severe, pervasive

and objectively offensive that it (4) deprived the victim of access to the educational benefits

or opportunities provided by the school.”6 Plaintiffs argue that they have sufficiently

pleaded facts supporting claims against the District for both teacher-on-student sexual

harassment and peer-on-peer sexual harassment and retaliation.

A. Peer-on-Peer Sexual Harassment and Retaliation

A funding recipient can be liable under Title IX for its deliberate indifference to one

student’s sexual harassment of another because such deliberate indifference “constitute[s]

intentional discrimination on the basis of sex.”7 Likewise, a funding recipient can also be

5 20 U.S.C. § 1681(a).

6 Murrell v. Sch. Dist. No. 1, Denver, 186 F.3d 1238, 1246 (10th Cir. 1999) (citing Davis

ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642–45 (1999)). See

Farmer v. Kansas State Univ., 918 F.3d 1094, 1098 (10th Cir. 2019) (citing Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998) and Davis, 526 U.S. at 640–43 (1999)).

7 Farmer, 918 F.3d at 1098 (quoting Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

182 (2005) and citing Davis, 526 U.S. at 650).

liable for its deliberate indifference to student-on-student retaliatory harassment in

response to a report of sexual harassment.8

As to Plaintiffs’ peer-on-peer sexual harassment and retaliation claim, the District

does not argue that the District lacked actual knowledge or that the District did not respond

with deliberate indifference. And Plaintiffs have pleaded facts that plausibly support both

elements. Rather, the District argues that Plaintiffs’ claim falls short, because Plaintiffs

have not sufficiently pleaded facts showing that (1) the conduct by other students was

sufficiently “severe, pervasive, and objectively offensive,” or (2) that M.B. was deprived

of any educational benefits or opportunities. Plaintiffs, in response, argue that the District

took no action whatsoever after being notified multiple times of the harassment and

retaliation of M.B. by other students, and for this reason, M.B. left the district entirely by

transferring to a new school.

Plaintiffs have pleaded sufficient facts that plausibly support that M.B. experienced

severe, pervasive, and objectively offensive harassment and retaliation by other students

after reporting the incident involving Coach Tompkins. Plaintiffs’ Complaint alleges that

M.B. was continually harassed by other students in response to his complaint about Coach

Tompkins’ inappropriate sexual conduct. Such harassment included calling M.B.

derogatory sexual names, threatening to attack him, saying “your boyfriend is back” when

8 Doe v. Sch. Dist. No. 1, Denver, Colo, 970 F.3d 1300, 1311 (10th Cir. 2020); Jackson,

544 U.S. at 173–74 (“Retaliation against a person because that person complained of sex

discrimination is another form of intentional sex discrimination encompassed by Title IX’s

private cause of action.”).

Coach Tompkins returned to school, and posting and sharing pictures on social media

depicting M.B. “with his head in compromising situations.”9 As “matters of degree—such

as severity and pervasiveness—are often best left to the jury,” such determinations are not

suitable for dismissal on the pleadings.10 Thus, these facts are sufficient at least at the

pleadings stage to show that M.B. was subjected to harassment and retaliation by his peers

that was severe, pervasive, and objectively offensive.

Next, pleading a deprivation of access to the educational benefits or opportunities

provided by the school does not require a plaintiff “to show physical exclusion,” but rather

requires pleading facts of harassment that “so undermines and detracts from the victims’

educational experience, that the victim-student[ is] effectively denied equal access to an

institution’s resources and opportunities.”11 The District argues that Plaintiffs

insufficiently pleaded facts alleging that M.B. was deprived access to any benefits or

opportunities. As support for this argument, the District points out that Plaintiffs did not

allege that M.B. had to quit basketball or had reservations about playing on the basketball

team.12 Plaintiffs’ Complaint, however, alleges that “[a]fter continued harassment and no

9 Pls.’ Compl. (Dkt. 1-1), ⁋⁋ 17, 18, 22, 24, 27.

10 Doe, 970 F.3d at 1311–12.

11 Davis, 526 U.S. at 651.

12 The District also argues in its Reply that “conclusory statements that a school effectively

forced a student to transfer are insufficient to allege a materially adverse action required

for a claim of relation,” citing S.K. v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786, 806

(W.D. Pa. 2016). See Def.’s Reply (Dkt. 11), at 2. But Plaintiffs are not claiming that the

District retaliated against M.B., so whether this conduct can rise to the requisite level to

hold a District liable for its own retaliatory conduct is not applicable in this context.

action by Hobart, M.B. transferred to a different school” and that “Plaintiffs’ minor son

was basically forced out of the District due to the unrelenting harassment and retaliation

he suffered following Tompkins’ initial harassment and the District’s actions and inactions

in preventing it or remedying it in a reasonable fashion.”13 The Court is satisfied that

Plaintiffs have sufficiently pleaded facts to plausibly allege that M.B. was effectively

denied access to the District’s resources and opportunities, as Plaintiffs have pleaded that

M.B. left the district entirely due to the harassment and retaliation.

These facts taken as true are sufficient to state a claim for peer-on-peer sexual

harassment and retaliation under Title IX.

B. Teacher-on-Student Sexual Harassment

Plaintiffs have not, however, adequately pleaded a claim for the District’s deliberate

indifference to teacher-on-student harassment. The pleading requirements applicable to a

funding recipient’s deliberate indifference to student-on-student harassment also apply to

teacher-on-student harassment.14 And the Supreme Court has recognized that harassment

at the hand of a teacher is more likely to violate Title IX than harassment at the hands of

other students.15

While the District’s argument for dismissal of this claim is couched in terms of

harassment by the District itself rather than the District’s deliberate indifferent response to

13 Pls.’ Compl. (Dkt. 1-1), ⁋⁋ 29, 68.

14 See Escue v. N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006) (internal citations

omitted). See also Dimas v. Pecos Indep. Sch. Dist. Bd. of Educ., No. 23-2064, 2024 WL

1881076, at *9 (10th Cir. Apr. 30, 2024) (unreported).

15 See Davis, 526 U.S. at 653.

Plaintiffs’ complaints of teacher-on-student harassment,16 the District argues that (1)

Plaintiffs’ Complaint does not allege conduct by teachers or the District severe enough to

constitute harassment under Title IX, and (2) Plaintiffs do not allege facts attributing

M.B.’s decision to transfer out of the district to any harassment by a teacher or the District

itself. Plaintiffs argue that they have sufficiently pleaded facts supporting a claim against

the District for its deliberate indifference to teacher-on-student harassment.

Plaintiffs have not pleaded facts demonstrating that M.B. was deprived of access to

any educational benefits or opportunities due to harassment by a teacher, and even

assuming without deciding that Coach Tompkins’ conduct rises to the level of sexual

harassment, it could not be construed as pervasive. Besides facts detailing a single—albeit

undoubtedly inappropriate—incident where Coach Tompkins stated that he could not make

M.B. “suck his d*ck,” and one comment made by Coach Tompkins’ wife to the basketball

team after a game that “[Coach Tompkins] talks all religious and he says something for

two seconds, and he could potentially lose his job,” Plaintiffs allegations of pervasive

harassment and retaliation involve conduct attributable to other students. Further, Plaintiffs

allege that M.B.’s transfer out of the district was due to other students’ continued

harassment and retaliation.17 Thus, Plaintiffs have failed to plead sufficient facts that

16 Plaintiffs’ Complaint does not appear to allege claims against the District itself for

harassment or retaliation, and Plaintiffs’ Response further clarifies that Plaintiffs are

seeking to impose liability for the District’s deliberate indifferent response. See Pls.’ Resp.

(Dkt. 8), at 9–10.

17 Pls.’ Compl., ⁋ 68.

plausibly support imposing liability on the District for its deliberate indifference to teacher-

on-student harassment under Title IX.

II. 42 U.S.C. § 1983 Claims

Plaintiffs next allege that the District violated M.B.’s constitutional rights, in

violation of 42 U.S.C. § 1983. Section 1983 provides that any person acting under color of

law who deprives a United States citizen of “any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured in an action at law.”18

Local government entities such as the District are “persons” subject to suit under § 1983.19

As local government entities, principals of municipal liability apply to school districts.20

Alleging a claim against a municipality requires both a harm to the plaintiff caused by a

constitutional violation, and liability of the municipality for that violation.21 Establishing

municipal liability for the violation requires a plaintiff to “demonstrate that a state

employee’s discriminatory actions are representative of an official policy or custom of the

municipal institution, or are taken by an official with final policy making authority.”22

Absent an official policy, the plaintiff must show that the discriminatory practice is so

18 42 U.S.C. § 1983.

19 Sauers v. Salt Lake Cnty., 1 F.3d 1122, 1129 (10th Cir. 1993) (citing Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658 (1978)).

20 Murrell v. Sch. Dist. No. 1, Denver, 186 F.3d 1238, 1249 (10th Cir. 1999); Brammer-

Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th Cir. 2010).

21 Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (citations omitted).

22 Murrell, 186 F.3d at 1249 (citing Randle v. City of Aurora, 69 F.3d 441, 446–50 (10th

Cir. 1995)).

prevalent that it constitutes “custom or usage.”23 There can be no municipal liability of a

government entity “for an injury inflicted solely by its employees or agents.”24

As Plaintiffs solely bring claims against the District, Plaintiffs must sufficiently

allege facts establishing municipal liability under Monell.25 The District argues that

Plaintiffs have failed to do so. Plaintiffs’ Complaint includes eight conclusory statements

that the District had a policy, custom, or practice of not implementing adequate policies or

conducting training.26 The Complaint further alleges that these policies, customs, and

practices were “the moving forces” of M.B.’s sexual harassment and retaliatory

harassment.27 But Plaintiffs’ Complaint is void of any factual support for these conclusory

allegations. Such bare assertions are insufficient to state a claim establishing district

liability on the basis of an official custom or policy.28

In their Response, Plaintiffs argue that they have also successfully pleaded facts

demonstrating discriminatory actions taken by officials with final policy making authority,

because both the school principal and superintendent were informed of the harassment and

retaliation experienced by M.B. but failed to take any action in response, leading to a

23 Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009); Brammer-Hoelter, 602 F.3d at

1189.

24 Monell, 436 U.S. at 694.

25 Brammer-Hoelter, 602 F.3d at 1189. See Monell, 436 U.S. at 690–91.

26 Pls.’ Compl. (Dkt. 1-1), ⁋ 50(a)–(h).

27 Pls.’ Compl. (Dkt. 1-1), ⁋ 50.

28 See Twombly, 550 U.S. at 555. See also Murrell, 186 F.3d at 1249.

deprivation of M.B.’s bodily integrity and security.29 The District argues that only the

Board can be considered an official with policy making authority, and the conduct detailed

in the Complaint does not constitute a deprivation of bodily integrity or security.

While a superintendent or principal is not foreclosed from being considered an

official with final policymaking authority under Tenth Circuit precedent, 30 Plaintiffs’

Complaint does not contain any facts alleging that here, Principal Harmon and

Superintendent Hunt possessed any final policy making authority. Such an assertion is

required to allege municipal liability “on the basis of a decision specific to a particular

situation.”31 So Plaintiffs’ Complaint does not state a claim for municipal liability on this

basis, either.

Plaintiffs’ also argue that they have adequately alleged a claim based on a danger

creation theory. Such a claim requires pleading facts alleging that: “(1) the state entity and

individual actors created the danger or increased the plaintiff's vulnerability to the danger;

(2) plaintiff was a member of a limited and specifically definable group; (3) defendant's

conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the

risk was obvious and known; (5) defendants acted recklessly in conscious disregard of that

29 Pls.’ Resp. (Dkt. 8), at 18.

30 See Doe v. Indep. Sch. Dist. No. 93 of Pottawatomie Cnty., Okla., No. CIV-23-473-R,

2023 WL 9018380, at *2 (W.D. Okla. Dec. 29, 2023); J.M. ex rel. Morris v. Hilldale Indep.

Sch. Dist. No. 1-29, 397 F. App’x 445, 456–57 (10th Cir. 2010) (unpublished).

31 Murrell, 186 F.3d at 1250 (citations omitted); Rubio v. Turner Unified Sch. Dist. No.

202, 453 F. Supp. 2d 1295, 1302–03 (D. Kan. 2006).

risk; and (6) such conduct, when viewed in total, shocks the conscience.”32 The District

argues that Plaintiffs have failed to plead any facts indicating that the District took any

affirmative action to place M.B. in danger. The Court agrees. Plaintiffs have failed to plead

facts alleging that the District took any affirmative action that created or increased any risk

of danger to M.B.33 Plaintiffs’ Complaint does not allege a plausible claim under the danger

creation theory.

Plaintiffs have not stated a plausible claim alleging constitutional deprivations in

violation of § 1983.

III. Negligence Claims

Plaintiffs’ final cause of action against the District is under state law for negligence

and negligence per se. A claim for negligence under Oklahoma law requires the plaintiff

to plead facts alleging “a duty on the part of the defendant to protect the plaintiff from

injury; a failure of the defendant to perform that duty; and an injury to the plaintiff resulting

from the failure of the defendant.”34 These same elements apply to a claim for negligent

infliction of emotional distress, as Oklahoma classifies negligent infliction of emotional

distress as negligence rather than an independent tort.35 Damages for both physical and

32 Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir.

2008) (citing Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003)).

33 See Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994); Ruiz v.

McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002); Doe, 2023 WL 9018380, at * 4.

34 Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 916 P.2d 241, 245 (Okla. 1996) (citations

omitted).

35 Wilson v. Muckala, 303 F.3d 1207, 1212 (10th Cir. 2002) (applying Oklahoma law).

mental injuries are available under Oklahoma law, but mental damages alone are

insufficient.36

The District argues that it did not owe a duty to M.B., supporting this contention

with facts in Plaintiffs’ Complaint regarding social media posts and conduct occurring after

M.B. transferred out of the district. But Plaintiffs’ Complaint alleges much more than just

those instances. Plaintiffs have pleaded sufficient facts to allege that the District owed a

duty and breached that duty.37

However, the District also argues that Plaintiffs cannot allege a negligence claim

against the District without pleading any facts indicating that M.B. sustained any sort of

physical injury. Plaintiffs contend that the Court cannot dismiss Plaintiffs’ negligence

claim due to Plaintiffs’ failure to plead any physical injury because this would require the

Court to make factual determinations on the pleadings. But it is the role of the Court at this

juncture to evaluate whether Plaintiffs have alleged sufficient facts to plausibly state a

claim for negligence under Oklahoma law.38 And negligence under Oklahoma law,

whether pursued under a common law theory of negligence or negligence per se,39 requires

36 Ellington v. Coca Cola Bottling Co. of Tulsa, Inc., 717 P.2d 109, 110–11 (Okla. 1986)

(“Upon proper proof, the plaintiff may recover for mental anguish where it is caused by

physical suffering and may also recover for mental anguish which inflicts physical

suffering.”).

37 See Brewer v. Murray, 292 P.3d 41, 48 (Okla. Civ. App. 2012); J.W. v. Indep. Sch. Dist.

No. 10 of Dewey Cnty., 500 P.3d 649, 666 (Okla. Civ. App. 2021).

38 Twombly, 550 U.S. at 555.

39 See Howard v. Zimmer, Inc., 299 P.3d 463, 467 (Okla. 2013) (“Liability per se enables

plaintiffs to establish as a matter of law that the defendant’s conduct constituted a breach

Plaintiffs to plead facts plausibly alleging at least some sort of physical manifestation

resulting from the alleged mental injuries.40 Plaintiffs have not done so. Thus, Plaintiffs

have failed to plead sufficient facts to support a claim for negligence under Oklahoma

law.41

The District also argues that to the extent that Plaintiffs’ claims are based on

the District’s negligent hiring, training, supervising, or retention of a teacher, the District

is immune from liability due to the discretionary function exemption of the Oklahoma

Governmental Tort Claims Act (“OGTCA”).42 Plaintiffs argue that their claims are not

barred, and the OGTCA does not apply to all of the District’s employment decisions.

Courts have consistently held that while the Oklahoma Supreme Court hasn’t directly ruled

on the matter, hiring, training, supervising, or retention decisions are discretionary, and as

such, fall within the discretionary exemption of the OGTCA.43 Thus, to the extent that

Plaintiffs wish to amend their Complaint to allege negligence on the basis of hiring,

of duty in a negligence action, so that only causation and damages need be proved.”

(citations omitted)).

40 Wilson, 303 F.3d at 1213 (“Oklahoma law obligated [Plaintiff] to provide proof of some

physical injury, whether incurred contemporaneously with her emotional injury, or whether

as a direct consequence of her emotional injury.” (emphasis in original)).

41 The District also argues in its Motion that if Plaintiffs reframe their argument into a claim

for intentional infliction of emotional distress, District is immune under the GTCA. But

Plaintiffs have not alleged a claim for intentional infliction of emotional distress, so it is

unnecessary for the Court to address this argument now. See Def.’s Motion (Dkt. 3), at 20.

42 51 O.S. § 155(4).

43 See Doe, 2023 WL 9018380, at *5 (collecting cases); Higginbottom v. Mid-Del Sch.

Dist., No. CIV-15-1091-D, 2016 WL 951691, at *3 (W.D. Okla. March 9, 2016) (same).

training, supervision, or retention, such amendment would prove to be futile.44 The Court

agrees, however, with Plaintiffs that this exemption does not apply to Plaintiffs’ claims

based on any negligence stemming from the District’s decision not to investigate after

receiving complaints from M.B. Nonetheless, as described above, Plaintiffs have not

pleaded facts to plausibly support that M.B. suffered any sort of physical injury.

Conclusion

For the reasons set forth above, Defendant District’s Motion (Dkt. 3) is GRANTED

IN PART and DENIED IN PART as follows:

1. The first cause of action of the Complaint (Dkt. 1-1), to the extent that it rests

on the District’s deliberate indifference to student-on-student sexual harassment and

retaliation, is plausibly alleged and may proceed.

2. The first cause of action of the Complaint (Dkt. 1-1), to the extent that it rests

on the District’s deliberate indifference to teacher-on-student sexual harassment, is

DISSMISSED WITHOUT PREJUDICE.

3. The second cause of action of the Complaint (Dkt. 1-1) is DISMISSED

WITHOUT PREJUDICE.

4. The third cause of action of the Complaint (Dkt. 1-1) is DISMISSED

WITHOUT PREJUDICE.

Plaintiffs may move to amend their Complaint within thirty days of this Order.

44 See, e.g., Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 561–62 (10th Cir.

1997) (leave to amend may be denied where such amendment would be futile).

IT IS SO ORDERED this 27th day of September 2024.

PATRICK R. WYRICK

UNITED STATES DISTRICT JUDGE

16