Karen Meyers v. Cincinnati Bd. of Educ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0390p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KAREN MEYERS, as Administratrix of the Estate on ┐

behalf of Gabriel Taye; CORNELIA REYNOLDS; │

BENYAM TAYE, │

Plaintiffs-Appellees, │

│

> No. 18-3974

v. │

│

│

CINCINNATI BOARD OF EDUCATION; MARY RONAN, In │

her Official Capacity as Superintendent of Cincinnati │

Public Schools, │

Defendants, │

│

RUTHENIA JACKSON, Individually and in her Official │

Capacity as Principal of Carson Elementary School; │

JEFFREY MCKENZIE, Individually and in his Official │

Capacity as Assistant Principal of Carson Elementary │

School, │

│

Defendants-Appellants.

│

┘

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:17-cv-00521—Timothy S. Black, District Judge.

Argued: December 4, 2019

Decided and Filed: December 29, 2020

Before: GRIFFIN, STRANCH, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Aaron M. Herzig, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for

Appellants. Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio,

for Appellees. ON BRIEF: Aaron M. Herzig, Philip D. Williamson, TAFT, STETTINIUS &

HOLLISTER LLP, Cincinnati, Ohio, Ian R. Smith, MCCASLIN IMBUS & MCCASLIN,

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 2

Cincinnati, Ohio, for Appellants. Jennifer L. Branch, Janaya Trotter Bratton, M. Caroline Hyatt,

GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Michele L. Young, Christine M.

Hammond, GREGORY S. YOUNG CO., LPA, Cincinnati, Ohio, for Appellees.

_________________

OPINION

_________________

BERNICE BOUIE DONALD, Circuit Judge. This civil rights action arises from the

death of eight-year-old Gabriel Taye, who died by suicide on January 26, 2017. Taye was a

third-grade student at Carson Elementary School, part of the Cincinnati Public Schools (“CPS”)

system in Cincinnati, Ohio. The plaintiffs-appellees (collectively, “the Plaintiffs”)—Karen

Meyers (as Administratrix of the Estate of Gabriel Taye) and Taye’s parents, Cornelia Reynolds

and Benyam Taye—filed this action under 42 U.S.C. § 1983 against the Cincinnati Board of

Education (“the Board”); now-retired Cincinnati Public Schools Superintendent Mary Ronan;

former Carson Elementary principal, Ruthenia Jackson; former Carson Elementary assistant

principal, Jeffrey McKenzie; and former Carson Elementary school nurse, Margaret McLaughlin

(collectively, “the CPS Defendants”).1 The Plaintiffs also alleged against Jackson, McKenzie,

and McLaughlin state law tort claims of wrongful death, intentional infliction of serious

emotional distress, negligent infliction of emotional distress, loss of consortium, and failure to

report child abuse. Additionally, the Plaintiffs brought a claim of spoliation against the Board,

Ronan, Jackson, and McKenzie, as well as a claim of negligence against McLaughlin.

In lieu of filing an answer to the original complaint, the Board, Ronan, Jackson, and

McKenzie moved to dismiss the Plaintiffs’ state law claims, in part on the grounds that they are

entitled to governmental immunity pursuant to Ohio Rev. Code § 2744. The district court denied

the motion to dismiss on those grounds. On appeal, Jackson and McKenzie argue that they are

entitled to governmental immunity with respect to the Plaintiffs’ state law claims because the

amended complaint fails to allege sufficient facts to establish that their conduct was “reckless” as

1

After briefing the motion to dismiss, Plaintiffs filed for leave to amend their complaint to include

McLaughlin as a defendant, adding a negligence claim against her. The district court granted leave to amend at the

same time that it granted in part and denied in part the motion to dismiss. The court accepted the amended

complaint as the operative pleading and applied the motion to dismiss to it.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 3

a matter of law.2 Because we find that the Plaintiffs’ amended complaint sufficiently alleges

facts that establish that Jackson and McKenzie behaved recklessly, we AFFIRM the district

court’s denial of Jackson and McKenzie’s motion to dismiss, holding that they are not entitled to

governmental immunity under Ohio Rev. Code § 2744.

I.

On January 26, 2017, third-grade student Gabriel Taye tied a necktie to his bunkbed and

hung himself. Two days before Taye’s death, another Carson Elementary student attacked Taye

in a school bathroom, knocking Taye unconscious for more than seven minutes. The bathroom

incident was one of twelve incidents spanning from Taye’s first-grade year at Carson Elementary

until his death during his third-grade year that the Plaintiffs allege show a pattern of “aggressive

behavior,” including “bullying” at Carson Elementary, which ultimately led to Taye’s

suicide. The Plaintiffs also allege that Jackson and McKenzie misrepresented the severity of and

outright concealed several bullying incidents involving Taye. The Plaintiffs uncovered

information about these incidents after Taye’s death.

A.

The violent incidents Taye experienced at Carson Elementary began during his first-

grade school year. On September 23, 2014, Taye was injured on the playground at Carson

Elementary. The school informed Taye’s mother that the injury resulted from an “accident” on

the playground, providing no additional details. Although the school reported to Taye’s mother

that his injuries were not severe, Taye’s two front teeth were removed as a result of the injury.

Three more incidents occurred during Taye’s second-grade school year. On October 7,

2015, a student hit Taye at school. Taye’s parents learned of the incident after his death because

no one from the school contacted them about the incident at the time it occurred. Subsequently,

on February 22, 2016, another student hit Taye at school. Although the school nurse treated

Taye’s injury, the school failed to even attempt to contact Taye’s parents about the

incident. Further, there is no indication that the school reprimanded the students that attacked

2

Only the state law tort claims against Jackson and McKenzie are at issue on appeal.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 4

Taye on these occasions. On May 4, 2016, an unspecified “incident” occurred on the playground

involving Taye. School reports state that the school took some form of action regarding another

student, but the school did not record any additional details. No one from the school contacted

Taye’s parents about the incident; they again learned of it after Taye’s death.

The Plaintiffs further allege that the bullying incidents at the school escalated during

Taye’s third-grade year at Carson Elementary. On September 7, 2016, school records show that

Taye shoved and punched another student and the school reprimanded him for the behavior. The

Plaintiffs allege that Taye may have been “defending himself from bullying by a student,” as the

details surrounding the incident are still unclear. Although the school’s records indicate that

someone at the school left a voicemail with Taye’s mother, she denies receiving it. Further, the

school failed to even attempt to contact Taye’s father, who was also listed as an emergency

contact for Taye.

Three more incidents occurred in October of 2016. On October 3, Taye and another male

student were involved in an altercation. Again, although school records indicate that someone

from the school left a voicemail with Taye’s mother, the school again failed to contact Taye’s

father, and Taye’s mother denies having ever received a voicemail. On October 7, a student

punched Taye, and Taye punched the student back in self-defense. The school called security

and gave the instigator a warning but did not otherwise punish that student. The school also

warned Taye that he would be punished if he punched a student in self-defense. No one from the

school contacted either of Taye’s parents to inform them that their child had been injured and

told that he was not permitted to defend himself. On October 31, Taye suffered a head injury on

the playground, but Jackson and McKenzie were unable to determine what, or who, caused the

injury. The school informed Reynolds, Taye’s mother, about the injury, and she requested

permission to view the surveillance footage of the playground at the time of the incident. The

school did not permit Reynolds to review the footage or provide her with any explanation as to

how the injury happened.

Taye was attacked three more times at school during the weeks leading up to his death in

January 2017. On January 9, two students identified as C.J. and P.B. attacked Taye and punched

him in his mouth. Taye suffered a bloody lip, which the school nurse treated. The nurse called

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 5

Taye’s mother and told her that two students had punched Taye in the face, giving him a bloody

nose and mouth. Reynolds also spoke with McKenzie, who assured her that he would review the

surveillance footage and meet with C.J. and P.B. about their behavior. McKenzie met with the

students the next day. Although C.J. and P.B. attempted to shift the blame for the fight to a third

student, claiming this unidentified third student was responsible for Taye’s injuries, McKenzie

suspended C.J. and P.B., requiring them to leave Carson Elementary that day. On January 12,

McKenzie met with Taye, Reynolds, C.J., P.B., and P.B.’s father. McKenzie denied Reynolds’

request to view the video surveillance of the incident, instead insisting that the video did not

capture the incident and that he had determined Taye’s injuries were merely the result of

“horseplay” and “an accident.” McKenzie chose not to tell Reynolds that he had suspended C.J.

and P.B. for their behavior and failed to address how, if at all, he planned to prevent or address

any future aggressive behavior from these two students. The Plaintiffs allege that withholding

this information prevented Reynolds from “realiz[ing] how much danger her son was in by

remaining at Carson [Elementary].”

On January 18, while Taye was eating his lunch, a student approached Taye in the

cafeteria and began kicking him. As a result, Taye’s thumb was injured and he dropped his

lunch tray, presumably embarrassing him in front of his other classmates. Jackson and

McKenzie did not tell Reynolds which student attacked Taye and refused to allow her to review

video footage of the incident.

B.

At 12:11 p.m. on January 24, 2017, two days before Taye’s death, a student identified as

P.A.3 began violently attacking three boys in the school bathroom. P.A. punched one boy so

hard he fell to the floor and curled up. Taye walked into the bathroom as P.A. was attacking the

other boys. P.A. grabbed Taye’s hand and yanked him toward the wall, causing Taye’s head to

collide with something. As Taye collapsed to the floor, the surveillance footage shows P.A.

celebrating Taye’s fall. As he lay on the floor unconscious, more than a dozen students passed

through the bathroom, taunting and kicking Taye as they came and went.

3

The initials “P.A.” stand for “Primary Aggressor.” The CPS Defendants have continually refused to tell

the Plaintiffs who attacked Taye.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 6

McKenzie responded to the situation and found Taye, lying motionless on the floor and

still unconscious. Upon seeing Taye, McKenzie did not attempt to check Taye’s vital signs or

call for help. Rather, McKenzie repositioned a trash can and stood over Taye, doing

nothing. By the time the school nurse arrived, Taye had been lying on the floor unconscious for

more than seven minutes. Taye regained consciousness shortly thereafter. The school nurse

examined Taye but did not call 911. Instead, an hour after the incident, the school nurse called

Taye’s mother and told her that Taye had “fainted,” was “alert,” that his “vitals [were] fine,” and

that he didn’t require any additional medical attention. Taye told his mother that he could not

remember what happened that day in the bathroom, only that he fell and that his stomach

hurt. Jackson and McKenzie never told Reynolds that a student attacked her son in the

bathroom, that the same student attacked other boys in the bathroom that day, or that her son was

unconscious for more than seven minutes.4 None of the Defendants reported this incident, either

internally or externally.

Later that evening, Taye experienced stomach pain and nausea, which caused him to

vomit twice. Reynolds took him to the hospital and informed the doctors that Taye had “passed

out” at school that day. However, Reynolds was unable to give the doctors information about

Taye’s head injury because, at that time, she had no idea that Taye had suffered a head

injury. The hospital diagnosed him with a stomach flu and discharged him. Taye stayed home

from school on January 25, the day after P.A. attacked him. Reynolds called the school that day

and reported that Taye became ill and had to go to the hospital overnight.

Taye returned to school on January 26, 2017. That day, two boys again attacked Taye

while he was in the school bathroom, stealing his water bottle and attempting to flush it down the

toilet. Taye reported the incident to a teacher, but nothing came of it. Taye came home from

school that day around 5:30 p.m., took one of his neckties, and used it to hang himself from the

top bunk of his bunk bed. Taye’s mother found him hanging from the bunk bed, unresponsive.

As Reynolds began administering CPR to Taye, a neighbor heard her screaming and came to

4

After Taye’s death, the Plaintiffs were able to recover a redacted copy of the surveillance video of this

incident.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 7

help. Reynolds called 911 as her neighbor attempted to revive her son. When the paramedics

arrived on the scene, they were unable to revive Taye.

C.

In addition to the incidents involving Taye, Carson Elementary behavior logs document

routine aggressive and violent behavior among the student population throughout the 2016–2017

school year. For example, a third-grader threw a chair and yelled at a female classmate, “I wish I

had a gun so I could rape her”; a student threatened to shoot a teacher; and several instances of

students attempting to choke each other. The behavior logs also included reports of students

throwing furniture, pushing and hitting other students, threatening other students verbally and

physically, using profanity, and one instance of a student making a racist remark to an African-

American student.

The Plaintiffs allege that these incidents show that the environment at the school fostered

aggressive behavior among students and that Jackson and McKenzie attempted to conceal this

behavior to maintain a clean record. Pursuant to O.R.C. § 3313.666, Carson Elementary is

required to semiannually report the number of bullying incidents that have occurred at the

school. Despite the aforementioned incidents recorded in the school’s student behavior log, the

school reported zero incidents of bullying for the fall semester of the 2016–2017 school

year. The school also documented in student behavior logs two incidents it explicitly labeled as

“bullying” in December 2016, but it failed to include these in its first semester report. During

the spring semester, although Carson Elementary reported four bullying incidents, it failed to

report the incidents involving Taye directly preceding his death. The Plaintiffs allege that

Carson Elementary falsely reported the number of “bullying incidents” and concealed the

instances of bullying, harassment, and aggressive behavior that took place during the fall 2016

semester from the parents of the victimized children. The Plaintiffs allege that the “destructive

and dangerous climate at Carson” created an unsafe environment for students and intentionally

kept parents in the dark. In Taye’s case, the Plaintiffs allege that had Taye’s mother known the

level of bullying and trauma her son had experienced as a student at Carson Elementary and the

actual facts surrounding her son’s injuries on January 24, she would never have let him continue

to attend school at Carson Elementary.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 8

The Plaintiffs also present factual allegations suggesting that Jackson and McKenzie

intentionally destroyed potential surveillance footage of the incidents in which Taye suffered

injuries. The Plaintiffs allege that once the school was notified of Taye’s death and the police

started investigating, the CPS Defendants failed to preserve footage of the events occurring on

the day of Taye’s death and refused to allow Taye’s mother to review any footage of the few

incidents they chose to inform her of previously. Finally, the Plaintiffs assert that Jackson and

McKenzie’s cover-up, aimed at keeping any information regarding the rampant violence and

aggressive behavior at Carson Elementary a secret, constitutes reckless, wanton disregard for

Taye and his classmates’ safety.

D.

On August 7, 2017, the Plaintiffs filed a complaint alleging federal and state law claims

against the CPS Defendants. Specifically, the Plaintiffs asserted state law claims of wrongful

death, intentional infliction of serious emotional distress, negligent infliction of emotional

distress, loss of consortium, failure to report child abuse, and spoliation against Jackson and

McKenzie. In response, the CPS Defendants filed a motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6) arguing, among other things, that governmental immunity barred suit

against Jackson and McKenzie. The Plaintiffs then requested leave to file an amended

complaint, which the district court granted.

The district court denied the motion to dismiss with respect to Jackson and McKenzie’s

governmental immunity claim. The district court found that the amended complaint included

factual allegations that plausibly state that Jackson and McKenzie affirmatively misrepresented

to Taye’s mother that Taye had fainted, rather than admit that Taye had been knocked

unconscious. On that basis, the district court concluded that Jackson and McKenzie should have

known that these misrepresentations presented a substantial risk of serious harm because Jackson

and McKenzie knew that a risk of bullying is suicide. Accordingly, the district court held that

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 9

the Plaintiffs plausibly alleged facts showing that Jackson and McKenzie’s conduct was reckless,

thereby precluding them from asserting governmental immunity.5

II.

A.

This Court reviews de novo a district court’s grant of a motion to dismiss under Fed. R.

Civ. P. 12(b)(6). Republic Bank & Tr. Co. v. Bear Stearns & Co., 683 F.3d 239, 246 (6th Cir.

2012). In evaluating a Rule 12(b)(6) motion to dismiss, we construe “the record in the light most

favorable to the non-moving party” and determine whether the complaint “contain[s] sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 246–

47 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The plausibility

standard “asks for more than a sheer possibility that a defendant has acted unlawfully” but is not

akin to a probability requirement. Id. In conducting this analysis, “the court primarily considers

the allegations in the complaint, although matters of public record, orders, items appearing in the

record of the case, and exhibits attached to the complaint, also may be taken into

account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO,

Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)).

“In applying state law, we anticipate how the relevant state’s highest court would rule in

the case and are bound by controlling decisions of that court. Intermediate state appellate courts’

decisions are also viewed as persuasive unless it is shown that the state’s highest court would

decide the issue differently.” In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005)

(citation omitted). Under Ohio law, a denial of governmental immunity is a final and appealable

5

The Cincinnati Board of Education and Ronan attempted to join this appeal via pendent jurisdiction over

the Plaintiffs’ federal claims, asserting that resolution of the governmental immunity issue would necessarily resolve

the Plaintiffs’ federal constitutional claims. The Plaintiffs filed a motion to dismiss the Cincinnati Board of

Education and Ronan’s appeal for lack of jurisdiction. This Court granted the Plaintiffs’ motion and struck the CPS

Defendants’ original brief, declining to expand our jurisdiction over the federal claims because they are

insufficiently intertwined with the issue of governmental immunity to warrant pendent appellate jurisdiction.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 10

judgment under the collateral order doctrine. See Hidden Vill., LLC v. City of Lakewood, Ohio,

734 F.3d 519, 524 (6th Cir. 2013).

In this appeal, Jackson and McKenzie argue that they are entitled to immunity from the

Plaintiffs’ state law claims under Ohio Rev. Code § 2744.03, Ohio’s governmental immunity

statute. This statute provides immunity to public school officials from “damages for injury,

death, or loss to person or property allegedly caused by any act or omission in connection with a

governmental or proprietary function.” Id. at § 2744.03(A). A public school official is not

entitled to governmental immunity, however, if “(a) [t]he employee’s acts or omissions were

manifestly outside the scope of the employee’s employment or official responsibilities; (b) [t]he

employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or

reckless manner; or (c) [c]ivil liability is expressly imposed upon the employee by a section of

the Revised Code.” Id. at § 2744.03(A)(6). The Plaintiffs contend that Jackson and McKenzie

should not be entitled to governmental immunity and that they have pleaded sufficient facts to

show that the Defendants acted recklessly.

As this Court explained in Shively v. Green Local Sch. Dist. Bd. Of Educ.:

A plaintiff is not required to affirmatively demonstrate an exception to immunity

at the pleading stage because that would require the plaintiff to overcome a

motion for summary judgment in his complaint. Instead, a plaintiff is only

required to allege a set of facts which, if proven, would plausibly allow him to

recover.

579 F. App’x 348, 359 (6th Cir. 2014) (citing Mohat v. Horvath, 2013-Ohio-4290, ¶ 29, 2013

WL 5450296 (Ohio Ct. App. 2013)). According to Jackson and McKenzie, the Plaintiffs failed

to sufficiently plead facts that show they acted recklessly, which, under Ohio law, is the

“conscious disregard of or indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than negligent

conduct.” Anderson v. City of Massillon, 983 N.E.2d 266, 273 (Ohio 2012). Jackson and

McKenzie maintain that they acted reasonably and protest many of the factual allegations made

by the Plaintiffs. Therefore, Jackson and McKenzie argue that they are entitled to governmental

immunity and that the district court should have granted the Defendants’ motion to dismiss for

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 11

failure to state a claim. For the reasons discussed below, we find these arguments unavailing and

affirm the district court’s judgment.

B.

On appeal, Jackson and McKenzie maintain that the Plaintiffs insufficiently plead facts

that show that Taye’s suicide was foreseeable, as is required to support the Plaintiffs’ wrongful

death claim. At the outset, Jackson and McKenzie vehemently deny that there was any behavior

amounting to “bullying” at Carson Elementary, much less student conduct that created a

foreseeable risk that Taye would commit suicide. Specifically, Jackson and McKenzie argue that

the Plaintiffs failed to establish that the alleged bullying was pervasive and repetitive enough to

warn them of the possibility that Taye was at risk for suicide. Jackson and McKenzie assert that

“bullying” is defined as the “repeated targeting of a student or group of students by an aggressor

or group of aggressors for the purpose of intimidation, violence, or harassment,” emphasizing

that it requires proof of “multiple incidents serving a common, malevolent purpose.” This

definition derives from Ohio Rev. Code § 3313.666, Ohio’s anti-bullying statute.

This argument is unpersuasive. The Ohio statute that Jackson and McKenzie invoke

defines how “bullying” is used in that statute. See Ohio Rev. Code § 3313.666(A) (“As used in

this section . . . bullying . . . means . . . .” (emphasis added)). And that statute does not purport to

set the parameters of whether bullying signals a risk of suicide. See id. § 3313.666. But even if

that statute were the conclusive definition of bullying, the Plaintiffs adequately pleaded sufficient

facts to satisfy it. The Plaintiffs alleged that C.J. or P.B. physically attacked Taye on January 9,

2017. They also claim that on January 24, 2017, P.A. caused the head injury that resulted in

Taye collapsing on the floor. The complaint asserts that the Plaintiffs “believe[ ] that P.A. . . . is

C.J. or P. B.” Taking those factual allegations as true, as we must at the motion to dismiss stage,

the Plaintiffs adequately pleaded “intentional . . . physical act[s]” by C.J. or P.B. against Taye

that occurred “more than once,” which “[c]ause[d] . . . physical harm to” Taye and were

“sufficiently severe, persistent, or pervasive [such] that [they] create[d] an intimidating,

threatening, or abusive educational environment for” Taye. See Ohio Rev. Code

§ 3313.666(A)(2)(a).

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 12

Additionally, Jackson and McKenzie argue that the Plaintiffs failed to adequately allege

that Taye was bullied because the Plaintiffs repeatedly characterized conduct as “aggressive

behavior,” which is not interchangeable with “bullying.” This argument is unavailing. When

evaluating a complaint’s allegations, substance matters more than labels. See Minger v. Green,

239 F.3d 793, 799 (6th Cir. 2001). And, as our recitation earlier in this opinion demonstrates,

the complaint is replete with facially plausible factual allegations of Taye being physically

attacked at school over the course of multiple years.

C.

Jackson and McKenzie also argue that, because their behavior was reasonable, their

alleged failure to properly report bullying incidents to the state does not constitute reckless

behavior. Further, Jackson and McKenzie assert that the Plaintiffs fail to make any connection

between their failure to report bullying incidents to the state and Taye’s parents’ decision to keep

him in school at Carson Elementary. For support, Jackson and McKenzie primarily rely on

O’Toole v. Denihan, 889 N.E.2d 505 (Ohio 2008).

In O’Toole, the appellee, George-Munro, an intake supervisor for the local Department of

Children and Family Services, was tasked with distributing cases to social workers and offering

advice on cases when asked. Id. at 507–08. Notably, it was not within his duties to follow up on

cases beyond the initial intake. Id. at 508. During an emergency visit to a daycare in response to

a call alleging a child had been abused, Kamesha Duncan, the on-call social worker responding

to the case, called George-Munro for advice regarding how to proceed. Id. at 508–10. George-

Munro did not personally investigate the abused child’s home situation, nor did he witness any of

the interviews or proceedings during the investigation. Id. at 511. Those responsibilities lay

with Duncan, who reviewed the situation on-site. Id. at 507–08. Ultimately, child protective

services chose not to intervene or remove the child from her home, and the child died from

abuse. Id. at 511–12. As the O’Toole Court explained:

In investigating the matter, George-Munro could act and react based only on the

information provided to him by Duncan. Although Duncan may have failed to

complete some paperwork[,] . . . given the fact that [a] safety plan was in place,

that the home was clean and free of any hazards, that the background check on

[the child’s mother] came back negative, and that [the child’s mother] appeared to

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 13

be cooperating[,] . . . . there is no evidence that George-Munro consciously left

Sydney in the home with the knowledge that further injury was a substantial

certainty.

Id. at 517. The O’Toole Court determined that “a violation of various policies does not rise to

the level of reckless conduct unless a claimant can establish that the violator acted with a

perverse disregard of the risk.” Id. at 519.

Jackson and McKenzie assert that their failures amount to those George-Munro made in

O’Toole––potential failures to properly report information, but ultimately nothing more than

negligent mistakes resulting in an utter tragedy. Unlike George-Munro in O’Toole, however,

Jackson and McKenzie were the keepers of the information, not the reported-to entity, making

them more analogous to Duncan, the social worker who failed to properly investigate and whose

recklessness the O’Toole Court remanded for further consideration. Id. at 520 n.4. Further, in

O’Toole, there was no evidence that George-Munro or Duncan had actual knowledge that

abusive behavior caused the child’s harm; instead, their alleged recklessness stemmed from their

failure to investigate the child’s case thoroughly and properly. In this case, however, the

Plaintiffs allege that Jackson and McKenzie were aware of the abusive behavior Taye regularly

endured at school and disregarded its significance and the potential risks it posed to Taye’s

safety. In short, the Plaintiffs allege that Jackson and McKenzie were, in effect, the only entities

with full knowledge of the risks to Taye’s safety in that they were the only persons privy to the

facts regarding each of the attacks Taye suffered through. Further, the Plaintiffs allege that they

did nothing to protect Taye from a known risk, which the O’Toole Court specifically

forbids. See id. at 519.

At the heart of their argument, Jackson and McKenzie assert that they appropriately

responded to each incident involving Taye, alleging that the Plaintiffs even admit in their

amended complaint that “[the Carson] Defendants acted consistent with school policy and

intervened by suspending students who harmed Taye and by calling Ms. Reynolds when Taye

was injured.” This is a gross mischaracterization of the Plaintiffs’ factual allegations in the

amended complaint. The Plaintiffs provide multiple examples of specific instances in which

Jackson and McKenzie withheld information regarding Taye’s safety and wellbeing as a student

at Carson Elementary and failed to punish the students that attacked Taye. Although Jackson

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 14

and McKenzie assert that they left voicemails with Taye’s mother on a few of those occasions,

there is nothing in the record that contradicts Reynolds’ assertion that she never received the

calls or that Jackson and McKenzie failed to call Taye’s father, his other emergency contact.6

Even if Jackson and McKenzie did leave voicemails with Reynolds, simply leaving a voicemail

on a few occasions falls egregiously short of an adequate response by the school to ensure Taye’s

parents knew about the ongoing risks he faced at school. In light of the recurring violent

incidents at school involving Taye and the school’s duty to ensure students’ safety, Jackson and

McKenzie’s failure to contact Taye’s parents about those incidents reflects their disregard for

Taye’s safety.

Further, Jackson and McKenzie assert that the Plaintiffs’ expectations of how Jackson

and McKenzie should have responded to the events of January 24, 2017, are wholly

unreasonable and, instead, that Jackson and McKenzie behaved appropriately in response to the

information they possessed. Jackson and McKenzie argue that the Plaintiffs and the district

court failed to explain how Jackson and McKenzie’s representation that Taye fainted on January

24, 2017, was an “affirmative misrepresentation” based on the facts they had available to them at

the time of Taye’s injuries. This argument is meritless and misconstrues the factual allegations

in the Plaintiffs’ complaint. When Jackson and McKenzie informed Taye’s mother that Taye

had “fainted” or “passed out” at school, they affirmatively misrepresented the events of January

24, 2017 because, as they consistently state in their brief, Jackson and McKenzie did not know

what had actually happened to Taye. Instead of informing Taye’s mother that they were unsure

what happened to Taye and that they found him lying on the bathroom floor unconscious,

Jackson and McKenzie confidently informed her that Taye had merely fainted. Jackson and

McKenzie admit that prior to contacting Reynolds they “were notified that a student had been

hurt in the bathroom and ‘passed out’ there.” Thus, by their own admission, Jackson and

McKenzie had reason to believe that Taye was injured or harmed by another student, especially

in light of the history of students attacking Taye at school. Not only did Jackson and McKenzie

misrepresent the events, they also seemingly made no effort to investigate how Taye was

6

Additionally, the Plaintiffs allege that when Reynolds did receive a call or voicemail from the school, she

was consistently denied additional information regarding what happened to her son.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 15

knocked unconscious during the hour between the attack and their phone call to Taye’s

mother. Although Jackson and McKenzie had access to surveillance footage of the incident, they

chose not to watch it before telling Taye’s mother that he simply fainted and required no

additional medical attention.

Additionally, Jackson and McKenzie fail to explain why they declined to call 911 upon

witnessing Taye’s unconscious state for more than three minutes. Video footage of the incident

shows McKenzie arriving in the bathroom to find Taye unconscious on the floor. McKenzie

then stands over Taye, doing nothing to assist him, for roughly two minutes until the school

nurse arrives. Neither the school nurse nor McKenzie called 911, despite a school policy

requiring the school to seek emergency medical attention when a student is unconscious for more

than one minute. That policy placed Jackson and McKenzie on notice of the inherent danger

associated with loss of consciousness for even one minute—much less the seven minutes Taye

was unconscious—yet they disregarded that known risk, instead choosing to minimize what

happened. Not only did Jackson and McKenzie fail to follow school policy, they also ignored

the risk that Taye could develop delayed symptoms of a concussion or head trauma. Without

accurate information regarding the attack and Taye’s injuries, Reynolds was in fact unable to

ensure her son was evaluated for head trauma when she took him to the hospital that night. As

alleged, Jackson and McKenzie’s failure to provide Reynolds with accurate information along

with their failure to follow their own school policy constitutes recklessness because they ignored

known risks that their actions posed to Taye’s health and safety.

Further, Jackson and McKenzie did not inform the school’s teachers of the January 24th

incident or attempt to supervise the students’ behavior in the boys’ bathroom following the

incident. This is hardly reasonable behavior for school administrators, particularly those tasked

with overseeing young, elementary school children. The fact that multiple students were

attacked put Jackson and McKenzie on notice that leaving the bathroom unsupervised put

students at risk of being attacked again. Jackson and McKenzie did not email teachers about the

incident nor did they hold a faculty meeting to discuss the incident. In fact, they failed to do

anything to put teachers on notice that a violent attack on multiple students had occurred in the

boys’ bathroom. Nor did Jackson and McKenzie make any attempt to prevent future incidents.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 16

They could have asked teachers to supervise the student bathrooms or limited the number of

students allowed to use the bathroom at one time. Instead, Jackson and McKenzie allowed the

boys’ bathroom to remain unsupervised. Jackson and McKenzie’s behavior shows their failure

to take this situation seriously and exemplifies the very definition of recklessness: they

consciously disregarded the “known or obvious risk of harm” that students would engage in

violent behavior in the unsupervised bathroom, and that disregard was “unreasonable” in light of

the attack that took place there. Anderson, 983 N.E.2d at 273. As a result, Taye was again

harassed in the boys’ bathroom on the day he took his life. Further, the school’s failure to inform

teachers about the January 24th incident involving Taye rendered his teachers unable to

understand the significance of the harassment Taye again experienced in the bathroom upon

returning to school. Jackson and McKenzie’s overall response to the January 24th attack shows

their indifference to Taye’s wellbeing and utter failure to protect students against known risks

and thus, displays recklessness.

D.

Despite their knowledge of the continued harassment and physical harm Taye suffered at

school, Jackson and McKenzie maintain that Taye’s suicide was not a foreseeable risk. As this

Court explained in Tumminello v. Father Ryan High Sch., Inc., however, “if a school is aware of a

student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that

the victim of the bullying might resort to self-harm, even suicide.” 678 F. App’x 281, 288 (6th

Cir. 2017). In Tumminello, the appellee, Patricia Lauren Tumminello, argued that Father Ryan

High School administrators’ failure to enforce the school’s anti-bullying policy led to her son

Tate’s suicide. Id. We held that Tumminello failed to allege that her son’s suicide was a

reasonably foreseeable risk because her complaint did not allege facts showing that the school

was aware of the “abuse and harassment” he experienced at school leading up to his death. Id.

Specifically, this Court noted that the complaint did not include allegations “that any teacher or

administrator at Father Ryan saw or heard students bully Tate, that Tumminello or Tate ever

complained to a teacher or administrator about the bullying, or that any other student reported the

bullying.” Id.

No. 18-3974 Meyers, et al. v. Cincinnati Bd. of Education Page 17

Unlike the school administrators in Tumminello, Jackson and McKenzie knew the full

extent to which Taye was subjected to aggression and violence by his classmates. They even had

video footage of several of the violent incidents Taye experienced at school. Further, the

foreseeability of Taye’s suicide in light of the violence and bullying he experienced at Carson

Elementary is so apparent that the school administration’s own safety guidance warns about the

fact that suicide is a risk of bullying. As alleged, Jackson and McKenzie’s behavior shows

“conscious disregard of or indifference to a known or obvious risk of harm” to Taye that was

“unreasonable under the circumstances” because they knew Taye was harassed and bullied at

school and that a risk of bullying is suicide, and yet they utterly failed to take reasonable steps to

protect Taye from that risk. Anderson, 983 N.E.2d at 273.

III.

The Plaintiffs sufficiently allege facts that show Jackson and McKenzie acted recklessly.

Plaintiffs have sufficiently alleged in the amended complaint that Jackson and McKenzie lied to

Taye’s parents and chose not to inform Taye’s parents about six instances in which Taye’s

physical safety was threatened. They failed to discipline students who attacked Taye at school.

They failed to call 911 when Taye was unconscious for seven minutes after being knocked to the

floor in the bathroom. They did nothing to put teachers at the school on notice of the violent

attack that occurred on January 24th, nor did they take any steps to prevent future attacks of a

similar nature. They reported false information about the number of “bullying instances” that

occurred as required by Ohio law, and ultimately, prevented Taye’s parents from fully

understanding Taye’s horrifying experience at Carson Elementary until it was too late. This

Court finds their behavior, as alleged, to be egregious and clearly reckless, thus barring them

from the shield of government immunity.

For the foregoing reasons, we AFFIRM the district court’s denial of Jackson and

McKenzie’s motion to dismiss, holding that they are not entitled to immunity under Ohio Rev.

Code § 2744.03(A)(6)(b).