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Doe v. Torrington Board of Education

United States District Court, D. Connecticut

September 20, 2018

JOHN DOE, Plaintiff,


          Michael P. Shea, U.S.D.J.

         Plaintiff John Doe brought this action as a result of bullying, assaults, and sexualized hazing he alleges that he experienced while he was a special education student at Torrington High School. He sued the Torrington Board of Education (“the Board”), former Superintendent of Schools Cheryl Kloczko, former principal Joanne Creedon, former vice principal Charles McSpiritt, football coach Daniel Dunaj, guidance counselor Johanna DeZurik, special education case manager Gerard Carbone, athletic director Michael McKenna, and social worker James Dziekan (“Defendants”). Doe claims that the Defendants failed to comply with their duties to protect him by allowing a culture of bullying and sexualized hazing to proliferate at the school, and in particular on the football team, and failing to adequately respond when he became a repeated target for abuse.

         The Board, Kloczko, Creedon, McSpiritt, DeZurik, Carbone, and Dziekan (“the Administrative Defendants”) move for summary judgment with respect to the remaining claims against them: negligence (Count Two), negligent hiring, retention, and supervision (Count Three), and negligent infliction of emotional distress (Count Five).[1] The Administrative Defendants argue that the doctrine of sovereign immunity bars Doe's claims. They also argue that they are immune from liability under a state statute governing suits against school officials related to bullying and under statutory and common law governmental immunity for municipal actors.

         Before filing a response to the Administrative Defendants' motion for summary judgment, Doe filed a motion for sanctions against all Defendants except Michael McKenna pursuant to Fed.R.Civ.P. 37. Doe argues that (1) the Defendant Board of Education failed to produce a witness who was adequately prepared testify under Fed.R.Civ.P. 30(b)(6); (2) the Defendants intentionally destroyed evidence relevant to his claims; and (3) the Defendants failed to disclose an assistant coach's knowledge of an assault that occurred in the football locker room.

         For the reasons set forth below, Doe's motion for sanctions is DENIED and the Administrative Defendants' motion for summary judgment is DENIED.

         I. Factual Background

         The following relevant facts, are taken from the parties' Local Rule 56(a) Statements.

         A. Bullying Incidents or Reports Involving John Doe

         Plaintiff John Doe attended Torrington High School (“THS”) from August, 2011 through April, 2013. (Defendant's Local Rule 56(a)1 Statement of Undisputed Facts, ECF No. 138 ¶ 1) (“56(a)1 Stmt.”).

         1. The 2011-2012 School Year

         Doe joined the football team in 2011. Id. ¶ 2. He experienced several bullying incidents during the 2011-2012 school year. In October 2011, an incident occurred in the football locker room between Doe and another student (“Student A”), and Doe's glasses were broken. Id. ¶ 3. The parties dispute the severity of the incident. In his deposition Doe asserted that Student A threw him to the ground, hit him repeatedly, and rubbed Doe's hat on his groin. (56(a)1 Stmt. ¶ 3; Plaintiff's Local Rule 56(a)2 Statement, ECF No. 154 ¶ 35) (“56(a)2 Stmt.”) The parties agree that Doe or his mother reported the incident to Defendant McSpiritt, who suspended Student A and ordered him to repay the cost of the glasses. (56(a)1 Stmt. ¶ 4.) McSpiritt reported the incident to Defendant Creedon and assured Doe and his mother that the incident would be kept confidential. (Id. ¶ 6-7.) In his deposition, Doe stated that other students nevertheless found out about his report to McSpiritt and retaliated against him. (56(a)2 Stmt. ¶ 36.) He stated that he feared reporting other incidents as a result of the retaliation he faced. Id.

         In either October or November 2011, a student (“Student B”) who did not attend THS at the time tackled Doe to the ground and told him he wanted to fight. (56(a)1 Stmt. ¶ 9; 56(a)2 Stmt. ¶ 37) The incident ended when Doe indicated he would not fight. (Id.) The parties agree that Doe did not report the incident at the time, but they dispute whether Doe's mother reported the incident at a meeting soon thereafter. (Id.) The parties dispute whether the Administrative Defendants had a responsibility to supervise students at the time the incident occurred. (56(a)2 Stmt. ¶ 9.) They also dispute whether Doe was “messing around” or wrestling before the incident occurred. (Id.)

         Doe asserts that, beginning in fall 2011, he was punched daily by two students. (Id. ¶ 43; 56(a)1 Stmt. ¶ 10.) The Administrative Defendants claim that Doe did not report these assaults until April 2013, and that McSpiritt intervened once he was aware. (56(a)1 Stmt. ¶ 10.) Doe argues that he did report the incident before April 2013 and contends that McSpiritt's intervention was inadequate. (56(a)2 Stmt. ¶ 10.) Doe notes that the assaults occurred in public during school hours. (Id. ¶ 10.1.) At some point in fall 2011, Doe also claims that members of the football team tricked him into climbing into a locker and did not let him out for ten to fifteen minutes. (56(a)2 Stmt. ¶ 38.)

         In November 2011, Doe's mother contacted his guidance counselor, Defendant DeZurik, to express her concern about students bullying her son. (56(a)1 Stmt. ¶ 8.) In her deposition, Doe's mother stated that she specifically described the incident where Doe broke his glasses and the incident where he was locked in the locker. (56(a)2 Stmt. ¶ 8.1.) DeZurik met with Doe, but Doe refused to name the students. Id. Doe's mother stated that she informed DeZurik and McSpiritt that she and her son did not want to disclose the names of the students involved for fear of retaliation. (Id. ¶ 8.2.) Doe asserts that his mother had a Planning and Placement Team meeting, attended by both DeZurik and McSpiritt, where she again voiced her concerns. (Id. ¶ 8.3.) Doe's Individualized Education Program (IEP) does not include any notation about her concerns. (Id. ¶ 8.4.)

         Doe suffered a back injury in football training in January 2012. (56(a)1 Stmt. ¶ 11.) His teammates ridiculed him, calling him “pussy” and “bitch, ” which the coaches condoned. (Id.) Doe further asserts that one coach joined in, calling him a “baby” while the head coach looked on. (56(a)2 Stmt. ¶ 40.) The Administrative Defendants claim that Doe did not report this incident (56(a)1 Stmt. ¶ 11). Doe argues that Defendant Kloczko made statements in her deposition suggesting that she was aware that Doe's mother reported the incident and that McSpiritt responded to it, but cites portions of the deposition transcript not provided to the court. (56(a)2 Stmt. ¶ 11) (citing “Kloczko Dep. 284-86”).[2]

         During a track event in Spring 2012, one student “hiked some rocks” at Doe, one of which went down his throat. (56(a)1 Stmt. ¶ 12.) Doe asserts that his mother reported the incident in Spring 2012, which the Administrative Defendants dispute. (56(a)2 Stmt. ¶ 12.) Doe also argues that the Administrative Defendants had an obligation to supervise students during the event. Id.

         Also in Spring 2012, Doe states that students would frequently “karate-chop” one another on the neck. (56(a)2 Stmt. ¶ 50.) A teacher observed Doe and another student hitting each other in this way, and each received an in school suspension. (56(a)1 ¶ 13.) Defendant Dan Dunaj forced the entire team to run extra “gassers” because Doe had received a suspension. (56(a)2 ¶ 50.) Doe stated in his deposition that his teammates retaliated against him, including one student who repeatedly chopped him on the neck. (56(a)2 Stmt. ¶¶ 26, 51.)

         2. The Sexual Assault

         In August 2012, Doe was the victim of a serious sexual assault. Doe was playing football with members of the football team at a municipal park. (56(a)1 Stmt. ¶ 14). Student B, who had transferred to THS in early 2012, chased him down, tackled him, and pulled his pants down. (56(a)2 Stmt. ¶ 12.4.) While Doe tried to pull his pants back up, Student B, inserted a straw into his rectum. (Id.)[3] The Administrative Defendants assert that the incident occurred over summer break, entirely removed from school or football practice. (Id. ¶ 14.) Doe contends that the incident occurred after a football practice during the football season. (56(a)2 Stmt. ¶¶ 12; 12.2-.3.) The parties agree that Doe did not disclose the assault to the Administrative Defendants until April 2013, shortly after Doe reported it to a state trooper through a mentoring program. (56(a)1 Stmt. ¶¶ 20-22.) Doe contests the Administrative Defendants' assertion that they had no notice of the assault before that time. (56(a)2 Stmt. ¶ 22.) He stated in his deposition that many students were aware of the incident soon after it occurred. (Id.) Doe also argues that the Administrative Defendants destroyed documents relating to a 2012 hazing incident that may have contained evidence of their knowledge before April 2013. (Id.)

         3. 2012-2013 School Year

         In the fall of the 2012-2013 school year, Doe's mother contacted Defendant DeZurik to express concern over bullying in Doe's biology class. (56(a)1 ¶ 15.) She explained that she did not want Doe identified in any response for fear of retaliation. (Id.) DeZurik asked the biology teacher to observe Doe's interactions and moved his seat next to a paraprofessional. (Id.) The Administrative Defendants claim that DeZurik stayed in touch with Doe's mother and grandmother throughout the year about bullying issues. (56(a)1 Stmt. ¶ 16.) Doe claims that his mother and grandmother did remain in touch, but that the Administrative Defendants refused to take any action because he would not name the students who bullied him. Doe also notes that DeZurik left a voicemail on his mother's phone indicating that the Administrative Defendants would not take any action on the bullying because Doe would not name names. (56(a)2 Stmt. ¶ 52.) Doe states that he began to miss school that fall because he feared for his physical safety and suffered from severe anxiety over bullying. (56(a)2 ¶ 53.) His absences increased over time as his anxiety escalated. (56(a)2 ¶ 61.)

         Later that fall, Doe and his mother attended a Planning and Placement Team meeting with DeZurik, McSpiritt, and Defendant Carbone, his special education case manager. (56(a)1 Stmt. ¶ 17.) At the meeting, Carbone pressed Doe to name the students who were causing him problems. (Id.) As Doe described the meeting in his deposition, Carbone “slammed his hands on the table, like, launched himself out of the seat, and was leaning over the table. His face was, like, red, and he was just screaming . . . .” (56(a)2 Stmt. ¶ 17.2.) Doe stated that Carbone accused him of complaining about “phantom bullies.” (Id.). At another Planning and Placement Team meeting in January 2013, Doe's mother states that Defendants “DeZurik, McSpiritt, and Carbone minimized” the verbal harassment that Doe was experiencing, calling it “banter.” (56(a)2 Stmt. ¶ 58.)

         In March 2013, Doe's mother states that she contacted Defendant Dziekan, the School Social Worker, to inform him that Doe was still being bullied. (56(a)2 Stmt. ¶ 66.) Dziekan stated that he had not met with Doe despite Doe's IEP requiring that they meet at least once per week. (Id.) Doe states that he met with Dziekan only twice. (56(a)1 ¶ 23). Doe's mother testified that Doe suffered another assault in the halls that month as a student shoved him and said, “What the fuck, gay boy.” (56(a)2 ¶ 64.) She stated that she informed Defendant Carbone that Doe would not attend school the following day because he feared for his safety. (Id. ¶ 65)

         On April 1, 2013, Doe's mother states that Doe was in resource hall and became nervous when the paraprofessional in the room opened the blinds, allowing students in the hall to look in (56(a)2 Stmt ¶¶ 67-68.) Doe's mother states that the paraprofessional taunted him, called him a “hider, ” and told the other students they should write his name on the window in paint. (Id.) Doe's mother also states that the paraprofessional taunted him when he requested to leave early (as permitted by his guidance counselor) to avoid other students between classes. (Id.) Later that same day, Doe states that Student B and another student cornered him at track practice, “jacked him up” against a fence, punched him repeatedly, and tore his shirt (56(a)2 Stmt. ¶ 69.)

         On April 5, 2013, Doe's mother removed him from school after Doe and his state trooper mentor told his mother about the August 2012 sexual assault. (56(a)1 Stmt. ¶ 20.) Doe's mother and his state trooper mentor attended a Planning and Placement Team meeting three days later. (Id. ¶ 21) The trooper disclosed that a serious incident had occurred in August involving Doe but did not provide details. (Id.) At the meeting, McSpiritt was tasked with creating a safety plan for Doe. (Id.) Doe argues that the record shows the plan was ineffective, as the next day he crossed paths with a student that the plan should have helped him avoid. (Id.)

         On April 17, 2013, a detective with the Torrington Police Department accompanied Doe, his mother, and his grandmother to a meeting with Defendant Kloczko. (56(a)1 Stmt. ¶ 22.) At the meeting, the detective disclosed the details of the August 2012 sexual assault. Kloczko suggested that Doe attend Migeon Academy to assure his safety. (Id.) Doe describes Migeon Academy as a program for students who have been expelled. (56(a)2 Stmt. ¶ 22.) The Administrative Defendants state that students attend the program for other reasons as well. (56(a)1 Stmt. ¶ 22.)

         B. Incidents Involving Third Parties

         Doe points to several incidents of bullying, hazing, assault, and criminal activity committed by members of the football team, which he contends should have put the Administrative Defendants on notice as to the severity of the problems associated with the team:

• Fall 2011 - A group of older members of the football team subjected younger students to daily assaults, striking them repeatedly on the arms in the same way that they struck Doe. (56(a)2 Stmt. ¶¶ 45-46.)
• November 2011 - Two students on the football team were arrested for the rape of two female students. (56(a)2 Stmt. ¶ 39.) One of the students pleaded guilty to risk of injury to a minor with illicit sexual contact, and both students were expelled from THS. (Id.)
• December 2011 - Superintendent Kloczko sent Principal Creedon a memorandum stating that Creedon had mishandled the bullying of a gay student and mandating that THS administrators review “protocols for dealing with verbal harassment and the physical ...

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