Gates v. Unified School District No. 449 of Leavenworth County

996 F.2d 1035
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 21, 1993
DocketNo. 92-3218
StatusPublished
Cited by1 cases

This text of 996 F.2d 1035 (Gates v. Unified School District No. 449 of Leavenworth County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gates v. Unified School District No. 449 of Leavenworth County, 996 F.2d 1035 (10th Cir. 1993).

Opinion

BARRETT, Senior Circuit Judge.

Plaintiff Gina L. Gates (Gates or Plaintiff) appeals the district court’s grant of summary judgment in favor of defendants, Unified School District No. 449 of Leavenworth County, Kansas (School District or Board) and Donald E. Simmons, Principal of Pleasant Ridge High School (Simmons). We affirm.

Background

Gates filed this suit pursuant to 42 U.S.C. § 1983 alleging that the School District and Simmons acted with deliberate indifference or recWess disregard in relation to a sexual ■ommitted against her on May 5, Pleasant Ridge High School by ’ichael Dragoo, who was hired in 1983 to teach Vocational Agriculture. On May 5,1988, Gates was a junior, age 17. She sought damages in excess of $50,000, punitive damages, attorneys fees and costs.

In her complaint and in the Pretrial Order, Gates alleged that the School District, through its Board members, and Simmons, as Principal, were policymakers, and that on May 5,1988, they either had knowledge of or reasonably should have known that Vocational-Agriculture teacher Michael Dragoo posed a threat to female students at the high school. Gates averred that the School District and Simmons knew of or should have known of the following: (1) Dragoo was counseled in 1984 concerning attending school functions with students and told that this could jeopardize his professional relationship; (2) in 1985, Dragoo became romantically involved with a female student, Cheryl Parker, and notwithstanding complaints to the school board concerning Dragoo’s involvement with this student, his teaching contract was renewed; and (3) Donald Navinsky, a board member, had received information that Dra-goo was pursuing Gates prior to the May 5, 1988, incident.

In their Answer and in the Pretrial Order, the defendants contended that (1) there was no evidence that the school board authorized or adopted any policy or custom tolerating inappropriate sexual conduct by teachers with female high school students, (2) there was no evidence that Superintendent Fagan or Principal Simmons authorized or tolerated inappropriate contact by teachers with female high school students; (3) Gates failed to satisfy a condition precedent to bringing suit by failing to provide notice pursuant to Kan. Stat.Ann. § 12-105b, and (4) although a former teacher at the high school had heard rumors regarding teacher Dragoo and female high school students prior to May 5, 1988, she did not report these rumors to the principal, superintendent or any board members.

Gates’ basic complaint is that although the School District had no written policy authorizing, condoning or encouraging inappropriate sexual conduct between teachers and students, the defendants, by virtue of their conduct, impliedly authorized, condoned and en[1037]*1037couraged such behavior by failing to thoroughly investigate, discipline and safeguard students from such conduct. Gates contends that such conduct became the custom or unwritten policy of the school district.

Gates’ cause of action “[i]s for deprivation of the constitutional right of privacy and bodily security through the deliberate indifference and recklessness of the defendants in handling reports of prior incidents of sexual misconduct, failing to investigate other incidents and failing to remedy or safeguard students.” (Appellant’s Appendix, Pretrial Order, pp. 12-13). She further contends:

... [T]he school board members acted to retain the teacher (Dragoo) with knowledge of prior instances of sexual misconduct. The vote to retain the teacher provides a direct nexus to the sexual assault since the assault never would have occurred if the teacher’s contract had not been renewed under conditions and safeguards to prevent any recurrence of sexual misconduct.
Under the facts of this case, at least one (and possibly more) instances of sexual misconduct of the teacher (Dragoo) were known to the school board. The teacher continued to receive good performance reviews after knowledge of sexual misconduct occurred. The prior instances of sexual misconduct were concealed due to the claim of executive privilege by the school board.
Public officials with notice of misbehavior by their subordinates must not take actions which communicate that they encourage or condone such behavior. Stoneking, 882 F.2d at 729. Such conduct as failing to discipline or failing to safeguard against a known danger establishes an unwritten policy or custom for purposes-of section 1983.
A jury question remains as to whether defendants acted with deliberate indifference or reckless disregard in voting to retain this teacher, and failing to take any corrective measure, based upon the information ■ which they had at the time, or acquired prior to May 5, 1988.

(Appellant’s Appendix, Plaintiffs Suggestions in Opposition to Defendants’ Motion for Summary Judgment, pp. 60-61).

A summary review of the depositional evidence and some exhibits follows:

Donald Navinsky, a former member and president of the school board (1981-89), testified that: during the spring of 1985, the board had to determine whether to grant Dragoo tenure; Cheryl Parker was then a senior at the high school, and her father, Richard Parker, appeared before the board in executive séssion and, in tears, reported that Dragoo was chasing his daughter, that Cheryl was infatuated with Dragoo, and that Dragoo was the first guy who had shown any interest in Cheryl; when the board convened to determine whether to retain or terminate Dragoo, no member of the Parker family appeared, but some thirty people appeared on Dragoo’s behalf; the board was divided as to whether to retain Dragoo even though no one had appeared at the meeting opposing his retention; neither Superintendent Fagan nor Principal Simmons had any knowledge of Dragoo’s relationship with Cheryl Parker, except Fagan had been contacted by Cheryl’s mother who indicated that Dragoo had an affair with Cheryl, which Fagan related to the board; two of Navinsky’s children had attended Pleasant Ridge High School and had enrolled in Dragoo’s vocational agriculture classes and considered Dragoo a very good teacher; Gail Navinsky considered Dra-goo a good teacher and she had no inappropriate contact with Dragoo; Navinsky considered Dragoo an outstanding teacher, and that his class was working great; the board members were concerned that Dragoo’s new program would fall on its face if the board hired a new teacher; Superintendent Fagan stated to the board that he did not have sufficient knowledge of the Dragoo-Parker relationship to permit an opinion, and Principal Simmons stated that he had heard nothing critical of Dragoo; and the board voted to retain Dragoo, 5 to 2.

Navinsky knew of no other incident beyond that involving Cheryl Parker attributable to Dragoo from 1985 until the May 5, 1988, incident involving Dragoo and Gina Gates, but he had personal suspicions of Dra-[1038]

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996 F.2d 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gates-v-unified-school-district-no-449-of-leavenworth-county-ca10-1993.