Mengers-0'Brien v. Oyster Riv Sch Dis

• Court: District Court, D. New Hampshire
• Decided: October 8, 1998
• Docket: CV-95-402-SD
• Status: Published

Opinion

Mengers-0'Brien v. Oyster Riv Sch Dis CV-95-402-SD 10/08/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jennifer Mengers-O'Brien; Tamara Milne; Cynthia Tomas

v. Civil No. 95-402-SD

Oyster River Cooperative School District

O R D E R

This case, alleging violation of Title IX of the Education

Amendments Act of 1972, 20 U.S.C. § 1681, and state law, has been

wending its way through the litigation process for some time now.

Along its way it has presented the court with questions on the

cutting edge of Title IX law. Currently before the court is

Defendant's Motion to Reconsider the Court's Order Denying Motion

for Summary Judgment in Light of Gebser v. Laqo Vista Independent

School District, to which the plaintiffs object;1 Defendant's

Motion to Dismiss State Law Claims or in the Alternative Motion

defendant has also filed a motion for leave to file a reply memorandum, to which plaintiffs object or in the alternative move to file their own reply. As these issues have been argued and reargued multiple times, the court fails to see the need for further memoranda and hereby denies both requests. to Bifurcate Title IX Claim from State Law Negligence Claim, to

which plaintiffs object; and various pretrial motions.

Background

The plaintiffs, Jennifer Mengers-0'Brien, Tamara Milne, and

Cynthia Thomas, allege that the Oyster River Cooperative School

District failed to prevent or to end a fellow student's sexual

harassment of Jennifer and Tamara in the seventh and eighth

grades. The complete history of this sorry tale can be found in

the court's order of August 25, 1997, Doe v. Oyster River Coop.

School Dist., 992 F. Supp. 467 (D.N.H. 1997), and need not be

reiterated here.

Discussion

1. The School District's Motion to Reconsider

In its August 25, 1997, order, the court denied the school

district's request for summary judgment on plaintiffs' Title IX

claim. The court determined that under Title IX a student who

has been sexually harassed in school could collect damages if an

official who had authority to address the harassment knew or

should have known of the harassment and failed to take

appropriate steps to halt it. In response to defendant's request

for reconsideration, the court issued a subsequent order

2 clarifying the school's duty to respond to harassment. See Order

of January 14, 1998. In that order, the court emphasized that

the requirement that the school take steps reasonably calculated

to end the harassment was not a negligence standard, but required

the plaintiffs to show that the school district had been reckless

or grossly negligent. The school district now asks the court

again to reconsider its decision in light of a recent United

States Supreme Court decision clarifying the standard of

liability under Title IX.

In Gebser v. Laqo Vista Ind. School Dist., ___ U.S. ,

, 118 S. Ct. 1989, 1999 (1998), the Supreme Court held that a

school district could only be liable for damages under Title IX

when it had actual knowledge of the harassment and reacted with

deliberate indifference. In the instant case, unlike Gebser,

plaintiffs do not seek to hold the school district vicariously

liable. Accordingly, Gebser's focus on agency principles and the

importance of actual knowledge are not the primary focus here.2

The critical issue here is whether there is evidence sufficient

to survive summary judgment on the second prong of this test.

2A1though the court in its order of August 25, 1997, opined that a school could be held liable when it had actual or constructive notice of harassment, the court found that plaintiffs had produced enough evidence to preclude summary judgment under either standard. Therefore, the Supreme Court's announcement of the actual knowledge standard does not affect this prong of the court's decision. 3 Although this court previously held that plaintiffs had provided

enough evidence that the school district failed adequately to

remedy the harassment to survive summary judgment, the court also

found that "it does not appear that [the school district] acted

with reckless indifference to plaintiffs' rights . . . Do e ,

supra, 992 F. Supp. at 484.

Accordingly, the dispositive issue is the meaning of the

Supreme Court's announcement that deliberate indifference is a

prerequisite to recovery of damages under Title IX. Plaintiffs

contend that the deliberate indifference standard required by

Gebser is met by conduct that is merely reckless, and is thus

really the same standard earlier applied by this court. See

Plaintiffs' Memorandum of Law in Support of Objection to

Defendant's Motion to Reconsider at 4. The school district, on

the other hand, argues that deliberate indifference is only shown

where a school refuses to take any action. See Defendant's

Memorandum of Law in Support of Motion to Reconsider Court's

Order Denying Motion for Summary Judgment at 6. This court finds

both of these formulations overstated. In Gebser, the Court

stated that liability would be premised on "an official decision

by the recipient not to remedy the violation." ___ U.S. at ___ ,

118 S. Ct. at 1999. Gebser thus requires a greater showing of

intent than did the standard applied by this court. Indeed, it

4 is clear from this court's previous order that the conduct

alleged by the plaintiffs was sufficient to survive summary

judgment under a standard requiring gross negligence, but was not

sufficient to support a claim requiring deliberate indifference.

See D o e , supra, 992 F. Supp. at 480, 484. Accordingly,

plaintiffs' Title IX claim cannot survive under the standard

announced by Gebser.

2. Plaintiffs' State-Law Claims

The school district has asked the court to dismiss

plaintiffs' state-law claims. According to defendant, these

claims present novel questions of state law, which would confuse

the jury by overshadowing plaintiffs' Title IX claim. Because

plaintiffs' Title IX claim is no longer viable, defendant's

second contention is no longer a concern. Furthermore, the court

is not persuaded that this case involves a novel issue of state

law warranting declining jurisdiction. See 28 U.S.C. § 1367

("district court may decline to exercise supplemental

jurisdiction . . . if the claim raises a novel or complex issue

of State law"). Plaintiffs' claim is based upon negligence, a

tort with which this court has plenty of experience. Moreover,

this case does not present a novel application of a familiar

tort; the New Hampshire Supreme Court has explicitly held that

5 the special relationship between schools and students imposes

upon the school a duty of reasonable supervision. See Marcruav v.

En o , 139 N.H. 708, 717, 662 A.2d 272, 279 (1995).

Furthermore, although the court will often exercise its

discretion to dismiss state-law claims once all federal claims

have been dismissed, considerations of fairness and efficiency

weigh in favor of retaining jurisdiction over plaintiffs' state-

law claim. See 28 U.S.C. § 1367(c). In deciding whether to

retain jurisdiction, the court enjoys considerable discretion

which must be exercised "'in light of such considerations as

judicial economy, convenience, fairness to litigants, and

comity.'" Kern v. Kollsman, 885 F. Supp. 335, 346 (D.N.H. 1995)

(quoting Newman v . Burgin, 930 F.2d 955, 963 (1st Cir. 1991)).

At this late stage in the litigation, three years after the

action was filed and after the close of discovery, dismissal of

the state-law claims is not warranted.

3. Defendant's Motion in Limine to Exclude Testimony of

Plaintiffs' Liability Expert

The school district objects to the proposed testimony of

Cheryl Dick, plaintiffs' proposed expert, on numerous grounds,

and has requested an evidentiary hearing on the matter. The

court will rule on defendant's motion after such hearing.

6 4. Defendant's Motion in Limine to Exclude Testimony Referencing

Office For Civil Rights' Investigation

Defendant has moved to exclude the contents of a report

prepared by the Office for Civil Rights (OCR), the agency

responsible for enforcing Title IX. Federal Rule of Evidence

803(8) provides that certain public records and reports are not

excludable as hearsay. The rule provides that "in civil actions

. . ., factual findings resulting from an investigation made

pursuant to authority granted by law, unless the sources of

information or other circumstances indicate lack of

trustworthiness," are not excluded as hearsay. Fed. R. Evid.

803(8)(C). Although the school district does not explicitly

evoke Rule 803, its argument that the report should be excluded

because it lacks sufficient indicia of reliability appears to be

an allusion to 803(8)(C)'s requirement of trustworthiness.

The Supreme Court has held that under Rule 803(8) (C) ,

investigative reports containing both findings of fact and the

investigator's conclusions may be admitted. See Beech Aircraft

Corp. v . Rainey, 488 U.S. 153, 170 (1988). The United States

Court of Appeals for the First Circuit has "indicated its

willingness to interpret Rainey broadly." Lubanski v. Coleco

Indus. Inc., 929 F.2d 42, 45 (1st Cir. 1991). Accordingly,

reports prepared pursuant to a legal duty are accorded an initial

7 presumption of admissibility. See id. at 46. The

trustworthiness inquiry is the "primary safeguard against the

admission of unreliable evidence . . . ." Rainey, supra, 488

U.S. at 167. The Advisory Committee's Notes provide a list of

four factors relevant to the determination of trustworthiness:

"(1) the timeliness of the investigation; (2) the investigator's

skill or experience; (3) whether a hearing was held; and (4)

possible bias when reports are prepared with a view to possible

litigation." Id. at 167 n.ll. In this case, although no hearing

was held, the other factors militate in favor of admitting the

report. "And of course it goes without saying that the admission

of a report containing 'conclusions' is subject to the ultimate

safeguard--the opponent's right to present evidence tending to

contradict or diminish the weight of those conclusions." Id.

at 168.

Legal conclusions, however, stand on a different footing

from factual conclusions. In Rainey, the Supreme Court

"express[ed] no opinion on whether legal conclusions contained in

an official report are admissible as 'findings of fact' under

Rule 803(8)(C)." Id. at 170 n.13. Some lower courts have held

that Rule 803(8)(C) does not permit the admission of legal

conclusions. See Hines v. Brandon Steel Decks, Inc., 886 F.2d

299, 302 (11th Cir. 1989). Although the First Circuit favors a

8 liberal construction of the rule, this court has no hesitation in

holding that legal conclusions based on what have proven to be

incorrect interpretations of the law should not be admitted.

Accordingly, the report can only be introduced into evidence if

all conclusions as to the requirements of Title IX and legal

conclusions based on such interpretations are redacted.

Of course, a report that is admissible under Rule 803(8)(C)

is nonetheless subject to the other rules of evidence. See

Lubanski, supra, 929 F.2d at 45. Accordingly, the court's

finding that the report meets the requirements of Rule 803(8)(C)

is not intended to eliminate a proper challenge as to the

admissibility of any specific portion of the report under the

federal rules of evidence. The obligation, however, remains with

the defendant to identify and challenge those portions of the

report it deems inadmissible. In its motion in limine, defendant

argues that the report should be excluded under Rule 403 because

it would cause unfair prejudice and confuse the jury. The school

district's argument, however, is based upon the report's

inaccurate statement of the law of Title IX, which the court has

already determined must be redacted. Thus, at this juncture, the

court will not exclude the report. The school district, of

course, is free to object when and if the report is offered at

trial.

9 5. Defendant's Motion in Limine to Exclude Testimony Referencing

Office for Civil Right's Fsicl Guidance

The school district has moved to have the court exclude any

reference to a guidance on sexual harassment in schools issued by

the Department of Education's Office for Civil Rights (OCR).

Although the guidance was not published until years after the

relevant events took place, plaintiffs contend that it can be

used to judge the reasonableness of defendant's response; the

plaintiffs' liability expert, Cheryl Dick, bases her conclusions,

in part, on this guidance. As the court will be ruling on the

admissibility of Dick's testimony after an evidentiary hearing,

it will rule on this issue simultaneously.

6. Assented-to Motion to Require Defendant to Specify Exhibits

As the parties have assented to this motion, it is herewith

granted.

Conclusion

For the abovementioned reasons defendant's motion to

reconsider (document 75) is granted; the clerk is hereby ordered

to enter judgment for defendant on Count I of the plaintiffs'

complaint. Defendant's motion for leave to file a memorandum in

excess of fifteen pages (document 61) is hereby granted.

10 Defendant's motion to dismiss state-law claims (document 82) and

defendant's motion in limine to exclude the Office for Civil

Rights' investigation and findings (document 53) are denied. The

court will reserve judgment on defendant's motions in limine to

exclude testimony of plaintiffs' liability expert and references

to the Office of Civil Rights Guidance (documents 52 & 54) until

after an evidentiary hearing, which shall be held on Thursday,

November 5, 1998, at 10:30 a.m. The court has granted the

assented-to motion regarding specifying exhibits (document 64).

SO ORDERED.

Shane Devine, Senior Judge United States District Court

October 8, 1998

cc: Eleanor H. MacLellan, Esq. Bradley F. Kidder, Esq. Donald E. Gardner, Esq.