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Doe v. Russell County School Board

United States District Court, W.D. Virginia, Abingdon Division

February 13, 2018


          By: James P. Jones United States District Judge Monica H. Beck and Douglas E. Fierberg, The Fierberg National Law Group, PLLC, Traverse City, Michigan, and Paul R. Thomson, III, The Thomson Law Firm, PLLC, Roanoke, Virginia, for Plaintiff; Christopher S. Dadak and Jim H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, and Mary Katherine Patton, Chafin Law Firm P.C., Lebanon, Virginia, for Defendants Russell County School Board d/b/a Russell County Public Schools, Phillip Henley, and Kimberly Hooker; W. Ethan Stewart, Stewart Law Office, P.C., Norton, Virginia, guardian ad litem for Defendant Bobby Gobble.



         Bobby Gobble was an elementary school custodian who over time sexually abused several young boys who were students at the school, including John Doe, the pseudonymously-named plaintiff in this case. Following discovery of his abuse, Gobble pled guilty to state criminal charges and is currently serving a lengthy prison term. As a result of Gobble's abuse, Doe now sues Gobble, as well as the Russell County, Virginia, School Board (the “School Board”), and former school principals Phillip Henley and Kimberly Hooker, based on various state and federal causes of action, including Title IX and 42 U.S.C. § 1983.[1] This court has subject-matter jurisdiction of the claims under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).

         Following extensive discovery, the plaintiff has moved for summary judgment against Gobble, and the School Defendants have moved for summary judgment on all counts pending against them. The School Defendants have also moved to exclude certain proposed trial testimony by two of the plaintiff's expert witnesses. The motions have been fully briefed and orally argued and are ripe for decision.

         For the following reasons, I will grant summary judgment against Gobble, deny summary judgment to the School Board, grant summary judgment to Henley and Hooker, and grant in part and deny in part the School Defendants' Motion to Exclude.

         I. Facts.

         The following facts are taken from the summary judgment record and, where disputed, are presented in the light most favorable to the nonmoving party.

         John Doe began attending Lebanon Elementary School (“LES”) in the fall of 2011 as a nine-year-old third grade student. When he began attending LES, Doe had an individualized education plan (“IEP”) to address his special learning needs. He could not write his name, wrote his letters backward, and could not read. His mother, referenced in the record as Jane Doe, was incarcerated, and Doe was living with his grandmother, step-grandfather, and three siblings. His grandmother, who had custody of Doe, was ill and suffered from heart problems.

         Defendant Phillip Henley was the principal of LES from 2005 until June 1, 2012, the end of Doe's third-grade year. Defendant Kimberly Hooker was the principal of LES during the 2012-13 school year, when Doe was in fourth grade. Dennis Price - who is not a defendant - was the assistant principal at LES from 2006 until 2012 and later served as the principal of LES from 2013 to 2015. During the 2013-14 school year, when Doe was in fifth grade, he attended Lebanon Middle School (“LMS”), located across the street from LES.

         Gobble began working at LES as a janitor in May 2007 and became the head custodian on July 8, 2011. His sister, Brenda Helbert, worked as the assistant custodian at LES. Helbert had two sons, B.G. and S.G., who were a few years older than Doe and were students at other schools in Russell County.

         Gobble first met Doe at LES, where the two talked to one another often. Doe wanted to help Gobble with his custodial duties. Gobble had a practice of encouraging boys to help him collect trash at the end of the school day. Teachers would permit students to leave class during the last five to ten minutes of the school day for this purpose, and Gobble frequently gave the boys one or two dollars or candy in exchange for helping him.

         Gobble and Doe began spending more and more time together, during and after school, at LES and elsewhere. This relationship was encouraged by Doe's teachers, who thought Gobble was a good influence on Doe. Teacher Cecille Lawson Skeens called Gobble to her classroom on several occasions to calm Doe down, and each time Gobble took Doe out of the classroom and into the hallway. Doe's teachers sent him out of the classroom by himself to get supplies and coffee from the custodian office. On at least one occasion, Gobble was allowed to remove Doe from school to get a haircut. While he was enrolled in the after school program, Doe was allowed to leave the program to spend time with Gobble and help him with his cleaning duties around the school. Gobble was not related to Doe and did not have written permission to remove Doe from school, although Doe's grandmother and mother verbally approved of Doe spending time with Gobble.

         Gobble signed off on Doe's report cards. Teacher Alisha Powers met with Gobble and Doe to discuss Doe's IEP. Gobble would ask Skeens how Doe had done on tests and assignments, and she would provide that information to Gobble. Gobble told her that he helped Doe study and would bring him a soft drink at lunch if Doe did well. Doe frequently spent time in the custodian office, the door to which remained closed at Henley's direction.

         Gobble gave Doe rides home from school in his personal vehicle on a regular basis. Gobble befriended Doe's family and sometimes stayed to eat dinner with them. Gobble took Doe to Gobble's house along with his nephews, B.G. and S.G., to play video games, and Doe ended up spending the night there. Doe would eventually stay at Gobble's house for days on end and essentially lived with Gobble for a period of several months. B.G. and S.G. introduced Doe to Henley at LES one day and told Henley that Gobble was taking them all out to dinner. Henley incorrectly assumed that Doe was related to B.G., S.G., and Gobble.

         Henley became aware that Doe would help Gobble gather trash and also participated in the after-school program. As the school year went on, Gobble mentioned to Henley that Doe would go to Gobble's house because he did not like to stay at his own home. Henley did not ask Gobble any questions about Doe being at his house, including whether he had the permission of a parent or guardian. Henley never talked to Doe's grandmother, his guardian.

         Doe's teachers were aware that Gobble bought him shoes, clothes, and an expensive video game console that he had to finance. Doe's teachers also knew that Gobble often bought him food, which he took to Doe in the school cafeteria during lunch, and that Gobble paid Doe's expenses related to little league football. Teacher Powers encountered Doe with Gobble and his nephews at the amusement park known as Dollywood, some distance from Russell County. Henley did not ask teachers if they had any concerns about Doe spending time with Gobble. Henley never checked on Gobble as part of his regular workday. He had no set supervisory schedule for Gobble. Henley never reviewed security camera footage to see what Gobble was doing.

         Gobble began sexually abusing Doe in early 2012. The abuse continued until the summer of 2013, when Jane Doe, who had regained custody of him, stopped allowing Doe to spend time with Gobble. Gobble has admitted to repeatedly molesting Doe in the LES boiler room and custodian office, in his vehicle, at the home Gobble shared with his then-wife, and at the home of Gobble's sister Helbert, where Gobble lived while separated from his wife. The abuse occurred on a near-daily basis.

         According to Gobble, Henley and Hooker knew that Gobble was regularly at school before his shift began and that children spent time in the custodian office with him before school started. Henley and Hooker knew that teachers sometimes sent students by themselves to the custodian office during the school day to get supplies, like sponges or paper towels. Henley and Hooker further knew that Doe spent time in the custodian office after school and that Gobble spent time in the custodian office with Doe, S.G., and B.G., with the door to the office closed. In addition, Henley and Hooker were aware that Doe and Gobble's nephews were with Gobble at the school when school was not in session. Henley and Hooker knew that Gobble brought Doe to school in the mornings and that Doe left school with Gobble at the end of the day. Gobble testified that neither principal asked him why he was at school before his shift began or told him he should not have children in the custodian office with him.

         In 2012, Gobble's wife Charlene made a complaint to the Russell County Department of Social Services (“DSS”) about Gobble's relationship with Doe. Charlene reported that Doe was staying at the couple's house and spending an excessive amount of time with Gobble. She stated that Gobble was no longer sleeping with her and was instead sleeping in the same room as Doe. Charlene reported that Gobble's relationship with Doe was negatively affecting the couple's marriage.

         Pam Kincaid, Kathy Brickey, and two other DSS personnel went to Gobble's home to investigate the complaint. Charlene showed them where Gobble slept and a small cot next to the bed where Doe slept. After leaving the Gobble home, the DSS workers went to LES and spoke to Hooker about the complaint. Hooker told them that Gobble had taken the child under his wing because Doe was insecure and he looked up to Gobble as a father figure. Hooker stated that Gobble made sure that Doe got home in the evenings and would take him to ball games. Following this conversation, the focus of the DSS investigation shifted from Gobble to Jane Doe.

         The DSS workers spoke to Gobble, who told them that Doe's mother had allowed him to take the child under his wing and to help him with things at school and give him rides home. Gobble stated he was very fond of Doe. Brickey asked Gobble about Doe spending the night at his house, and Gobble said that the boy's mother approved. Hooker sat in on this interview of Gobble but did not ask any questions.

         The DSS workers spoke to Doe, who stated that he wanted to spend more time with his mother rather than spending so much time with Gobble. Doe said that he liked Gobble and that Gobble took him places. Hooker sat in on the DSS interview of Doe, but she did not ask any questions.

         Kincaid then instructed Gobble to take the child to Doe's home, where the DSS workers met them. Kincaid asked Jane Doe about the relationship between Gobble and Doe, and Jane Doe said she was aware that Gobble was taking Doe to his house, that Gobble had become a friend of the family, and that he had been to the Doe house several times for dinners and birthdays. The DSS workers told Jane Doe that Doe should spend more time at home. Kincaid concluded that the complaint was unfounded, and DSS closed the case. Kincaid notified the school of the results of the investigation.

         Charlene made another complaint to DSS about a month after the initial investigation. Charlene reported that Gobble had moved out of her home and the child was still spending nights with Gobble. Charlene told Kincaid that Doe would sit on Gobble's lap, hug him, and call him Daddy, and Charlene was concerned that they might get in trouble if Doe got hurt. Charlene told Doe to get off of Gobble's lap. Gobble told Charlene she was jealous. No. school official talked to Charlene about Doe or Gobble's relationship with him.

         Gobble told teacher Naomah McCoy that he planned to adopt Doe. Gobble's wife did not want to do this, but according to McCoy, Gobble seemed obsessed with the idea. McCoy thought it was strange that Gobble would jeopardize his marriage over Doe. Gobble complained to teacher Powers that his wife had called DSS. He was furious about it and told Powers that he was going to leave his wife.

         Hooker recalls learning of Charlene's complaint to DSS and sitting in on DSS interviews of Doe and Gobble in the spring of 2013, when Doe was in fourth grade. She learned through the interviews that Doe stayed at Gobble's home. Gobble said he was helping Doe's mother monetarily and by giving Doe rides. Hooker did not talk to Doe after the interview about anything that came up during the interviews. She did talk to Gobble and asked him some of the same questions DSS had asked, to which he gave the same answers he had given to DSS.

         Hooker testified that after Kincaid told her that DSS ruled Charlene's complaint unfounded, Hooker called the school system's central office to ask whether she needed to do anything else. According to Hooker, the superintendent told her she did not need to take any further action because DSS had completed its investigation. Hooker stated that she discretely inquired of several teachers as to whether they had any concerns about Gobble, but most of the teachers testified that they did not recall Hooker ever asking them about Gobble.

         Earlier in the school year, prior to the DSS investigation, Hooker had instructed LES teachers that students should not be allowed to help Gobble collect trash and that they needed to be in the classroom during class time. Hooker told the teachers and Gobble that Gobble was not permitted to pay students for helping him do his work. When Hooker noticed that Doe was staying after school with Gobble, she called Doe's grandmother, who gave permission and expressed her appreciation for Gobble. Hooker did not obtain written permission from the grandmother for Gobble to take Doe to activities or to keep him after school. Hooker told Gobble that if Doe was going to stay after school, he had to be enrolled in the after-school program. Hooker checked Doe's grades and saw that they were low, and she thought he could benefit from the academic support of the after-school program. Even after he was enrolled in the after-school program, teacher Powers told Hooker that Doe would try to leave the program to help Gobble. Hooker then told Doe that he could not stay at school if he was not in the after-school program. Doe began riding the bus home, but Powers told Hooker that Doe's grandfather would drive him back to school and he would again spend time with Gobble. Hooker did not talk to the grandfather, grandmother, mother, or Doe about this.

         Hooker called Jane Doe, who told her that Gobble had her permission to take Doe home and take him to practices and games. Hooker knew that DSS had talked to Jane Doe, and Hooker brought up the investigation on the phone call. Jane Doe said that Gobble was helping her and she appreciated him. Hooker did not talk to either of the school's guidance counselors about Gobble or Doe.

         Like Henley, Hooker required the custodian door to be closed. Hooker knew there were security cameras in the school, but they did not always work while she was principal. The school day ended at 3:20, and Hooker usually left around 4:00 or 4:15. The after-school program took place from 3:30 to 5:30. Hooker knew that Gobble was transporting Doe in his personal vehicle. There was an understanding that school employees should always have another adult with them when transporting a student in a personal vehicle, but Hooker did not investigate whether Gobble had another adult with him when transporting Doe.

         In the summer or fall of 2013, Jane Doe cut off communications between Doe and Gobble. She had noticed Gobble following Doe around at his birthday party, which was held in the LES cafeteria, and she got a “bad feeling.” She later saw Gobble following Doe around at football games and threatened to call law enforcement. Doe's step-grandfather testified that at some point during or after the birthday party, Doe indicated that he did not want to go to Gobble's house and told his younger brother not to go to Gobble's house. At that point, the grandfather became suspicious that Gobble may have touched Doe inappropriately. The grandfather also witnessed Gobble's behavior at a football game and talked to law enforcement officers who were present there. The officers talked to Gobble, who stopped following Doe around. After Jane Doe cut off contact with Gobble, Gobble repeatedly sent text messages to Doe and had Doe's bus driver pass love notes to Doe.

         Brenda Hess was assistant superintendent from March to June 2012 and became superintendent in June 2012. She remained superintendent until 2016. When Hess first started working in the central office, Harry Steffey was the Title IX Coordinator. He was succeeded by Rebecca Dye, who was followed by Cathy Gent.

         Around the fall of 2012, Hooker told Hess that Gobble's wife had made a complaint to DSS because she was jealous of a student and that the complaint was unfounded. Hess understood that DSS had been investigating a charge that Gobble had sexually abused a student. Hess emphatically denied that she told Hooker not to conduct her own investigation. She testified that Hooker was supposed to do her own investigation. Hess testified, “She should have followed through with questioning and got the specifics of the behavior and what had happened and taken action for whatever needed to be done. Just because DSS did theirs, does not excuse the school from doing our[] [investigation].” Pl.'s Br. in Opp'n to Sch. Defs.' Mot. for Summ. J. Ex. 3, 55, ECF No. 69-3. The Title IX Coordinator should have been involved, and Hess set forth a number of steps Hooker should have taken to investigate the complaint. According to Hess, Hooker should have reviewed video footage after learning of the first complaint to DSS. Hess said that after the DSS investigation, Hooker should have been diligent in closely supervising Gobble.

         In February 2014, Gobble molested student A.M. at LES. A.M. told his stepfather about the incident, and his stepfather reported the incident to Price. Gobble was placed on paid leave pending an investigation. Gobble ultimately confessed to the abuse of A.M., Doe, and others, was arrested, and pleaded guilty to numerous state charges.

         Following Gobble's confession, Doe continued to attend LMS for a short time and then the family moved to Pulaski County. Doe eventually returned to Russell County and currently attends a school there. After his return, he has experienced bullying by his classmates regarding Gobble's sexual abuse. Teachers have witnessed the bullying and have not done anything about it. Doe got into a fight on the school bus with one of the students who bullied him. As a result, Doe was suspended for four days and transferred to an alternative school for several months.

         Doe testified that because of his experience with Gobble, he does not like to be around people and avoids crowds where people are watching him. He does not feel normal. He would like to undergo counseling. He is not getting any special services from the school system. He has had several girlfriends, but he does not like to be touched by males or females, even on the hand or shoulder. It takes him a long time to trust a person and become affectionate. He does not trust any adults other than his mother and step-grandfather.

         Psychiatrist Richard S. Epstein, M.D., an expert witness for the plaintiff, has opined that Doe suffers severe and chronic posttraumatic stress disorder (“PTSD”) as a result of Gobble's abuse. He avoids social interactions, lashes out at times, has self-medicated with alcohol, and does not trust most men. He is depressed and anxious. Earlier in his childhood, before Gobble's abuse, Doe was generally outgoing and happy. Since being abused by Gobble, he has lost interest in many of the activities he previously enjoyed. Dr. Epstein opined that without proper treatment, Doe is at risk for future psychological decompensation and employment-related impairments as a result of Gobble's abuse.

         A Virginia State Board of Education document entitled “Guidelines for the Prevention of Sexual Misconduct and Abuse in Virginia Public Schools” states, “Responsibility for protecting students from sexual misconduct and abuse is shared by the school board, superintendent, administrators, teachers and other school board employees, school volunteers, parents, state agencies, and law enforcement.” Br. in Supp. Mot. for Summ. J. Ex. 1, 1, ECF No. 63-1. The document provides that a school board's responsibilities include, among other things, “[t]he development, effective implementation and enforcement of clear and reasonable policies governing the interaction of students and school board employees and volunteers” as well as “[t]he establishment of channels for reporting by students and parents of suspected misconduct and abuse, and the prompt notification of law enforcement when criminal activity is alleged or suspected.” Id. According to the guidelines, school board sexual misconduct policies should include “[c]lear and reasonable rules governing communication and interaction between students and school board employees” and “[t]raining of school personnel and volunteers and the dissemination of sexual misconduct and abuse prevention policies to school board employees, volunteers, students, and parents.” Id. at 1-2.

         The guidelines advise that

         Educators, other employees, and volunteers should be aware of behaviors often associated with inappropriate conduct that can create an appearance of impropriety, including:

• Conducting ongoing, private, conversations with individual students that are unrelated to school activities or the well-being of the student that take place in locations inaccessible to others;
• Inviting a student or students for home visits without informing parents;
• Visiting the homes of students without the knowledge of parents;
• Inviting students for social contact off school grounds without the permission or knowledge of parents; and
• Transporting students in personal vehicles without the knowledge of parents or supervisors.

Id. at 2. Violations of appropriate employee-student boundaries include, inter alia, “[p]hysical contact with a student that could be reasonably interpreted as constituting sexual harassment” and “[s]ingling out a particular student or group of students for personal attention and friendship beyond the bounds of an appropriate educator/mentor-student relationship.” Id. The guidelines state that “[s]chool boards also should provide training for employees and volunteers on the prevention of misconduct and abuse and disseminate information about relevant division policies to employees, volunteers, students, and parents.” Id. at 3.

         Henley developed a faculty handbook when he was principal of LES, but he could not recall whether it specifically addressed employee sexual harassment of students or Title IX. Representatives of DSS and the Russell County Sheriffs Department provided training to administrators, including principals, about once per school year. Teachers did not attend these training sessions. Principals were expected to disseminate the information they learned to the teachers and staff at their schools. The training sessions sometimes covered sexual abuse and sometimes addressed child neglect. They did not specifically address Title IX. Posters about mandatory reporting of child abuse and neglect were placed in the copying area and teacher's lounge. Henley did not receive or give any training on investigating reports of sexual abuse or on preventing abuse of students by school employees. Students did participate in a training program once a year called “Good Touch, Bad Touch.”

          Henley could not identify the school system's Title IX Coordinator or describe that person's duties. He testified in his deposition that if he received a complaint of abuse or harassment, he was supposed to report it to the superintendent and to DSS, and at that point, he considered the complaint to be in DSS's hands.

         Principal Price also could not identify the Title IX Coordinator. Upon receiving a complaint, Price would contact the superintendent and report to DSS. He does not recall anyone telling him that he should make a report to the Title IX Coordinator. He testified in his deposition that he could not think of any steps ...

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