Opinion
Cause No. 1:02CV264
August 20, 2003
MEMORANDUM OF DECISION AND ORDER INTRODUCTION
The Plaintiff, Antoine J. King ("King"), is suing Fort Wayne Community Schools ("FWCS") and its former Superintendent, Thomas Fowler-Finn (collectively, "the Defendants") because he contends his expulsion from Northrop High School ("Northrop") on April 2, 2001, was based on his race (black, African-American) and was thus in violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d et.seq.("Title VI"). He seeks compensatory and punitive damages, as well as unspecified equitable relief.
Fowler-Finn was dismissed as a Defendant on February 5, 2003, pursuant to the parties' joint stipulation of dismissal. As the Motion for Summary Judgment still refers to him as a Defendant, however, the Court will use the plural term "Defendants."
This matter is before the Court on the fully briefed Motion for Summary Judgment filed by the Defendants and is supported by two affidavits, one from King's hearing examiner, Judith A. Platz ("Platz") (Platz Aff. ¶ __) and another from Cheryl Strader ("Strader"), a Northrop Assistant Principal (Strader Aff. ¶ ___). In essence, the numbered exhibits attached to Platz's affidavit contain the entire administrative record of the disciplinary proceedings. ( See, e.g., Platz Aff. Ex.__). In addition, the record consists of three depositions, King's (King Dep. p.__), Strader's (Strader Dep. p. __), and Timon Kendall's ("Kendall") (Kendall Dep. p.__), the Principal at Northrop. In addition, the Reply of the Defendants contained a second Platz affidavit (Platz 2nd Aff. ¶ __).
The matter is a consented case to the Magistrate Judge. See 28 U.S.C. § 636.
The first two affidavits and a small portion of Kendall's deposition prompted a motion to strike from King and that too has now been fully briefed.
King did not file a reply brief and the time to do so has now passed.
The Court will first address, and DENY, the Motion to Strike and then will discuss the Motion for Summary Judgment which will be GRANTED.
MOTION TO STRIKE
In his motion to strike, King seeks to strike exhibits one (1) through three (3) of Platz's affidavit on hearsay grounds. King also seeks to strike on hearsay grounds paragraph five (5) of Strader's affidavit regarding an investigation of another incident in which a student touched the breast of a female student. Finally, King seeks to strike alleged expert testimony from pages twenty-one (21) through twenty-two (22) of Kendall's deposition in which Kendall speaks of the disinclination of an adolescent male to permit another to rest a hand upon his crotch area.
Exhibits one (1) and two (2) contain the statements of the female students whose hands King allegedly placed or attempted to place on his crotch as they all walked down a school hallway and exhibit three (3) contains the statement of a purported witness to that event.
King argues that exhibits one (1) through three (3) of Platz's affidavit are unauthenticated. However, Platz verifies they are part of the expulsion hearing record, which is sufficient. See Fed.R.Evid. 901(b)(1) (holding that "[t]estimony that a matter is what it is claimed to be" is sufficient authentication); Wagner v. Fort Wayne Community Schools, 255 F. Supp.2d 915, 917 n. 5 (N.D. Ind. 2003).
King also argues that the exhibits in question are inadmissible hearsay. However, the documents in question were relied upon by Defendants in the course of determining King's expulsion. In order to determine whether King was discriminated against based on his race, the Court has a duty to examine the record adduced in King's expulsion proceedings. Furthermore, school disciplinary proceedings are not governed by the evidentiary rules found in this Court. Id. See also Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993) (holding that school disciplinary hearings need not be judicialized). Accordingly, in order to consider the facts submitted and relied upon at the expulsion hearing, the motion to strike the exhibits at issue will be denied.
Also, even if the motion to strike the statements were granted, the contents of the statements are contained in Platz Aff. Ex. 13 (the transcript of the expulsion hearing), to which King lodged no objection.
King's arguments regarding his motion to strike paragraph five (5) of Strader's affidavit concerning another disciplinary event are, essentially, the same as his arguments regarding the exhibits to Platz's affidavit. For the reasons set forth supra, the motion to strike paragraph five (5) of Strader's affidavit will be denied.
In addition, as a practical matter, the Court cannot conclude whether King was treated differently because of his race without examining the particulars involved in Defendants' disciplining of other students.
Finally, King contends that Kendall's statement regarding the indisposition of an adolescent male to permit another to rest a hand on or near his crotch should be stricken as improper expert testimony under Fed.R.Evid. 702. Even assuming, arguendo, that Kendall's statements are expert testimony, King's argument must fail as the empirical, scientifically supportable veracity of Kendall's statement is not in issue. Rather, the issue is that Kendall disbelieved King's version of the events based upon Kendall's years of experience with adolescent males. See Fed.R.Evid. 801(c) (defining hearsay to be a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"). The Court must be able to analyze the reasons put forth by Defendants for suspending King in order to determine if those reasons were nondiscriminatory. Cf. Snipes v. Illinois Dept. of Corrections, 291 F.3d 460 (7th Cir. 2002) (holding that a plaintiff must establish similarities between employment actions taken against him and those taken against others similarly situated in order to make out a case for disparate treatment based on race). Furthermore, as noted previously, school officials need not conform their investigations to the Federal Rules of Evidence. Osteen, 13 F.3d at 225; Wagner, 255 F. Supp.2d at 917-18. Therefore, the motion to strike Kendall's statement will be denied.
That rule provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principle and methods reliably to the facts of the case.
As the affidavits will not be struck from the record, neither will the portions of Defendants' brief relying on those affidavits.
FACTUAL BACKGROUND
Notably, "King has little quarrel with the facts" FW CS presented in its Motion for Summary Judgment. See, Resp. Br. p. 2. Nevertheless, the following facts are drafted in a light most favorable to him.
In their interviews with Strader, and in subsequent written statements, the two girls told substantially the same story: they were walking down the hall when King approached and grabbed a hand from each. (Strader Dep. at 8-9, 15-18; Platz Aff. Ex. 1,2). After dropping one girl's hand, King took the other's hand in both of his, and placed it on his crotch. (Platz Aff. Ex. 1,2). When that girl pulled her hand away, King tried to grab the other girl's hand, apparently for the same purpose, but that girl also pulled her hand away. Id. As the girls walked into the choir room, King asked why they were running away. (Platz Aff. Ex. 1,2). The first girl responded that he was "gross," and the girls proceeded to tell Mr. Ashton what happened. Id.
Another student witnessed the very end of the incident described by the girls. (Platz Aff. Ex. 3). In a written statement, this witness noted that she saw King grab one of the girl's hands and put it "where his [crotch] is." Id. Moreover, she stated that she was "almost positive" that she saw the girl try to pull her hand back, but King pulled it closer. Id. After the incident, King was taken to the office and interviewed by Northrop administrators, including Assistant Principal Grady Pruitt (a black male) and Strader (a white female), Kendall (a black male), and another white male. (King Dep. at 75-76). At some point, the other administrators left King alone with Strader, who spoke with King alone for "short spurts." (Strader Dep. at 19). The remainder of her time was spent investigating the incident, working a lunch module, and attending to unrelated matters. Id. At some point, King was allowed to retrieve his lunch, eat it, and return his tray to the cafeteria. Id. at 21. Eventually, Strader discovered that a hallway video camera had recorded still shorts of the incident. Id. at 20. The investigation was delayed further, however, while someone figured out how to rewind the tape and print the photos. Id.
Strader believed that the photos corroborated the girls' testimony. (Strader Dep. at 14-15; Platz Aff. Ex. 7-12). She presented the photos and other evidence to Kendall who, as principal, had decision-making authority with respect to student expulsions. (Kendall Dep. at 32-34; Strader Aff. at ¶ 3). Kendall found the photograph taken at 10:01:37 to be particularly persuasive evidence that King intentionally placed one girl's hand in his crotch area. (Kendall Dep. at 20-22; Platz Aff. Ex. 10). Kendall's conclusion was drawn from his lengthy experience with adolescent males, who are generally reluctant, at least in Kendall's view, to permit the hand of another person to come in close contact to their crotch. (Kendall Dep. at 21-22). Based on the photograph and the reaction of the girls, one of whom was crying, Kendall decided to seek King's expulsion. ( Id. at 32, 45); (Strader Dep. pp. 9, 16). He visited King in the office and effectively told him that the pictures were conclusive. (Kendall Dep. at 23; Strader Aff. ¶ 3).
After Strader confronted King with the photographs, King wrote the following statement:
At 9:45 the class went to the auditorium and I approach two young ladies. I grabbed one of their hands and placed it in my crotch area, then I grabbed the other and did the same.
3-09-01 /s/ Antoine J. King
(King Dep. at 75; Platz Aff. Ex. 5). However, King continues to maintain, as he did at his expulsion hearing, see, Platz Aff. Ex. 13 pp. 9-11, that while he wrote this statement, he did so as Strader dictated it to him. (King Dep. p. 79-81). He also maintains that Strader told him that his confession letter would help him "in court." Id. at p. 80. However, by this time Kendall had already decided to seek expulsion. ( See Strader Aff. ¶ 3).
Nevertheless, King also proceeded to write an unsolicited apology letter to the two girls:
Dear, ___ and ___. I'm sorry for what I did, I don't have any idea on what would make me do such a childish thing. I'm not angry with you two. I understand why you reported me, and if I were in your shoes I'll probably do the same thing too. Please Forgive Me!!
3-09-01 /s/ Antoine J. King
(King Dep. at 75; Platz Aff. Ex. 6). Unlike the "confession letter" King told Platz that he actually requested to write the apology letter. (Platz Aff. Ex. 13 at 11).
The expulsion of a student begins when the principal files expulsion papers and requests a due process hearing. (Platz Aff. at ¶ 2). An expulsion examiner hears the evidence, including the student's evidence, and determines whether the student is to be expelled. Id. If the student is expelled, he has a right to appeal to the superintendent or his designee. Id.
This process is how King's case unfolded. (Platz Aff. Ex. 4). The due process hearing was briefly postponed so King's attorney could attend. (Plat Aff. Ex. 13 at 2). When the hearing date arrived, King's attorney requested another postponement, but Platz denied this request. Id. At the hearing, Strader presented Northrop's case for expulsion, offering still photos from a hallway camera, as well as the written statements of the victims, the independent witness, and King. (Platz Aff. Ex. 13 at 3-4).
King testified at the expulsion hearing in his own defense, as did both of his parents. ( See Platz Aff. Ex. 13). Initially, King agreed with Strader's recitation of the facts, but under the guidance of his attorney, soon recited a different tale. Id. With respect to the incident itself, King testified that the two girls approached him and complimented him on his clothes. (Platz Aff. Ex. 13 at 8, 11-12). In response, King stuck out his hands and began to hold hands with each girl. Id. A short while later, King's pants allegedly began to fall down (he was not wearing a belt), and he used both hands with one girl's hand firmly in his grasp to pull them up. Id. King claimed that when he pulled his pants up, his hands were nowhere near his crotch area. (Platz Aff. Ex. 13 at 8).
Although King's parents attended the hearing, they are not his custodians, because apparently his grandmother is his guardian.
King also testified that during the course of the investigation, Kendall and Strader repeatedly yelled at him, accused him of sexual harassment, and refused to believe his story. (Platz Aff. Ex. 13 at 8, 12). At some point, when Strader and a school-based police officer named Selvia were present, King was presented with a police report related to the incident. (King Dep. at 86-87). Later, when Strader was alone with King, Strader allegedly told him that: (1) she didn't believe his story; (2) the photographs demonstrated his guilt; (3) she knew the girls involved wouldn't lie; and (4) a confession would help King if he were required "to go to court." (Platz. Aff. Ex. 13 at 9; King Dep. at 76-77).
After hearing the evidence, Platz, apparently disbelieving King's version of events, granted the expulsion request. (Platz Aff. Ex. 14); (Platz 2nd Aff. ¶ 13). King subsequently appealed this determination to the superintendent's designee, Dr. Charles Green. (Platz Aff. at ¶ 7). Green reversed King's expulsion and allowed him to return to school on May 14, 2001. Id. All told, King was out of school for approximately two months. King eventually left Northrop without graduating. (King Dep. at 12). In recent weeks, however, he has passed the ISTEP test and thereby graduated. (Platz Aff. at ¶ 8).
In any event, apart from generally claiming that Platz incorrectly found him guilty of the offense, King's Title VI claim centers on his belief that he was treated differently because two white male Northrop students also engaged in inappropriate sexual behavior and were not expelled. (King Dep. at 124); (Strader Dep. at 32-40).
One student, Christopher Prokopf ("Prokopf") was, unlike King, never referred for expulsion because school authorities viewed his touching of a girl's breast as inadvertent and part of some large-scale horseplay. (Strader Aff. ¶¶ 4-6). Instead, Prokopf was suspended for two (2) days. ( Id.).
The other student was referred for expulsion but Platz found, unlike King's case, that the evidence was insufficient to conclude the charges had merit. ( See Platz 2nd Aff. ¶¶ 3-9).
SUMMARY JUDGMENT STANDARD
"Summary judgment is proper only if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). Rather, the standard for granting summary judgment, which mirrors the "directed verdict" standard under Rule 50(a), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).
The anachronistic term "Directed Verdict" is no longer used; rather, it has been more accurately retitled "Judgment as a Matter of Law." See Fed.R.Civ.P. 50(a). A defendant is entitled to such a judgment if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiff. Id.
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998) (citing Anderson, 477 U.S. at 255, 106 S.Ct. at 2513). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996) (citing Anderson, 477 U.S. at 247, 106 S.Ct. at 2509-10). The disputed factual issues must be "genuine," Fed.R.Civ.P. 56(c), and consequently a dispute over irrelevant or unnecessary facts — i.e, facts that do not affect the outcome of the suit under the governing law — does not preclude summary judgment. Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999), cert. denied 528 U.S. 874, 120 S.Ct. 178, 145 L.Ed.2d 150 (1999).
The nonmoving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998); Fed.R.Civ.P. 56(e). "Furthermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), cert. denied 528 U.S. 988, 120 S.Ct. 450, 145 L.Ed.2d 367 (1999) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)); see also Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Moreover, "neither `the mere existence of some alleged factual dispute between the parties,' Anderson, 477 U.S. at 247, 106 S.Ct. at 2505, nor the existence of `some metaphysical doubt as to the material facts,' Matsushita Elec. Indus., 475 U.S. at 586, 106 S.Ct. at 1356, is sufficient to defeat a motion for summary judgment." Tesch v. County of Green Lake, 157 F.3d 465, 471 (7th Cir. 1998). Thus, a summary judgment determination is essentially an inquiry as to "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997) (quoting Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512).
DISCUSSION
Title VI provides, in pertinent part: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 200d. In order to recover monetary damages under Title VI, King must show that he was intentionally discriminated against on the basis of his race. Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 1516, 149 L.Ed.2d 517 (2001).
The parties do not dispute that FWCS receives Federal financial assistance.
The Seventh Circuit apparently has not yet directly addressed what a plaintiff must show in order to make out a valid Title VI claim. However, most courts have chosen to adopt, for Title VI purposes, the burden-shifting approach for Title VII cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Jane v. Bowman Gray School of Medicine-North Carolina, 211 F. Supp.2d 678, 690-91 (M.D. N.C. 2002); Jackson v. Univ. of New Haven, 228 F. Supp.2d 156, 159-60 (D.Conn. 2002); Oti Kaga, Inc. v. South Dakota Housing Development Auth., 188 F. Supp.2d 1148, 1167 (D.S.D. 2002). That approach appears to be sound, and this Court will use that methodology here.
THe parties also agree that the Title VII framework should be utilized in analyzing King's Title VI claim. See Defendants' Memorandum of Law in Support of Motion for Summary Judgment, pp. 8-9; Plaintiff's Response to Defendants' Motion for Summary Judgment, p. 3.
In order to show intentional race discrimination, King may "offer direct evidence of discriminatory intent, or he may utilize the indirect, burden shifting analysis of McDonnell Douglas Corp. v. Green. . . ." Butler v. Consolidated Rail Corp., 31 F. Supp.2d 1098, 1103 (S.D. Ind. 1998), aff'd, 210 F.3d 374 (7th Cir. 2000) (Table, Text in Westlaw, No. 98-3344). King has not offered direct evidence of discrimination. See, e.g., Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309, 321 (7th Cir. 2003) ("Direct evidence usually requires an admission by the decisionmaker that his actions were based on age [or, in this case, race]"). Thus, King must attempt to prove his claim under the McDonnell Douglas framework.
Under this framework, King must first establish a prima facie case of discrimination to create a rebuttable presumption of discrimination. Toward that end, King must show that: 1) he was a member of a protected class; 2) he was meeting FWCS's legitimate expectations; 3) he suffered an adverse action by FWCS; and 4) other, similarly situated students who are not members of the protected class have been treated more favorably. See Grayson v. O'Neill, 308 F.3d 808, 817-18 (7th Cir. 2002), petition for cert. filed, 72 U.S.L.W. 3007 (U.S. Mar. 20, 2003) (No. 02-1837) (setting forth the factors in an employment discrimination case). The burden then shifts to Defendants to articulate a legitimate, non-discriminatory reason for the challenged action. Id.at 818. If Defendants are successful, the presumption dissolves, and the burden returns to King to show that the Defendants' tendered reason was a mere pretext. Id. King then must show that Defendants "lied" about their proffered reasons, as a court must focus only on the honesty of the proffered reasons, not their wisdom. See Grayson, 308 F.3d at 820; Balderston, 328 F.3d at 323 ("The only concern in reviewing an employer's reasons for termination is the honesty of the employer's beliefs").
Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998), cert. denied 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999).
In other words, in order to survive a motion for summary judgment, King must "establish pretext either directly, with evidence suggesting that [race] was the most likely motive for the . . . [disciplinary action], or indirectly, by showing that the . . . [Defendants'] proffered reason was not worthy of belief. `The indirect method requires some showing that (1) the defendant's explanation has no basis in fact, or (2) the explanation was not the real reason, or (3) . . . the reason stated was insufficient to warrant'" the disciplinary action. Worth v. Tyler, 276 F.3d 249, 265-66 (7th Cir. 2001) (quoting Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir. 1999) (quotation omitted)) (citation omitted).
The Court will assume, arguendo, that King has established a prima facie case of discrimination. Therefore, the Court's analysis will focus on whether Defendants' proffered nondiscriminatory reasons for seeking King's expulsion are pretextual. As King has offered no direct evidence of pretext, the Court will address whether he has shown pretext indirectly. See Worth, 276 F.3d at 265-66.
"When the defendant has proffered an explanation for termination [or seeking expulsion in our case] that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext." Abioye, 164 F.3d at 368. See also Butler, 31 F. Supp.2d at 1104 ("once the defendant articulates a nondiscriminatory reason, the prima facie case becomes inconsequential and the Court must examine whether the plaintiff can meet his burden in proving pretext. Thus, the Court will not resolve whether the prima facie case was actually established but will instead proceed to determine whether . . .[FWCS] has offered a nondiscriminatory reason for its actions and whether . . . [King] has offered sufficient evidence to raise a genuine issue of material fact with regard to pretext").
Defendants contend that they sought to expel King for violating FWCS Rule 22, which prohibits inappropriate sexual behavior on school property. (Platz Aff. Ex. 4). Of course, it is not the role of the Court to definitively determine whether King placed the girls' hands on his crotch. Rather, the Court's task at this step of the Worth test is only to determine if the proffered reasons tendered by Defendants have some basis in fact. Worth, 276 F.3d at 266.
As King's reply brief makes clear, he is not contending that the investigation of the claims was discriminatory, or that he was the victim of racial harassment once he returned to school. See Reply Brief, p. 7. So, this leaves King with arguing that Kendall's decision to seek expulsion, and/or Platz's decision to order him expelled, were racially motivated.
In that regard, by all appearances Kendall's decision to seek King's expulsion is amply supported, and therefore honestly arrived at, based on the contemporaneous, spontaneous and nearly instantaneous statements of the girls whose hands King allegedly placed on his crotch, as well as the neutral eyewitness's statement implicating King, and the revealing videotape of the incident. Indeed, Kendall apparently viewed the videotape as the key evidence leading to expulsion. ( See Strader Aff. ¶ 3). Thus, Kendall's action clearly has a factually supportable basis and King has not shown otherwise.
Moreover, King has failed to show that Kendall, who himself is African-American, singled King out for unusually harsh disciplinary treatment based on his race. Indeed, it appears that Kendall would also initiate expulsion proceedings against white students for alleged violations of FWCS Rule 22. In fact, the only thing King can point to in making out a claim of Kendall's discriminatory treatment is what he did in the case of Prokopf, a white male.
However, it is undisputed that Prokopf was engaging in widespread horseplay during gym class at Northrop in which students were hitting each other with badminton rackets. Strader Aff. ¶ 5. Prokopf struck a female student on the buttocks with his racket, which caused another female to chase Prokopf and grab his arm. Id. In the course of freeing his arm from the female's grasp, Prokopf came into contact with her breast. Id. Both Prokopf and the female stated that the touching of the breast was unintentional and Prokopf was suspended for two (2) days. Id. at ¶¶ 5-6.
Thus it is apparent that Prokopf was not similarly situated to King as his conduct was not "directly comparable . . . in all material respects." Grayson, 308 F.3d at 819. Prokopf's indirect contact with a female student's buttocks via a badminton racket and subsequent accidental touching of a female student's breast is far less invasive than King's direct, willful placing (or attempted placing) of two female students' hands on his crotch. In fact, Prokopf's behavior may not have been inappropriate sexual behavior at all under FWCS Rule 22, but even if it was, it was spontaneous and took place during the course of large-scale horseplay and therefore was not like the "purposeful grabbing" as in King's situation. See Strader Dep. p. 36. Thus, despite King's arguments to the contrary, there is a clear, manifest difference between his conduct and Prokopf's, which no doubt led to Kendall's decision to seek expulsion of King and merely suspend Prokopf. Stated another way, King has failed to show that Kendall's decision not to seek Prokopf's expulsion leads to the inference that King's behavior deserved similar leniency. Worth, 276 F.3d 265-66.
Switching to the actual expulsion setting, King also apparently argues that Platz treated him more harshly than another unnamed, white male student ("the comparator"), who allegedly touched the breast of a female student and who then asked another female student to kiss him in the band room as he masturbated. Platz Dep. pp. 11-14. While Northrop officials sought to expel the comparator (apparently initiated by Kendall) that request was denied by Platz after a hearing. Id. This leads King to suggest that his behavior was insufficient to warrant expulsion and that the real reason he was treated differently by Platz was because of his race.
Again, however, there are several notable differences between the comparator's conduct and King's. First, the comparator stoutly denied the inappropriate conduct, whereas King wrote a letter of confession (albeit, he contends, under orders from Strader) and a letter of apology. Next, there was no videotape evidence to affirmatively demonstrate that the comparator engaged in inappropriate conduct whereas King's conduct was captured on tape. In addition, no neutral eyewitness saw the conduct allegedly perpetrated by the comparator whereas there was such an eyewitness in King's case. In fact, in the comparator's case, another student's testimony actually rebutted the charges. Additionally, the females whose hands King allegedly placed on his crotch immediately complained about his conduct whereas the females involved in the comparator's case did not. Also, at the comparator's hearing, a neutral student testified that one of the females in question had vowed revenge against the comparator after he had rebuffed her romantic entreaties. No comparable testimony was adduced at King's hearing. Finally, Platz found the comparator's testimony to be credible, while King's lacked credibility. Thus, it is clear that the comparator is not similarly situated to King because the expulsion case against him was weak, while the case against King was stronger, or at least Platz was entitled to see it that way on this record. Thus, King has failed to show that Platz did not honestly think that the evidence against the comparator was insufficient to warrant expulsion, but that it was in his case. Worth, 276 F.3d 265-66.
At the expulsion hearing King's parents apparently attempted to raise some motive of revenge on the part of one of the girls because King allegedly refused to dance with her at a school dance. See Platz Aff. Ex. 13, pp. 16, 18. However, while the parents claimed to have written statements supporting their allegation, King's attorney chose not to submit them. See Platz Aff. Ex. 14 ("FWCS 000066"). Moreover, the allegations were based on second or third-hand hearsay and thus while still presumably admissible in a school disciplinary proceeding, were likely to carry far less weight than the statements offered by the girls themselves. In short, Platz was entitled to disbelieve or discount this testimony as she obviously did.
King also initially stated that he was similarly situated to a white male student named Sanford, who also had allegedly engaged in inappropriate sexual conduct. King Dep. p. 113. Sanford, however, was expelled, apparently at Kendall's urging and upon Platz's findings. Platz Aff. ¶ 9. As Sanford was actually treated the same as King, or perhaps even more harshly (King was ultimately reinstated), he is not, obviously, a favorable comparison. In any event, all this evidence shows is that King's race was not a factor in his expulsion.
In summary, King has failed to demonstrate pretext, either directly or indirectly, and therefore has failed to show that a genuine issue of material fact exists. Consequently, the Defendants' motion for summary judgment must be granted.
CONCLUSION
For the foregoing reasons, Plaintiff's motion to strike is DENIED and Defendants' motion for summary judgment is GRANTED. The Clerk is directed to enter judgment for FWCS and against the Plaintiff on Plaintiff's complaint.