Opinion
CASE NO. 3:19cv82-MCR-HTC
2022-07-08
Steven VAN ETTEN, BY Laraine VAN ETTEN, his plenary guardian, Plaintiff, v. The SCHOOL BOARD OF OKALOOSA COUNTY, FLORIDA ; Mary Beth Jackson ; Stacie Smith; Arden Farley; Alan Lambert; Jon Williams; Roy Frazier ; and Jean Hennion, Defendants.
John M. Leace, Ryan Blake Hobbs, Dean Robert LeBoeuf, Ryan Philip Molaghan, Brooks LeBoeuf Foster etc., Tallahassee, FL, for Plaintiff. Lisa Barclay Fountain, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendants School Board of Okaloosa County. Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendant Jon Williams. Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendant Roy Frazier.
John M. Leace, Ryan Blake Hobbs, Dean Robert LeBoeuf, Ryan Philip Molaghan, Brooks LeBoeuf Foster etc., Tallahassee, FL, for Plaintiff.
Lisa Barclay Fountain, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendants School Board of Okaloosa County.
Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendant Jon Williams.
Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Mobile, AL, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendant Roy Frazier.
ORDER
M. CASEY RODGERS, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant School Board of Okaloosa County, Florida's Motion for Summary Judgment (ECF No. 216). Plaintiff Steven Van Etten is an autistic, nonverbal adult who alleges physical and verbal abuse at the hands of his exceptional student education (ESE) teacher, Roy Frazier, while enrolled at Silver Sands School in Okaloosa County, Florida (Silver Sands). Through his plenary guardian, Laraine Van Etten, Mr. Van Etten filed the instant action against Frazier, the School Board, and six other individual defendants.
Silver Sands is part of the Okaloosa County School District (School District). It is a Title I public school that "provides educational services to students who, because of their mental functioning levels, require services beyond those offered by other special educational programs in regular schools." www.okaloosaschools.com/silversands. Silver Sands students range in age from three to twenty-two years old. Id. Silver Sands is governed and overseen by the Okaloosa County School Board (School Board), which operates, controls, and supervises all schools within the School District, including appointing, suspending, and terminating employees. See Fla. Const. Art. IX § 4 ; Fla. Stat. §§ 1001.32(2), 1001.42, and 1012.22(1). The School Board is responsible for developing and adopting policies and programs governing school operations. See Fla. Stat. § 1001.41(1) –(3). The School Board can adopt policies upon the recommendation of, and delegates implementation of its policies to, the Superintendent, who is the secretary and executive officer of the School Board responsible for the administration and management of all schools within the School District and the supervision of instruction. See Fla. Stat. §§ 1001.32 and 1001.33 ; C.H. v. Sch. Bd. of Okaloosa Cty., Fla., et al. , No. 3:18cv2128 (ECF Nos. 298-8 at 2 and 298-9). From 2012 until 2019, the School Board operated approximately forty K-12 schools, including Silver Sands; employed approximately 3,200 individuals; and educated more than 30,000 students each year. As of November 13, 2015, 4,223 students were classified as students with disabilities across all exceptionalities.
Mr. Van Etten also named as Defendants Mary Beth Jackson, Superintendent of the School District; Stacie Smith, Assistant Superintendent of Human Resources for the School District; Jon Williams, Principal at Silver Sands beginning in February 2016; Jean Hennion, Frazier's teaching aide; Arden Farley, an equity investigator for the School District responsible for investigating claims of misconduct by instructional personnel and school administrators; and Alan Lambert, Principal of Silver Sands until February 2016. Mr. Van Etten settled his claims against Hennion, Farley, and Lambert, and thus those claims were dismissed. See ECF Nos. 148, 152, 155, 169, 203, 212. On June 13, 2022, the Court entered Orders granting Smith and Jackson's motions for summary judgment and denying Frazier's motion. See ECF Nos. 244, 245, 247. Shortly before the Court did so, Mr. Van Etten filed a joint petition for approval of a settlement he reached with Williams; the Court granted the petition, approved the settlement agreement and release, and denied Williams’ pending motion for summary judgment as moot. See ECF No. 243, 249.
In his First Amended Complaint (ECF No. 67), Mr. Van Etten asserts claims against the School Board for violation of his substantive due process and equal protection rights; civil conspiracy; disability discrimination; negligent training, retention, and supervision; and respondeat superior. The School Board has moved for summary judgment on all claims. See ECF No. 216. Having carefully considered the motion, the record, and the applicable law, the Court finds the motion should be granted.
In response to the School Board's motion, Mr. Van Etten waived the conspiracy claim. See ECF No. 223 at 65.
There are three additional, related suits pending in this Court, all of which were consolidated for discovery purposes—two suits based on alleged abuse by Frazier and Hennion at Silver Sands, see C.H. , No. 3:18cv2128 (lead case), and N.R. v. Sch. Bd. of Okaloosa Cty., Fla., et al. , No. 3:18cv2208 (member case), and a third suit based on allegations that another ESE teacher, Marlynn Stillions, abused a student at Kenwood Elementary School, see N.P. v. Sch. Bd. of Okaloosa Cty., Fla., et al. , No. 3:18cv453 (member case).
For the limited purpose of summary judgment proceedings, the Court views "the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party"—here, Mr. Van Etten. Martin v. Brevard Cty. Pub. Sch. , 543 F.3d 1261, 1265 (11th Cir. 2008) (internal marks omitted).
Mr. Van Etten was born on May 1, 1996. As indicated above, Mr. Van Etten is autistic and non-verbal. At the beginning of the 2000–01 school year, Mr. Van Etten began attending Silver Sands. As a result of his disability, he was placed on an Individualized Education Plan (IEP). He was assigned to Frazier's classroom during the 2014–15 and 2015–16 school years. Mr. Van Etten alleges Frazier physically and verbally abused him, as well as other ESE students at Silver Sands, during that time.
In particular, Mr. Van Etten alleges Frazier pushed, slapped, punched, pinched, flicked, kicked, and threw shoes at him, at least once striking him in the head. Mr. Van Etten also alleges Frazier strapped him to a stationary exercise bike for hours at a time; placed a calming sack over his head, causing him to panic and undress himself on one occasion; confined him in a cardboard box; secluded him in a small, dark room for hours at a time, allowing him to sleep all day; and withheld food from him, sometimes eating the food himself and other times taking the food home with him.
Marian Gilmore, a one-on-one aide for another student, N.R., assigned to Frazier's classroom during the 2014–15 school year, testified in her deposition that Mr. Van Etten and other students would go into a state of shock when Frazier flicked them. Kelsea Koch, a one-on-one aide for D.M. assigned to Frazier's classroom for the 2015–16 school year, testified that when he saw Frazier flick Mr. Van Etten, it was obvious Mr. Van Etten was unhappy and did not like it. In fact, Koch said he noticed that Mr. Van Etten started shying away from Frazier when Frazier tried to give him a high five. Similarly, Hennion testified that Mr. Van Etten would become fearful when Frazier would come around, as if he did not want Frazier to flick him.
According to Gilmore, the cardboard box was a refrigerator box, approximately four feet tall, with a lid that was sometimes closed, a practice Gilmore considered unacceptable and abusive. Gilmore explained that for some ESE students, confinement is "torture." C.H. , No. 3:18cv2128 (ECF No. 298-28 at 62) (the page numbers cited throughout this Order refer to those assigned by the court's electronic docketing system, as opposed to any other page number that may appear, and appear in documents filed in the lead case in support of Defendants’ summary judgment motions).
Prior to Christmas break of the 2014–15 school year, Gilmore saw Frazier strike Mr. Van Etten after he soiled himself. As best Gilmore could recall, the incident occurred in the morning, near the restroom, when Frazier and Hennion were trying to clean Mr. Van Etten after he had had an accident on the school bus. Frazier struck Mr. Van Etten in the chest with his hand with such force that Mr. Van Etten stumbled backwards. Mr. Van Etten further contends that Frazier routinely locked him in a hot transport van while shopping at yard sales. And, on one occasion, Frazier brought a bb gun into the classroom.
Frazier sometimes would drop the items he purchased off at his home before returning the students to school. At other times, Frazier would take the items to school and give them to an aide to fix in the classroom. Frazier told Silver Sands administration that he took the students on the "field trips" to teach them how to exchange money and count change. Koch, however, says that never happened and that Frazier made the students stay on the bus.
Frazier was able to bring the bb gun into the school by concealing it in an umbrella. He apparently brought it to school and into the classroom so one of the students’ aides could work on it during the school day.
Mr. Van Etten alleges Frazier and Hennion verbally abused him by calling him inappropriate names, such as "douche bag" and "little shit." They also called his father a "douche bag." Koch said Frazier and Hennion yelled at Mr. Van Etten, including any time he had an accident. Koch described the yelling as a violent verbal assault. Koch further stated that on at least five occasions when Mr. Van Etten had soiled himself, Frazier and Hennion shoved him into the restroom and proceeded to yell at and embarrass him. According to Mr. Van Etten, in an effort to conceal the abuse, Frazier falsified students’ test data to make it appear as though their functionality was improving when, in fact, the students were regressing.
Various individuals witnessed Frazier physically and verbally abuse his students, including Mr. Van Etten, and reported the abuse to school officials. During the 2014–15 school year, Gilmore reported to Lambert that Frazier had confined N.R. in the cardboard box. On a separate occasion, Gilmore advised Lambert that Frazier brought a bb gun into the classroom. During the conversation, Gilmore "broke down in tears" and "spilled a lot of things to" Lambert, including that Frazier was still "strapping [N.R.] in the bike chair to keep him from going places." C.H. , No. 3:18cv2128 (ECF No. 298-28 at 11). Gilmore also told Lambert that Hennion, rather than Frazier, was preparing students’ IEPs and calling students bad names and that Frazier was flicking students’ ears, eating students’ food, and going to yard sales while leaving students in the vehicle. Gilmore believes she also reported to Lambert that Frazier had thrown shoes at students.
For the 2015–16 school year, Koch replaced Gilmore in Frazier's classroom. Koch witnessed the incident in which Frazier struck C.H. in the chest. According to Koch, C.H. reacted "bug-eyed, like shocked moment, and then ... just sat there, you know. Like maybe made like a small sound and just sat quietly." C.H. , No. 3:18cv2128 (ECF No. 298-27 at 13). Approximately thirty minutes after the incident, Koch reported it to Lambert. Koch met with Lambert for approximately half an hour and advised Lambert, among other things, that he thought Frazier hitting C.H. constituted abuse. According to Koch, it appeared that Lambert was not listening to him and was dismissive of his complaint. Koch testified in his deposition that he left the meeting feeling like "if [Lambert] doesn't think this is abuse, then nothing else that I have seen is ever going to be considered abuse. Because to me, the – the hit to [C.H.] was about as bullyish as it gets. That's hitting a student for making a noise because you can't hear [about] somebody's vacation." Id. at 30.
Lambert and Frazier had been friends for approximately thirty-five years, having gone to college together and even lived together at one time.
Not long after the first meeting, Koch again reported Frazier's abuse to Lambert—to the best of Koch's recollection, because of an incident with D.M. that caused D.M. to defend himself in a violent manner and/or the inappropriate "field trips." Id. at 18. After meeting with Lambert, Koch returned to the classroom, where Frazier approached him and asked, "do you really think that's abuse," to which Koch replied, "yes, a hundred percent. I'm in tears right now. I think this is abuse." Id. at 15. Koch testified that he explained to Frazier that "[t]his is not touching students to protect them from hurting themselves or others" and was "not a gray area." Id. at 15–16.
Koch estimates this second meeting occurred "not too much longer after the first" because "it was pretty much every week [he] could have found an instance of abuse" by Frazier. Id. at 31.
Koch believes he met with Lambert a third time regarding Frazier's conduct. Lambert, however, continued to ignore the reports. Koch's impression after each meeting was that Lambert wanted him out of his office and to "get him to stop crying and be done with him." Id. at 35. Following the last meeting, Koch was reassigned to another classroom—in Koch's opinion, in retaliation for reporting Frazier's abuse.
In early February 2016, Williams replaced Lambert as Principal of Silver Sands. On February 12, 2016, Janalou Mills, a teacher at Silver Sands, was having a conversation with Williams in his office when Frazier's name came up. Mills advised Williams that Frazier allegedly had punched a student, apparently misidentified as K.S., in the chest and dropped another student on his head. Mills reported what she had been told by Donna Koch, another teacher at Silver Sands, who reported what she had been told by her son, Kelsea Koch. The same day, Gilmore emailed Williams to report alleged misconduct by another teacher. She later met with Williams and told him about her experience in Frazier's classroom, including Frazier's inappropriate comments, strapping students to the exercise bike, and bringing a bb gun to school.
After receiving Gilmore's email, Williams spoke to Smith the same day and advised her of the concerns Mills brought to his attention. Williams also contacted the Florida Department of Children and Families (DCF) and reported that Frazier allegedly punched K.S. in the chest. Williams identified Kelsea Koch as a witness to the incident.
Pursuant to Fla. Stat. § 39.201, any person who knows, or has reasonable cause to suspect, that a child is being abused by a caregiver or person responsible for the child's welfare is obligated to immediately report the abuse to DCF.
On February 16, Williams spoke to Richard White, a deputy with the Okaloosa County Sheriff's Office (OCSO). Williams reported to Deputy White that he had received a report that Frazier struck a thirteen-year-old ESE student, who Williams correctly identified as C.H., in the chest approximately two months earlier. According to Deputy White, Williams also reported that he had been informed that Frazier pinched and used pressure point techniques on students.
The same day, Farley visited Silver Sands to investigate the allegations. Williams forwarded Farley the February 12 email from Gilmore. Farley met with Koch, who submitted a handwritten statement describing Frazier's abuse, which he later supplemented with a typewritten statement providing additional details. Gilmore also submitted a written statement detailing Frazier's abuse, which Farley provided to Smith. On February 17, Smith notified Frazier that he had been placed on administrative leave, with pay.
On February 22, Farley met with Frazier to discuss the allegations against him and allow him an opportunity to respond. Frazier admitted to having inappropriate physical contact with students. When the investigation was complete, Farley prepared a final investigative summary, in which he concluded there was sufficient evidence that Frazier had violated the Code of Ethics and Principles of Professional Conduct. Farley recommended that Frazier be disciplined and evaluated to determine whether he should be allowed to continue working with disabled students. Farley provided a copy of his report to Smith on March 16, 2016; the OCSO provided a copy of the report to the Florida Department of Education Office of Professional Practice Services.
The day she received the report, Smith sent a letter to Jackson recommending that Frazier receive a three-day suspension for not following a student's Behavior Intervention Plan and not listing all traveled locations on his field trip forms. The next day, Jackson approved the recommendation, which she apparently worked on with Smith, and submitted it to the School Board for approval. Smith and Jackson did not apprise the School Board of the investigation into Frazier; they also did not wait for the School Board's approval before allowing Frazier to return to the classroom. On April 11, 2016, the School Board approved the recommendation and suspended Frazier for three days—which he was allowed to choose over the course of the next thirty days.
Pursuant to School Board policy, Jackson was required to immediately report to the School Board any unprofessional conduct by any educator in any manner relating to student discipline, which plainly would encompass Frazier's actions as detailed in Farley's report. Moreover, pursuant to Fla. Stat. § 1012.796(5), when an allegation of teacher misconduct that affects the health, safety, or welfare of a student is received, the superintendent, in consultation with the principal, must, at a minimum, immediately suspend the teacher from regularly assigned duties, with pay, and reassign the teacher to positions that do not require direct contact with students.
DCF also investigated Williams’ report, interviewing K.S., K.S.’s mother, and Frazier. DCF did not interview Koch, despite the fact that Williams identified him as a witness. K.S. and his mother indicated the allegations were unfounded. Williams did not contact DCF to correct the misidentification because he did not realize at the time that he had misidentified K.S.; he also assumed DCF was working with the OCSO. DCF closed its investigation on March 29, 2016, after determining K.S.’s safety was not at risk.
On May 25, 2016, Martha Adams, Jackson's secretary, emailed Williams asking him to call Ken Van Etten, Mr. Van Etten's father, regarding a concern Mr. Van Etten had that something was going on with his son. Two days later, Williams emailed Frazier, asking to discuss the matter and letting Frazier know that Mr. Van Etten's parents felt like something was very wrong with their son, explaining that he appeared afraid to go to school and would get upset when they tried to get him ready for school. They also said Mr. Van Etten got angry and aggressive on the bus the last time he went to school, which was unusual.
In October 2017, the State Attorney's Office initiated a criminal investigation into the alleged abuse, with which Williams cooperated, including by giving a recorded interview. During the interview, Williams relayed what Mills conveyed to him. The investigation concluded when C.H.’s father, Russell Hilligoss, refused to bring charges because he did not believe the allegations against Frazier. In fact, Hilligoss signed papers agreeing to drop the charges against Frazier after learning that someone he considered reliable had characterized Koch as a trouble maker.
At the time of the interview, which occurred on January 12, 2018, Williams was still unaware he had misidentified the victim when reporting the allegations to DCF. Williams does not recall how he learned the alleged victim of the punch was C.H. and not K.S., and he did not realize he had misidentified the victim until he obtained a recording of his telephone call to DCF later in 2018 in response to a newspaper report indicating someone had made a false report.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, "shows that there is no genuine dispute as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a) ; see also Martin v. Brevard Cty. Pub. Sch. , 543 F.3d 1261, 1265 (11th Cir. 2008). Summary judgment is not appropriate "if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 594 (11th Cir. 1995). An issue of fact is "material" if it might affect the outcome of the case under the governing law, and it is "genuine" if the record taken as a whole could lead a rational fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 807 (11th Cir. 2010) (en banc). The court will not make credibility determinations or weigh the evidence presented on summary judgment. Frederick v. Sprint/United Mgm't Co. , 246 F.3d 1305, 1311 (11th Cir. 2001). Whenever sufficient, competent evidence is present to support the non-moving party's version of the disputed facts, the court will resolve disputes in the non-moving party's favor. See Pace v. Capobianco , 283 F.3d 1275, 1276 (11th Cir. 2002).
B. Mr. Van Etten's Claims
1. Federal Claims
a. 42 U.S.C. § 1983 —Violation of Substantive Due Process and Equal Protection Rights
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must prove a deprivation of a constitutional or federal statutory right by someone acting under color of state law. Doe v. Sch. Bd. of Broward Cty., Fla. , 604 F.3d 1248, 1265 (11th Cir. 2010). Mr. Van Etten asserts claims against the School Board, a municipal entity, for violations of his Fourteenth Amendment rights to substantive due process and equal protection of the laws. In particular, Mr. Van Etten alleges the School Board had an unofficial custom of deliberate indifference to reports of student abuse.
The Supreme Court "has placed strict limitations on municipal liability under § 1983." Grech v. Clayton Cty., Ga. , 335 F.3d 1326, 1329 (11th Cir. 2003). A municipal entity, such as the School Board, cannot be held liable under § 1983 "simply because its agent causes an injury, even a constitutional injury." Gilmere v. City of Atlanta, Ga. , 737 F.2d 894, 902 (11th Cir. 1984). Hence, a § 1983 claim against a municipality may not be premised on a theory of respondeat superior. Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, a plaintiff must identify a municipal custom or policy that caused his injuries. Gold v. City of Miami , 151 F.3d 1346, 1350 (11th Cir. 1998). In other words, liability may attach only where the municipality's custom or policy caused municipal employees to violate the plaintiff's constitutional rights. Id. A plaintiff can establish municipal liability in three ways: (1) identify an official policy; (2) identify an unofficial custom or practice that is "so permanent and well settled as to constitute a custom and usage with the force of law"; or (3) identify a municipal official with final policymaking authority whose decision violated the plaintiff's constitutional rights. See Cuesta v. Sch. Bd. of Miami-Dade Cty., Fla. , 285 F.3d 962, 966 (11th Cir. 2002). Mr. Van Etten relies on the second theory of municipal liability.
This standard and analysis applies to both Mr. Van Etten's equal protection claim, see Hill v. Cundiff , 797 F.3d 948, 977–78 (11th Cir. 2015), and his substantive due process claim, see Fundiller v. City of Cooper City , 777 F.2d 1436, 1442–43 (11th Cir. 1985).
Municipalities may be sued for "constitutional deprivations visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the [municipality's] official decisionmaking channels." Monell , 436 U.S. at 690–91, 98 S.Ct. 2018. Custom consists of "persistent and widespread ... practices" or "deeply embedded traditional ways of carrying out ... policy" that, although unwritten, are "so permanent and well settled as to [have] ... the force of law." See id. at 691 & n.56, 98 S.Ct. 2018. In cases alleging municipal "inaction," a custom arises where a municipality fails to correct "the constitutionally offensive actions of its employees" and instead "tacitly authorizes" or "displays deliberate indifference towards the misconduct." Griffin v. City of Opa-Locka , 261 F.3d 1295, 1308 (11th Cir. 2001). Importantly, the municipality must have actual or constructive knowledge of the widespread unconstitutional practice to form a custom of indifference, and "random acts or isolated incidents are insufficient." See Depew v. City of St. Marys, Ga. , 787 F.2d 1496, 1499 (11th Cir. 1986). Therefore, to prevail on a § 1983 claim against the School Board based on deliberate indifference to widespread abuse, Mr. Van Etten must prove: (1) the existence of a widespread and persistent pattern of abuse by teachers; (2) the School Board had actual or constructive knowledge of the abuse; (3) the School Board tacitly approved or deliberately ignored the abuse, such that its inaction became a custom; and (4) the School Board's custom of inaction through deliberate indifference was a "moving force" behind the constitutional violations. Williams v. Fulton Cty. Sch. Dist. , 181 F. Supp. 3d 1089, 1121 (N.D. Ga. 2016).
Mr. Van Etten has presented no evidence of a widespread or persistent pattern of abuse of which the School Board was aware prior to the abuse he allegedly suffered. The only abuse Mr. Van Etten references is that of Frazier and Stillions. The undisputed evidence, however, shows that neither Jackson nor the School Board had actual or constructive knowledge of Frazier or Stillions’ alleged abuse—or any abuse, for that matter—until after Mills brought Frazier's alleged abuse to Williams’ attention. And there is no evidence of abuse after that point. As a result, Mr. Van Etten has failed to demonstrate that the School Board tacitly approved or deliberately ignored abuse, thereby establishing a custom of inaction through deliberate indifference, much less that such deliberate indifference was a moving force behind Frazier's alleged abuse. The evidence, in fact, shows that the School Board took action once it became aware of the allegations. Mr. Van Etten's § 1983 claims thus fail as a matter of law. See, e.g., Marsh v. Butler Cty., Ala. , 268 F.3d 1014, 1036–37 (11th Cir. 2001) (noting that while plaintiff alleged a policy developed and implemented with deliberate indifference, he did not allege that the sheriff was aware of earlier constitutional violations stemming from the type of policy or actions of which he complained). b. ADA & Rehabilitation Act—Disability Discrimination
Notably, Lambert's knowledge of Frazier's alleged abuse and failure to act cannot be imputed to the School Board. See, e.g., Doe v. Sch. Bd. of Broward Cty., Fla. , 604 F.3d at 1264 (noting that a school principal is not an " ‘official[ ] fairly deemed to represent government policy’ under our circuit's standard for § 1983 municipal liability"); Cuesta , 285 F.3d at 966. Moreover, there is no indication that any member of the School Board was aware of any allegations of abuse until August 2017, when the investigation into Stillions became public.
The evidence also shows that at least one member of the School Board—Dr. Lamar White—had no knowledge of equity investigations concerning the health, safety, and welfare of students. In fact, Jackson testified before the Florida Senate at a hearing on her executive suspension from office that the School Board did not want to receive copies of periodic school resource officer reports addressing such matters as student discipline. While the School Board was perhaps negligent in that respect, there is no evidence that having received such reports would have prevented the abuse of Mr. Van Etten because there is no evidence of a widespread pattern of abuse that would or should have put the School Board on notice that it needed to take action in that regard.
Mr. Van Etten also claims the School Board subjected him to a hostile educational environment in violation of Title II of the ADA, 42 U.S.C. § 12131, et seq. , and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. As the Eleventh Circuit has recognized, "Title II of the ADA and § 504 of the Rehabilitation Act forbid discrimination on the basis of disability in the provision of public services." J.S., III by & through J.S. Jr. v. Houston Cty. Bd. of Educ. , 877 F.3d 979, 985 (11th Cir. 2017). Pursuant to Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Section 504 similarly provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794. "Discrimination claims under the ADA and the Rehabilitation Act are governed by the same standards, and the two claims are generally discussed together." J.S. , 877 F.3d at 985.
"To state a claim under Title II and § 504, a plaintiff must demonstrate (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability." Id. (internal marks omitted). Mr. Van Etten has adduced no evidence that the School Board took action, or failed to act, based on his disability. His disability claims thus fail as a matter of law.
2. State Claims
a. Negligence – Vicarious Liability
To the extent Frazier's conduct can be characterized as merely negligent, Mr. Van Etten seeks to hold the School Board vicariously liable pursuant to the doctrine of respondeat superior. Under Florida's doctrine of respondent superior , a local government is liable in tort for the actions or omissions of an employee committed within the scope of his or her employment but is shielded from liability if the employee "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Fla. Stat. § 768.28(9)(a). A local government may even be held liable for an intentional tort, such as excessive force or battery, " ‘as long as the employee [was] acting within the course and scope of his employment’ " and not "in bad faith, with malicious purpose, or in a wanton manner exhibiting willful disregard of the plaintiff's rights.’ " Gregory v. Miami-Dade Cty., Fla. , 719 F. App'x 859, 873 (11th Cir. 2017) (quoting City of Boynton Beach v. Weiss , 120 So. 3d 606, 611 (Fla. 4th DCA 2013) ). The School Board argues that Mr. Van Etten's respondeat superior claim fails because Frazier's conduct can only be viewed as bad faith, malicious, and in wanton disregard of human rights. The Court agrees. While a "disciplinary tactic" that amounts to intentional battery may not always rise to the level of being malicious or wanton, based on the evidence adduced in this case—specifically, the fact that Mr. Van Etten is severely developmentally disabled, no reasonable jury could find that Frazier's conduct constituted mere negligence. The evidence shows that Frazier acted in bad faith, maliciously, and wantonly, as well as outside the course and scope of his employment; as a result, the School Board cannot be held vicariously liable for his actions against Mr. Van Etten.
In addition, the statute provides that the "exclusive remedy" for an act or omission of a local government employee is an action against the governmental entity "unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property," in which case the governmental entity is entitled to sovereign immunity. Fla. Stat. § 768.28(9)(a) ; id. at § 768.28(2) (for purposes of this section, the terms "state agencies or subdivisions" include counties and municipalities).
b. Failure to Train and Supervise
In addition to the custom of inaction in responding to reports of abuse Mr. Van Etten has alleged under § 1983, Mr. Van Etten seeks to hold the School Board liable under Florida law for failing to train and supervise employees regarding student abuse. Under Florida law, agencies and subdivisions of the state are generally immune from tort liability, except to the extent that immunity is expressly waived "by legislative enactment or constitutional amendment." See Ingraham v. Dade Cty. Sch. Bd. , 450 So. 2d 847, 848 (Fla. 1984) (citing Fla. Const., art. X, § 13 and Fla. Stat. § 768.28 ). In the context of a negligence claim, Florida courts have held that sovereign immunity extends to "discretionary" governmental functions but not to acts that are "operational in nature." See Kaisner v. Kolb , 543 So. 2d 732, 736 (Fla. 1989). A "discretionary function" is one in which "the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning." Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty. , 402 F.3d 1092, 1117–18 (11th Cir. 2005) (citing Henderson v. Bowden , 737 So. 2d 532, 538 (Fla. 1999) ). In contrast, an "operational function" is one not inherent in policy or planning but merely reflects a secondary decision as to how those policies or plans will be implemented. See id. at 1118. Distinguishing between the boundary of discretionary policy-making and operational choices generally is a highly fact-dependent exercise. See Commercial Carrier Corp. v. Indian River Cty. , 371 So. 2d 1010, 1020 (Fla. 1979) (laying out four-part factual test).
Claims for negligent training are typically barred by sovereign immunity because a "decision regarding how to train ... [employees] and what subject matter to include in the training is clearly an exercise of governmental discretion regarding fundamental questions of policy and planning." Lewis v. City of St. Petersburg , 260 F.3d 1260, 1266 (11th Cir. 2001) ; see also Cook , 402 F.3d at 1118. Nevertheless, negligent training claims premised on "the implementation or operation of [a] training program, as opposed to the program's content, may involve operational functions," depending on the facts of the case. See Mercado v. City of Orlando , 407 F.3d 1152, 1162 (11th Cir. 2005). In this instance, Mr. Van Etten says he "challenges the operational negligence in the implementation of [the School Board's] training policies and procedures." ECF No. 223 at 67. The undisputed evidence, however, shows that the School Board provided training on reporting suspicions or allegations of abuse. In particular, the evidence shows that at the time of the alleged abuse by Frazier and Stillions, the School Board had a policy that required all employees to report suspected abuse, abandonment, and neglect to DCF. Policy 04-29, which was effective October 23, 2000, through December 10, 2017 (Policy 1), expressly required that all employees "report any actual or suspected case of child abuse, abandonment or neglect, in accordance with the provisions of Chapter 39, Florida Statutes, to the appropriate authorities." C.H. , No. 3:18cv2128 (ECF 285-2 at 6). Policy 1 was revised on December 11, 2017 (Policy 2), after the School Board learned of the allegations against Frazier and Stillions. Policy 2 maintains the same reporting requirement but expands on other policy language, posting requirements, and training.
The School Board also provided training to all newly-hired employees regarding the obligation to report suspected child abuse. In addition, some principals provided follow-up training at the beginning of each school year regarding mandatory reporting responsibilities. Individual schools also provided employees handbooks that included language regarding the responsibility to report suspected child abuse. Moreover, from approximately 2008 or 2009 until at least August 31, 2020, DCF provided training for mandatory reporting and abuse issues for the School District—typically, at the beginning of the school year and the new-teacher orientation held at the School Board. During the training, DCF advised teachers and staff that if they suspected abuse, they were not required to seek permission to report the suspicions to DCF. From July 2015 through September 2015, the School District provided workshops, training, and other materials to all school principals, assistant principals, and guidance counselors regarding child abuse reporting. DCF and the Children's Advocacy Center were involved in the training. Each school also prominently displayed posters in both English and Spanish notifying all individuals of their responsibility to report suspected abuse, abandonment, and neglect; specified signs of abuse; and provided telephone numbers and a website to facilitate the reporting of abuse. In August 2017, the School District implemented additional training to ensure that all employees were aware of their child abuse reporting responsibilities. Only four or five employees indicated at that time that they were not sure how to report suspected abuse to DCF.
The evidence shows that at least some teachers at Silver Sands were not aware of their mandatory reporting obligations and were under the impression they were to report suspected abuse to the principal as opposed to DCF.
Hence, the School Board plainly provided training on reporting child abuse, and Mr. Van Etten has not identified any aspect of the implementation or operation of the training that was deficient, much less an aspect that was deficient with regard to the teachers and aides who were aware of Frazier's alleged abuse. Mr. Van Etten's challenge thus necessarily is to the School Board's policy decisions regarding the manner in which teachers and aides were trained and/or the subject matter included in the training. Such a challenge is directed at a discretionary governmental function and, therefore, is barred by sovereign immunity. See Lewis , 260 F.3d at 1266.
c. Negligent Retention
Mr. Van Etten also seeks to hold the School Board liable for failing to terminate Frazier's employment. "Negligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment." Fernandez v. Bal Harbour Vill. , 49 F. Supp. 3d 1144, 1153 (S.D. Fla. 2014) (internal marks omitted). "The factors constituting notice, employee fitness, and the type of action reasonably required of the employer[,]" and "the negligence of an employer's acts or omissions," are questions of fact that will "vary with the circumstances of each case." Garcia v. Duffy , 492 So. 2d 435, 441 (Fla. 2d DCA 1986). To prevail on such a claim, a plaintiff must prove that the employer owed and breached a duty to the injured person, which caused the injury. See id. at 439 ; see also Roberson v. Duval Cty. Sch. Bd. , 618 So. 2d 360, 362 (1st DCA 1993).
It is beyond dispute that a school board has a "common law duty to protect [students] from the result of negligent hiring, supervision, or retention" of employees "whose negligent or intentional acts ... [could] foreseeably cause injuries to students," see Sch. Bd. of Orange Cty. v. Coffey , 524 So. 2d 1052, 1053 (Fla. 5th DCA 1988) (school board had duty to protect student from negligent supervision and retention of school teacher who sexually abused student); see also Wyke v. Polk Cty. Sch. Bd. , 129 F.3d 560, 571 (11th Cir. 1997) (citing Rupp v. Bryant , 417 So. 2d 658, 666 (Fla. 1982) ) (noting that public schools have a duty to supervise students placed within their care), and when a school board retains an employee it knew or should have known posed a risk to students, it breaches its duty. In this case, however, as set forth above, there is no evidence that the School Board was aware of Frazier's alleged abuse until August 2017, which was after Frazier had retired. Thus, the School Board here did not breach its duty, but even if it had, Mr. Van Etten cannot show he was injured as a result. Mr. Van Etten's negligent retention claim thus also fails.
III. Conclusion
Accordingly, for the reasons set forth above, Defendant School Board of Okaloosa County, Florida's Motion for Summary Judgment (ECF No. 216) is GRANTED . The Clerk of Court is directed to enter judgment accordingly, tax costs against the Plaintiff, and terminate the School Board from this action.
DONE AND ORDERED this 8th day of July 2022.