D. M., Parent v. McCracken County School District and Board of Education ( 2023 )

RENDERED: SEPTEMBER 15, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1142-MR
D.M., PARENT; JANE DOE; AND APPELLANTS
T.M., PARENT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 20-CI-00125
MCCRACKEN COUNTY SCHOOL
DISTRICT AND BOARD OF
EDUCATION; BRIAN BOWLAND;
BRIAN HARPER; ELAINE KAYE;
JEREMY WATWOOD; MOLLY
GOODMAN; STEPHANIE CARTER;
WENDY WATTS; AND WILLIAM
MICHAEL CEGLINSKI APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
KAREM, JUDGE: Appellants appeal from the McCracken Circuit Court’s grant
of summary judgment to the Appellees based on qualified immunity for
discretionary acts during an investigation of Appellant Jane Doe’s report of sexual
abuse by another student. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2019, Jane Doe was a seventeen-year-old McCracken
County High School (“MCHS”) student. On February 6, 2019, Princekumar Joshi,
Doe’s eighteen-year-old classmate, drove Doe to a Paducah Rotary Club meeting
in Joshi’s vehicle. MCHS faculty had selected Joshi and Doe to represent the
school at the meeting, and Doe’s parents consented to her riding with Joshi.
After the meeting, and on their way back to school, Doe alleged that
Joshi threatened to disclose an embarrassing secret about Doe unless she engaged
with him in sexual activity. Ultimately, the pair went to Joshi’s sister’s apartment
and engaged in oral sex while Joshi recorded the act on his cell phone. Doe and
Joshi then returned to school.
On February 11 or 12, 2019, Stephanie Carter, an MCHS teacher,
overheard conversations between Doe and some other students. Specifically, Doe
discussed with another student that Joshi had made her uncomfortable during the
ride to the Rotary Club meeting and that she was reluctant to ride with him again.
In response, the female student suggested that Doe not ride with Joshi and
described him as “rapey.” Another female student stated that her friend had a bad
experience with Joshi at a party. When Carter questioned Doe, Doe did not reveal
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anything about the February 6, 2019 events. However, Carter met with Doe and
the other female student later in the day and told Doe that she would reach out to
the administration for assistance with Doe’s and the other students’ concerns.
On Thursday, February 14, 2019, Carter contacted Holly Miller, an
MCHS guidance counselor, and asked her to join Carter in speaking with Joshi
regarding his conduct. On Friday, February 15, 2019, Miller indicated to Carter
that she would be out of the office and unable to assist Carter in speaking with
Joshi.
Carter spoke with Molly Goodman, an MCHS assistant principal,
afterward about the situation. Jeremy Watwood, an MCHS guidance counselor,
also joined the conversation. Carter also informed them that Doe was one of the
girls who had expressed concern about Joshi, but that Doe was adamant that she
not be named as an accuser.
Later that day, Doe met with Watwood and another MCHS guidance
counselor, Wendy Watts. The counselors asked Doe to recount what had happened
on the way home from the Rotary Club meeting. They also requested that Doe
write a statement describing her allegations. Specifically, Doe stated the
following:
On the way to Rotary Club, Prince and I were cordial to
each other. He had previously texted me and asked if I
would like to ride with him. On the way back to school
he mentioned if I wanted to go to his house or the school
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to perform oral sex. I was shocked and got really quiet
and leaned to the other side of the car. He proceeded to
ask me what was wrong and I said that I do not want to
do anything and I have a vocab test in my vet science
class that I need to go do. He said that we needed to
focus on having fun. He said that if I tell his girlfriend or
anything he will tell everyone the secret that he knows
about me. He asked, “why did you wear those pants,
they are too hard to get into.” I chose the apartment and
we proceeded to go there. He tried to grab my hand to
put on his pants but I jerked my hand away. He
mentioned that I was playing hard to get. We walked
into his apartment (because his sister and mom were out
of the country). While I was performing oral he took two
videos of me. After we were finished, I went to the
bathroom to clean myself up and try not to cry.
[. . .]
He said that we shouldn’t do that anymore and reminded
me of the blackmail he had against me.
[. . .]
I [direct messaged] him and asked him to delete the video
and he said that he already had but wanted to know why.
I said that the whole thing made me uncomfy and he said
he understood.
[. . .]
Ever since, I have been having nightmares and
flashbacks.
Watwood informed Goodman that they obtained Doe’s statement,
which she came to Watwood’s office to read. Additionally, Goodman asked Doe if
she consented to the sexual activity with Joshi, and she said no. Doe also
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requested at the meeting that Watts and Watwood not inform her parents about the
situation. The record indicates that after Doe left the meeting, Watts, Watwood,
and Goodman were uncertain whether they were handling a discipline issue
because of two seniors skipping school or something that they needed to report to
law enforcement.
After Goodman reviewed Doe’s statement, she contacted Michael
Ceglinski, the MCHS Head Principal, and Elaine Kaye, an Assistant Principal.
After discussing the situation, Ceglinski recommended that Goodman get a
statement from Joshi. Goodman and Kaye interviewed and obtained a written
statement from Joshi. Joshi acknowledged that he and Doe went to his sister’s
apartment but stated that Doe had consented to driving to his sister’s apartment and
engaging in sexual activity. While Joshi admitted to having taken two videos, he
said that he obtained Doe’s consent but had already deleted them out of guilt.
School officials placed Joshi in detention for the remainder of the day
so that he could not discuss the situation with other students. Because school was
not in session the following Monday due to a holiday, school officials informed
Joshi that he was to return to detention on Tuesday until they decided on the
appropriate course of action.
After meeting with Joshi, Goodman called Ceglinski again, and he
suggested that Goodman consult Brian Bowland, the MCHS Director of Pupil
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Personnel, about potentially handling the situation as a disciplinary matter.
Goodman did so, and Bowland suggested that Goodman talk to Doe again to
ensure that Joshi had not forced her to do anything she did not want. Kaye brought
Doe to her office, where Goodman was also present. Kaye asked if the sex act was
non-consensual, and Doe stated it was consensual.
Doe then asked what would happen if she said it was consensual and
what would happen if she said it was non-consensual. Kaye explained that school
officials would report the situation to law enforcement if the act was non-
consensual. If consensual, there could be disciplinary action against Doe and Joshi
for skipping school. Thereafter, Doe stated, “So for me telling the truth about what
happened, I’m going to be punished?” Kaye explained that they had yet to
determine how to resolve the situation and would discuss the issue further upon
returning to school the following Tuesday.
The school day on Friday, February 15, 2019, was cut short due to
inclement weather. Thus, the last thing school officials heard from Doe that Friday
afternoon was that the sex act had been consensual. No decision was made as to
whether there would be punishment for Doe skipping school.
On Sunday, February 17, 2019, Doe informed her parents of the
situation. Her parents notified the police, who immediately opened an
investigation and interviewed Doe and her parents. On Monday, February 18,
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2019, the Sheriff’s Department interviewed Goodman regarding Doe’s report.
Goodman thereafter contacted Bowland to tell him that detectives had come to her
apartment to inquire about the incident. Bowland contacted the superintendent,
Brian Harper, to inform him that the Sheriff’s Department had been to at least one
employee’s home regarding a possible discipline matter from the past Friday
regarding a situation that had occurred off-campus.
On February 19, 2019, the McCracken County Sheriff’s Department
arrested Joshi on criminal charges of using a minor in a sexual performance,
tampering with physical evidence, and sexual misconduct. On June 28, 2019,
Joshi entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct.
160, 27 L. Ed. 2d 162 (1970). He pled to the charges of tampering with physical
evidence in violation of Kentucky Revised Statute (“KRS”) 524.100, a felony, and
to sexual misconduct in violation of KRS 510.140, a misdemeanor. In September
2019, the court sentenced Joshi to two-years’ imprisonment for tampering with
physical evidence and 180 days imprisonment for misdemeanor sexual
misconduct, to be served concurrently.
Doe’s parents subsequently filed a complaint against the McCracken
County School District and Board of Education, Ceglinski, Bowland, Harper,
Carter, Watwood, Watts, Goodman, and Kaye individually. The complaint
alleged, in applicable part, that the Appellees conducted a bad faith investigation of
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Doe’s sexual abuse allegations and acted in bad faith in failing to report Doe’s
allegations. The complaint further alleged that Appellees bullied and threatened
Doe with detention to intimidate her and to protect the school system’s public
image.
The Appellees moved for summary judgment, asserting the defenses
of governmental and qualified immunity. The circuit court granted the motions for
summary judgment and dismissed the complaint. This appeal followed.
We will discuss more facts as they become relevant.
ANALYSIS
As a preliminary matter, we first address the Appellees’ motion to
issue an order of deficiency, strike the Appellants’ brief and dismiss the appeal
based upon deficiencies in their brief under Kentucky Rules of Appellate
Procedure (“RAP”) 32(A)(3). An appellant’s brief must contain “[a] statement of
the case consisting of a summary of the facts and procedural events relevant and
necessary to an understanding of the issues presented by the appeal, with ample
references to the specific location in the record supporting each of the statements
contained in the summary.” RAP 32(A)(3). We agree with the Appellees that
significant portions of the Appellants’ brief contain factual allegations without
citation to the designated record on appeal. Moreover, several factual assertions
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cite recordings or documents that were not entered into the record, such as
interviews with the McCracken Sheriff’s Department.
When an appellant fails to adhere to the procedural rules, we may 1)
ignore the deficiency and proceed with the review, 2) strike the brief or its
offending portions, or, if the briefing defect relates to failure to include a statement
concerning preservation of error, 3) review the issues raised in the brief for
manifest injustice only. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
See also Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021).
In this case, we choose to proceed with a review of the substantive
issues. Still, we will not consider any factual assertions that do not contain
citations to the record or contain citations to materials not included in the
designated appeal record. See RAP 25(B). Thus, we DENY by separate order
Appellees’ motion to issue an order of deficiency and strike the Appellants’ brief.
a. Standard of Review
Summary judgments are significant for those seeking immunity, “as
the defense renders one immune not just from liability, but also from suit itself.”
Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (citing Rowan County v. Sloas,
201 S.W.3d 469, 474 (Ky. 2006)). On appeal, we review a school official’s
entitlement to qualified official immunity de novo. Ritchie v. Turner, 559 S.W.3d
822, 830 (Ky. 2018).
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Specifically, under Kentucky Rule of Civil Procedure (“CR”) 56.03,
summary judgment is suitable when the record reflects “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.” Indeed, summary judgment is appropriate “when it appears
impossible for the nonmoving party to produce evidence at trial warranting a
judgment in his favor[.]” Steelvest, Inc. v. Scansteel Service Center, Inc., 807
S.W.2d 476, 482 (Ky. 1991) (citations omitted). It is “designed to expedite the
disposition of cases and avoid unnecessary trials when no genuine issues of
material fact are raised[.]” Id. at 480 (citations omitted).
b. Discussion
1. There Is No Evidence that School Appellees Failed to Carry
Out Their Discretionary Duties in Good Faith.
In this case, the Appellants agree – and there is no evidence to the
contrary – that Appellees’ acts in investigating the situation and determining
whether to report the concerns to outside authorities were discretionary. Instead,
the Appellants argue that the Appellees failed to perform their discretionary duties
in good faith.
Qualified official immunity protects public officers and employees
who are sued in their individual capacity from damages liability. Yanero v. Davis,
65 S.W.3d 510, 522 (Ky. 2001) (citation omitted). Such immunity only applies to
public officers or employees who make discretionary decisions, in good faith,
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within the employee’s scope of authority. Id. (citations omitted). In other words,
qualified immunity protection extends to “good faith judgment calls made in a
legally uncertain environment.” Id. (citation omitted).
Thereafter, the plaintiff has the burden to establish “by direct or
circumstantial evidence” that an act was performed in bad faith “[o]nce the officer
or employee has shown prima facie that the act was performed within the scope of
his/her discretionary authority[.]” Id. at 523 (citations omitted). The Kentucky
Supreme Court has explained that “‘bad faith’ can be predicated on a violation of a
constitutional, statutory, or other clearly established right which a person in the
public employee’s position presumptively would have known was afforded to a
person in the plaintiff’s position[.]” Id. Moreover, in Sloas, the Kentucky
Supreme Court stated that bad faith is evidenced by an officer’s or employee’s
willful or malicious intent to harm the plaintiff acting “with a corrupt motive[.]”
Sloas, 201 S.W.3d at 476-77.
As the Court reasoned in James v. Wilson:
[Q]ualified immunity can only be defeated if [the
Appellees] knew or reasonably should have known that
their actions, performed within the sphere of their official
responsibility, would violate the appellants’
constitutional rights or if they were motivated by a
malicious intent to cause a deprivation of such rights or
other injury.
95 S.W.3d 875, 909 (Ky. App. 2002).
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In this case, the circuit court held that Doe did not meet her burden to
show a violation of a constitutional, statutory, or other clearly established right and
did not show that the Appellees willfully or maliciously intended to harm her. We
agree that the Appellants have provided no evidence of any of the Appellees
bullying Doe into silence to protect the school’s image. Indeed, Harper, Ceglinski,
and Bowland never met with or spoke to Doe regarding this matter.
Moreover, there is no evidence that anyone intended to harm Doe or
directed any other person to try and keep her silent or hide the situation. The
record indicates that it was Doe who wanted to maintain secrecy around what
happened out of fear of her parents’ reaction. The last communication to any
Appellee from Doe before she went home on February 15, 2019, was that the act
was consensual. Further, the Appellants have pointed to no evidence in the record
that the Appellees otherwise investigated the situation in bad faith.
While the Appellants may disagree with how the Appellees managed
the situation, the record indicates that the Appellees were attempting to figure out
the proper way to handle a complex situation in a legally uncertain environment.
No dispute of material facts exists regarding whether the Appellees acted with
good faith in performing their discretionary duties, and they are entitled to
qualified official immunity. We affirm the circuit court’s judgment in this regard.
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2. The Video by Joshi Does Not Change the Circuit Court’s
Analysis.
Appellants next argue that the circuit court failed to consider the
criminal act of videoing a minor in a sex act. However, the criminal activity
related to the video did not trigger a reporting requirement for the Appellees. KRS
158.156(1) requires that:
(1) Any employee of a school or a local board of
education who knows or has reasonable cause to believe
that a school student has been the victim of a violation of
any felony offense specified in KRS Chapter 508
committed by another student while on school premises,
on school-sponsored transportation, or at a school-
sponsored event shall immediately cause an oral or
written report to be made to the principal of the school
attended by the victim. The principal shall notify the
parents, legal guardians, or other persons exercising
custodial control or supervision of the student when the
student is involved in an incident reportable under this
section.
(Emphasis added.)
Here, the incident between Doe and Joshi occurred at Joshi’s sister’s
apartment and not while on the school’s premises, on school-sponsored
transportation, or at a school-sponsored event. Therefore, while Joshi’s recording
may have been criminal, it did not trigger a reporting requirement for the
Appellees under KRS 158.156(1).
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Additionally, the District’s Employee Reports of Criminal Activity
Policy, 09.2211, mirrors the reporting requirements of KRS 158.156 and states as
follows:
District employees who know or have reasonable cause
to believe that a student has been the victim of a violation
of any felony offense specified in KRS Chapter 508
(assault and related offenses) committed by another
student while on school premises, on school-sponsored
transportation, or at a school-sponsored event shall
immediately cause an oral or written report to be made to
the Principal of the school attended by the victim. The
Principal shall notify the parents, legal guardians, or
other persons exercising custodial control or supervision
of the student when the student is involved in such an
incident.
(Emphasis added.)
Again, the incident between Doe and Joshi occurred at Joshi’s sister’s
apartment and not while on the school premises, on school-sponsored
transportation, or at a school-sponsored event. As stated, while Joshi’s recording
may have been criminal, the specific facts of this case did not trigger a reporting
requirement for the Appellees.
In their brief, while the Appellants have stated the law under KRS
531.335 regarding recording a minor during a sex act, they have pointed to no duty
applicable to the Appellees. The Appellees did not see the video, and Joshi was
neither charged nor convicted under KRS 531.335. The circuit court did not err.
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3. There Is No Evidence in the Record to Support a Prima Facie
Case of Outrage.
The Appellants’ final argument merely discusses the elements of a
claim for the tort of outrage but provides no evidence from the record to support a
claim. Additionally, because we have determined that there was not enough
evidence to find bad faith on any Appellees’ part, the evidence is insufficient to
meet the elements of the tort of outrage, which include “intentional or reckless”
and “outrageous and intolerable” conduct. Kroger Co. v. Willgruber, 920 S.W.2d
61, 65 (Ky. 1996) (citation omitted). We affirm the circuit court as to this alleged
error.
CONCLUSION
For the foregoing reasons, we affirm the McCracken Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES
MCCRACKEN COUNTY SCHOOL
Donna Thornton-Green DISTRICT AND BOARD OF
Paducah, Kentucky EDUCATION, WILLIAM MICHAEL
CEGLINSKI, BRIAN HARPER,
JEREMY WATWOOD, WENDY
WATTS, MOLLY GOODMAN, AND
ELAINE KAYE:
Michael A. Owsley
Bowling Green, Kentucky
BRIEF FOR APPELLEE
STEPHANIE CARTER:
Jack N. Lackey, Jr.
Hopkinsville, Kentucky
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