Case Information
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
CHERYL ROBBINS BERG, as CASE NO. 3 : 18 -cv -5345 - BHS Litigation Guardian ad Litem for
C.K.M., ORDER DENYING
DEFENDANT’S MOTION FOR Plaintiff, JUDGMENT AS A MATTER OF v. LAW
BETHEL SCHOOL DISTRICT,
Defendant.
This matter comes before the Court on Defendant Bethel School District’s motion for judgment as a matter of law. Dkt. 175. The Court has considered the briefing filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.
I. FACTUAL & PROCEDURAL BACKGROUND On October 5, 2021, the Court began an eleven-day jury trial on Plaintiff Cheryl Robbins Berg’s, as Litigation Guardian ad Litem for C.K.M., claims against the District. Dkt. 133. Plaintiff alleged that C.K.M. was sexually assaulted and harassed by another special education student (“David M.”) during the 2012–2013 school year and that the District knew David M. had an extensive history of sexual assaults against other special needs students and failed to protect C.K.M. from the known risk of harm. See Dkt. 99. Plaintiff alleged that the District (1) violаted C.K.M.’s Due Process and Equal Protection rights pursuant to 42 U.S.C. § 1983 and Monell v. Department of Social Services , 436 U.S. 658 (1978); (2) violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a); (3) violated the Washington Law Against Discrimination, RCW 49.60.215; and (4) was negligent. See id .
At the close of Plaintiff’s case, the District brought an oral motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). Dkt. 145. The Court reserved ruling on the motion. On October 20, 2021, the jury returned a verdict in favor of Plaintiff оn her Monell § 1983 claims and on her negligence claim. Dkts. 156, 159. On November 17, 2021, the District moved for judgment as a matter of law as to Plaintiff’s § 1983 claims under Rule 50(b). [1] Dkt. 175. Plaintiff opposes the motion, arguing that the District has failed to meet the very high bar for judgment as a matter of law. Dkt. 181.
II. DISCUSSION
A. Preliminary Issues
In its opening brief, the District moves for judgment as a matter of law pursuant to Rule 50(b) and for a new trial on damages pursuant to Rule 59. Dkt. 175 at 1. The District makes no substantive arguments on its request for a new trial and concedes in its reply that it “does not seek a new trial” and only seeks judgment as a matter of law. Dkt. 182 at 2. The issue is, however, that the District argues that the Court’s pretrial rulings and jury instructions on Plaintiff’s Due Process and Equal Protection claims were erroneous. See Dkt. 175 at 11–24 (arguing that Plaintiff’s Due Process claim should have been dismissed on summary judgment), 24–29 (arguing that the Court should have granted summary judgment on Plaintiff’s Equal Protection claim); Dkt. 182 at 6–8 (arguing for the first time in reply that the jury instructions were insufficient).
A motion for judgment as a matter of law under Rule 50(b) and a motion for a new
trial under Rule 59 “have wholly distinct functions and entirely different standards
govern their allowance.” 9B Charles Alan Wright & Arthur R. Miller,
Federal Practice
& Procedure
§ 2531 (3d ed. 2021). Rule 50 contemplates judgment as a matter of law
when “the evidence permits оnly one reasonable conclusion, and that conclusion is
contrary to the jury’s verdict.”
Rookaird v. BNSF Ry. Co.
,
A party may also raise a post-trial motion for reconsideration under Rule 59(e).
See 389 Orange St. Partners v. Arnold
,
Herein lies the issue with the District’s motion; it asserts that it is abandoning its motion for a new trial under Rule 59 while at the same time asserting arguments that the Court may only properly consider under Rule 59(a) or Rule 59(e). The thrust of the District’s motion is that the Court erred in not granting summary judgment on Plaintiff’s Due Process or Equal Protection claim. For example, the District devotes much of its motion to arguing that the Court should have held as a matter of law that District Superintendent Tom Seigel was not a final policymaker for the purposes of the Plaintiff’s Due Process claim. See Dkt. 175 at 11–22. The Court previously held that there were questions of fact to be determined by a jury as to whether Superintendent Seigel was a policymaker responsible for the District’s policy of inaction by failing to report David M.’s ongoing sexual harassment of C.K.M. Dkt. 65 at 10–12. The Court understands the majority of the District’s motion to essentially be a motion for reconsideration of the Court’s order denying summary judgment because its arguments are based primarily on issues of law.
First, the Court will nоt consider the District’s arguments on the Court’s pretrial
rulings under Rule 50(b) because Rule 50 motions consider the sufficiency of the
evidence under the controlling law. Rule 50 allows “the trial court to remove cases or
issues from the jury’s consideration when the facts are sufficiently clear that the law
requires a particular result.”
Weisgram v. Marley Co.
,
Second, the Court declines to consider the pretrial ruling arguments under Rule 59(e) because the arguments could have been raised for the first time earlier in the litigation. Indeed, the District moved for reconsideration on the Court’s denial of summary judgment, arguing that Plaintiff’s Monell claims should be dismissed, but did not raise the arguments it now asserts in its post-trial motion. See Dkt. 68. The District had the opportunity to bring these arguments in its original motion for summary judgment, Dkt. 39, its Court-ordered supplemental briefing, Dkt. 56, and its motion for reconsideration, Dkt. 68. The Court will not cоnsider these new arguments at this juncture.
Finally, the Court declines to consider the District’s arguments on the sufficiency
of jury instructions under Rule 59(a). But even if the Court considered the District’s jury
instructions arguments, it is not clear whether the District waived its challenges. A “party
forfeits a right when it fails to make a timely assertion of that right and waives a right
when it is intentionally relinquished or abandoned.”
United States v. Kaplan
, 836 F.3d
1199, 1216 (9th Cir. 2016) (internal citation omitted). “Wаiver of a jury instruction
occurs when a party considers ‘the controlling law, or omitted element, and, in spite of
being aware of the applicable law, proposed or accepted a flawed instruction.’”
Id.
at
1217 (quoting
United States v. Perez
,
The Court will thus only address whether the District is entitled to judgment as a matter of law on Plaintiff’s Due Process and Equal Protection claims under Rule 50(b). B. Motion for Judgment as a Matter of Law
1. Standard
“Judgment as a matter of law is appropriate when the evidence, construed in the
light most favorable to the nonmoving party, permits only one reasonable conclusion,
which is contrary to the jury’s verdict.”
Omega Env’t, Inc. v. Gilbarco, Inc.
, 127 F.3d
1157, 1161 (9th Cir. 1997). When considering a motion for judgment as a matter of law
1
under Rule 50(b), the Court must uphold the jury’s verdict if it was supported by
substantial evidence.
Wallace v. City of San Diego
,
2. Due Process
Plaintiff alleged that the District violated C.K.M.’s rights under the Due Process Clausе and that it was “liable for its execution of policies, customs and practices, as well as for its actions in failing to adequately train, monitor, or supervise its agents and employees to ensure the safety of its students.” Dkt. 1-2, ¶ 4.21. The District argues that Plaintiff’s Due Process claim is unsupported by sufficient evidence. Dkt. 175 at 22–24.
The Court instructed the jury that, in order for Plaintiff to prevail on her Due Procеss claim, she had to establish by a preponderance of the evidence that:
1. Superintendent Thomas Seigel acted under color of state law; 2. The acts of Superintendent Thomas Seigel deprived the plaintiff of her rights under the United States Constitution to her own bodily security;
20 3. Superintendent Thomas Seigel had final policymaking authority from defendant Bethel School District сoncerning these acts;
21 4. When Superintendent Thomas Seigel engaged in these acts, he was acting as a final policymaker for defendant Bethel School District and
22 23
24 1 5. The acts of Superintendent Thomas Superintendent Seigel caused the deprivation of the plaintiff’s rights; that is, the Superintendent Thomas 2 Seigel’s acts were so closely related to the deprivation of the plaintiff’s
rights as to be the moving force that caused the ultimate injury.
3
Dkt. 153 at 19.
4
The Court further instructed the jury that, in order to prove that the District 5
deprived her of her Fourteenth Amendment right to bodily integrity, Plaintiff had to 6
prove these additional elements by a preponderance of the evidence: 7
1. Superintendent Thomas Seigel had final policymaking authority from
8 the defendant;
2. Superintendent Thomas Seigеl was required to but either intentionally 9 or with deliberate indifference to the plaintiff’s constitutional rights
failed to report abuse or neglect as required by state law; and 10 3. Superintendent Thomas Seigel’s failure to report was the moving force
behind the constitutional violation.
11 at 20.
12
The District first argues that there is no evidence that the District’s school board
delegated any policymaking authority to Superintendent Sеigel.
[3]
Dkt. 175 at 22. The
Court previously held that there was a question of fact as to whether Superintendent
Seigel was delegated policymaking authority, specifically whether he was “constrained
by policies promulgated by the school board or whether he enjoyed unconstrained
discretion, converting him into a final policymaker.” Dkt. 65 at 11;
see also Gillette v.
Delmore
,
Next, the District argues that the record is “devoid of any evidence that [Superintendent Seigel] failed to report abuse and neglect.” Dkt. 175 at 22. It asserts that Superintendent Seigel neither witnessed nor received any credible report of abuse and had no duty to report. at 23. The District argues that Superintendent Seigel was unaware of the incident on October 5, 2012 when David M. allegedly sexually abused C.K.M. and, through this argument, unilaterally narrows the scope of Plaintiff’s Due Process claim. This case is not about a single incident of abuse, and Plaintiff presented evidence detailing David M.’s repeated abuse of C.K.M. in Bethel High School’s special education classroom, the Independent Learning Center (“ILC”). The testimony and evidence supported a reasonable conclusion that Superintendent Seigel and his subordinates were aware of David M.’s continuing, abusive behavior. There was also evidence that Superintendent Seigel had knowledge of David M.’s history of sexual abuse and assault priоr to his transfer to the District. There was sufficient and substantial evidence from which the jury could find that Superintendent Seigel either intentionally or with deliberate indifference failed to report abuse and neglect.
The District additionally argues that the record is “devoid of any evidence that Superintendent Seigel’s failure to report caused C.K.M. any injury.” Dkt. 175 at 23. Again, the District limits Plaintiff’s claim to bе solely about the October 5 incident. Plaintiff presented evidence through C.K.M.’s treating therapist, Shelly Crane, and her expert forensic psychiatrist, Gilbert Kliman, that C.K.M. has suffered emotional distress from the District’s failure to protect her from David M.’s sexual abuse and harassment. Viewing this evidence in the light most favorable to the nonmoving party, the evidence does not permit only one reasonable conclusion, which is contrary to the jury’s verdict. There is substantial evidence adequate to support the jury’s conclusion that the District’s failure to report David M.’s harassment of C.K.M. was a moving force of her injury.
3. Equal Protection
Plaintiff alleged that the District “violated the Equal Protection Clause in its practice of failing to enforce its policies on peer-to-peer sexual harassment in its special education classroom at Bethel High School.” Dkt. 1-2, ¶ 4.31. The District argues that this claim “fails as a matter of law because there is no evidence that this policy was adopted with any invidious discriminatory motive” and because “the policy has a rational basis” as a matter of law. Dkt. 175 at 24.
The Court instructed the jury that, in order to prevail on her Equal Protection claim, Plaintiff had to establish the following elements by a preponderance of the evidence:
1. The defendant’s employee or employees acted under color of state law; 1 2. The acts of the defendant’s employee or employees deprived the plaintiff of her equal protection rights under the United States 2 Constitution as explained in later instructions;
3. The defendant’s employee or employees acted pursuant to an expressly 3 adopted official policy of the defendant Bethel School District; and
4. The defendant Bethel School District’s official policy caused the 4 deprivation of the plaintiff’s rights by the defendant’s employee or
employees; that is, the Bethel School Distriсt’s official policy is so 5 closely related to the deprivation of the plaintiff’s rights as to be the
moving force that caused the ultimate injury.
6
Dkt. 153 at 22.
7
The Court further instructed the jury that, in order to prove that the District’s 8
sexual harassment policy deprived her of her rights under the Fourteenth Amendment, 9
Plaintiff had to establish these additional elements by a preponderance of the evidence: 10
1. The defendant intentionally treatеd plaintiff differently from the way it treated typically functioning students; 2. The defendant’s treatment of plaintiff was without a rational basis; and 3. The failure to apply the policy caused the plaintiff a direct injury. at 23. Plaintiff argued at trial that the District’s peer-to-peer sexual harassment policy violated her equal protection rights because the policy required students to object to the sexual harassment, which C.K.M. cannot do because of her cognitive disabilities. The District argues that the evidence establishes that its policy on student-to-student sexual harassment did not apply to situations in the ILC classroom. It appears to concede that its sexual harassment policy did in fact treat special education students, like C.K.M., differently than genеral education students. The District presented evidence through its school expert, Janet Barry, and former vice principal, Tom Gifford, that the policy did not apply in the ILC classroom because there was constant supervision and, seemingly, because of the cognitive abilities of the students in the classroom. But at the same time, Gifford testified that the October 5 incident wаs not sexual harassment because C.K.M. did not object to the conduct. Further, Plaintiff presented evidence through its own school expert, Judith Billings, who testified that the District’s failure to apply the policy to C.K.M. was discriminatory.
The Court may not weigh this testimony nor make credibility assessments,
Winarto
,
Finally, the District argues that there is no evidence in the record that the sexual
harassment policy was adopted with any “impermissible animus.” Dkt. 175 at 26–29. Thе
District argues for the first time that Plaintiff was required to establish that its policy was
“motivated by discriminatory animus toward the mentally disabled as a protected class.”
Lee v. City of Los Angeles
,
III. ORDER
Therefore, it is hereby ORDERED that Defendant Bethel School District’s motion for judgment as a matter of law, Dkt. 175, is DENIED .
The Clerk shall note the District’s motion to compel, Dkt. 171, fоr consideration on the Court’s March 30, 2022 calendar.
Dated this 16th day of March, 2022.
A BENJAMIN H. SETTLE United States District Judge
Notes
[1] In light of the District’s post-trial motion, the Court stayed Plaintiff’s motion for attorney fees and costs, Dkt. 164, and motions for bill of costs, Dkts, 168, 169, and the District’s motion to compel, Dkt. 171. See Dkt. 180.
[2] Even if the Court did consider the arguments under Rule 50, the District did not raise
these grounds in its oral Rule 50(a) motion. In ruling on a motion under Rule 50(b) based on a
ground not asserted in a motion under Rule 50(a), a court is “limited to reviewing the jury’s
verdict for plain error, and should reverse only if such plain error would result in a manifest
miscarriage of justice.”
Go Daddy
,
[3] It is difficult to evaluate the District’s motion because it provides no citations to the
record nor provides a trial transcript. The Court will consider the District’s and Plaintiff’s
arguments based on the case file and the Court’s own recollection of the trial proceedings and
evidence.
See Craig v. Cnty. of Orange
, No. SACV 17-00491-CJC(KESx),