United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
SAM, UNITED STATES DISTRICT COURT SENIOR JUDGE
the Court is the Motion for Summary Judgment of Defendant
Nebo School District (“Nebo”) and Defendant Angie
Killian. (ECF No. 104). Plaintiff Collette Russell is a
former Nebo employee who worked as a Resource Technician at
Mount Loafer Elementary School in Salem, Utah. She alleges
that Defendant Bruce Moon, who worked as a custodian at the
same school, subjected her to various acts of sexual
harassment. Ms. Russell generally alleges that while employed
by Nebo she was subjected to sexual harassment and
discrimination, and ultimately retaliated against because of
her complaints of harassment and discrimination in violation
of federal law.
and Killian move for summary judgement on all claims alleged
against them.They contend that based on the undisputed
material facts Russell cannot demonstrate:
1. Moon's advances were unwelcome and unwanted;
2. Nebo's negligence;
3. An adverse employment action as required for her claims of
Title VII discrimination, Title IX discrimination, Title VII
Equal Protection/First Amendment violations, and Title IX
4. A clearly established Equal Protection retaliation claim;
5. An Equal Protection violation; or
6. A First Amendment violation.
SUMMARY JUDGEMENT STANDARD
Federal Rule of Civil Procedure 56, summary judgment is
proper only when the pleadings, affidavits, depositions or
admissions establish there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as
a matter of law. When applying this standard, the court views
the evidence and draws inferences in the light most favorable
to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). The burden of
establishing the nonexistence of a genuine issue of material
fact is on the moving party. E.g., Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). This burden has two
distinct components: an initial burden of production on the
moving party, which burden when satisfied shifts to the
nonmoving party, and an ultimate burden of persuasion, which
always remains on the moving party. See 10A C.
Wright, A. Miller & M. Kane, Federal Practice and
Procedure § 2727 (2d ed. 1983).
central inquiry is "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." Id. If the nonmoving party
cannot muster sufficient evidence to make out a triable issue
of fact on his claim, a trial would be useless and the moving
party is entitled to summary judgment as a matter of law.
Celotex, 477 U.S. 242.
that consent is at the heart of this case, Defendants first
urge, contrary to Ms. Russell's allegations, that the
“overwhelming evidence demonstrates she welcomed and
consented to Moon's actions.” ECF No. 104 at 23. In
support they point to such things as emails and text messages
between the two, gifts that Russell gave Moon, kissing and
other intimate conduct, and Russell going to Moon's house
on one occasion. See ECF No. 104 at 23-25. Ms.
Russell counters that significant evidence exists to show
that Moon's conduct towards her was unwelcome.
issues of material fact preclude summary judgment on the
issue of Russell's consent. Ms. Russell cites factual
allegations in the record from which a jury could conclude
that some or all of Moon's alleged conduct was
unwelcome. See ECF No. 149 at 55-57 (citing
factual allegations such as the following: Russell was
threatened by Moon; she told Moon daily to leave her alone;
she reported Moon's conduct to school officials; she
refused his sexual advances and invitations; she did not
reciprocate when he hugged and kissed her; and she jerked
away when Moon forcefully tried to place her hand on him).
Other objective evidence also could be viewed by a jury as
supporting the same or similar conclusion. See Id.
at 57 (citing, for example, the following factual
allegations: Russell complained twice to school personnel
about Moon's conduct; Pruitt, the school secretary,
acknowledged she knew Russell was bothered by Moon's
conduct when Russell complained to Pruitt in October of 2013;
Moon harassed both Killian, the the school principal, and
Pruitt; Russell never personally interacted with Moon outside
of school until December 23, 2013; and Moon changed his story
regarding the alleged consensual acts).
Title VII Sexual Harassment - Employer Negligence (First
First Claim in the Amended Complaint is against Nebo for
Title VII sexual harassment based on Nebo's alleged
negligence. To prove sexual harassment based on a
theory of employer negligence liability a plaintiff
“must establish that (1) the employer had actual
knowledge or constructive knowledge of the harassment and (2)
the employer's remedial and preventative responses to the
harassment were inadequate.” Dunlap v.Spec. Pro.,
Inc., 939 F.Supp.2d 1075, 1085 (D. Colo. 2013) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673
(10th Cir. 1998); see also Turnbull v. Topeka
State Hosp., 255 F.3d 1238, 1244 (10th Cir.
2001) (citation omitted), cert. denied, 535 U.S. 970
(2002) (“[t]o protect against imposing strict liability
upon employers, [courts] apply a negligence analysis asking
whether the organization ‘fail[ed] to remedy or prevent
a hostile or offensive work environment of which
management-level employees knew, or in the exercise of
reasonable care should have known'”). Nebo asserts
that because it neither had actual or constructive knowledge
of Moon's harassment, and because its remedial actions
were prompt and effective, it is entitled to judgment on
Russell's First Claim.
Russell alleges that when she reported Moon's conduct,
Angie Killian, the school principal, was not in the office so
she reported Moon's harassment to Lisa Pruitt, the school
secretary. Nebo contends that the only person to whom Russell
allegedly reported Moon's harassment before December 26,
2013, was Pruitt, and, therefore, the report was inadequate