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Russell v. Nebo School District

United States District Court, D. Utah, Central Division

October 17, 2018





         Before 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.[1]

         Nebo and Killian move for summary judgement on all claims alleged against them.[2]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 retaliation;
4. A clearly established Equal Protection retaliation claim;
5. An Equal Protection violation; or
6. A First Amendment violation.


         Under 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.[3] 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).

         The 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.


         A. Consent

         Asserting 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.

         Disputed 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.[4] 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).

         B. Title VII Sexual Harassment - Employer Negligence (First Claim)

         Russell's First Claim in the Amended Complaint is against Nebo for Title VII sexual harassment based on Nebo's alleged negligence.[5] 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.

         1. knowledge

         Ms. 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 ...

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