IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA PLAINTIFFS ORIGINAL COMPLAINT

Transcription

1 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 1 of 31 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA JANE DOES 1 15, Plaintiffs, v. Case No. CIV SLP PERRY INDEPENDENT SCHOOL DISTRICT NO. I-1 OF NOBLE COUNTY, OKLAHOMA a/k/a PERRY PUBLIC SCHOOLS, and PERRY BOARD OF EDUCATION PLAINTIFFS ORIGINAL COMPLAINT JURY TRIAL DEMANDED ATTORNEY LIEN CLAIMED Plaintiffs, Jane Does 1 15 (hereinafter Plaintiffs ), by and through their attorneys of record alleges and states as follows: 1. JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this case under 28 U.S.C. 1331, which gives district courts jurisdiction over all civil actions arising under the Constitution, laws, and treaties of the United States. 2. This Court also has subject matter jurisdiction under 28 U.S.C. 1343, which gives district courts original jurisdiction over any civil action authorized by law to be brought by any person to redress the deprivation, under color of any State Law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; and any civil action to recover 1

2 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 2 of 31 damages or to secure equitable relief under any Act of Congress providing for the protection of civil rights. 3. Title 28 U.S.C governs additional claims originating from the same set of facts or circumstances and is within the original jurisdiction and form part of the same case or controversy. 4. This action also redresses the violation of Plaintiffs constitutional rights under the Fourteenth Amendment of the United States Constitution under 42 U.S.C Additionally, there are pendent state law claims regarding the violation of the Oklahoma Constitution, state statutes, and common law torts. 6. Venue is proper in this district, as the Defendants do business in this district, the events giving rise to the claims occurred in this district, and the Defendants reside in this district. II. THE PARTIES 7. Jane Doe 1 (hereinafter Jane Doe 1 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 1 was a resident of Noble County, Oklahoma. 9. Jane Doe 2 (hereinafter Jane Doe 2 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 2 was a resident of Noble County, Oklahoma. 2

3 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 3 of Jane Doe 3 (hereinafter Jane Doe 3 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 3 was a resident of Noble County, Oklahoma. 13. Jane Doe 4 (hereinafter Jane Doe 4 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 4 was a resident of Noble County, Oklahoma. 15. Jane Doe 5 (hereinafter Jane Doe 5 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 5 was a resident of Noble County, Oklahoma. 17. Jane Doe 6 (hereinafter Jane Doe 6 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 6 was a resident of Noble County, Oklahoma. 19. Jane Doe 7 (hereinafter Jane Doe 7 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 7 was a resident of Noble County, Oklahoma. 3

4 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 4 of Jane Doe 8 (hereinafter Jane Doe 8 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 8 was a resident of Noble County, Oklahoma. 23. Jane Doe 9 (hereinafter Jane Doe 9 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 9 was a resident of Noble County, Oklahoma. 25. Jane Doe 10 (hereinafter Jane Doe 10 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 10 was a resident of Noble County, Oklahoma. 27. Jane Doe 11 (hereinafter Jane Doe 11 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 11 was a resident of Noble County, Oklahoma. 29. Jane Doe 12 (hereinafter Jane Doe 12 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 12 was a resident of Noble County, Oklahoma. 4

5 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 5 of Jane Doe 13 (hereinafter Jane Doe 13 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 13 was a resident of Noble County, Oklahoma. 33. Jane Doe 14 (hereinafter Jane Doe 14 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 14 was a resident of Noble County, Oklahoma. 35. Jane Doe 15 (hereinafter Jane Doe 15 ) was a female and a minor at the times alleged in this complaint and was required to attend school per Oklahoma Statute 70 O.S At all material times, Jane Doe 15 was a resident of Noble County, Oklahoma. 37. At all material times, Jane Does 1 15 were students attending elementary school within the Defendant Perry Independent School District No. I-1 Of Noble County, Oklahoma a/k/a Perry Public Schools ( Perry School District ). 38. The Defendant Perry School District is a public educational institution located in Noble County, Oklahoma, is formally titled Perry Independent School District No. I-1 of Noble County, Oklahoma, a/k/a Perry Public Schools of Noble County, and is an Oklahoma school district organized and existing under the laws of the State of Oklahoma and has its principal office in Noble County, Oklahoma. Perry School District receives federal funding and is subject to Title IX of the Education Amendments of 1972, 20 U.S.C. 5

6 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 6 of Perry School District may be served with process at its principal place of business: Attn: Janet Brand, clerk, 900 Fir Avenue, Perry, Oklahoma The Defendant, Perry Board of Education ( Perry Board of Education ) and its members, were, at all times relevant herein, agents of Perry School District, and acted in an administrative capacity for the school, were responsible for the policy making for the school and were responsible for the approval of all hiring decisions within the school and ultimately accountable for the oversight of the students, teachers, support staff, and employees of Perry School District. Perry Board of Education may be served with process at its principal place of business: Attn: Janet Brand, clerk, 900 Fir Avenue, Perry, Oklahoma III. PROCEDURAL BACKGROUND 40. By letter dated April 4, 2017, Defendants were placed on timely notice of Jane Does 1 9 tort claims in conformance with Oklahoma Governmental Tort Claims Act, Okla. Stat. tit , as evidenced by the Notice of Tort Claims Pursuant to the Oklahoma Governmental Tort Claims Act. 41. By letter dated May 1, 2017, Defendant was placed on timely notice of Jane Doe 10 s and Jane Doe 11 s tort claims in conformance with Oklahoma Governmental Tort Claims Act, Okla. Stat. tit , as evidenced by the Notice of Tort Claims Pursuant to the Oklahoma Governmental Tort Claims Act. 42. By letter dated May 22, 2017, Defendants were placed on timely notice of Jane Does tort claims in conformance with Oklahoma Governmental Tort Claims Act, 6

7 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 7 of 31 Okla. Stat. tit , as evidenced by the Notice of Tort Claims Pursuant to the Oklahoma Governmental Tort Claims Act. 43. Defendants acknowledged receipt of the Notices of Tort Claim by return receipt of each certified letter. 44. Defendants took no further formal action upon the Tort Claim Notice and, per Okla. Stat. tit , this action was timely commenced in the District Court for the Western District of Oklahoma. IV. FACTUAL BACKGROUND 45. The Perry School District and the Perry Board of Education should provide a safe learning environment for its students. They failed to do so. 46. The Perry School District and the Perry Board of Education failed to provide its students an environment free of sexual predators. While on school grounds and during school hours, a sexual predator repeatedly preyed on students throughout the 2016 to 2017 school year, even after victims informed Perry School District of the sexual predator s misconduct via the school district s agents and employees the Perry Upper Elementary School s teachers and its principal. 47. Plaintiffs Jane Does 1 15 were each victims of the sexual predator, Arnold Cowen ( Cowen). 48. Jane Does 1 15 were students in Perry School District during the 2016 to 2017 school year. 7

8 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 8 of Cowen was a volunteer and teacher s assistant for the 2016 to 2017 school-year at the Perry School District. 50. Cowen volunteered as a teacher assistant in Mr. Jeffrey Sullins s ( Sullins ) math class, as well as other classes. 51. Sullins, acting in the course and scope of his employment, was a teacher for the Perry School District and was the math teacher of several of the Plaintiffs for the 2016 to 2017 school year. 52. Cowen molested, made lewd comments, or inappropriately touched or felt the body or private parts of female students (including violations of 21 O.S. 1123(A)(2)), including each of the Plaintiffs, while at the Perry School District, on campus, and during school hours. 53. Cowen s misconduct occurred throughout the 2016 and 2017 school year until he was eventually removed from the Perry School District campus, and as to at least one victim, even earlier In December 2016 before the Perry School District s Christmas break some of Cowen s victims, including several Plaintiffs, reported Cowen s misconduct to various employees of the Perry School District. 1 Earlier in Cowen s 5-year stint as an assistant, Cowen sexually assaulted Jane Doe No. 15 twice a week when she was removed from her fifth grade classroom and taken to an empty room under the guise of tutoring. 8

9 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 9 of For example, in December 2016, Jane Doe 1 informed Mrs. Tammy Readus ( Readus ), a teacher who was acting within the course and scope of her employment, of Cowen s misconduct. 56. Part of the responsibilities of teachers and/or administrators within the Perry School District is to receive reports of sexual misconduct suffered by students, especially when that misconduct occurs during school hours and on school property. 57. Instead of reporting the misconduct to law enforcement, the Department of Human Services, or Jane Doe 1 s parents, Readus told Jane Doe 1 to head to the principal s office because the principal needed to deal with it. 58. In December 2016, Ms. Kendra Miller ( Miller ), acting within the course and scope of her employment, was the Perry Upper Elementary School Principal. 59. Before the Christmas 2016 Break, Jane Doe 1 informed Miller of Cowen s misconduct. Miller did not notify law enforcement, the Department of Human Services, or Jane Doe 1 s parents. Instead, Miller s response was to tell Jane Doe 1 to simply fist bump Cowen as opposed to hugging him. 60. Another victim, Jane Doe 6, separately informed Miller of Cowen s misconduct before the Christmas 2016 Break. Again, Miller did not notify law enforcement, the Department of Human Services, or Jane Doe 6 s parents. Instead, Miller made excuses for Cowen s misconduct and told Jane Doe 6 to fist bump Cowen. 61. Further, Miller told Jane Doe 6 that Cowen s felonious touching was just an accident. 9

10 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 10 of A third victim, Jane Doe 7, separately informed Miller of Cowen s misconduct before the Christmas 2016 Break. Yet again, Miller did not notify law enforcement, the Department of Human Services, or Jane Doe 7 s parents. Instead, Miller told Jane 7 to fist bump Cowen. 63. A fourth victim separately informed Miller of Cowen s misconduct before the Christmas 2016 Break. Consistent with her previous inactions, Miller did not inform law enforcement, the Department of Human Services, or the victim s parents. Instead, Miller advised the victim to give Cowen high fives instead of hugs. 64. Instead of actually investigating allegations of misconduct, Miller instructed victims to not report Cowen s misconduct. For instance, after Cowen assaulted Jane Doe 4, she reported the misconduct to Miller. In response, Miller told Jane Doe 4 that she should not report Cowen s misconduct because it could get people in trouble. 65. Despite having knowledge in December 2016 of a pattern of Cowen s criminal misconduct from several victims, the Perry School District did not immediately notify law enforcement, the Department of Human Services, or the victims parents, nor did Perry School District remove Cowen from campus. 66. Because of Perry School District s lack of response to the allegations of Cowen s misconduct, the Perry School District allowed Cowen to remain on campus. 67. While on campus, Cowen continued to victimize students, including some of the Plaintiffs, at Perry School District into January

11 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 11 of In January 2017, Perry School District received written notice of Cowen s misconduct and still failed to take immediate corrective action. 69. On or around January 18, 2017, while at school, Jane Doe 12 wrote a note to Jane Doe 2 that read Mr. Cowen grab [sic] my boob then I made this face [drawing of awkward emoticon,] and he said it was nice there. 70. Sullins intercepted the note and subsequently berated Jane Doe 12 in the hallway. After Jane Doe 12 was escorted to Miller s office, who was absent, Sullins returned Jane Doe 12 to his class where she was forced to work with Cowen. 71. Instead of reporting the sexual assaults or informing the victim s parents, Sullins told Jane Doe 12 that she was a liar and that he believed none of it immediately discounting Jane Doe 12 s report of Cowen s misconduct Each of the Plaintiffs was physically injured by Cowen s misconduct, scared to attend class, missed school because of their fears, and/or was afraid of being bullied due to Cowen s misconduct and the Perry School District s subsequent response. 73. Some of Cowen s victims including at least Jane Doe 7 would huddle in the bathroom and cry together. Those victims would attempt to conceal the effect of their tears with make-up. 74. On or about January 18, 2017, Miller told Mr. Scott Chenoweth (the Perry Public School Superintendent) ( Chenoweth ) about the allegations of Cowen s misconduct. 2 As described below, after being confronted by police, Cowen confessed to sexually assaulting Jane Doe 12 in Sullins s class, as well as other victims in other locations on campus. 11

12 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 12 of 31 Chenoweth did not report Cowen s misconduct to law enforcement, the Department of Human Services, or the victim s parents. 75. On January 20, 2017, Cowen feloniously touched another student in Sullins s class. That student knew of the School District s response to other students reported misconduct and was consequently too scared to tell Sullins, even though the misconduct occurred in Sullins s class. 76. The student informed another Perry School District teacher of Cowen s misconduct Mrs. Paula Gottschalk ( Gottschalk ) but Gottschalk believed that Miller already knew about Cowen s misconduct and did not realize that the student was also abused. 77. Instead of reporting Cowen s misconduct to law enforcement, the Department of Human Services, or the victim s parents, Gottschalk simply instructed the student to go to Miller s office. 78. On January 20, 2017, the Perry Police Department received allegations encompassing lewd acts to a child under 16 that occurred at Perry School District and identified Arnold Cowen as the alleged suspect. 79. On January 21, 2017, with no action from Perry School District, one of Cowen s victims and her parents brought Cowen s misconduct to the attention of the Perry Police Department. 80. On January 23, 2017, the Perry Police Department traveled to Perry School District to investigate Cowen and the Perry School District s conduct. During that investigation, 12

13 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 13 of 31 Miller told law enforcement that she received notice of allegations of Cowen s misconduct on January 18 th, 19 th, and 20 th. 81. As revealed by the criminal investigation, the Perry School District demonstrated a pattern of disbelief of victims, one-sided credibility determinations, and deliberate indifference to the safety of its students. 82. Indicative of the culture of disbelief of students, during the criminal investigation, other teachers at Perry School District told law enforcement that Cowen was definitely the victim of false accusations, and he was a model instructor and of great help to the school. 83. Even after multiple reports of Cowen s misconduct, Miller told law enforcement that Cowen was of great moral character and was a very nice guy. 84. On January 23, 2017, Miller admitted to law enforcement that she had received past complaints regarding Cowen, including complaints about inappropriate touching and lengthy hugs. 85. Miller also told law enforcement that we had these allegations on Arnold Cowen before, but we determined they were fabricated by the students indicating that the Defendant had received notice of Cowen s misconduct. 86. During the law enforcement investigation, Sullins informed law enforcement that he believed it was the Perry School District s administration s duty to take care of the 13

14 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 14 of 31 allegations of Cowen s misconduct. 3 This incorrect belief is indicative of the custom or policy of Perry School District to not report incidents of sexual misconduct. 87. Upon being confronted by law enforcement, Cowen almost immediately admitted that he feloniously touched and made lewd comments to students, including some of the Plaintiffs, at Perry School District. 88. Further, Cowen admitted to law enforcement that he feloniously touched the same student, including some of the Plaintiffs, while at Perry School District, multiple times. 89. Moreover, Cowen admitted to law enforcement that a majority of his misconduct at Perry School District occurred in Sullins s class. Specifically, Cowen admitted that while helping female students with math problems, he would feloniously touch them and whisper derogatory comments in their ears. 90. Further, Cowen confessed to feloniously touching Jane Doe 12 which she recorded in her note that Sullins intercepted in Sullins s class. 91. When law enforcement visited Cowen s home, Cowen admitted that he possessed child pornography on his computer. 92. After the investigation by law enforcement, Cowen was ultimately criminally charged with 19 counts of lewd or indecent acts to a child under 16 (21 O.S. 1123(A)(2)), one count of lewd or indecent proposals to a child under 16 (21 O.S. 1123(A)(1), and one 3 Specifically, Sullins explained, I don t know how other organizations work, I ve been in our school system 29 ½ years. Anytime a major issue [arises] and authorities need to be called, it s always administration who does it. If I would have [gone] behind their backs, Miller and Chenoweth, and called the police, I would be in trouble. 14

15 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 15 of 31 count of aggravated possession of child pornography (21 O.S (A)), which included in excess of 100 images and videos stored on a computer at Cowen s residence. 93. Sullins was criminally charged with failure to report child abuse, a misdemeanor. 94. Miller was criminally charged with failure to report child abuse, a misdemeanor. 95. The Oklahoma Board of Education suspended the teaching certificates of both Sullins and Miller. 96. Despite having knowledge of Cowen s misconduct at least by December 2016, the Perry School District took no corrective action. 97. Upon information and belief, Chenoweth sent text messages to at least one Perry Board of Education member, Paul Green, where Chenoweth admitted that he knew of Cowen s misconduct, yet Chenoweth failed to take any corrective action. 98. On February 13, 2017, the Perry Board of Education voted unanimously to suspend Chenoweth as Superintendent. 99. On March 27, 2017, the Perry Board of Education accepted the resignations of Miller and Sullins The Perry School District and Perry Board of Education failed to implement and/or execute policies in regard to the reporting of sexual misconduct to state agencies to protect students from further abuse, to end the access to students of suspected predators, and the inadequacy of these polices resulted in the deprivation of Plaintiffs constitutional, statutory, and common-law rights. 15

16 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 16 of The Perry School District and Perry Board of Education failed to ensure that all of their employees, including teachers and administrators, were properly hired, trained, retained, and supervised to perform their jobs The Perry School District and Perry Board of Education failed to ensure that all of their volunteers were properly investigated, trained, retained, and supervised to perform their jobs 103. The Perry School District is responsible for the acts and omissions of its employees, including its teachers and administrators, during the course and scope of their employment At all relevant times described, Sullins, Miller, Gottschalk, and Readus were acting in the course and scope of their employment as administrators and/or teachers when they interacted with student-victims while on the Perry School District campus, during the school year The Perry School District is responsible for the acts and omissions of Miller, Sullins, Gottschalk, Readus, and Chenoweth as described herein Chenoweth, Miller, and/or Sullins were untrained and/or unqualified for their positions at Perry School District Defendant Perry Board of Education was and is responsible for the supervision of Perry School District and its teachers and employees and had control over Perry School District s teachers and employees. 16

17 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 17 of 31 COUNT I 42 U.S.C VIOLATIONS Plaintiffs incorporate by reference all preceding paragraphs of this Complaint Under the Fourteenth Amendment, Plaintiffs have the right to Due Process and Equal Protection of the Law Defendant Perry School District and Perry Board of Education were state actors acting under the color of state law Defendants denied Plaintiffs their rights to Due Process and Equal Protection of the Law by: a. Enacting inadequate policies, specifically regarding the reporting of suspected sexual misconduct to law enforcement; b. Failing to enact and implement adequate policies concerning sexual abuse of students by adults on campus; c. Failing to remove suspected sexual predators from campus; d. Failing to remove students from classrooms with suspected sexual predators; e. Failing to train, retain, and supervise Cowen properly; f. Failing to hire, train, retain, and supervise Chenoweth, Sullins, Miller, Readus, Gottschalk, and other teachers and/or administrators properly; g. Failing to report sexual misconduct to law enforcement; h. Failing to report sexual misconduct to parents of victims; i. Failing to investigate Cowen s misconduct; 17

18 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 18 of 31 j. Failing to adequately train and supervise the Perry School District s staff and employees; and k. Exhibiting deliberate indifference to the sexual misconduct directed at Plaintiffs Defendants have an unconstitutional custom or policy of: a. Failing to investigate criminal misconduct against students; b. Discounting the credibility of students allegations; c. Failing to adequately train and supervise employees with regard to the investigation and reporting of sexual abuse of students; and d. Failing to enact policies that require an adherence to reporting requirements The policy of Defendants to effectively pass the buck as to who was responsible for investigating sexual misconduct and/or to subjectively discount students allegations is an unconstitutional policy of no one investigating sexual misconduct That policy is at least demonstrated by multiple victims disclosures of Cowen s misconduct to Defendants, Defendants lack of a sufficient investigation, and Defendants employee s repeated statements that someone else would handle the investigation That policy is attributable to a municipal policymaker, including at least Chenoweth, Miller, and/or the Perry Board of Education The resulting inadequate policies and their resulting failure to train allowed Arnold Cowen and others, either as Perry School District employees or otherwise, to violate Plaintiffs 14 th Amendment rights to Equal Protection and Due Process. 18

19 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 19 of Further, state actors Defendants affirmatively acted to create, or increased the Plaintiffs vulnerability to, or danger from, Cowen s misconduct Molestation of students at an elementary school is a danger to those students A school environment where children are feloniously touched and/or receive lewd or lascivious communications from adults is a dangerous environment Perry School District was a dangerous environment for its students, including Plaintiffs Plaintiffs are members of a limited and specifically definable group namely, female, minor students Defendants created the danger or increased the Plaintiffs vulnerability to the danger by at least effectively ignoring numerous students allegations, not immediately removing Cowen from campus after receiving notice of his misconduct, returning students who informed Perry School District employees of Cowen s misconduct to classes where Cowen was present, labeling students as liars who gave notice of Cowen s misconduct, berating students who brought forward allegations, not effectively investigating the students allegations, and/or not immediately reporting the misconduct to law enforcement and/or the students parents Defendants conduct put Plaintiffs at substantial risk of serious, immediate, and proximate harm. That risk included the risk of being abused while at Perry School District. Indeed, several of Plaintiffs and other students were abused by Cowen after Defendants had actual notice of Cowen s misconduct. 19

20 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 20 of The risk of danger was obvious or known to Defendants, including due to disclosure of Cowen s misconduct to both Sullins, Miller, and others from multiple sources. The risk of danger was obvious and known to Defendants, at least as of December 2016, when multiple students informed Perry School District of Cowen s misconduct Defendants actions and inactions created an opportunity for Cowen to continue to abuse Plaintiffs and other students, as those actions stripped aid from Plaintiffs. Reporting Cowen s misconduct to law enforcement and/or victims parents could have enabled law enforcement or parents to have sheltered Plaintiffs from Cowen s misconduct, including by removing Cowen and/or Plaintiffs from Perry School District Defendants acted recklessly in conscious disregard of that risk Defendants conduct, when viewed in total, shocks the conscience WHEREFORE, premises considered, Defendants and their officials failings as described above resulted in Plaintiffs suffering severe emotional distress and/or psychological damage and/or significant pain and suffering and/or personal humiliation. COUNT II VIOLATION OF TITLE IX Plaintiffs incorporate by reference all preceding paragraphs of this Complaint Defendants receive federal financial assistance Defendants disregard of the sexual misconduct of Cowen was so severe and objectively offensive that it deprived Plaintiffs of educational opportunities and benefits provided by their public schooling. 20

21 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 21 of Defendants created and/or subjected Plaintiffs to a hostile educational environment in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) ( Title IX ), because a. Plaintiffs were members of a protected class; b. Plaintiffs were subjected to sexual harassment in the form of sexual pursuit and sexual misconduct by a person on campus of Perry School District; c. Plaintiffs were subjected to harassment based on their sex; and d. Plaintiffs were subjected to retaliation Plaintiffs were subjected to a hostile educational environment created by the Defendants lack of policies and procedures and failure to properly investigate and/or report sexual misconduct Defendants and their officials had knowledge, including actual knowledge, of the sexual misconduct and the resulting harassment Plaintiffs suffered as a result of Defendant s failure to notify law enforcement Teachers and principals are appropriate persons to receive complaints for purposes of a Title IX claim Further, Sullins, Gottschalk, Readus, Chenoweth, and/or Miller were appropriate persons to receive complaints of sexual misconduct at Perry School District, as they exercised control over Cowen and/or the school where Cowen s misconduct occurred Cowen s misconduct was a substantial danger and risk to Perry School District s students. 21

22 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 22 of Defendants had evidence of more than a single, uncorroborated report of inappropriate touching of a female student by Cowen The harassment suffered by Plaintiffs was severe, pervasive, and objectively offensive, as made evident by Cowen admitting to feloniously touching multiple victims on multiple occasions Both Sullins and Miller had actual notice of Cowen s misconduct, as some of Plaintiffs directly informed Miller of Cowen s misconduct, and Sullins intercepted a note describing Cowen s misconduct Further, Defendant Perry School District had actual notice of Cowen s misconduct via communications to Sullins, Miller, Chenoweth, Gottschalk, and/or Readus, who were all acting within the course and scope of their employment by Perry School District Further, Defendant Perry Board of Education had actual notice of Cowen s misconduct via communications from at least Chenoweth Defendants had sufficient control over Cowen and the elementary school campus to confer the ability to remedy Cowen s misconduct on campus even though Cowen was not a school district employee Defendants acted with deliberate indifference by failing to properly investigate Plaintiffs allegations and to inform law enforcement or other governmental officials. Defendants inactions were clearly unreasonable in light of the known circumstances Defendants actions and inactions caused students, including Plaintiffs, to undergo further misconduct by Cowen and made them vulnerable to that misconduct. 22

23 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 23 of Defendants persisted in their action and inaction even after they had actual knowledge of the harm suffered by Plaintiffs Defendants failure to promptly and appropriately respond to the alleged sexual harassment and sexual misconduct resulted in Plaintiffs, on the basis of their sex, being excluded from participation in, being denied the benefit of, and being subjected to discrimination in the Defendants education program in violation of Title IX Defendants failed to take immediate, effective remedial or preventative steps to resolve, investigate, or prevent further sexual assaults. Instead, the Defendants acted with deliberate indifference toward Plaintiffs Defendants response was clearly unreasonable in light of the circumstances known to it Defendants actions, including, but not limited to its failure to effectively and immediately investigate Cowen s misconduct, to send students who alleged misconduct by Cowen back to Sullins s class where Cowen was present, to inform students to fist bump Cowen instead of hugging him, to abjectly disbelieve multiple victims, and to call students who disclosed Cowen s misconduct liars were not reasonable responses to the substantial risk of sexual misconduct Defendants dismissed and marginalized allegations of Cowen s sexual misconduct In response to allegations of Cowen s sexual misconduct, Defendants did not conduct a legitimate investigation. 23

24 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 24 of Defendants subjective assessment of Cowen s victims credibility was an insufficient investigation in light of the facts reported to Defendants by those victims Defendants could have exercised their inherent authority over school property to immediately prohibit Cowen from entering school property and abusing Plaintiffs. They did not Defendants engaged in a pattern and practice of behavior that failed to fully investigate, alert, and protect students from sexual misconduct within the school district Plaintiffs have suffered physical pain, emotional distress, and psychological damage WHEREFORE, premises considered Defendants actions were the direct and proximate cause of Plaintiffs being deprived of a safe and harassment-free educational environment. As a result of Perry School District s actions, Plaintiffs have suffered and continue to suffer severe emotional distress and/or psychological damage and/or significant pain and suffering and/or personal humiliation. COUNT III NEGLIGENCE (NEGLIGENT HIRING, RETENTION, TRAINING, SUPERVISION, and PREMISES LIABILITY) (Oklahoma Governmental Tort Claims Act) Plaintiffs incorporate by reference all preceding paragraphs of this Complaint Defendants are liable to Plaintiffs for negligence Defendants have a special relationship with their students and have special duties to protect their students, including Plaintiffs. 24

25 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 25 of Defendants failed in their duties to Plaintiffs by, inter alia: a. Allowing Cowen access to children after learning that he was abusing them; b. Failing to report Cowen to police after learning that he abused children; c. Negligently retaining Cowen as a volunteer after Defendant knew or should have known of Cowen s inappropriate sexual conduct toward one or more students; d. Negligently failing to timely and adequately act upon and investigate the stated, perceived, or obvious inappropriate behavior by Cowen towards one or more students; e. Failing to protect Plaintiffs from harm inflicted upon them while in Perry School District s control or control of its agents, employees, and persons authorized to be on campus; f. Negligently allowing Cowen to be on premises; g. Negligently hiring Sullins, Chenoweth and/or Miller; h. Negligently developing and/or implementing, or failing to develop and/or implement, policies and procedures designed to protect its students from inappropriate sexual conduct; i. Negligently training Sullins, Miller, Gottschalk, Readus, Chenoweth, Cowen, their staff, and their students with regard to policies and procedures related to sexual harassment, sexual misconduct and inappropriate sexual conduct; 25

26 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 26 of 31 j. Negligently supervising Sullins, Miller, Gottschalk, Readus, Chenoweth, and/or Cowen; k. Failing to exercise reasonable care to disclose to students and/or their parents the existence of dangerous defects, such as locations where a student could be subjected to sexual misconduct, including behind doors, in hallways, and in classrooms, by an unsupervised sexual predator, known to Defendants, but where unlikely to be discovered by students; l. Failing to exercise reasonable care to keep the premises in a reasonably safe condition for the reception of students, such as by providing locations where a student could be subjected to sexual misconduct, such as behind doors, in hallways, and in classrooms, by an unsupervised sexual predator Further, the lack of any mechanism or training to the students attending Perry School District to make complaints of inappropriate behavior and actions in an environment free of retaliation and with reasonable assurances of confidentiality and safety resulted in the creation of an atmosphere in which the improper contact was permitted and allowed to occur Defendants failed to have in place procedures and policies for training, supervising, and educating its employees in the detection, reporting and/or supervision of alleged or suspected incidents of offensive acts and acts of sexual misconduct To the extent that Defendants had any procedures and policies for training, supervising and education their employees in the detection, reporting and/or investigation 26

27 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 27 of 31 of alleged or suspected incidents of offensive acts and acts of sexual misconduct in place, those procedures and policies were inadequate and likely to result in the violation of a student s constitutional rights Defendants failed to take sufficient remedial action to correct, eliminate and/or prevent the recurrence of the offensive and unconstitutional acts described above once its employees perceived, knew or had reason to believe that Cowen posed a risk of sexual abuse Defendants had a duty to police the misconduct of their personnel under their immediate control and to protect the students from violations of the students constitutional rights to bodily integrity and to be free from intrusions while attending a publicly mandated course of education The aforementioned conduct by Sullins, Miller, Chenoweth and other school officials was done within the scope of their employment and course of their performance of their official responsibilities at Perry School District, under the color of laws, statutes, ordinances, regulations, practices, customs and usage of the State of Oklahoma and School District and utilized the respect and authority granted to him by state and local law Defendants had a duty to implement procedures and policies for training, hiring, supervising and educating their employees in the detection, reporting and/or investigation of alleged or suspected incidents of offensive and unconstitutional acts and misconduct. 27

28 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 28 of Defendants failed to properly implement policies and procedures and/or follow their own procedures and policies with regard to screening, hiring, training, and supervision of its employees and volunteers Defendants were negligent in regard to providing a safe and secure environment for their students and were negligent in their dealings with school employees and volunteers Defendants failed to have adequate policies and procedures in place to prevent the types of harm that was inflicted upon Plaintiffs Defendants failed to provide Plaintiffs with a means to voice their complaints and concerns without fear of reprisal Defendants negligence, as described above, proximately caused Plaintiffs injuries, severe emotional trauma and distress, pain and suffering and the damages sought by Plaintiffs herein. COUNT IV VIOLATION OF PARENTS BILL OF RIGHTS 171. Oklahoma has established a Parents Bill of Rights. See 25 O.S et seq Under the Parents Bill of Rights, any political subdivision of [Oklahoma] or any other governmental entity shall not infringe on the fundamental right of parents to direct the upbringing, education, health care and mental health of their children without demonstrating that the compelling governmental interest as applied to the child involved is of the highest order, is narrowly tailored and is not otherwise served by a less restrictive means Defendants are subject to the Parents Bill of Rights. 28

29 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 29 of Defendants infringed on the fundamental rights of the parents of Plaintiffs to direct the upbringing, education, health care, and/or mental health of their children by failing to notify them of Cowen s misconduct There is no governmental interest, let alone a compelling governmental interest, served by failing to report Cowen s misconduct Further, the Parents Bill of Rights expressly provides Plaintiffs parents [t]he right to be notified promptly if an employee of this state, any political subdivision of this state, any other governmental entity or any other institution suspects that a criminal offense has been committed against the minor child by someone other than a parent, unless the incident has first been reported to law enforcement and notification of the parent would impede a law enforcement or Department of Human Services investigation. See 25 O.S. 2002(A)(10) Defendants failed to promptly notify Plaintiffs parents even though Defendants had actual knowledge, suspected, and/or should have reasonably expected that a criminal offense had been committed by Cowen against their minor child Notification of Plaintiffs parents would not have impeded a law enforcement or Department of Human Services investigation of Cowen s misconduct Defendants violations of the Parents Bill of Rights, as described above, proximately caused Plaintiffs injuries, severe emotional trauma and distress, pain and suffering and the damages sought by Plaintiffs herein. 29

30 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 30 of 31 COUNT IV VIOLATION OF ARTICLE II 2 AND 7 OF THE OKLAHOMA CONSTITUTION Plaintiffs incorporate by reference all preceding paragraphs of this Complaint The Oklahoma Constitution provides that [a]ll persons have the inherent right to life, liberty, the pursuit of happiness and [n]o person shall be deprived of life, liberty, or property, without due process of law. Okla. Const. Art II, 2 and 7. In addition to providing due process rights, the Oklahoma Supreme Court has recognized Art II, 2 and 7 to provide Oklahoma citizens with rights equivalent to the equal protection clause of the Fourteenth Amendment to the United States Constitution The repeated sexual harassment and sexual misconduct and abuse of Plaintiffs constitutes unlawful sexual harassment in violation of Plaintiffs constitutional right to equal protection of the laws, in violation of Okla. Const. Art II, 2 and The marginalization of Plaintiffs allegations, calling them liars, and forcing them to remain in classrooms with sexual predators constitutes retaliation in violation of Plaintiffs constitutional right to equal protection of the laws and a loss of a property right, in violation of Okla. Const. Art II, 2 and Defendant s failures as outlined herein also created a dangerous environment to Plaintiffs and others in violation of Okla. Const. Art II, 2 and Defendants violations of the Oklahoma Constitution, as described above, proximately caused Plaintiffs injuries, severe emotional trauma and distress, pain and suffering and the damages sought by Plaintiffs herein. 30

31 Case 5:17-cv SLP Document 1 Filed 12/22/17 Page 31 of 31 PRAYER FOR RELIEF 185. Plaintiffs respectfully request judgment in their favor and against Defendants as follows: a. Compensatory damages including Plaintiffs physical damages as well as psychological and emotional distress; b. Punitive damages; c. All other damages or relief deemed appropriate by the Court or jury; d. Costs; e. Reasonable attorney fees. Respectfully submitted, 31 D. Neil Smith OBN: 32936; TBN: NIX, PATTERSON & ROACH, LLP 1845 Woodall Rodgers Fwy., Suite 1050 Dallas, Texas Telephone: (972) Facsimile: (972) dneilsmith@me.com And Cameron Spradling, OBA #8509 Attorney & Counselor at Law 500 N. Walker Avenue, Suite 140 Oklahoma City, OK Telephone: (405) Facsimile: (405) cameron@cameronspradling.com Attorneys for Plaintiffs