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Lockhart v. Willingboro High School

United States District Court, D. New Jersey

September 29, 2017


          Bruce H. Zamost, Esq. PELLETTIERI RABSTEIN & ALTMAN Attorney for Plaintiffs Tasia Lockhart, Robbie Lockhart, and James Lockhart

          Jeffrey L. Shanaberger, Esq. HILL WALLACK, LLP Attorney for Defendants Willingboro Board of Education, Nython Carter, and Ms. Car




         This is an action by Tasia Lockhart (“Tasia”) and her legal guardians, Robbie Lockhart and James Lockhart, seeking to hold Willingboro High School and other related defendants responsible for a sexual assault against Tasia committed by another student while school was in session.

         Presently before the Court is the motion of Defendants Willingboro Board of Education, Nython Carter, and Ms. Kaur[1] for summary judgment on Plaintiffs' remaining claims, which consist of Plaintiffs' common law negligence claims (Counts One and Four), including the per quod damages claims of Plaintiffs Robbie and James Lockhart (Count Three), and a claim of under Title IX, 42 U.S.C. § 1983 (Count Two). Moreover, the parties have agreed to dismiss all claims against Defendant Nython Carter.

         For the reasons set forth below, Defendants' motion for summary judgment will be granted in part and denied in part. With respect to Plaintiffs' state law claims under the New Jersey Tort Claims Act (Counts One and Four) and Plaintiffs' Robbie and James Lockhart's per quod damages claim (Count Three), summary judgment will be granted. However, with respect to Plaintiff Tasia Lockhart's claim under Title IX against Defendant Willingboro Board of Education (Count Two) summary judgment is denied.


         A. Factual Background[2]

         Plaintiff Tasia Lockhart, 23 years old, attended Willingboro High School for ninth through the twelfth grade (September 2008 through June 2012), and graduated in June 2012. (Def. Statement of Material Facts at ¶ 1.) Plaintiffs Robbie Lockhart and James Lockhart are Tasia's grandparents and were her guardians since she was a minor. (Id. at ¶ 2.) For the ninth grade year, the 2008-2009 academic year, Tasia was placed in a self-contained classroom in the school's Workforce Readiness Program. (Id. at ¶ 3.)

         On Friday, March 20, 2009, while in an empty and unsupervised classroom, Tasia's friend, Shawn Midgette (Midgette) (age 17), suggested that Tasia perform oral sex on him, and she complied with this request. (Pl. Br. at 4.) A teacher, Jessica Kochis (Kochis), learned of the incident on March 25, 2009, and she reported it to the Assistant Principal, Nython Carter, who in turn reported it to the Principal, Teresea Lucas, who then reported it to Patrolman Walter Harvey of the Willingboro Police Department. (Def. Br., Ex. E and F.) Patrolman Harvey prepared a report which stated, inter alia, that “[b]ased upon what Tasia reports, this incident appears to be consensual and force or threats does not appear to be involved.” (Def. Br., Ex. E.) The report also indicated that Patrolman Harvey had contacted Assistant Prosecutor Doug Bligh of the Burlington County Prosecutor's Office with regard to the incident between the two students and a possible attempt to cover it up by staff members of the high school. (Id.)

         On March 31, 2009, in response to an email from Assistant Superintendent JoAnn Manning requesting an update on the investigation, Principal Lucas sent an email to Manning, stating that “all appropriate agencies, DYFS, the Prosecutor, Mr. Perry, Mr. Sullivan and WHS-SRO were notified of the incident as required.” (Def. Br., Ex. G.) The email further stated that “Mr. Carter met with the guardian of Tasia Lockhart” and that both students were suspended in accordance to the Board's discipline policy. (Id.) The last paragraph of the email reads as follows:

Mr. Carter and I both met with each of the staff members that are assigned to classroom 302, along with their WEA Representative. It was apparent that certain members of the staff failed to report the incident in a timely fashion. I spoke with Mr. Sullivan regarding the outcome of each meeting. He is going to ask Carol Marcellus to meet with Mr. Carter and myself regarding the reassignment of staff for that program and any recommendations for disciplinary actions.

(Id.) Assistant Superintendent Manning, then directed Norman Perry (Perry), Director of Safety, to conduct an investigation “to determine if there was an attempted cover up.” (Def. Br., Ex. F.) Perry interviewed several staff members at the high school. According to Tasia's teacher, Jessica Kochis, another Willingboro teacher, Sharon Lightsey, found out about the incident a few days later after overhearing students talking about it. She told Kochis about the incident but encouraged Kochis not to tell the administration about what happened. (Id.) Kochis disregarded Lightsey's suggestion and told the administration anyway. Lightsey denied that this happened. (Id. at 2-3.) Ultimately, Perry's investigation concluded that “[b]ased on the interviews, there [was] no way to prove that there was an attempt to cover up the incident.” (Id.)

         A notice of claim pursuant to the New Jersey Tort Claims Act was served upon the Board and Carter on April 17, 2009, providing Defendants notice that Plaintiffs were alleging that the March 20, 2009 incident was an act of sexual assault against Tasia Lockhart. (Pl. Br., Ex. 1.) In connection with that law suit, at the request of her attorney, Tasia appeared for psychological evaluations with Dr. Victor J. Nitti, who issued a report dated January 26, 2011. (Pl. Br., Ex. 2.) This report was never provided to Nython Carter, Ms. Kaur, an administrator, or anyone employed by the Willingboro Board of Education.[3]

         Towards the end of Tasia's 9th grade year, the Individualized Education Program (IEP) team determined that, for Tasia's 10thgrade year, she would be taken out of the Workforce Readiness Program and placed in a learning disability resource classroom. (Mole Dep. 37:7-25.) During Tasia's tenth grade year, the 2009-2010 academic year, Tasia was not involved in any sexual incidents at the school. (Tasia Dep. 77:8-11.) Towards the end of Tasia's 10th grade year, the IEP team determined that Tasia would remain in the learning disability resource classroom for her 11th grade year, the 2010-2011 academic year. (Def. Br., Ex. J.)

         Approximately three months prior to the April 12, 2011 incident, Chris Gaines (Gaines) brushed up against and/or rubbed Tasia's buttocks in school, which became more frequent a few weeks after it began. (Tasia Dep. 116:2-23, 117:8-118:1.) In fact, in one particular incident, a teacher, “Mr. Armoro”, observed this behavior and instructed Gaines to stop. (Id. at 118:16-119:11.) Thereafter, Gaines did not touch Tasia's buttocks in front of that teacher. (Id.) On another occasion, another teacher, referred to as “Coach, ” required that Gaines sit by him during class and spoke with Gaines about his inappropriate behavior. (Id. at 119:12-120:11.) Thereafter, Gaines no longer touched Tasia in front of that teacher. (Id.) Prior to April 12, 2011, Tasia never complained to any teacher, assistant principal or principal about Gaines “smacking her buttocks” or touching her in any manner. (Id. at 123:7-11.)

         On April 12, 2011, Gaines “smacked Tasia's buttocks” in the presence of Ms. Kaur, a substitute teacher that was covering Tasia's class on that date, while Ms. Kaur was speaking to another student. Ms. Kaur did not say anything to Tasia or Gaines about this. (Id. at 120:12-122:19.) During her lunch period, Tasia exited the cafeteria and walked unaccompanied to an unoccupied and unlocked classroom in order to retrieve money from her purse. (Id. at 106:23-108:4.) She did not pass any school personnel during this time. (Id. at 114:10-13.) Moments later, Gaines entered the classroom. (Id. at 114:4.) Gaines obtained something from his desk, approached Tasia at her desk, and they discussed the cafeteria food. (Id. at 114:14-115:15.) Then, Gaines stood behind Tasia and began to rub her buttocks while she demanded that he stop. (Id. at 124:4-25, 125:23-25.) Despite her objection, Gaines began kissing Tasia's neck and grabbing her around her waist while she elbowed him and tried to push him away. (Id. at 125:5-18.) Gaines, then, went behind Tasia and tried to pull her pants down while she repeatedly objected and tried to turn around. (Id. at 130:9-22, 132:12-133:2.) Nevertheless, Gaines then proceeded to penetrate Tasia's vagina. (Id. at 134:11-14, 135:3-4.) After about four to five minutes, Ms. Kaur returned to the classroom and turned on the lights at which point Gaines stopped his actions, and the two students pulled up their respective pants. (Id. at 136:3-17, 136:21-23, 137:14-18.) Gaines was in the classroom with Ms. Kaur for only a matter of seconds before Gaines exited. (Id. at 138:2.) Tasia approached Ms. Kaur and asked that she not get Gaines in trouble. (Id. at 138:12-14.)

         Following the incident, Ms. Kaur made a report to either a security guard or to the main office. (Kaur Dep. at 19:8-20:4.) At some point thereafter, Tasia and Robbie Lockhart attended a meeting with an assistant principal where they discussed the April 12, 2011 incident involving Chris Gaines. (Tasia Dep. at 147:25-149:13; Robbie Dep. at 52:7-53:15.) Tasia believes that Chris Gaines was disciplined and expelled from the school because she never saw him in school after the April 12, 2011 incident. (Tasia Dep. 153:15-23.) On the same day of the incident, pursuant to a telephone conference with Robbie, in order to provide increased supervision, Tasia's IEP was revised to remove her from the learning disability classroom and to place her into a self-contained behavior disabilities setting with a behavioral intervention plan ...

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