United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
high-school teacher and a student have a sexual relationship,
it is the stuff of nightmares for school districts,
principals, and, of course, parents. This case is no
exception. Jane Doe, an 18-year-old high school senior, had
an intimate relationship with one of her teachers, Robert
Milton. Doe sued the Katy Independent School District,
several District employees, and Milton, asserting federal-law
claims under 42 U.S.C. § 1983 and 20 U.S.C. § 1681,
et seq. (Title IX), and a state-law claim for
intentional infliction of emotional distress. (Docket Entry
No. 1). After multiple motions to dismiss and amended
complaints, only the Title IX claim against the District
District moved for summary judgment that it is not liable
under Title IX and, in any event, cannot be required to pay
punitive damages. (Docket Entry No. 58). Doe responded, the
District replied, and the court heard oral argument on the
motion. (Docket Entry Nos. 65, 66, 70). Doe then moved to
supplement the summary judgment record, and the court granted
the motion with an extension of the discovery deadline to
allow the District to respond. (Docket Entry Nos. 71, 77).
on the record, the pleadings, motions, arguments, and the
applicable law, the court grants in part and denies in part
the District's motion for summary judgment. The court
denies summary judgment for the District on the Title IX
claim because there are genuine factual disputes material to
determining the District's knowledge of the risk that
Milton would have a sexual relationship with a student. The
court grants summary judgment for the District on the
punitive damages claim because these damages are not
available under Title IX.
reasons are explained in detail below.
primary argument on the Title IX claim is that Milton had
earlier incidents of a sexual nature with students at
District schools that would allow a jury to find that the
District knew of, and was deliberately indifferent to, the
risk that he posed to female students like Doe. Each incident
raised in Doe's amended complaint is described below,
drawing the facts from the summary judgment evidence.
2001, Milton was a teacher at Mayde Creek High School, a
school in the District. (Docket Entry No. 65 at 3). That
fall, art teacher Kelly Booth saw Milton spending time alone
with “Jackie, ” a female student. (Docket Entry
No. 65-A at 10). Jackie wore one of Milton's shirts in
art class until the school principal, O.D. Tompkins, told her
to remove it. (Id. at 12). Booth also saw Jackie
wearing Milton's wedding ring. (Id. at 13).
Booth told other teachers about her concerns that Milton was
too close to Jackie, but Booth did not tell Tompkins.
(Id. at 20). Booth did speak to the Mayde Creek High
School assistant principal, Mary Jane Crowe, but Booth did
not describe what she had seen because she did not feel
comfortable talking to Crowe. (Id. at 19-20). Booth
testified in her deposition that she had previously
complained to Crowe about a teacher taking students off
campus on an unauthorized field trip. (Id. at 18).
In response, Crowe told Booth “to mind her own
business.” (Id. at 18-19). Booth did not share
her concerns about Milton and Jackie with any other District
administrator. (Id. at 22).
teacher Kevin Colopy also testified in his deposition that he
saw inappropriate behavior between Milton and Jackie. (Docket
Entry No. 65-B). Colopy saw Milton eating lunch alone with
female students, including Jackie. (Id. at 14-15).
On one occasion, he saw Milton embracing Jackie from behind.
(Id. at 10). Colopy told fellow teachers, but he did
not report the incident to the Mayde Creek High School
principal or assistant principal. (Id. at 10-11).
another occasion, Colopy thought he saw Milton and Jackie
embracing in a car. (Id. at 12). Colopy talked to
assistant principal Crowe, but he gave only a general report
that Milton had been “very inappropriate . . . with
this young girl.” (Id. at 14,
Crowe told Colopy that Colopy should not make this his
business if he wanted a job in the District. (Id.).
also testified that he called the office of the administrator
for substitute teachers in the District and made a complaint.
(Id. at 15, 25). In that call, Colopy described
“what [he] witnessed with [Milton] in the classroom
with these students.” (Id. at 15). Colopy
could not remember who he spoke to on the phone, and nothing
came of the call. (Id.). Colopy thought that after
his call, Milton's behavior would stop, but he again saw
Jackie wearing Milton's sweatshirt. (Id. at 16).
Colopy complained to other teachers, but he did not complain
to another District administrator. (Id.).
Crowe asked Colopy if he had been talking with other teachers
about what he and Crowe had “talked about.”
(Id.). Crowe implied that talking about Milton meant
that Colopy no longer wanted to work for the District.
(Id.). Colopy became frustrated and walked to
Milton's classroom, where he called Milton a
“[expletive] pedophile.” (Id. at 16-17).
Because the classroom doors were open, Colopy assumed that
his accusation might have been heard by around a hundred
teachers and students. (Id. at 17, 23). Colopy
testified that no District administrators were present, but
he believed that they were “aware of it” because
he was terminated as a substitute teacher shortly afterwards.
(Id. at 23-24). Doe alleges that when Milton was
later transferred to Katy High School, it was without any
record of Kevin Colopy's complaint. (Docket Entry No. 65
Tompkins testified in his deposition that he never heard
about anything improper, including about a sexual
relationship, involving Milton and a student. (Docket Entry
No. 58-H at 79). Tompkins testified that Milton's
transfer from Mayde Creek High School to Katy High School was
Milton's choice, and at the request of Katy High
School's assistant principal. (Id. at 58;
see also Docket Entry No. 78-M; Docket Entry No.
78-N). Tompkins was asked whether the transfer decision had
anything to do with “the mess” in the Mayde
Creek High School art department. (Docket Entry No. 58-H at
58). He testified that he could not say if that was the
Four Unidentified Female Students
leaving Mayde Creek High School, Milton worked at Katy High
School as an art teacher. (Docket Entry No. 65-C at 9-10).
Katy High School Spanish teacher Geir Bentzen testified in
his deposition that on one occasion in 2010, four female
students told him that “Milton touched them during art
class and that they were uncomfortable.” (Docket Entry
No. 58-G at 10).While he could not recall specifics,
Bentzen testified that “[Milton] touched them [on
their] shoulders and neck, ” and “they were upset
about it.” (Id. at 11-12). Bentzen testified
that because he believed he was required to report what the
students told him, he believes he contacted Katy High School
assistant principal Scott Rounds, but Bentzen was uncertain.
(Id. at 12-13). When asked again, Bentzen testified
that it was “more likely than not” that he had
reported what the students had told him about Milton touching
them. (Id. at 20, 25). Bentzen also testified that
he believed Rounds found fault in whatever Bentzen did or
said. (Id. at 21). Rounds testified in his
declaration that “Geir Bentzen never made any reports
to [him] about any kind of inappropriate conduct by Robert
Milton, whether towards female students or anyone
else.” (Docket Entry No. 58-E at 1).
2012, a former Katy High School librarian, Robin Cashman,
told the school secretary, Debbie Davis, about a rumor that
Milton was having lunch alone every day with a female
student, “Becky.” (Docket Entry No. 58-D at 1).
Davis relayed this report to the Katy High School principal,
Steve Robertson. (Id.). Robertson checked the school
security cameras and confirmed that Becky was going to
Milton's classroom alone during her lunch hour.
(Id.). Robertson reported this to Debbie Harris, the
District's assistant superintendent for human resources.
(Id.). The District placed Milton on administrative
leave pending investigation. (Id.).
police officers and District administrators also investigated
Milton's relationship with Becky. (Id. at 2). A
District police officer talked to Lisa Matschek, a substitute
teacher, who confirmed that Becky regularly ate lunch in
Milton's classroom. (Id. at 12). This officer
also spoke to Laura Anne Williams, a Katy High School art
teacher, who said that Becky had “concerning”
drawings, one of a nude female and another of a young girl
sitting on a man's lap. (Id. at 13). Williams
did not believe that Becky had made these drawings.
police officers and District administrators both interviewed
Becky. (Docket Entry No. 58-D at 2). Becky denied anything
inappropriate between her and Milton. (Id.). Becky
told District police that she had asked Milton if she could
work in his classroom during lunch, and Milton had told her
that his classroom was always open to students.
(Id.). Becky stated that she was “nothing more
than a student to [Milton] and he [was] nothing more than a
teacher to [her].” (Id. at 2-3). Becky
provided the District police with the art book from which she
had copied the “concerning” drawings.
(Id. at 14-15). The District police concluded that
concerns about Milton's behaving inappropriately with
Becky were “unfounded.” (Id. at 16).
District administrators similarly found no evidence of an
inappropriate relationship between Milton and Becky.
(Id. at 3). The District provided Milton with a
written memorandum of the investigation result and directions
for future performance and protocol. (Id.).
Robertson testified that he had no similar problems with
Milton until 2014, when Robertson left Katy High School to
become the District's assistant superintendent for
secondary school leadership and support. (Id. at 3).
Doe attended Katy High School and graduated in 2015. (Docket
Entry No. 65-C at 7). Doe joined the National Art Honor
Society as a freshman, where she met Milton, who served as an
advisor. (Id. at 10). During Doe's junior year,
Milton would make sexual jokes and innuendoes around her.
(Id. at 15-16). Doe took Milton's art history
course in her senior year. (Id. at 10). In the fall
of 2014, Doe turned 18. (Id. at 17). Milton began
sharing intimate details about his personal life and marriage
and encouraging Doe to make nude paintings of herself.
(Id. at 17-18). In April 2015, Milton and Doe began
a sexual relationship. (Id. at 19).
would leave notes for Doe at school, where they communicated
often. (Id. at 24- 27). During school hours, Doe
spent much of her time with Milton, painting, talking with
him, and kissing and touching in Milton's classroom
closet. (Id. at 24-28). Doe told a fellow student
about the relationship, but neither Doe nor the student told
a teacher or a school administrator. (Id. at 21-22).
Doe testified that she thought Natalie Rodriguez, another art
teacher, had detected their relationship ...