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W.H. v. Olympia School District

United States District Court, W.D. Washington, Tacoma

September 6, 2019

W.H. et al., Plaintiffs,
OLYMPIA SCHOOL DISTRICT, et al., Defendants.



         This matter comes before the Court on Defendants Olympia School District (“District”), Jennifer Priddy (“Priddy”), Frederick Stanley (“Stanley”), Barbara Greer (“Greer”), William Lahmann (“Lahmann”), and Dominic Cvitanich's (“Cvitanich”) (collectively “Defendants”) motion to certify issues to the Washington State Supreme Court and to stay proceedings. Dkt. 76. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


         On April 8, 2016, Plaintiffs W.H., both for herself and as guardian for her minor daughter P.H., J.H. individually, and B.M., both for herself and as guardian for her minor daughter S.A. (collectively “Plaintiffs”) commenced this action. Dkt. 1. Plaintiff W.H. is the mother of minor Plaintiff P.H. Dkt. 1, ¶¶ 13-14. Plaintiffs J.H. and B.M. are the father and mother of minor Plaintiff S.A. Id., ¶¶ 15-17.

         On June 23, 2017, Defendants moved for summary judgment. Dkt. 27. On August 18, 2017, the Court entered an order granting in part and denying in part Defendants' motion. Dkt. 39. The Court granted summary judgment for Defendants to the extent Plaintiffs argued Defendants violated a clearly established right of the minor Plaintiffs by depriving them of necessary medical attention, granted summary judgment for Defendant Cvitanich on Plaintiff's claims against him under 42 U.S.C. § 1983, and denied Defendants' motion for summary judgment as to Plaintiffs' Title IX claims against the District and Plaintiffs' § 1983 claims against the remaining Defendants. Dkt. 39 at 27. Defendants moved for reconsideration, and the Court denied the motion on October 4, 2017. Dkt. 54. Defendants appealed to the Ninth Circuit. On September 26, 2018, the Ninth Circuit affirmed the Court's finding that Stanley and Greer are not entitled to qualified immunity due to “triable issues as to whether they sustained a policy, practice, or custom of deliberate indifference toward repeated sexual abuse that was a ‘moving force' behind the injuries of P.H. and S.A.” Dkt. 60 at 4. The Circuit reversed as to Lahmann and Priddy, finding they were entitled to qualified immunity on the question of whether a causal connection existed between their acts or failure to act and the abuse. Id. at 4-5.

         On February 2, 2019, Plaintiffs moved for leave to amend. Dkt. 65. On April 17, 2019, the Court granted the motion, permitting Plaintiffs to revise their claims on two bases. Dkt. 74. First, Plaintiffs were permitted to amend their claim brought pursuant to 42 U.S.C. § 1983 to reflect the Ninth Circuit's decision dismissing this claim as to Defendants Priddy, Lahmann, and Cvitanich, and to clarify that the § 1983 claim was maintained under the Fourteenth Amendment and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), not the Fourteenth Amendment and the Ninth Amendment. Id. at 5, 11. Second, Plaintiffs were permitted to add a claim under the Washington Law Against Discrimination (“WLAD”) RCW Chapter 49.60, on the theory that the District could be liable for discrimination against the minor Plaintiffs as members of a protected class in a place of public accommodation based on the Washington Supreme Court's decision in Floeting v. Group Health Cooperative, 192 Wn.2d 848 (2019) (“Floeting”). Id. at 5-6, 11. Also on April 17, 2019, Plaintiffs filed their amended complaint. Dkt. 75.

         On June 25, 3019, Defendants filed the instant motion to certify issues to the Washington Supreme Court and stay proceedings. Dkt. 76. On July 15, 2019, Plaintiffs responded. Dkt. 77. On July 19, 2019, Defendants replied. Dkt. 79.


         Relevant to the instant motion, in August of 2005, the District hired Gary Shafer, a 26-year-old man, as a bus driver. Dkt. 34-1 at 2.[1] Over the course of his employment, Shafer sexually harassed and abused between twenty-five and thirty-five (although possibly as many as seventy-five) of the District's youngest bus passengers, including the minor Plaintiffs P.H. and S.A. Dkt. 34-2 at 76; Dkt. 34-5 at 49-50; Dkt. 75, ¶ 68.


         Defendants ask the Court to certify questions to the Washington State Supreme Court to address how a cause of action under Floeting may relate to Washington law (1) appearing to show school districts are not subject to suit under a theory of strict liability nor (2) subject to liability for intentional sexual misconduct perpetrated by their employees. Dkt. 76 at 11. Defendants also ask the Court to certify a question asking whether sexual abuse can be construed to be based on gender when an abuser harmed children of both genders. Id. The Court finds that the first issue is appropriate for certification, the second issue is dependent on the first, and the third is not appropriate for certification.

         A. The Court's Order Granting Plaintiffs' Motion to Amend

         In its April 17, 2019 Order (the “April 17th Order”) granting the motion to amend, the Court considered whether there was a conceivable set of facts from which it appeared Plaintiffs could state a claim under the theory of recovery articulated in Floeting such that amendment was not futile. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.”). In Floeting, the employee of a health care provider repeatedly sexually harassed a patient when the patient was seeking medical treatment, thus violating his right to be free from discrimination by the agents or employees of a place of public accommodation under the WLAD. Floeting, 192 Wn.2d at 850, 852-53. Similarly, the Court found that Plaintiffs could reasonably state a claim that their children were sexually harassed by the district's employee while on a school bus. See Dkt. 74 at 10 (explaining that the WLAD defines places of public accommodation to include “any public library or education institution, or schools of special instruction, or nursery schools, or day care centers or children's camps.”). The Court concluded that certification could be a matter for additional motion practice once the record was fully developed. Id. at 10.

         Relevant to Defendants' arguments in the instant motion regarding strict liability, the Court characterized Floeting as imposing “direct liability on a health care provider for the discriminatory conduct of its employee who sexually harassed a patient, without intercession of the doctrines of vicarious liability or respondeat superior.” Dkt. 74 at 9 (citing Floeting, 192 Wn.2d at 856-57). Relevant to Defendants' arguments regarding intentional misconduct, the Court explained that the Washington Supreme Court specifically considered the argument that employers should not be liable for the unforeseeable acts of an employee and instead decided that “RCW 49.60.214 is not a ...

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