United States District Court, W.D. Washington, Tacoma
W.H. et al., Plaintiffs,
OLYMPIA SCHOOL DISTRICT, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO CERTIFY
ISSUES TO THE WASHINGTON STATE SUPREME COURT AND TO STAY
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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
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, ¶
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
The Court's Order Granting Plaintiffs' Motion to
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.
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