SUBLETTE COUNTY – After more than a year of legal briefs and motions filed back and forth between a former student “Jane Doe” and her family suing the Big Piney school district board and officials – often simultaneously – the judge dismissed the case on Dec. 5 in favor of the district.
The 2021 case filed by “Jane, Mary and James Doe” was slated for a Jan. 9, 2023, trial in Wyoming’s U.S. District Court. In November, Judge Alan B. Johnson ordered a Zoom mediation conference that held little promise of success, the school district’s attorney had concluded.
Although the former student is now an adult, Judge Johnson allowed her and her family to file anonymously as they sought damages for Sublette County School District No. 9’s alleged Title IX violations of the student’s federal rights against discrimination.
Many “Doe family” and SCSD9 documents filed are sealed to protect the family’s privacy, based on their claims that a former Big Piney teacher selected the former female student for his sexual attentions. They claimed that SCSD9 officials and the board did not properly investigate or discipline the teacher, allegedly related to Big Piney High School Principal Jeff Makelky, or protect her federal rights under Title IX.
SCSD9 attorney Tracy Copenhaver filed a motion seeking summary judgment on Aug. 26, referring to numerous documents and affidavits from former SCSD9 superintendent and then-Title IX coordinator Steve Loyd, Makelky and Tracy Hughes.
Copenhaver reasoned that after requesting court permission to “file a reciprocal brief in excess of 25 pages,” Doe family attorney Andrea Richard “should have been able to begin preparation of a response brief.”
Richard had asked for additional time to respond, which Copenhaver said should not be allowed. “Having been on notice for nearly a month (Does’) counsel could anticipate a lengthy brief would be filed before the Sept. 2 deadline for dispositive motions,” he wrote. “As such, (SCSD9) oppose any extension of time based on (their) counsel’s need to ‘digest’ and respond to the claims at issue because of a claim of a lack of time to prepare.”
On Sept. 9, Richard filed opposition to the defendants’ motion for summary judgment “for all the reasons set forth in their forthcoming brief.”
The same day, SCSD9 filed its response opposing the family’s request for more time, saying there “was no good cause” after earlier receiving a three-plus month extension for delayed discovery of its expert witnesses – granting another would be “unjust,” it says.
“Granting additional time will delay the court’s ability to rule on summary judgment and force defendants to incur additional time and expenses to prepare for pretrial and trial,” it says. “Those expenses may be avoided if summary judgment is granted prior to other deadlines.”
Wrangling over experts
Documents that are public show Copenhaver’s strong objections to the Doe family’s proposed trial evidence and expert witnesses; likewise, the Does objected to those chosen by the Big Piney school district.
On Sept. 23, the Does opposed the SCSD9’s designation of Jacqueline G. Wernz as an expert witness, saying she was not an experienced witness.
“A more experienced expert would be more objective and less subject to being pushed into extreme conclusions the way Ms. Wernz has been,” their reply said. “One of the more troubling examples is found in Ms. Wernz’s assertion that District #9 did not have notice of the grooming and misconduct that took place under its nose daily for three years until after Jane Doe graduated.”
That was “factually inaccurate,” it says, and Wernz “admitted she has not done writing or analysis of grooming and how that relates to reporting and investigation responsibilities by districts.”
SCSD9’s expert also “gave little consideration to the critical and defense-crippling fact that the (alleged) perpetrator’s father was his day-to-day supervisor and the building principal,” it says.
Her characterization of the case as “sexual harassment” when it was “sexual misconduct by a teacher on a minor student” was not objective, according to the court record.
Wernz also failed to “analyze the possibility that Ms. Tracy Hughes had insufficient Title IX training and became an enabler,” it continues.
Grooming not illegal
The defense likewise opposed the Does’ expert Dr. Amos Guiora, saying the plaintiffs already designated one Title IX expert, Dr. Charol Shakeshaft, and this witness was not qualified for that.
“His training and experience are not in Title IX,” its reply says. “His actual training and experience is military experience in terrorism and bombings.”
The claim that he specialized in “responsibilities of enablers” and “whether or not there was grooming is not relevant to the legal issue of whether or not (SCSD9 officials) are liable for Title IX. … Title IX does not prohibit grooming,” it says. “There is no law that prohibits grooming.”
The defense acknowledged that Jane Doe’s parents were concerned about how much time the teacher spent with the minor student – “A teacher spending time with a student is not a violation of Title IX.”
Whether or not defendants Loyd and Makelky were “enablers,” it says, that is “not one that is relevant to the elements of (the Does’) Title IX claim.”
On Oct. 3, Judge Johnson denied the Does’ request for a hearing on SCSD9’s summary judgment motion.
“(SCSD9) opposes the (Does’) request on the grounds that the parties have fully briefed the issues and have submitted briefs that have been allowed to far exceed the usual page limitations,” his order says.
“The court agrees with (SCSD9’s) statement suggesting that submissions are more than sufficient to inform the court. If the parties have not made their best presentations at this point, it is unlikely that brief oral arguments will do more than ‘gild the lily.’”
On Oct. 25, Richard filed a motion asking Judge Johnson to schedule a mediation conference, writing, “(The Does) submit that the nature of this case, involving sensitive evidence, indicates that a mediation conference might be beneficial.”
The parties “have exchanged some settlement correspondence and have had a preliminary discussion,” and she suggested Magistrate Judge Kelly Rankin preside due to his “uniquely astute and productive approach to such conferences,” the motion says.
Nov. 15 was a good date for everyone involved, it adds.
Judge Johnson ordered the Zoom video-web conference with all parties to appear before Judge Rankin on Nov. 22.
Legal filings from both sides continued apace toward the trial date, with each side criticizing the other’s stance.
The Does were to file an accurate exhibit, evidence and witness list by Oct. 21 and did so late on Nov. 3, with more than 30 additional new entries, such as Sublette County Sheriff’s Office detectives’ interviews, texts, cards and other links to “Teacher” and his alleged sexual harassment of the former student. The district’s attorney called these irrelevant to the case at hand.
On Nov. 4, Copenhaver responded to the Does’ combined motions regarding evidence, arguing that “the defendants were never put on notice of sexual harassment” as required for a Title IX claim. Information received by SCSD9 officials “did not constitute actual notice of sexual misconduct” that would trigger a Title IX investigation of gender discrimination and that would be more than “a simple report of inappropriate conduct by a teacher.”
SCSD9’s Amy Anschutz, Loyd or a school board member would testify that “training was provided and policies were in place before and during the time that Jane Doe was in high school.”
Judge Rankin vacated the Nov. 22 Zoom mediation conference the day before.
“Because the Court has not received a confidential mediation statement from (Does) as required in the Court’s Order for Mediation and because (SCSD9 officials) believe a successful outcome at this point is highly unlikely, the Court elected to vacate the mediation, he noted. “Should all parties desire to try again later on, the parties may jointly contact the Court to reschedule.”
That day, a defense filing against the Does’ trial list noted “Teacher” was not even included as a defendant in the lawsuit.
On Dec. 5, Judge Johnson filed a “non-public document” granting the SCSD9’s request for summary judgment, saying the Does’ claims are barred by the applicable statute of limitations and Plaintiffs failed to establish the required elements for all four claims.”
He ruled that the suit was dismissed in the school district’s favor and the Does would pay SCSD9’s fees and costs.
Two more non-public documents filed on Dec. 16 and Dec. 20 are about the bill of costs submitted by defendants Steve Loyd, Jeff Makelky and SCSD9 Board of Trustees.
Nothing further was filed by press time yet to indicate if the Does will appeal Judge Johnson’s ruling.