Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

G.E.C. v. North Kansas City School District No. 74

United States District Court, W.D. Missouri, Western Division

June 21, 2018

G.E.C., an infant, by and through her natural guardian and next friend, M.C.L., Plaintiff,
v.
NORTH KANSAS CITY SCHOOL DISTRICT NO. 74, d/b/a North Kansas City Schools, et al., Defendants.

          ORDER AND OPINION (1) DENYING NORTH KANSAS CITY SCHOOL DISTRICT NO. 74'S AND RHONDA FORSEN'S MOTION TO DISMISS, AND (2) GRANTING IN PART AND DENYING IN PART FAVORITE HEALTHCARE STAFFING INC.'S AND TERESA FEKAS'S MOTION TO DISMISS

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending are two motions to dismiss. Defendant North Kansas City School District No. 74 (“NKC Schools”), and Rhonda Forsen (“Forsen”), a school nurse employed by NKC Schools, seek dismissal of Plaintiff's petition in its entirety. Doc. #17. Favorite Healthcare Staffing, Inc. (“Favorite Staffing”), and Teresa Fekas (“Fekas”), a contract nurse placed at NKC Schools by Favorite Staffing, seek dismissal in part of Plaintiff's petition. Doc. #14.

         I. BACKGROUND

         Plaintiff G.E.C., proceeds through her natural guardian and next friend, M.C.L, to bring this action against Defendants NKC Schools, Favorite Staffing, Forsen, and Fekas.[1] At the time of the alleged unlawful conduct, Plaintiff was an “infant citizen” attending a local elementary school in NKC Schools.[2] Forsen was a school nurse employed by NKC Schools at the elementary school Plaintiff attended. Favorite Staffing contracts with various entities to provide staffing services, and placed Fekas at Plaintiff's elementary school as a “contract nurse.” On or about May 19, 2016, Plaintiff was sent to the nurse's office by a teacher “who was concerned that Plaintiff was injured because she was walking ‘a little funny.'” Once in the nurse's office, Forsen and Fekas requested Plaintiff “pull down her pants and underwear” to allow Forsen to examine Plaintiff's vaginal area. After visually examining Plaintiff's vaginal area, Forsen used “her thumb and forefinger to spread Plaintiff's labia.” Forsen then used her personal cell phone to take pictures of Plaintiff's vaginal area, and uploaded those pictures to her personal email account and desktop computer at the elementary school. Forsen later emailed the pictures to the elementary school's principal. Fekas remained in the room and witnessed Forsen's conduct, but did not act to stop or prevent the conduct.

         Plaintiff's petition alleges Forsen examined Plaintiff in the manner she did because Forsen suspected Plaintiff's symptoms were the result of abuse. Forsen and Fekas did not obtain consent from Plaintiff's guardian(s) before examining her. Rather than proceed with their own investigation, Plaintiff alleges Forsen and Fekas were obligated to immediately report suspicions of abuse to the Missouri Department of Children's Services or law enforcement, but did not do so.

         Plaintiff filed her petition in the Circuit Court of Clay County, Missouri, on January 5, 2018. On February 12, 2018, Favorite Staffing and Fekas removed the matter to this Court. Doc. #1.[3] Plaintiff brings claims for sex discrimination under public accommodation provisions of the Missouri Human Rights Act (“MHRA”), claimsunder 42 U.S.C. § 1983 based on violations of the Fourth and Fourteenth Amendments to the United States Constitution, assault and battery, negligence, negligent training and supervision, and violation of Missouri statutes related to medical providers. NKC Schools and Forsen jointly move to dismiss each of Plaintiff's claims, while Favorite Staffing and Fekas jointly move to dismiss Plaintiff's section 1983, negligent training and supervision, and Missouri medical provider statutory claims.[4]

         II. STANDARD

         The liberal pleading standard created by the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the…claim is and the grounds upon which it rests.'” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling a motion to dismiss, the Court Amust accept as true all of the complaint's factual allegations and view them in the light most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679. A claim is facially plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

         III. DISCUSSION

         A. MHRA Public Accommodation Claim (Count I)

         Plaintiff's first claim is entitled “Sex Discrimination (Hostile Environment), ” and is against all Defendants for alleged violation of public accommodation provisions of the MHRA. The public accommodation provision states:

1. All persons within the jurisdiction of the state of Missouri are free and equal and shall be entitled to the full and equal use and enjoyment within this state of any place of public accommodation, as hereinafter defined, without discrimination or segregation on the grounds of race, color, religion, national origin, sex, ancestry, or disability.
2. It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of race, color, religion, national origin, sex, ancestry, or disability.

Mo. Rev. Stat. § 213.065. The statute prohibits discrimination in “any place of public accommodation, ” which applies to public school districts like NKC Schools. See Doe ex. rel. Subia v. Kan. City, Mo. Sch. Dist., 372 S.W.3d 43, 48-51 (Mo.Ct.App. 2012). “Discrimination” is “conduct proscribed herein, taken because of race, color, religion, national origin, ancestry, sex, or age as it relates to employment, disability, or familial status as it relates to housing.” Mo. Rev. Stat. § 213.010.6. Discrimination is “because of” if the protected criterion is a “motivating” factor in the adverse decision or action. Mo. Rev. Stat. § 213.010.2.[5]

         NKC Schools and Forsen seek dismissal of these claims, relying on the Missouri Court of Appeals's decision in Doe ex rel. Subia v. Kansas City, Missouri School District.[6] Therein, the Missouri Court of Appeals found a student's claim for sexual harassment under the MHRA based on peer-to-peer harassment at an elementary school stated a cognizable claim. 372 S.W.3d at 56. The Court of Appeals borrowed from case law examining co-worker sexual harassment under the MHRA to articulate a standard by which a school district may be liable for peer-to-peer sexual harassment under the MHRA's public accommodation provisions. Id. at 54. Specifically, a plaintiff must allege and prove: (1) she is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) her gender was a contributing factor in the harassment; (4) the harassment refused, withheld from, or denied, or attempted to refuse, withhold from, or deny her any of the accommodations, advantages, facilities, services, or privileges made available in the public school, or segregated or discriminated against her in the use thereof on grounds of race, color, religion, national origin, sex, ancestry, or disability; and (5) the public school district knew or should have known of the harassment and failed to take prompt and effective remedial action. Id.

         Plaintiff argues Subia is inapposite and should not provide a standard to guide the Court in analyzing her claims here. Although her MHRA claim is captioned “Sex Discrimination (Hostile Environment), ” Plaintiff argues the claim is not one for sexual harassment, but rather, is best viewed as a “disparate treatment” claim.[7] Plaintiff argues she adequately pleaded elements of a disparate treatment claim, but does not cite a case articulating a standard to guide the Court's analysis of this novel claim. Instead, Plaintiff cites to the plain language of section 213.065.1 as the basis by which the Court should determine whether she stated a claim upon which relief can be granted.

         Plaintiff's MHRA claim variously sounds in harassment and discrimination. For instance, Plaintiff's allegation sounds in harassment where she states she was subjected to “severe unwelcome physical contact, ” or her full and equal use of public school facilities was interfered with, or effectively refused, withheld, or denied altogether. However, Plaintiff's claim sounds in discrimination where she states her gender was “at least a contributing factor” in Defendants' conduct, and alleges illegal or intentional discrimination. While the Court must eventually determine what standard guides its analysis of Plaintiff's MHRA claim, the Court declines to do so at this time.

         To the extent the Court analyzes Plaintiff's MHRA claim under the standard articulated in Subia, Plaintiff states a claim. Plaintiff is a female, and therefore, a member of a protected class. Plaintiff was subject to “severe unwelcome physical contact” by Forsen, and Fekas implicitly endorsed, ratified, and participated in that contact. Plaintiff states her gender was “at least a contributing factor” to Forsen's conduct, and states Forsen “would not have subjected male students to the severe unwelcome physical contact to which she subjected Plaintiff based on the same complaints, nor would Fekas had [sic] observed Forsen engage in the aforementioned conduct without stopping her if the complaining student was male.” NKC Schools and Forsen note Plaintiff states she was sent to the nurse's office because her teacher was concerned she was injured, and Forsen engaged in the search because, at least in part, she was concerned about possible abuse. These arguments do not defeat Plaintiff's claim at this stage because Plaintiff also alleged her gender was a contributing factor to Forsen's and Fekas's conduct, and a male student would not have been subject to the same ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.