The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 12) filed by defendants Trico Community School District No. 176 ("Trico"), Dennis Smith, John DeNosky, Jerry Ohlau and Michael Jennings. The Court has construed the motion as a motion for summary judgment under Federal Rule of Civil Procedure 56. After due warning that the Court would construe the motion as one for summary judgment, the plaintiff responded to the motion (Docs. 27 & 33), and the defendants replied to that response (Doc. 36). The defendants have also moved to strike paragraphs two and three of an affidavit in support of the plaintiff's response because it is not based on personal knowledge (Doc. 35). The plaintiff did not respond to the motion to strike.
The plaintiff, the mother of Jane Doe ("Jane"), a Trico student, brings this action in response to harassment of Jane by A.B., a fellow Trico student, on a school bus operated under Trico's authority.
I. Summary Judgment Standard
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. This standard is applied with special scrutiny in cases that turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
II. Motion to Strike (Doc. 35)
The Court first addresses the defendants' motion to strike paragraphs two and three of the plaintiff's affidavit submitted in support of her response to the summary judgment motion.
Paragraph two is "[b]ased upon information and belief" and avers Trico's awareness of A.B.'s prior bullying of girls. Paragraph three is "[u]pon belief and personal knowledge" and avers the absence of any accusation that A.B. bullied boys. The affidavit does not set forth the affiant's basis for personal knowledge of Trico's awareness or of all accusations against A.B.
Rule 56(c)(4) provides, "An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Affidavits made "upon information and belief" are insufficient to satisfy the personal knowledge requirement. See Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir. 2000). Consequently, they cannot be used to oppose a motion for summary judgment. See id. Additionally, affidavits that fail to demonstrate the affiant's competence to testify as to the facts asserted therein may also be disregarded. See Corder v. Lucent Techs. Inc., 162 F.3d 924, 927 (7th Cir. 1998).
Paragraphs two and three must be stricken and will not be considered in deciding the pending summary judgment motion. Paragraph two is expressly based "[u]pon information and belief," so it may not be used to oppose summary judgment. Paragraph three, although it claims to be made on personal knowledge, sets forth no basis for the affiant's competence to testify to its substance. Therefore, paragraphs two and three do not satisfy the requirements of Rule 56(c)(4) and will not be considered in opposition to the defendants' summary judgment motion. The Court will grant the defendants' motion to strike paragraphs two and three of the affidavit in support of the plaintiff's response (Doc. 35).
The admissible evidence cited by the parties, viewed in the light most favorable to the plaintiff, established the following relevant facts.
Jane and A.B. were female students at an elementary school within Trico's system. Defendant Jerry Ohlau was the principal of their school, and defendants Dennis Smith and then John DeNosky were the superintendents of the district. School officials believed that, although they lived next door to each other, Jane's and A.B.'s families did not get along.
In the fall of 2005, when Jane and A.B. were in the fourth grade, Jane told the plaintiff that A.B. had hit her and called her names on the school bus. The plaintiff reported the incident to Principal Ohlau and Superintendent Smith, but she did not attribute A.B.'s attacks to Jane's sex. Superintendent Smith told her he could not take disciplinary action until he had received three complaints.
Later, the plaintiff complained to Principal Ohlau and to Superintendent Smith that A.B. was repeatedly hitting Jane in the head with a book and a bookbag and was pinching her legs. Jane would get off the bus at the end of the day in tears and complaining of A.B.'s assaults. In her complaints to school officials, the plaintiff did not attribute A.B.'s attacks to Jane's sex. Jane was afraid to ride the school bus, so for the final three months of school, the plaintiff drove Jane to and from school every day.
On August 30, 2006, when Jane and A.B. were in the fifth grade, the plaintiff reported to Principal Ohlau that A.B. had pinched Jane on the arm and left a bruise. Again, she did not attribute the pinching to Jane's sex. In response, Principal Ohlau reviewed the videotape of the bus ride but could not detect the incident. He then talked to students who had been on the bus at the time and took disciplinary action against A.B.
On October 16, 2006, as A.B.'s six-year-old brother was walking down the aisle of the bus, Jane tried to hit him as he walked past her. In turn, A.B., who was standing in the aisle immediately behind her brother and who saw Jane try to hit him, then hit Jane. Jane and A.B. got into a scuffle and tried to hit each other several more times before A.B. and her brother were able to get off the bus. The entire incident lasted less than thirty seconds, and neither Jane nor A.B. reported it to the bus driver. When Jane got off the bus at a later stop, she was crying and had a red mark on her forehead. She told the plaintiff that A.B. had repeatedly kicked and hit her on the bus.
The plaintiff immediately called Principal Ohlau to complain of A.B.'s treatment of Jane but again, she did not attribute A.B.'s attacks to Jane's sex. Principal Ohlau set up a meeting with the plaintiff and defendant Michael Jennings, the bus driver, later that afternoon and reviewed the videotape of the bus incident with them. After reviewing the tape, Principal Ohlau told the plaintiff that there would be a suspension based on the incident but that he would have to speak with Superintendent DeNosky, who had by then replaced ...