United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, District Judge
Before the court is a Motion for Class Certification under Federal Rule of Civil Procedure 23. Doc. 27. The plaintiffs seek to certify an unnumbered class of female students who matriculated through the Shelby County public school system during the roughly twenty-five year period one of the defendants, the Shelby County Board of Education, employed another of the defendants, Daniel M. Acker, Jr., as a teacher and school bus driver. The plaintiffs specifically ask this court to certify a class encompassing the following definition:
Any current or former female student during the time period that Dan Acker worked for Shelby County School Board who was either injured, sexually harassed, abused or molested by Dan Acker or who witnessed such conduct or who was exposed to a sexually hostile educational environment through Acker's conduct.
Id. at 2. The named defendants include not only the Shelby County Board of Education and Mr. Acker but also Dr. Lee Doebler, PhD, and Steven Martin, who were members of the Board during the events in question.
As explained more fully below, the court finds several infirmities with the plaintiffs' proposed class definition. First, the putative class is not sufficiently ascertainable. The proposed definition employs conclusory language to identify certain class members that is, it uses legal terminology whose application is linked to the ultimate merits of this case. Class eligibility would (at least partially) hinge on finding that any given plaintiff had a viable claim against Mr. Acker. The class definition is thus impermissibly "fail-safe." Although the plaintiffs could potentially revise the definition to eliminate this discrepancy, it would jeopardize their ability to meet Rule 23's numerosity requirement.
This is not the plaintiffs' only problem here. Even were the putative class ascertainable, the class lacks the required commonality to sustain certification. Although the class plaintiffs possesses certain similarities, their essential contentions against the defendants vary in certain material respects. Likewise, the named plaintiffs' claims are not adequately typical of those that other class members would hypothetically allege. While the named plaintiffs all claim to be victims of Mr. Acker's molestation, the class they purport to represent would include an expansive pool of female students who were not even aware of Mr. Acker's predatory conduct. For all of these reasons, Rule 23 therefore dictates that the court DENY certification.
STATEMENT OF THE CASE
I. Factual Background
Kristen Hurt and the four other anonymous plaintiffs were, at one point or another relevant to this action, fourth grade students at elementary schools within the Shelby County public school system. The Shelby County Board of Education ("the Board") operates public schools within Shelby County, Alabama. Mr. Acker was an elementary school teacher and school bus driver within that school system from approximately 1984 to 2009. He taught all of the plaintiffs fourth grade at various points during that time period.
In late 1991, Ms. Hurt (through her mother) complained to the Alabama Department of Human Resources ("DHR") that Mr. Acker had molested her. In a formal report it issued on the subject, the DHR found that:
[t]he circumstances in which the touching occurred and the nature of the touching indicated that the act was perpetrated for the sole purpose of generating sexual pleasure for Danny Acker; the evidence shows the touching was not accidental, nor did Danny Acker have a legitimate medical or hygenic purpose for touching [Ms. Hurt's] breast. The touching of [Ms. Hurt's] breast constitutes an act of child abuse as defined by the Code of Alabama and the [DHR's] administrative Code. The findings of the hearing should be entered in the central register in order to protect children whose health and welfare may be adversely affected by Acker's regular and substantial contact with children.
At some point afterward, Dr. Norma Rogers, Shelby County Superintendent of Education, learned of this report. On October 14, 1992, the DHR released a letter indicating that - under its Administrative Rule 660-5-34(4)(j)(7) - the following would occur:
the content of the investigation of reports of suspected child abuse/neglect where school personnel are the alleged perpetrators must be furnished in writing to the School Board on all indicated reports after the department investigative [sic] is waived or held... This disclosure of information is being made to the Shelby County School Board pursuant to Code of Alabama 1975, 26-14-8, to prevent or discover child abuse or neglect.
The letter also provided, "A founded determination has been entered into the State Central Registry." The Board noticed an intent to consider cancellation of Mr. Acker's employment at around that time.
On February 8, 1993, the Board conducted a hearing where they heard evidence regarding Mr. Acker's alleged sexual misconduct against Ms. Hurt. At that time, the Board including Dr. Doebler (as President), Susan Bagley (as Vice President), Cindy Forrester, Steven Martin, and Donna Morris. After several hours - in the early morning of February 9, 1993 - the Board voted not to terminate Mr. Acker. He consequently returned to work as a teacher within the Shelby County school system.
On January 4, 2012, Mr. Acker admitted to police investigators that he molested over 20 different girls for his sexual gratification during his employment within the Shelby County school system. This included the admission that in 1991 he subjected Ms. Hurt, who was an eleven-year old fourth-grade student in his Creekwood Elementary School class, to sexual contact for such personal gratification. He also admitted to a similar incident in 2004-05 with a fourth grade student at Thompson Intermediate School. Other than Ms. Hurt, he could not remember the exact names of the other children he molested. On May 3, 2012, he plead guilty to eight counts of criminal sexual abuse of a child less than twelve, which constitute Class B and C felonies.
II. Procedural Background
The plaintiffs filed a Class Action Complaint on February 1, 2013. Doc. 1. In this Complaint, they accused Mr. Acker of sexually molesting and/or sexually harassing them in various ways and in various circumstances over the many years he was employed as a teacher and school bus driver within the Shelby County public school system. Id. at 6-11, 17-21. They further accused the Board, Mr. Doebler, and Mr. Martin of failing to take appropriate corrective measures to protect them and other students after learning of Ms. Hurt's accusation that Mr. Acker molested her in 1991. Id. at 13-17. They specifically faulted the Board for reinstating his employment after the DHR found a preponderance of evidence showing that Mr. Acker sexually abused Ms. Hurt and after the DHR added him to a central registry of sex offenders. Id. The Complaint enumerated ten counts against the defendants. Id. at 22-38. These counts included allegations of sex discrimination in violation of Title IX of the 1972 Education Amendments, 20 U.S.C. §§ 1681-1688; various violations of the plaintiffs' rights under 42 U.S.C. § 1983; invasion of privacy; assault and battery; outrage; negligent and/or wanton training, supervision, and retention; false imprisonment; and loss of consortium. Id.
On February 8, 2013, the plaintiffs filed their First Amended Class Action Complaint ("the Amended Complaint"). Doc. 10. The Amended Complaint did not alter the counts alleged by the plaintiffs. Instead, its only major substantive revisions appeared to be the following:
the removal of "Jane Doe #5" as a plaintiff, compare doc. 1 at 5 with doc. 10 at 4-5;
the addition of a section outlining the plaintiffs' "Class Action Allegations, " doc. 10 at 6-8;
the clarification of certain dates and details surrounding Mr. Acker's alleged 1993 reinstatement, id. at 15-18;
a description of the alleged harm Ms. Hurt suffered as a result of Mr. Acker's abuse and the resulting public fallout from her accusation, id. at 18-20; and
the alteration of the plaintiffs' Prayer for Relief to delineate the nature of their compensatory damages request, id. at 40-41.
Mr. Acker answered on March 7, 2013 (doc. 16), and the other defendants separately answered on March 27, 2013 (doc. 17). Each Answer raised several affirmative defenses. The plaintiffs filed the present Motion for Class Certification on October 15, 2013. Doc. 27. The defendants responded in opposition on December 4, 2013. Doc. 34. The plaintiffs replied on December 20, 2013. Doc. 40.
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 23 governs Motions for Class Certification. Fed.R.Civ.P. 23. The plaintiffs specifically invoke Rule 23(b)(3) to justify their present Motion. Moreover, they are exclusively seeking certification as to their Title IX sex discrimination claim. By way of framing its analysis below, the court will therefore outline the legal standards dictated by these various provisions.
I. Rule 23
The class action is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979). "In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, ___, 131 S.Ct. 2541, 2550-52 (2011) (citing E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks omitted). A plaintiff seeking class certification therefore "bears the burden of satisfying all implicit and explicit requirements of Federal Rule of Civil Procedure 23." Bussey v. Macon County Greyhound Park, Inc., 562 F.Appx. 782, 787 (11th Cir. 2014) (unpublished) (citing Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009); Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003)). Put more specifically, "[f]or a district court to certify a class action, the named plaintiffs must have standing and the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b)." ...