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ORDER – 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

E.W., a minor by and through CRAIG

SCHAUERMAN, her Guardian ad Litem,

Plaintiff,

v.

THOMAS HENRY MOODY; BATTLE

GROUND SCHOOL DISTRICT #119, a

public corporation; MARLA D. ERATH; and

CYNTHIA S. LARSON,

Defendants.

CASE NO. C06-5253BHS

ORDER DENYING

DEFENDANTS BATTLE

GROUND SCHOOL DISTRICT,

LARSON AND ERATH’S

MOTION FOR PARTIAL

SUMMARY JUDGMENT

This matter comes before the Court on Defendants Battle Ground School District,

Cynthia Larson, and Marla Erath’s Motion for Partial Summary Judgment on all of Plaintiff’s

federal claims (Dkt. 56). The Court has considered the pleadings filed in support of and

opposition to the motion and the remainder of the file herein, and hereby denies Defendants’

motion for the following reasons.

I. PROCEDURAL AND FACTUAL HISTORY

Plaintiff filed her complaint in Clark County Superior Court on April 13, 2006 alleging

violations of 42 U.S.C. § 1983 and violations of Washington State law. Dkt. 1. On May 8, 2006,

Defendants removed the state court action to this Court. Id. On August 17, 2007, Plaintiff filed

her Amended Compliant alleging violations under 42 U.S.C. § 1983, Title IX (20 U.S.C. §

1681), and state law negligence and battery. Dkt. 48. The claims asserted by Plaintiff concern

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ORDER – 2 

the alleged improper touching of Plaintiff by a teacher, Thomas Moody (“Moody”), employed

and supervised by Defendants. Id. 

In approximately May of 1998, several female students complained to a school official

that Thomas Moody had touched them inappropriately. Dkt. 56 at 2, Dkt. 69 at 5. The touching

complained of consisted of alleged contact with the buttocks and chest, in many instances

happening when the girls were wearing overalls, with alleged contact occurring underneath the

overalls. Dkt. 56 at 2, Dkt. 69 at 5. The alleged touching generally transpired while the students

were at Moody’s desk. Dkt. 58-5. It is disputed whether law enforcement was contacted in

connection with the May 1998 allegations. Dkt. 58, Dkt. 70-4 at 19. 

In reaction to these allegations, Moody was placed on administrative leave and

underwent an intensive psychosexual evaluation. Dkt. 58 at 2. Moody was then allowed to

return to the classroom unmonitored and with no special conditions. Dkt. 70-3 at 24-25. Moody

was not disciplined, but instead received a letter of instruction asking him to “refrain from any

touching of students unless in your professional judgment the touching is welcome, appropriate

and educationally motivated.” Dkt. 58-7 at 3. 

In 2000, Moody transferred to Captain Strong Elementary School to teach fifth grade. 

Dkt. 69 at 6. There is a dispute over whether the principal, Cynthia Larson, or the assistant

principal, Marla Erath, were made aware of the prior allegations against Moody. Dkt. 70-6 at 6,

Dkt. 70-7 at 6. 

Near the end of the school year in May of 2002, several students made complaints to a

teacher at Captain Strong Elementary School that Moody was touching Plaintiff, sometimes

when she was wearing overalls, on the buttocks and inner thigh. Dkt. 56 at 4, Dkt. 69 at 6. 

When asked to talk about the situation, Plaintiff showed great reluctance to discuss the alleged

touching, even with her parents. Id. After a brief investigation, Moody was asked to apologize to

Plaintiff, and was again instructed not to touch the students unless the contact was necessary. He

was allowed to return to the classroom without being put on administrative leave, and law

enforcement was not contacted. Dkt. 56 at 5-6, Dkt. 69 at 7. The idea of removing Plaintiff from

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ORDER – 3 

the classroom was discussed, but Plaintiff did not want to be removed and she remained in

Moody’s classroom. Dkt. 57-6 at 12, Dkt. 61 at 3. Plaintiff alleges that she was subjected to

further inappropriate touching by Moody after the May 2002 allegations were made. Dkt. 56 at

7, Dkt. 69 at 7. It is disputed whether any follow-up contact with Plaintiff ever occurred by

either Cynthia Larson or Marla Erath or any other employee of Battle Ground School District

after the initial investigation and apology meeting. Dkt. 61 at 3, Dkt. 74 at 2. Cynthia Larson

was disciplined in 2002 by the School District for failing to report this incident to law

enforcement. Dkt.70-8 at 6, 15. 

On September 11, 2007, Defendants Battle Ground School District, Marla Erath, and

Cynthia Larson filed a motion for partial summary judgment “on all of Plaintiff’s federal claims

on the grounds that the undisputed facts fail to establish elements of Plaintiff’s claims under

§ 1983 and Title IX.

II. MOTIONS TO STRIKE

Plaintiff’s and Defendants’ various motions to strike portions of the record are denied. 

This does not preclude Plaintiff or Defendants from renewing their objections to the submission

of the evidence subject to their various motions to strike if the evidence is offered at trial.

III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the

nonmoving party fails to make a sufficient showing on an essential element of a claim in the case

on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could

not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific,

significant probative evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P.

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ORDER – 4 

56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence

supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions

of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v.

Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court

must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec.

Serv., Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of

the nonmoving party only when the facts specifically attested by that party contradict facts

specifically attested by the moving party. The nonmoving party may not merely state that it will

discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra).

Conclusory, non specific statements in affidavits are not sufficient, and missing facts will not be

presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990). 

IV. TITLE IX DOES NOT SUBSUME 42 U.S.C. § 1983 

Defendants assert that Plaintiff’s Title IX claims preclude her 42 U.S.C. § 1983 claims

based on the same conduct. Dkt. 56 at 9. The rule as stated by the Supreme Court in Middlesex

County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981) is “[w]hen

the remedial devices provided in a particular Act are sufficiently comprehensive, they may

suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at

20. While Title IX does not provide an explicit private right of action, the Supreme Court has

held that there is an implied private right of action in Title IX in order to “‘provide effective

assistance to achieving the statutory purposes’ of ending discrimination, as a complement to the

public remedy explicitly created in the statute.” Lillard v. Shelby Co. Bd. of Educ., 76 F.3d 716

(6th Cir. 1996), citing to Cannon v. University of Chicago, 441 U.S. 677 (1979). When applying

the rule stated in National Sea Clammers to the implied private right of action contained in Title

IX, the Court concludes Congress has not provided sufficiently comprehensive remedial devices

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ORDER – 5 

explicit in Title IX that would demonstrate its intent to preclude claims made under 42 U.S.C. §

1983. 

V. MATERIAL ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT 

There are material issues of fact existing in the record over whether law enforcement was

contacted in connection with the initial allegations filed against Moody in May of 1998. There

are further issues of fact whether Cynthia Larson and Marla Erath were aware or were made

aware of the alleged improper touching occurring in May of 1998. It is undisputed that the

allegations made by Plaintiff against Moody in this action are substantially similar to the

allegations made against him in May of 1998. While Defendants attempt to characterize the

touching alleged by Plaintiff as inadvertent and not for sexual gratification, a reasonable jury

could conclude that Moody’s alleged actions were not so benign. It is undisputed from the

record that Moody was not placed on administrative leave in connection with the allegations

made against him by Plaintiff, he was not disciplined, Plaintiff was not removed from Moody’s

classroom, and these allegations were not reported to law enforcement or Child Protective

Services. Notwithstanding the decision to resolve the allegations made against Moody in this

manner, Cynthia Larson was later disciplined for not reporting the allegations to the School

District’s Central Administration, law enforcement, or Child Protective Services. Furthermore,

there are material issues of fact existing in the record as to whether any school district official

had follow-up contact with Plaintiff after her complaint in May of 2002. 

When taking the entire record into account and resolving any factual disputes in favor of

the nonmoving party, the Court concludes that summary judgment on the Plaintiff’s federal

claims would be inappropriate at this stage. These factual disputes are unsuitable for the Court

to decide as a matter of law and require a jury to resolve the differing versions of the truth. 

Furthermore, the Court cannot conclude at this stage from the record before it that a reasonable

jury could not find that Defendants violated Title IX or 42 U.S.C. § 1983. 

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ORDER – 6 

VI. ORDER

It is therefore ORDERED that Defendants Battle Ground School District, Cynthia

Larson, and Marla Erath’s Motion for Partial Summary Judgment on all of Plaintiff’s federal

claims (Dkt. 56) is hereby DENIED. 

It is further ORDERED that Plaintiff’s Requests to Strike (Dkts. 69 & 89) and

Defendants’ Motion To Strike Plaintiff’s Evidence (Dkt. 85) are hereby DENIED.

DATED this 24th day of October, 2007.

A 

BENJAMIN H. SETTLE

United States District Judge

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