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Talawanda Complaint

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Case: 1:23-cv-00238-MWM Doc #: 1 Filed: 04/27/23 Page: 1 of 34 PAGEID #: 1

IN THE UNITED STATE DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

M.L., by and through her Parents and : Case No. 1:23-cv-238


Guardians Dustin L. and Kristine L., :
: Judge
and :
:
DUSTIN L., Individually and as a Parent and :
guardian of M.L., :
: COMPLAINT
and :
: DEMAND FOR JURY TRIAL
KRISTINE L. Individually and as a Parent :
and guardian of M.L, :
:
Plaintiffs, :
:
v. :
:
TALAWANDA BOARD OF :
EDUCATION, :
:
and :
:
MICHAEL MALONE, :
Individually and in his Official Capacity as :
Principal of Talawanda Middle School :
:
and :
:
STEPHANIE AERNI, :
Individually and in her Official Capacity as :
Vice Principal of Talawanda Middle School :
:
and :
:
ED THEROUX, :
Individually and in his Official Capacity :
as Superintendent of Talawanda School :
District :
:
and :
:
PATRICK MEADE, :
Case: 1:23-cv-00238-MWM Doc #: 1 Filed: 04/27/23 Page: 2 of 34 PAGEID #: 2

Individually and as an agent, servant, :


and/or employee of Talawanda :
Board of Education :
:
and :
:
REBECCA HOWARD, :
Individually and as an agent, servant, :
and/or employee of Talawanda :
Board of Education :
:
and :
:
CHAD OTTO, :
Individually and as an agent, servant, :
and/or employee of Talawanda :
Board of Education :
:
and :
:
KATHLEEN KNIGHT-ABOWITZ, :
Individually and as an agent, servant, :
and/or employee of Talawanda :
Board of Education :
:
and :
:
DAVID BOTHAST, :
Individually and as an agent, servant, :
and/or employee of Talawanda :
Board of Education :
:
Defendants. :
:

INTRODUCTION

Dustin L. and Kristine L., on their behalf and on behalf of their minor daughter, M.L.,1

hereby bring this civil action arising out of teacher-on-student sexual misconduct committed by

former Talawanda Middle School teacher, Paul Stiver. Plaintiffs allege that Defendant Talawanda

1
Contemporaneously with this filing, Plaintiffs have filed a Motion Seeking Leave to Proceed By
Their Initials.

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Board of Education (“Defendant Board”), as well as its current and/or former officials Michael

Malone, Stephanie Aerni, Ed Theroux, Patrick Meade, Rebecca Howard, Chad Otto, Kathleen

Knight-Abowitz, and David Bothast (hereinafter “Individual Defendants”) who acted individually

and/or collectively with malice through their recklessness, willfulness, wantonness, and deliberate

indifference regarding the known risk of sexual harassment and abuse that Stiver posed to minor

students at Talawanda Middle School, such that Stiver was able to commit a sexual assault against

M.L. in a classroom on December 1, 2021. Afterwards, the Defendants continued to exercise

deliberate indifference to the hostile environment they created for M.L. For this travesty of justice,

Plaintiffs seek justice and relief through this action.

PARTIES

1. Plaintiff M.L., a minor, resides in Butler County, Ohio, with her parents.

2. Dustin L. and Kristine L., spouses, reside in Butler County, Ohio, as parents to their

minor daughters, Plaintiff M.L. and A.L.

3. Defendant Board is a public entity domesticated in Butler County, Ohio, and

responsible for the administration of Talawanda Middle School.

4. At all times relevant herein, Defendant Michael Malone, an Ohio resident, was the

Principal of Talawanda Middle School.

5. At all times relevant herein, Defendant Stephanie Aerni, an Ohio resident, was the

Vice Principal of Talawanda Middle School.

6. At all relevant times herein, Defendant Ed Theroux, an Ohio resident, was the

Superintendent of Talawanda School District.

7. At all times relevant herein, Defendant Patrick Meade, an Ohio resident, was the

President of the Board.

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8. At all times relevant herein, Defendant Rebecca Howard, an Ohio resident, was the

Vice President of the Board.

9. At all times relevant herein, Defendant Chad Otto, an Ohio resident, was a Member

of the Board.

10. At all times relevant herein, Defendant Kathleen Knight-Abowitz, an Ohio resident,

was a Member of the Board.

11. At all times relevant herein, Defendant David Bothast, an Ohio resident, was a

Member of the Board.

JURISDICTION AND VENUE

12. Pursuant to Fed. R. Civ. P. 4(k)(1), this Court has personal jurisdiction over

Defendant Board which is an Ohio entity domesticated in Butler County, Ohio, transacts business

in Butler County, Ohio, and has caused injury in Butler County, Ohio.

13. Pursuant to Fed. R. Civ. P. 4(k)(1), this Court has personal jurisdiction over

Individual Defendants who are Ohio residents, who work in Butler County, Ohio, and caused

injury in Butler County, Ohio.

14. The Court has subject matter jurisdiction over Plaintiff’s federal law claims

pursuant to 28 U.S.C. § 1331, which arise under Title IX of the Education Amendments of 1972,

20 U.S.C. §§ 1681, et seq. (hereinafter “Title IX”), and 42 U.S.C. § 1983.

15. The court has subject matter jurisdiction over Plaintiffs’ state law claims pursuant

to 28 U.S.C. § 1367 because the state law claims are so related to the federal claims that they form

part of the same case and controversy.

16. The Court is a proper venue pursuant to 28 U.S.C. § 1391, as Defendants conducted

activity in Butler County, Ohio, that gave rise to the legal claims in this Complaint.

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FACTUAL ALLEGATIONS

17. On Wednesday, December 1, 2021, Plaintiff M.L., then aged 12, was sexually

assaulted by her teacher, Stiver at Talawanda Middle School.

18. Stiver was M.L.’s seventh grade Business Fundamentals teacher for a class that

occurred during fifth period.

19. As part of Stiver’s fifth period class, on December 1, 2021, students were playing

a computer-based game.

20. Near the end of the class period, Stiver approached M.L.’s desk and placed his hand

on the minor’s shoulder and upper back. He then proceeded to slide his hand down the front of her

chest to grope the minor’s breast.

21. M.L.’s classmate, J.S., witnessed the interaction.

22. As a result of Stiver’s sexual assault of M.L., she and J.S. were “on edge” for the

rest of the fifth period class.

23. J.S. urged M.L. to report the incident to the school administration.

24. Around the same time, M.L. texted her older sister, A.L.: “Umm . . . Mr. Stiver just

touch [sic] my shoulder and slide [sic] his hand down to my chest . . . .”

25. In this same message, M.L. expressed fear of reporting the incident.

26. A.L. told their parents about the incident, and Dustin L. immediately texted M.L.

and told her to report the incident to Defendant Malone, who was the principal.

27. Dustin L. and Kristine L. then rushed to the school to meet their daughter.

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28. After the encouragement of her father, sister, and J.S., M.L. reported the sexual

assault to her sixth period teacher, Lisa Otto.2

29. M.L. was “visibly upset, crying” while explaining to Ms. Otto that Stiver

inappropriately touched her.

30. Ms. Otto sent M.L. to the office to notify the administration of the sexual assault.

31. M.L. then reported the sexual assault to Defendants Malone, Stephanie Aerni, and

Dennis Malone, then-Director of Human Resources, while her parents were present.

32. School Resource Officer Pete Durkin also received this sexual assault report and

helped Plaintiffs file a criminal complaint against Stiver with the Oxford Police Department.

33. Detective Shelly Sikora was assigned to M.L.’s case.

34. As early as Friday December 3, 2021, Detective Sikora told Dustin L. and Kristine

L. that she was receiving numerous phone calls about Stiver.

35. By Monday December 6, 2021, local news stations began reporting about the

teacher-on-student sexual assault.

36. Each news story and social media post was inundated with comments from

Talawanda residents claiming that this was not “new news” because it was common misbehavior

for Stiver.

37. On or around Tuesday, December 14, 2021, Defendant Board assigned Stephanie

Jones and Jason Merz to investigate Stiver’s sexual assault of M.L.

2
Plaintiffs recognize that Lisa Otto and Defendant Chad Otto have the same last name. For ease
of reference, Defendant Chad Otto will be referred to as “Defendant Otto” or “Otto”, while Lisa
Otto will be hereinafter referred to as “Ms. Otto.”

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38. Jones and Merz interviewed M.L., J.S., Stiver, Defendants Malone and Aerni, Ms.

Otto, A.L., two of M.L.’s classmates (T.S. and I.C.), and Talawanda Middle School Counselor

Samantha Koontz as part of their Title IX investigation.

39. During their interviews, Defendants Malone and Aerni revealed that there had been

recent prior allegations of harassment made against Stiver by two female students, M.C. and L.S.

40. On October 1, 2021, M.C.’s parent had called Defendant Aerni to complain that

Stiver was giving her daughter unsolicited gifts.

41. M.C. also reported to Defendants Malone and Aerni that Stiver would make

inappropriate jokes that made the minor uncomfortable.

42. Stiver also sexually harassed M.C. by engaging in unwanted physical contact of

touching her back and rubbing her shoulders.

43. Defendants Malone and Aerni also interviewed L.S., who described sexual

harassment from Stiver, including touching her shoulders and physically getting too close to her.

44. L.S. also stated that Stiver would make inappropriate jokes and comments about

female students’ clothing.

45. Despite these sexual harassment allegations, Defendants Malone and Aerni did not

add them to Stiver’s personnel file, as maintained by Defendant Board.

46. Upon information and belief, these sexual harassment allegations were not

investigated further by Defendants Board, Malone, or Aerni.

47. During the Title IX investigation into M.L.’s complaint, M.C. described how Stiver

would “put his hands on her shoulders and she would ‘get a pit in the bottom of her stomach.’”

48. Also, during the Title IX investigation, L.S. described an instance in which Stiver

put his hands on her shoulders and then slid his hands down the minor’s chest to the top of her bra.

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49. Additionally, on October 12, 2021, three male students, K.K., C.M., and A.S.,

alleged sexually inappropriate comments made by Stiver to Defendant Malone.

50. The students stated that after returning from the bathroom, Stiver would ask:

“Everything came out okay?”

51. K.K. also alleged that Stiver asked them if they were “playing with each other.”

52. Despite these sexual harassment allegations, Defendants Malone and Aerni did not

add them to Stiver’s personnel file, as maintained by Defendant Board.

53. Upon information and belief, these sexual harassment allegations were not

investigated further by Defendants Board, Malone, and Aerni.

54. Defendant Malone admitted to the Title IX investigators that, despite the numerous

complaints made by minor students about Stiver’s inappropriate behavior and comments, no

officials at Talawanda Middle School or Defendant Board more generally had added these

complaints into Stiver’s personnel file.

55. During the Title IX investigation into M.L.’s complaint, more sexual harassment

allegations against Stiver came to light.

56. On April 18, 2022, the Title IX investigators amended M.L.’s complaint against

Stiver to include similar complaints from two other female students, M.M. and G.M., on the basis

that they “allege[d] a pattern of inappropriate behavior by [Stiver].”

57. M.M’s complaint alleged that Stiver sexually harassed her during the 2016-2017

school year when she was only 16 years old.

58. At the time of this incident, Stiver was M.M.’s track coach.

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59. During track practice, Stiver pulled M.M. to the side and tightly gripped her by the

back of her neck. He then told the minor not to wear low cut tops or bend over in front of any

boys, especially him.

60. M.M. and her parents reported this behavior to the Talawanda School District’s

Athletic Director Wes Cole.

61. As such, Defendant Board had notice of this sexual harassment allegation, as did

Defendant Theroux, the school district’s Superintendent.

62. Upon information and belief, Defendants Board and Theroux, along with the Mr.

Cole, failed to properly investigate the allegation.

63. M.M. quit the track team shortly after this sexual harassment by Stiver because she

did not feel comfortable participating anymore.

64. On August 18, 2014, G.M alleged that Stiver sexually assaulted her.

65. G.M. alleged that Stiver, during class, began to massage her neck.

66. During the Title IX investigation, G.M. said that Stiver touching students’ necks

during class was common practice that she had witnessed him engage in before.

67. She stated that, later in the same class period as the neck massage, Stiver stood

behind her correcting her classwork while also squeezing her shoulders.

68. Stiver then slid his hands down the front of the minor’s chest to grope her breast.

69. Defendants had actual notice of Stiver’s sexual predation since 2014 and failed to

appropriately intervene to prevent an identical sexual assault against M.L.

70. On or around June 21, 2022, Stiver resigned from his teaching position at

Talawanda Middle School.

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71. Defendant Board notified Dustin L. and Kristine L. to Stiver’s resignation by email

and said it would likely accept his resignation during the July 7, 2022, Board meeting.

72. Defendant Board, comprised of the following members, Defendants Pat Meade,

Rebecca Howard, Chad Otto, Kathleen Knight-Abowitz, and David Bothast, allowed Stiver to

officially resign for “personal reasons.”

73. When questioned about Defendant Board allowing Stiver to resign, Defendant

Meade, the President of the Board, responded that it would “help[] us put this behind us.”

74. Defendant Board’s decision robbed Plaintiffs of any potential justice against Stiver

through the Title IX process, as he has never been sanctioned for his years of sexual misconduct

against minor students at Talawanda Middle School.

75. Defendant Board subjected M.L. (and the other victims) to gross public humiliation

by allowing Stiver to resign without consequence.

76. On January 6, 2022, M.L.’s basketball teammates, G.M. and M.W., started

spreading rumors regarding M.L.’s complaints against Stiver.

77. M.L. reported this harassment to her basketball coaches, Kamila Owens and

DeAndre Williams, who failed to effectively intervene and thus the hostile environment continued.

78. On Friday January 7, 2022, some Talawanda Middle School students organized a

“black out” where they wore all black to show their support for M.L.

79. However, one student, J.C., dressed in all white and chanted “free Stiver” in front

of M.L. to harass and humiliate her in front of her peers at the school.

80. Later that same day, after basketball practice, a fellow student, D.W., chanted “free

Stiver” as he passed M.L. in the hall to harass and humiliate her in front of her peers at the school.

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81. Upon information and belief, Defendant Board failed to discipline these students or

take other action to deter the ongoing peer harassment.

82. On January 9, 2022, M.L.’s basketball teammates were again spreading rumors

regarding M.L.’s complaint against Stiver. Although M.L. walked away from the conversation,

one of her teammates, L.H., made fun of M.L. for crying, stating that she cries about everything

since the sexual assault.

83. M.L. had to leave basketball practice early and decided to quit the team because of

the ongoing, undeterred peer harassment.

84. The January 9, 2022, M.L.’s parents reported the harassment to Owens and

Williams, who did not intervene, investigate, or discipline the students involved.

85. On February 16, 2022, two male students, J.C. and T.R., confronted M.L. at lunch

and said “free Stiver, he didn’t do it” to harass and humiliate her in front of her peers at the school.

86. J.C. and T.R. continued to taunt M.L. without any adult intervention until an

altercation broke out between the three students.

87. Even after a teacher separated the three students after the altercation, J.C. and T.R.

continued to taunt M.L. without any efforts taken by Defendant Board to end this peer harassment

or address the increasing hostile environment on campus.

88. Upon information and belief, Defendant Board never disciplined the two male

students.

89. After this incident, M.L. revealed to Defendant Aerni that she was also receiving

prank calls where callers were sexually harassing her by saying things like: “I hope he touches

your sister too.”

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90. Upon information and belief, these calls were from yet-to-be-identified Talawanda

Middle School students.

91. Upon information and belief, Defendant Board failed to investigate this harassment

to see if they could identify any callers and potentially discipline them.

92. Upon information and belief, Defendants failed to report the harassment to the

appropriate authorities.

93. On May 5, 2022, T.R. again decided to taunt M.L. by re-enacting Stiver’s sexual

assault of M.L. on one of her friends, Z.Z., such that M.L. witnessed the same.

94. Dustin L. and Kristine L. reported this misconduct to Defendants Malone and

Aerni.

95. However, upon information and belief, Defendant Board never disciplined T.R. nor

took any other action to deter such ongoing harassment.

96. On May 19, 2022, a student, A.G., sent a snapchat with the text “#[M.L.] needs to

take a chill pill” to again harass her for reporting Stiver.

97. By May 23, 2022, M.L. discovered that A.G. had a snapchat group where he sent

videos and pictures about M.L. to further harass and humiliate her to her peers.

98. An altercation occurred between M.L. and A.G.

99. Defendant Aerni contacted Dustin L. to tell him that the school would suspend M.L.

despite her being the victim of such peer harassment if she did not stay home the remaining few

days of the academic year.

100. M.L. did not attend school for the last few days of the academic year as requested.

101. Upon information and belief, Defendant Board did not investigate A.G.’s

harassment and misconduct, nor did it discipline him.

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102. Defendant Board also did not take any other action to deter such ongoing peer

harassment of M.L.

103. On October 3, 2022, a student, H.H., made a comment about Stiver in front of M.L.:

“Stop touching me; this isn’t Stiver’s class” to harass and humiliate her in front of her peers at the

school.

104. Gary Robertson, the classroom teacher, overheard the comment and told M.L. that

she should not get “upset” about it.

105. Upon information and belief, Defendant Board did not investigate H.H.’s

harassment and misconduct, nor did it discipline him or deter such ongoing harassment.

106. Upon information and belief, Defendant Board did not investigate Mr. Robertson’s

indifference, nor did it discipline him.

107. Due to the sexual assault and subsequent harassment M.L. suffered an extremely

hostile educational environment at Talawanda Middle School.

108. Since December 1, 2021, M.L. has experienced frequent bouts of sleeplessness,

lack of pleasure in her normal activities, suicidal ideations, fear, anxiety, depression, anger,

hostility, poor self-esteem, and lack of ability to trust others.

109. Starting in April 2022, Dustin L. and Kristine L. decided that M.L. needed to be

homeschooled to mitigate her deteriorating mental health and physical wellbeing.

110. As a result, M.L. has suffered academic and social delays, and become further

isolated.

111. Dustin L. and Kristine L. are also suffering financial and emotional burdens

because of M.L.’s requiring homeschooling and the required medical intervention for her.

112. Shortly after December 1, 2021, M.L. began self-harming.

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113. Kristine L. searched for counselors to treat M.L.

114. M.L. has been unable to cope with the sexual assault, resulting sexual harassment

from her peers, threats of retaliation by Defendant Board, and the lack of any meaningful action

taken to address these harms by any Defendants.

115. At one point, M.L. told her parents she no longer wanted to be alive, indicating

suicidal risk.

116. Dustin L. and Kristine L. promptly took M.L. to Cincinnati Children’s Hospital for

evaluation and the minor’s suicidal ideations and mental state were confirmed by the treatment

providers.

117. M.L. was thereafter enrolled in intensive outpatient therapy at great cost and

expense to Dustin L. and Kristine L.

118. On November 14, 2022, M.L. once again began self-harming and expressed further

suicidal ideations.

119. M.L.’s family have suffered the loss of companionship, support, and services of

their daughter following Stiver’s sexual assault of the minor.

120. Dustin L. and Kristine L. have also suffered a loss of consortium in their marriage.

121. M.L.’s family fears for M.L.’s life due to her deteriorating mental health.

122. As Defendant Superintendent Theroux admitted in a July 8, 2022, email to M.L.

and her family, their “trauma is real” and there will be “lifelong consequences.”

123. Upon information and belief, since December, 2021, Defendants have tampered

with, destroyed, and/or otherwise spoliated evidence germane to the alleged facts giving rise to the

claims as subsequently detailed.

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FIRST CLAIM

(TITLE IX VIOLATIONS AGAINST DEFENDANT BOARD)

124. Plaintiffs incorporate in this Claim all allegations listed above.

125. At all relevant times, Defendant Board was subject to Title IX through the receipt

of federal funding.

126. Defendant Board had oversight and control over Talawanda School District, which

includes Talawanda Middle School.

127. From 2014 through 2021, Defendant Board, by and through appropriate officials,

received actual notice that Stiver had sexually harassed and assaulted multiple minor students at

Talawanda Middle School and other schools in the District.

128. Stiver’s sexual harassment and assaults of minor students was severe, pervasive,

and objectively offensive.

129. Defendant Board’s appropriate officials include Defendants Malone, Aerni, and

Theroux.

130. During the Fall 2021 semester, M.L. was enrolled as a student at Talawanda Middle

School.

131. On December 1, 2021, Stiver sexually assaulted M.L. in a classroom during class.

132. Stiver’s sexual harassment and assault of the minor M.L. was severe, pervasive,

and objectively offensive.

133. As a teacher and coach at Talawanda Middle School, Defendant Board had

substantial control over Stiver as its employee.

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134. Defendant Board had control over the context of Stiver’s sexual harassment and

assaults of minor students, including M.L., which occurred during school hours and on school

grounds while in the scope of his teaching and/or coaching obligations.

135. Defendant Board demonstrated an official policy and/or practice of deliberate

indifference towards actual notice that Stiver was a sexual predator targeting minor students in its

care, such that it:

a. failed to investigate or resolve reports that Stiver had sexually abused minor

students prior to M.L.’s enrollment;

b. allowed Stiver to continue teaching minor students despite ongoing reports of

sexual harassment and assault, such that he became M.L.’s teacher;

c. excluded all the sexual misconduct allegations against Stiver from his personnel

file; and

d. failed to investigate ongoing sexual harassment accusations against Stiver before

he sexually assaulted M.L. despite its actual knowledge of the risk of sexual harm

Stiver posed to minor students on campus.

136. To demonstrate further deliberate indifference, Defendant Board allowed Stiver to

resign after sexually assaulting M.L. to avoid issuing any disciplinary action against him that

would have ensured a measure of justice for his victims and likely prevented his ongoing predation

of minors in other school districts.

137. Due to Defendant Board’s deliberate indifference, M.L.’s peers have publicly and

consistently subjected her to harassment, intimidation, ridicule, and insult.

138. Due to Defendant Board’s deliberate indifference, its officials have failed to

address the peer harassment and threatened retaliation against M.L. or prevent it from continuing.

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139. Such peer harassment, intimidation, ridicule, and insult resulted from M.L.

reporting Stiver for sexual assault and Stiver not facing any meaningful consequences.

140. Such peer harassment, intimidation, ridicule, and insults are so severe, pervasive,

and objectively offensive that it constitutes a hostile educational environment at Talawanda Middle

School.

141. M.L. and her parents provided actual notice of this ongoing peer harassment and

hostile environment to Defendant Board, by and through appropriate officials Defendants Malone

and Aerni.

142. Upon information and belief, Defendant Board, by and through appropriate

officials Defendants Malone and Aerni, continued its deliberate indifference towards this hostile

environment such that the peer harassment has continued without consequence.

143. Additionally, Defendant Board, by and through appropriate officials retaliated

against M.L. by threatening her with potential disciplinary consequences and informally imposed

the same by requiring her parents to keep her home from school under threat of formal action.

144. The ongoing harassment, intimidation, ridicule, insult, and retaliation at Talawanda

Middle School is so severe, pervasive, and objectively offensive that it has denied M.L.’s equal

access to education, such that she is now homeschooled.

145. As a direct and natural consequence of Defendant Board’s actions, inactions, and

overall deliberate indifference to, and violation of, M.L.’s clearly established rights, the minor

suffered and continued to suffer injuries, including, without limitations, emotional distress,

psychological trauma, and mortification.

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146. As a direct and proximate result of Defendant Board’s deliberate indifference and

intentional discrimination, by and through its agents and employees, M.L. sustained and continues

to sustain injuries for which she is entitled to be compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past, present, and future

medical and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages;

e. Attorneys’ fees and costs; and

f. Such other and further relief that this Court deems just and proper.

SECOND CLAIM

(42 U.S.C. § 1983 CLAIM OF FOURTEENTH AMENDMENT VIOLATION AGAINST


DEFENDANT BOARD)

147. Plaintiff incorporates in this Claim all allegations listed above.

148. Defendant is a “person” within the meaning of 42 U.S.C. § 1983.

149. At all relevant times, Defendant was acting under the color of state law.

150. M.L. has a well-established substantive right to personal security and bodily

integrity, including the right to be free as a minor student from sexual abuse at the hands of a

public-school teacher under the Fourteenth Amendment to the U.S. Constitution.

151. M.L. also has a well-established right to Equal Protection under the Fourteenth

Amendment, which prohibits Defendant Board from differential treatment of her based on sex.

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152. M.L. also has a well-established right to equal access to education under Title IX

based upon 50 years of case law and guidance from the U.S. Department of Education to federal

funding recipients, such as Defendant Board.

153. Defendant Board is liable under 42 U.S.C. § 1983 for violating M.L.’s

constitutional rights under the Fourteenth Amendment and her federal rights under Title IX in the

following ways:

a. tacit approval or ratification of the constitutional violations committed by its

officials who effectively “swept” systemic child sexual abuse “under the rug” by

ignoring such abuse, excluding it from Stiver’s personnel file, keeping him in the

classroom with minors, and discriminating against M.L. as one of the victims;

b. failure to train its officials on how to properly identify child sex abuse, investigate

the same under Title IX, and intervene to prevent such ongoing abuse;

c. failure to supervise Stiver such that he did not have the opportunity to abuse minors

students while a coach and teacher for Talawanda School District; and

d. its custom of affirmatively condoning teacher-on-student sexual harassment and

abuse by failing to act on repeat reports of the same.

154. As a direct and natural consequence of these actions and omissions, and overall

deliberate indifference towards M.L.’s clearly established constitutional and federal rights by

Defendants, M.L. suffered and continues to suffer injuries, including, without limitations,

emotional distress, psychological trauma, and mortification.

155. As a direct and proximate result of the deliberate indifference by Defendant Board,

M.L. sustained and continues to sustain injuries for which she is entitled to be compensated,

including but not limited to:

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a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past, present, and future

medical and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages;

e. Attorneys’ fees and costs; and

f. Such other and further relief that this Court deems just and proper.

THIRD CLAIM

(42 U.S.C. § 1983 VIOLATION AGAINST INDIVIDUAL DEFENDANT IN THEIR


PERSONAL CAPACITIES)

156. Plaintiffs incorporate in this Claim all allegations listed above.

157. At all relevant times, Individual Defendants were each acting under the color of

state law.

158. M.L. has a well-established substantive right to personal security and bodily

integrity, including the right to be free as a minor student from sexual abuse at the hands of a

public-school teacher under the Fourteenth Amendment to the U.S. Constitution.

159. M.L. also has a well-established right to Equal Protection under the Fourteenth

Amendment, which prohibits Defendant Board from differential treatment due to sex.

160. M.L. also has a well-established right to equal access to education under Title IX

based upon 50 years of case law and guidance from the U.S. Department of Education.

161. All Individual Defendants possessed information that Stiver had engaged in sexual

harassment and abuse of minor students, which showed a strong likelihood that he would attempt

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to sexually abuse other students, such as M.L., such that their individual and collective failure

to take adequate precautions amounted to deliberate indifference to the constitutional rights of E.L.

under the Fourteenth amendment and her federal rights under Title IX.

162. Despite notice that Stiver was sexually abusing minor students, Defendant Theroux

responded with deliberate indifference to leave Stiver teaching middle school students, such that

he had the opportunity to commit the sexual assault against M.L. in his classroom during class on

December 1, 2021. As such, Defendant Theroux participated, encouraged, authorized, and/or

acquiesced to Stiver’s ongoing sexual abuse of students by leaving him in the position of middle

school teacher and coach without investigation or resolution of the abuse reports against him.

163. Despite having knowledge that Stiver was sexually abusing minor students,

Defendants Meade, Howard, Otto, Knight-Abowitz, and Bothast responded with deliberate

indifference to these reports leaving him employed with the Talawanda School District to commit

further sexual harassment and sexually assault M.L. in his classroom during class on December 1,

2021. As such, Defendants Meade, Howard, Otto, Knight-Abowitz, and Bothast participated,

encouraged, authorize, and/or acquiesced to Stiver’s ongoing sexual abuse of students by leaving

him in the position of middle school teacher and coach without investigation or resolution of the

abuse reports against him.

164. Defendants Meade, Howard, Otto, Knight-Abowitz, and Bothast also violated

M.L.’s rights under Title IX and the Equal Protection Clause by allowing Stiver to resign so that

he could avoid any consequence for his sexual abuse of the minor.

165. Despite knowing that M.L. faced ongoing peer harassment for reporting Stiver’s

sexual abuse of the minor, Defendants Malone and Aerni responded with deliberate indifference

to the resulting hostile environment, thus denying her equal access to her education in violation of

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her constitutional rights under the Fourteenth Amendment and Title IX. As such, Defendants

Malone and Aerni participated, encouraged, authorize, and/or acquiesced to the ongoing hostile

environment denying M.L’s access to education.

166. As a direct and natural consequence of these actions and omissions, and overall

deliberate indifference towards M.L.’s clearly established constitutional and federal rights by

Defendants, M.L. suffered and continues to suffer injuries, including, without limitations,

emotional distress, psychological trauma, and mortification.

167. As a direct and proximate result of the deliberate indifference by the Individual

Defendants, M.L. sustained and continues to sustain injuries for which she is entitled to be

compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past, present, and future

medical and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages;

e. Punitive damages to punish Individual Defendants for intentional wrongdoing and

to deter other school officials from similar extreme conduct;

f. Attorneys’ fees and costs; and

g. Such other and further relief that this Court deems just and proper.

FOURTH CLAIM

(INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST BOARD AND


INDIVIDUAL DEFENDANTS)

168. Plaintiffs incorporate in this Claim all allegations listed above.

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169. Defendants engaged in conduct that caused serious emotional distress to Plaintiffs

by permitting assault and battery; by hiring, retaining, and failing to supervise Stiver; by failing to

investigate and report Stiver’s abuse; by failing to provide a safe environment for students; by

failing to protect students; and by permitting child abuse and child endangerment.

170. At all times relevant herein, Defendants knew or should have known that their

conduct would cause Plaintiffs severe emotional distress.

171. The conduct of Defendants was “so extreme and outrageous as to go ‘beyond all

possible bounds of decency.’” Spitulski v. Bd. Of Educ. Of the Toledo City Sch. Dist., 2018-Ohio-

3984 (Ohio App. Sept. 28, 2018).

172. As a result of the actions and inactions of Individual Defendants, made with

reckless disregard for the resulting harm on M.L., she suffered a preventable sexual assault as well

as ongoing peer harassment so severe it drove her to consider suicide and resulted in her denied

access to education at Talawanda Middle School.

173. As a direct and natural consequence of their actions, inactions, and overall

deliberate indifference, Individuals Defendants inflicted emotional distress upon M.L., which she

suffered and continues to suffer injuries, including, without limitations, emotional distress,

psychological trauma, and mortification.

174. As a direct and proximate result of actions, inactions, and overall deliberate

indifference of Individual Defendants, M.L. sustained and continues to sustain injuries for which

she is entitled to be compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

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b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest; and

e. Such other and further relief that this Court deems just and proper.

FIFTH CLAIM

(GROSSLY NEGLIGENT, WILLFUL, WANTON, AND/OR RECKLESS CONDUCT IN


HIRING/RETENTION/SUPERVISION AGAINST BOARD)

175. Plaintiffs incorporate in this Claim all allegations listed above.

176. At all times relevant herein, Defendant Board was negligent in its hiring, retention,

and supervision of each of the Individual Defendants and Paul Stiver.

177. Defendants acted with malice when they knew or should have known that their

recklessness, wantonness, and/or willful indifference in hiring, supervising, and retaining of the

aforementioned rendered their employees and agents unfit and incompetent. Defendant Board

knew or should have known of their employees’ conduct. But for Defendants’ reticence to

investigate reports and accounts, Defendant Board would have known about the unlawful acts and

incompetence displayed by their employees.

178. As a direct and natural consequence of the negligence, recklessness, wantonness,

and/or willful hiring, retention and supervision of Stivers by Defendant Board, M.L. suffered a

preventable sexual assault, which resulted in harm that she suffered, and continues to suffer to

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result in injuries, including, without limitations, emotional distress, psychological trauma, and

mortification.

179. As a direct and proximate result of the negligence, reckless wanton, and/or willful

hiring, retention and supervision of Stiver by Defendant Board, M.L. sustained and continues to

sustain injuries for which she is entitled to be compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest; and

e. Such other and further relief that this Court deems just and proper.

SIXTH CLAIM

(GROSSLY NEGLIGENT, WILLFUL, WANTON, AND/OR RECKLESS CONDUCT IN


FAILING TO PROVIDE/REPORT/INVESTIGATE/PROTECT AGAINST BOARD)

180. Plaintiffs incorporate in this Claim all allegations listed above.

181. Defendant Board had a duty to supervise, monitor, report, and investigate cases of

child abuse pursuant to state law, statute, and its own policies.

182. Defendant Board had a duty to protect, keep safe, and prevent students from

suffering harm while under their care pursuant to state law, statute, and its own policies.

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183. Defendants had a duty to provide a safe environment for the students under its care

pursuant to state law, statute, and its own policies.

184. At all relevant times herein, Defendant Board, their employees and agents, acted

with malice in breaching their duties to Plaintiffs by failing to provide and/or implement

supervision, monitoring, reporting and investigation procedures, and a safe school environment.

185. As a direct and natural consequence of Defendant Board’s willful, wanton, reckless,

and/or negligent failure to protect its students, M.L. suffered a preventable sexual assault, which

resulted in harm that she suffered, and continues to suffer to result in injuries, including, without

limitations, emotional distress, psychological trauma, and mortification.

186. As a direct and proximate result of Defendant Board’s willful, wanton, reckless,

and/or negligent failure to protect its students, M.L. sustained and continues to sustain injuries for

which she is entitled to be compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest; and

e. Such other and further relief that this Court deems just and proper.

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SEVENTH CLAIM

(GROSSLY NEGLIGENT, WILLFUL, WANTON, AND/OR RECKLESS CONDUCT


PER SE—O.R.C.§ 2903.15 CHILD ABUSE AGAINST INDIVIDUAL DEFENDANTS)

187. Plaintiffs incorporate in this Claim all allegations listed above.

188. At all relevant times M.L. was under the age of eighteen.

189. At all relevant times, Defendants were the custodians of M.L. while she was

attending school.

190. The Individual Defendants had a duty to abide by O.R.C. § 2903.15 to protect M.L.

from abuse while in their custody.

191. On December 1, 2021, Paul Stiver did sexually assault M.L.

192. Prior to this assault, Defendants did have actual knowledge that Stiver had sexually

harassed children in the past.

193. Defendants failed to investigate these allegations and prevent Stiver from

interacting with children in their care.

194. As a result of these actions and failures, the Individual Defendants acted with

malice when they recklessly, willfully, and/or wantonly breached their duty to protect M.L.

195. These breaches by Individual Defendants constituted bad faith under the

circumstances, and they directly and proximately caused great injury and damage to M.L.

196. As a direct and natural consequence of the willful, deliberate, conscious and bad

faith decisions by Individual Defendants, M.L. suffered and continues to suffer injuries, including,

without limitations, emotional distress, psychological trauma, and mortification.

197. As a direct and proximate result of the breaches of the duty of care Individual

Defendants owed to M.L., she sustained and continues to sustain injuries for which she is entitled

to be compensated, including but not limited to:

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a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; and as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest; and

e. Such other and further relief that this Court deems just and proper.

EIGHTH CLAIM

(GROSSLY NEGLIGENT, WILLFUL, WANTON, AND/OR RECKLESS CONDUCT


PER SE—O.R.C. § 2151.421 MANDATORY REPORTING AGAINST INDIVIDUAL
DEFENDANTS)

198. Plaintiffs incorporate in this Claim all allegations listed above.

199. At all relevant times, agents and employees of Defendant Board, including all

Individual Defendants, were mandatory reporters under a legal duty to report child abuse.

200. Defendants had received complaints regarding Paul Stiver’s sexual harassment of

children in the past as early as 2014.

201. Despite this actual knowledge, the Individual Defendants acted with malice in

failing to report instances of child abuse by Stiver to the appropriate authorities.

202. As a direct and proximate result of Individual Defendants’ willful, wanton,

reckless, and/or negligent conduct, M.L. sustained and continues to sustain injuries for which she

is entitled to be compensated, including but not limited to:

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a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest;

e. Punitive damages; and

f. Such other and further relief that this Court deems just and proper.

NINTH CLAIM

(RECKLESS, WILLFUL, MALICIOUS, AND/OR WANTON CONDUCT AGAINST


BOARD AND INDIVIDUAL DEFENDANTS)

203. Plaintiffs incorporate in this Claim all allegations listed above.

204. Defendants each acted with malice towards Plaintiffs through their conscious

disregard for their safety that had a great probability of causing substantial harm.

205. Through their conduct and/or omissions, Defendants, their employees and agents,

intentionally deviated from a clear duty and/or from a definite rule of conduct with knowledge and

appreciation of the likelihood of resulting harm.

206. Through their conduct and/or omissions, Defendants, their employees and agents,

failed to exercise any care towards Plaintiffs, to whom a duty was owed under the circumstances,

where a great probability of resulting harm existed.

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207. Through their conduct and/or omissions, Defendants, their employees and agents,

acted with a conscious disregard and indifference to the known and/or obvious risk of resulting

harm.

208. As a direct and proximate result of Individual Defendants’ wanton and reckless

conduct, M.L. sustained and continues to sustain injuries for which she is entitled to be

compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest;

e. Punitive damages; and

f. Such other and further relief that this Court deems just and proper.

TENTH CLAIM

(LOSS OF CONSORTIUM AGAINST ALL DEFENDANTS)

209. Plaintiffs incorporate in this Claim all allegations listed above.

210. Plaintiffs Dustin L. and Kristine L. are a legally and validly married couple.

211. M.L. is their legal child.

212. Plaintiffs each suffered tortious injury as described above.

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213. As a result of the tortious injury Plaintiffs Dustin L. and Kristine L. suffered loss

of consortium in their marriage.

214. As a result of the tortious injury Plaintiffs Dustin L. and Kristine L. suffered loss

of consortium with their child, M.L.

215. The loss of consortium was a direct and proximate result of the actions and

omissions of Defendants’ intentional and/or negligent conduct.

ELEVENTH CLAIM

(VICARIOUS LIABILITY, RESPONDEAT SUPERIOR, OSTENSIBLE AGENCY, AND


AGENCY AGAINST BOARD)

216. Plaintiffs incorporate in this Claim all allegations listed above.

217. At all times relevant herein, the Individual Defendants were employed by and/or

acting on behalf of Defendant Board.

218. At all times relevant herein, the Individual Defendants acted within their respective

capacities and scope of employment or agency.

219. Individual Defendants’ willful, wanton, reckless, and/or negligent conduct directly

and proximately caused the injuries suffered by Plaintiffs.

220. Defendant Board is liable for the tortious acts of their employees, staff, and agents

pursuant to vicarious liability, respondeat superior, ostensible agency, and/or agency.

221. As a direct and natural consequence of Defendant Board’s willful, wanton, and/or

reckless failure to protect its students, M.L. suffered a preventable sexual assault, which resulted

in harm that she suffered, and continues to suffer to result in injuries, including, without

limitations, emotional distress, psychological trauma, and mortification.

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222. As a direct and proximate result of Defendant Board’s willful, wanton, and/or

reckless failure to protect its students, M.L. sustained and continues to sustain injuries for which

she is entitled to be compensated, including but not limited to:

a. Past, present, and future physical and psychological pain, suffering, and

impairment;

b. Medical bills, counseling, and other costs and expenses for past and future medical

and psychological care;

c. Loss of educational access and opportunity;

d. Past, present, and future economic losses, including lost wages; and as well as

additional economic and noneconomic damages including but not limited to

exemplary damages, attorney fees, case expenses, court costs, pre-judgment and

post-judgment interest; and

e. Such other and further relief that this Court deems just and proper.

TWELFTH CLAIM

(INTENTIONAL SPOLIATION OF EVIDENCE)

223. Defendants, their relevant representatives and agents, were aware of pending

litigation pertaining to the allegations in this Complaint.

224. Based upon information and belief, Defendants are willfully, knowingly, and in bad

faith destroying evidence involving M.L., Stiver, and the allegations in this Complaint despite

being aware of pending litigation and in direct contravention of the preservation letter received

by Defendants’ representatives.

225. Any purposeful destruction of evidence is inherently disruptive and damaging to

Plaintiffs’ case.

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226. Defendants’ willful and egregious actions warrant a preliminary injunction from

the court protecting the remaining evidence and the future presumption of prejudicial spoliation.

See Elliott-Thomas v. Smith, 154 Ohio St. 3d 11, 2018-Ohio-1783 (holding that intentional

spoliation is an independent tort in Ohio); Am. States Ins. Co. v. Tokai-Seiki (H.K.), Ltd., 94 Ohio

Misc.2d 174, 704 N.E.2d 1280 (C.P. 1997) (holding that “intent of the offending party, the level

of prejudice, and the reasonableness of the offending party’s action must all be balanced in

fashioning a remedy” for intentional spoliation. That remedy should “place both parties on a level

playing field.”).

WHEREFORE, Plaintiffs M.L., Dustin L., and Kristine L., individually and on behalf of

M.L., demand judgment against Defendants Board, Malone, Aerni, Theroux, Meade, Howard,

Otto, Knight-Abowitz, and Bothast for all damages and losses that they are entitled to recover,

including but not limited to all economic and noneconomic damages, plus exemplary damages,

attorney fees and costs, case expenses, court costs, pre-judgment, and post-judgment interest as

well as any and all equitable and just relief including punitive damages, this Court deems

appropriate.

JURY DEMAND

Plaintiffs hereby demand a trial by jury on all matters so triable. On this the 27th day of

April, 2023.

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Respectfully submitted,

/s/ Kelly Mulloy Myers /s/Laura L. Dunn


Austin H. LiPuma (OH 0095750) Laura L. Dunn, Esq. (pro hac vice pending)
Kelly Mulloy Myers (OH 0065698) L.L. DUNN LAW FIRM, PLLC
Paige E. Richardson (OH 0102380) 1717 K Street NW, Suite 900
FREKING MYERS & REUL LLC Washington D.C. 20006
600 Vine Street 9th Floor T: 202-822-5023
Cincinnati, OH 45202 F: 202-776-0136
P: (513) 721-1975 | Fax: (513) 651-2570 LLD@LLDunnLaw.com
alipuma@fmr.law
kmyers@fmr.law
prichardson@fmr.law
Trial Attorneys for Plaintiffs

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