SH. A., as Parent and Next Friend of J. A., a minor child, et al., Plaintiffs, vs. TUCUMCARI MUNICIPAL SCHOOLS, et al., Defendants.

No. CV 00-727 JP/DJS-ACEUnited States District Court, D. New Mexico.
June 19, 2002

ORDER DENYING RECONSIDERATION
JAMES A. PARKER, Chief Judge.

On May 2, 2002 Plaintiffs filed a Motion to Reconsider/Alter Judgment (Doc. No. 173). In the motion, Plaintiffs request that the Court reconsider its rejection of an item of evidence offered by Plaintiffs in opposing summary judgment motions. Alternatively, Plaintiffs request that the Court consider an affidavit that was not submitted to the Court previously.

By Memorandum Opinion and Order filed April 19, 2002, the Court ruled on six interrelated motions regarding supervisory liability of the Tucumcari school system and its officials for alleged sexual harassment of students by a teacher. The Court entered summary judgment in favor of all school and supervisory Defendants and dismissed the claims against them.

In ruling on the motions, the Court rejected a written statement by Connie Garcia because it was not a sworn affidavit. Plaintiffs argue that this ruling was error because the proffered statement meets the requirements of Fed.R.Civ.P. 56(e). Plaintiffs fail to persuade the Court that its rejection of the Connie Garcia statement constitutes a manifest error of law. The tatement is not an “affidavit” within the meaning of Rule 56(c) and (e). It is, rather, a document or “paper” that is not certified and attached to an affidavit, as required by Rule 56(e).

Plaintiffs request that an Affidavit of Connie Garcia, dated September 19, 2001, be considered. Plaintiffs invoke the events of September 11, 2001 as an excuse for not filing this Affidavit with the Court. The slight delay caused by mail disruption after September 11 does not explain why Plaintiffs did not file the Affidavit before the Court ruled on the motions. Plaintiffs were on notice that Defendants objected to consideration of the Connie Garcia statement — that matter was argued in Defendants’ reply briefs. This submission is unjustifiably untimely.

However, even if the Court were to consider the Connie Garcia statement and/or her Affidavit, its rulings on supervisory liability would not be changed. Ms. Garcia indicates that in late April 1998, she told the school principal that she had seen the teacher rub one student’s leg during recess in the gymnasium, and that she had seen him rub another student’s stomach after that student complained he did not feel well. This information does not create a genuine issue of material fact to hold the school system liable for sexual harassment by the teacher. The standard is a high one, requiring actual or constructive notice to the Defendants of a pattern of sexual abuse of students, deliberate indifference to that information, and failure to take proper remedial steps. The superintendent and principal did respond to other, more vague, information they had received around the same time in late April 1998, and the Court ruled that their response demonstrated that Defendants were not deliberately indifferent.

The proffered evidence also includes more pointed information given by Connie Garcia to the school principal on May 20, 1998. This was around the same time that Defendants received more specific information about alleged incidents involving the teacher, to which they responded in various ways, which included suspending the teacher on May 21, 1998. The Court ruled these responses did not indicate deliberate indifference, and that ruling would not be affected by the additional information Plaintiffs seek to present.

IT IS ORDERED that Plaintiffs’ Motion to Reconsider/Alter Judgment (Doc. No. 173) is denied.