Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

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1 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION KYMBERLY L. WIMBERLY PLAINTIFF v. CASE NO. 5:11 CV 0186 MCGEHEE SCHOOL DISTRICT ET AL DEFENDANTS ANSWER COME NOW Separate Defendants ( Defendants when referred to collectively) McGehee School District ( the District ), Directors of the McGehee School District ( School Board hereafter), individually and in their official capacity, Thomas Gathen, Superintendent of the McGehee School District ( the Superintendent hereafter), individually and in his official capacity, and Darrell Thompson, Principal of McGehee High School, ( the Principal hereafter) individually and in his official capacity and state: 1. In response to Plaintiff s introductory paragraph Defendants admit that Plaintiff brings this action as one for declaratory relief, injunctive relief and damages (monetary relief), alleging her claims fall under the Equal Protection Clause of the Fourteenth Amendment and the Arkansas Constitution; Defendants admit Plaintiff Kymberly L. Wimberly was a student in the District, with an exemplary record, who earned all A s except for one B ; that Plaintiff had the highest numerical grade point average (GPA) in her class; that she was one of two valedictorians, sharing that title with another student, SS, a student who also had all A s except for one B and whose numerical GPA was.005 point lower because she took more courses than plaintiff; that the district s policy prohibits the district from penalizing a student for taking more courses in 1

2 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 2 of 10 determining class rank; but otherwise deny the allegations 2. In response to paragraph 1 of Plaintiff s Complaint, Defendants admit that Plaintiff claims she is seeking jurisdiction under 42 U.S.C. 1983, claiming violation of the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. 331(a) and 1343(a)(3) and (4), the Civil Rights Act of 1964 as amended, pendant jurisdiction under 28 U.S.C. 1367(a), declaratory judgment relief under 28 U.S.C and 2202 and costs and attorney fees under 42 U.S.C. 2000e-5(g), 42 U.S.C. 1981, 42 U.S.C and Fed. R. Civ. P In response to paragraph 2 of Plaintiff s Complaint, Defendants admit venue is properly in this court pursuant to 28 U.S.C. 1391(b). 4. In response to paragraph 3 of Plaintiff s Complaint, Defendants admit Plaintiff is an 18 year old African American female who had the highest numerical GPA in the graduating class of 2011 and she is a resident of McGehee, Arkansas but otherwise deny the allegations contained therein. 5. In response to paragraph 4 of Plaintiff s Complaint, Defendants admit the McGehee School District is a political subdivision of the state which may sue and be sued, and that it receives federal financial assistance, maintains it administrative offices at 409 Oak Street, McGehee, Arkansas and it s mailing address is P.O. Box 757, McGehee, Arkansas but otherwise deny the allegations 6. In response to paragraph 5 of Plaintiff s Complaint, Defendants admit the Board is the policy making body for the District, is made up of seven members, three African American members, three Caucasian members and one Asian member, but otherwise deny the allegations 2

3 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 3 of In response to paragraph 6 of Plaintiff s Complaint, Defendants admit Darrell Thompson was the high school principal during Plaintiff s senior year and is still the McGehee High School principal, that he acts under color of state law when performing his duties as principal, that he must act and does act in conformity with any clearly established U.S. Constitutional rights and applicable federal laws of which a reasonable person would know, that he is Caucasian, that Plaintiff seeks to sue him individually and in his official capacity, but otherwise deny the allegations 8. In response to paragraph 7 of Plaintiff s Complaint, Defendants admit Thomas Gathen was superintendent during Plaintiff s senior year and is the current superintendent of the District, that he acts under color of state law when performing his duties as superintendent, that he must act and does act in conformity with any clearly established U.S. Constitutional rights and applicable federal laws of which a reasonable person would know, that he is African American, that Plaintiff seeks to sue him individually and in his official capacity, but otherwise deny the allegations 9. In response to paragraph 8 of Plaintiff s Complaint, Defendants admit Plaintiff attended four years of high school in the District, earned only one B and the remaining grades were A s; she took some honors and some AP courses, but otherwise deny the allegations contained therein. 10. In response to paragraph 9 of Plaintiff s Complaint Defendants have insufficient information to ascertain whether making a B was the reason plaintiff took the courses she took her senior year, whether becoming valedictorian was her sole motivation for taking the courses she took and working hard; admit she worked hard and took some but not all available honors 3

4 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 4 of 10 and AP courses, but otherwise deny the allegations 11. In response to paragraph 10 of Plaintiff s Complaint Defendants admit Plaintiff worked hard but otherwise deny the allegations 12. In response to paragraph 11 of Plaintiff s Complaint Defendants admit Ann Stobaugh advised plaintiff s mother after calculating seniors GPA s that Plaintiff had the highest grade point average; had not at the time compared seniors total hours to see if any other student might also be valedictorian or salutatorian, but otherwise deny the allegations 13. In response to paragraph 12 of Plaintiff s Complaint Defendants admit Ann Stobaugh was the Counselor at McGehee High School, Molly Bratton was a certified media specialist for the District but otherwise deny the allegations 14. In response to paragraph 13 of Plaintiff s Complaint Defendants do not know how Bratton felt about her daughters accomplishments but presume she was proud of her academic record and high GPA but otherwise deny the allegations 15. In response to paragraph 14 of Plaintiff s Complaint Defendants have insufficient information to admit or deny the allegations contained therein therefore for the purpose of requiring proof deny same. 16. In response to paragraph 15 of Plaintiff s Complaint Defendants have insufficient information to admit or deny the allegations contained therein therefore for the purpose of requiring proof deny same. 17. In response to paragraph 16 of Plaintiff s Complaint Defendants admit Bratton talked to the superintendent in the hallway about Plaintiff being valedictorian, but otherwise deny the allegations 4

5 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 5 of In response to paragraph 17 of Plaintiff s Complaint Defendants admit the principal advised Bratton that after examining student transcripts and the district s policy governing class rank, (where a student taking more courses will not be penalized in final rankings because of the additional courses where two students have the same grades) it was now clear there would be two valedictorians; but otherwise deny the allegations 19. In response to paragraph 18 of Plaintiff s Complaint Defendants admit the superintendent had a conversation with Bratton in which he confirmed that the District policy required that both students be named valedictorian but otherwise deny the allegations 20. In response to paragraph of 19 Plaintiff s Complaint Defendants admit that an initial announcement naming Plaintiff as valedictorian was sent to the local paper which announcement was replaced with an announcement naming both students as valedictorians when the error was discovered but otherwise deny the allegations 21. In response to paragraph 20 of Plaintiff s Complaint Defendants admit Bratton talked with Gathen to discuss the change from one valedictorian to two valedictorians but otherwise deny the allegations 22. In response to paragraph 21 of Plaintiff s Complaint, Defendants admit that after graduation had already occurred, Bratton requested to make public comments at the school board on May 23, 2011, but declined to follow through on that request once she learned she could not discuss individual students or staff in an open meeting because of privacy laws and would be limited to discussing policy issues, but otherwise deny the allegations 23. In response to paragraph 22 of Plaintiff s Complaint Defendants admit Plaintiff was the 5

6 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 6 of 10 first African American valedictorian in the District since 1989 but otherwise deny the allegations 24. In response to paragraph 23 of Plaintiff s Complaint defendants admit the student population according to the Arkansas Department of Education enrollment data in 2010 was 46% African American but otherwise deny the allegations 25. In response to paragraph 24 of Plaintiff s Complaint Defendants deny the allegations 26. In response to paragraph 25 of Plaintiff s Complaint Defendants deny the allegations 27. In response to paragraph 26 of Plaintiff s Complaint Defendants deny the allegations 28. In response to paragraph 27 of Plaintiff s Complaint Defendants deny the allegations 29. In response to paragraph 28 of Plaintiff s Complaint Defendants deny the allegations 30. In response to paragraph 29 of Plaintiff s Complaint Defendants deny the allegations contained therein 31. In response to paragraph 30 of Plaintiff s Complaint Defendants restate each response in numbered paragraphs 1-30, denying all allegations not specifically admitted. 32. In response to paragraph 31of Plaintiff s Complaint Defendants admit the statement as to the law to the extent it is correct, but otherwise deny the allegations 33. In response to paragraph 32 of Plaintiff s Complaint Defendants admit the statement as to 6

7 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 7 of 10 the law to the extent it is correct but otherwise deny the allegations 34. In response to paragraph 33 of Plaintiff s Complaint Defendants deny the allegations 35. In response to paragraph 34 of Plaintiff s Complaint Defendants deny the allegations contained therein 36. In response to paragraph 35 of Plaintiff s Complaint Defendants restate each response in numbered paragraphs 1-35, denying all allegations not specifically admitted. 37. In response to paragraph 36 of Plaintiff s Complaint Defendants deny the allegations 38. In response to paragraph 37 of Plaintiff s Complaint Defendants restate each response in numbered paragraphs 1-37, denying all allegations not specifically admitted. 39. In response to paragraph 38 of Plaintiff s Complaint Defendants deny the allegations 40. In response to paragraph 39 of Plaintiff s Complaint Defendants deny the allegations 41. In response to paragraph 40 of Plaintiff s Complaint Defendants deny the allegations 42. The defendants deny all prayers for relief set forth in Plaintiff s Complaint, page Except where previously admitted herein, Defendants deny each and every allegation set forth in Plaintiff s Complaint. 44. Defendants reserve the right to plead further by way of counterclaim, third party claim or amended answer, pending discovery in this litigation. 7

8 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 8 of 10 AFFIRMATIVE DEFENSES 45. Defendants affirmatively plead they have acted consistent with the racially neutral nondiscriminatory policies of the McGehee School District for determining senior class ranking which prohibit the District from penalizing a student in determining class ranking for taking additional courses, the purpose of which policy is to encourage all students to take more courses. 46. Defendants affirmatively plead the District s policy for determining class ranking is racially neutral both on its face and in its effect. 47. Defendants have treated Plaintiff in the same manner they have treated similarly situated Caucasian students. 48. Defendants affirmatively plead Plaintiff s claims are barred by Fed. R. Civ. P 12(b). 49. Defendants affirmatively plead Plaintiff s Complaint fails to allege a basis for relief claimed including claims for damages and attorneys fees. 50. Defendants affirmatively plead all applicable statute of limitations. 51. Defendants affirmatively plead Plaintiff s claims are barred by principles of statutory and governmental immunity including qualified immunity. 52. Defendants affirmatively plead they have not violated any clearly established statutory or constitutional rights of which a reasonable person would have known nor has any defendant authorized any violation of constitutional rights of which a reasonable person would have known. 53. Defendants affirmatively plead they have not violated the civil rights of Plaintiff. 54. Defendants affirmatively plead laches. 55. Defendants affirmatively plead mootness. 56. Defendants affirmatively plead that all Defendants acted reasonably and in good faith at 8

9 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 9 of 10 all times. 57. Plaintiff s claims fail to support an award of punitive damages. 58. Any award of punitive damages to Plaintiffs would be in violation of the constitutional rights and safeguards provided to Defendants under the Constitution of the United States including but not limited to the fact that because there are no limitations placed on a jury s discretion in considering the imposition or amount of punitive damages, there are no meaningful trial court and appellate review mechanisms to constitutionally confirm any punitive damage award, the imposition of a punitive damage award would allow a verdict tainted by passion and prejudice, and Plaintiff impermissibly seeks punitive damages which bear no constitutional relationship to the alleged actual amount in question. 59. Imposition of punitive damages in this case would violate Defendants constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. 60. Defendants affirmatively plead they have committed no act that is racially discriminatory. 61. Defendants affirmatively state that this action is frivolous, unreasonable, and groundless, and accordingly, are entitled to reasonable attorney s fees and other costs associated with the defense of this action. WHEREFORE, Defendants pray Plaintiff s Complaint be dismissed and that she take nothing thereby; for attorney s fees and costs incurred herein by Defendants, and for all other appropriate relief to which Defendants are entitled. /s/ Respectfully submitted, 9

10 Case 5:11-cv SWW Document 4 Filed 08/18/11 Page 10 of 10 Sharon Carden Streett, AR Bar No Attorney for Separate Defendants Streett Law Offices P.O. Box Little Rock, AR Tel / Fax scstreett@comcast.net CERTIFICATE OF SERVICE I, Sharon Carden Streett, certify that I have served a copy of the foregoing pleading or document upon the plaintiff by electronically filing same with the United States District Court, Eastern th District of Arkansas, on this 18 day of August, 2011, which will cause a copy to be sent to: John W. Walker John W. Walker, P.A Broadway Little Rock, AR /s/ Sharon Carden Streett 10