Judge Goodwin rejects settlement in alleged rape case, sets trial date

CHARLESTON – Teachers and administrators at a now-closed Fayette County high school may have to answer how they allegedly enabled one of their students to be raped.

U.S. District Judge Joseph R. Goodwin on April 22 rejected a proposed settlement in the civil rights suit Stephen and Sharon Endicott filed on behalf of their biological granddaughter and adoptive daughter, listed as B.E., against the Fayette County Board of Education.

Goodwin’s decision was based on the recommendation of the guardian ad litem appointed in the case who, in a 21-page report released three days before, said the offer “does not adequately compensate B.E. for the harm she has suffered.”

In their suit, the Endicotts allege B.E. was sexually assaulted by at least one fellow male Mt. Hope High School student after school on Nov. 12, 2010. Also, they allege it was enabled by the indifference of two teachers, Linda Nevi and Bo Morrison, and the principal and vice-principal, Mike Hutchins and Leah Hutchins.

According to the suit, B.E. missed her bus home due to Nevi, the cheerleading coach “taking an inordinate amount of time assembling the uniforms.” After being denied permission to use the telephone in the office to call them, the Endicotts say B.E. found a friend in the gym who had a cell phone.

After calling them to say the friend’s parents would be bringing her home, the Endicotts say B.E. returned to the office only to find it locked. After returning to the gym, they say Morrison told her she could stay in there during practice.

Shortly after leaving the gym, the suit alleges B.E. was confronted by an unspecified number of male students who were at least 16 years old. They then allegedly forced her into “a room commonly used by students… to engage in sexual acts.”

After they finished with her, B.E. maintains she left the room and returned to outside the gym to wait for the friend, who is identified by his initials, D.H. When D.H. completed practice, B.E. says she confided to him she’d been raped.

According the suit, D.H. informed his mother, who is a nurse, that B.E. may have been sexually assaulted. She arranged for B.E. to have a medical examination on Nov. 14 at Appalachian Regional Hospital in Beckley.

In her report, Maryl Sattler, attorney with the Charleston law firm of Bailey & Glasser, said there is some dispute as to why B.E. remained at Mt. Hope after school on Nov. 12. Interviews she conducted found B.E. and a friend, A.F., “stayed to watch the boys’ basketball tryouts.”

Regardless, Sattler says despite a decision by Fayette County Prosecutor Carl Harris not to file any criminal charges, there is “substantial evidence” B.E. was assaulted. The evidence, she says, includes the Nov. 14, 2010, examination conducted by Farrah Zahair, a physician’s assistant who concluded bruising and tearing in B.E.’s vagina was consistent with sexual assault, and discovery of both a used condom and semen on the wall near where B.E. alleges she was assaulted.

Records show following a mediation session on Feb. 25, the board agreed to pay the Endicotts $65,000 to settle the suit. Of that amount, B.E. would keep $34,380, which would be held in a trust until she turns 18 years old.

However, Sattler said while both the Endicotts and their attorneys - Matthew A. Victor, Leah M. Boggs Lefler and Christopher D. Lefler - have B.E.’s best interest in mind and negotiated the settlement in good faith, it is inadequate since she has been diagnosed with post-traumatic stress disorder from not only the alleged assault, but also the bullying and harassment she’s received from fellow students following it.

As a result, Sattler says in her report B.E. has been unable to return to school “for any significant period of time,” and is taking classes at home.

Following an audit, the state Board of Education in 2011 ordered Mt. Hope closed citing poor academic performance, and transferred all students to Oak Hill High. The state board took control of Fayette County schools in February 2010.

In her opinion, Sattler said a fair settlement would be one that allows B.E., now 15, to complete her secondary education at a private school and enable her to study for, and pass, college entrance exams.

“I believe that a fair settlement of this matter would provide a means by which B.E. can complete her high school education and earn an accredited high school diploma without being subjected to the harassment and trauma associated with returning to the local public school,” Sattler said.

“To accomplish this, I believe it would be appropriate for the settlement to include an amount for private school in an environment in which B.E. can succeed despite the trauma she has suffered.

“B.E. has expressed an interest in attending Marshall University, and I believe that whatever high school program she attends should be sufficient to satisfy the entrance requirement for Marshall and comparable colleges.”

The same day, Goodwin reinstated the case to the active docket, and vacated his previous order of Feb. 28 granting a motion dismissing the state board from the suit. The order scheduled trial to begin on May 14.

However, the following day, Chip Williams and Kevin Robinson, co-counsel for Nevi, Morrison, the Hutchinses and the Fayette County board, said May 14 wouldn’t work since it conflicts with the West Virginia Educational Standards Test, which the board is required to administer, and “some of the key witnesses in this matter may be taking.”

The next day Goodwin rescheduled the trial for Aug. 26.

U.S. District Court for the Southern District of West Virginia case number 11-cv-679