                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 00-3746
                                  ___________

James Costello; Jamie Costello,            *
Individually and as next friends and       *
parents of Sadonya Costello, minor         *
child,                                     *
                                           *
              Appellants,                  *
                                           *
       v.                                  * Appeal from the United States
                                           * District Court for the
Mitchell Public School District 79;        * District of Nebraska.
Board of Education of Mitchell Public *
Schools; Roger Kercher, individually       *
and in his official capacity; Kent Hally, *
individually and in his official capacity; *
Donald Wagner, individually and in his *
official capacity,                         *
                                           *
              Appellees.                   *
                                     ___________

                             Submitted: June 13, 2001

                                  Filed: September 24, 2001
                                  ___________

Before WOLLMAN, Chief Judge, BOWMAN, and HAMILTON, 1 Circuit Judges.
                             ___________



      1
        The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth
Circuit, sitting by designation.
WOLLMAN, Chief Judge.

       James and Jamie Costello (the Costellos), and their daughter Sadonya Costello
(Sadonya) (collectively, the plaintiffs), appeal from the district court’s grant of
summary judgment in favor of Mitchell Public School District 79, the school board
and superintendent of Mitchell Public Schools, the principal of Mitchell High School
(Mitchell or the school), and a teacher at Mitchell (collectively, defendants). We
affirm.

                                           I.

        In this appeal from the grant of a summary judgment motion, we recite the facts
in the light most favorable to the plaintiffs. We begin with a brief note on terminology.
According to the lexicon of special education services, an SAT is a student assistance
team, which evaluates students, attempts to assist teachers in providing general
education, and may refer a child to a multidisciplinary team (MDT) for further
evaluation. An MDT is responsible for determining if a child has a verified disability
under the regulations and for developing and implementing an individual education plan
to ensure that child receives an appropriate education.

       During her first four years at Morrill Elementary School in Morrill, Nebraska,
Sadonya received special education services. By fifth grade, however, she was not
verified as having a disability sufficient to qualify her for the provision of special
education services under Nebraska’s regulations, see Neb. Admin. R. & Regs. tit. 92,
ch. 51, § 006.04A. In May of 1994, for example, a report issued by her MDT
indicated that Sadonya had no disability. In May of 1996, however, after Sadonya’s
sixth-grade year, another MDT report concluded that Sadonya was disabled by an
“other health impairment” and that she should have more testing. This determination,
however, was not supported by a written report of a physician detailing her current



                                          -2-
health status and its implications, a requirement under Nebraska law. See Neb. Admin.
R. & Regs. tit. 92, ch. 51, § 006.04I3a.

      In the summer of 1996, the Costellos completed the appropriate paperwork to
have Sadonya and her older brother attend Mitchell High School, where Sadonya
accordingly matriculated for seventh grade during the 1996-1997 school year. Her
educational records were transferred from Morrill to Mitchell.

      At the beginning of the fall 1996 semester, principal Kent Halley, guidance
counselor Joe Yauney, and special education teacher Carey Brown met to discuss
Sadonya’s medical records and concluded that she was not eligible for special
education services because her disability had not been verified under Nebraska law.
Brown testified that this was an SAT meeting. Sadonya was informally monitored,
however, and during the first semester Mitchell’s staff saw no indication that Sadonya
would need special education services. Both Halley and Brown observed that
Sadonya’s grades were generally average, that she was very social, and that she
seemed to be well accepted by her peers. Her grades dropped somewhat during the
second quarter of that semester, however, and by the end she was failing band class.

      Several weeks into the semester the Costellos became aware of the fact that
Sadonya was not receiving special education services when Sadonya reported that she
was not receiving occupational therapy. During the next few months, and particularly
in the spring of 1997, many contacts occurred between the Costellos and Mitchell
High School’s administrators and staff regarding Sadonya’s status. The Costellos
signed a release so that Sadonya’s doctors could send information on her health to the
school. The diagnoses and evaluations the school received, however, were outdated
and did not explain Sadonya’s current status. For example, several letters stated that
Sadonya had previously been diagnosed with epileptic seizures, attention deficit
disorder, and unspecified learning disabilities, but did not give her current status and


                                          -3-
abilities. One report did indicate, however, that Sadonya was currently taking
phenobarbitol.

      At the end of her first semester at Mitchell, Sadonya was having difficulty with
her band teacher, Roger Kercher. She testified in her deposition that he daily called
her “retarded,” “stupid,” and “dumb,” in front of her classmates. In one instance,
after belittling her in front of the class for a bad grade on an assignment in her
notebook, he threw the notebook at her, hitting her in the face. During a basketball
game in either late December or early January at which the band was playing, Sadonya
came to her mother and explained that Kercher had just told her that she could no
longer play in the band because she was too stupid and that he did not have to teach
students like her and that he would not. Jamie Costello asked Kercher about it, who
just laughed and said “yeah, something like that.”

      Jamie Costello subsequently met with Halley, Yauney, Kercher, and Sadonya’s
therapist about the problems with band, although Kercher became angry and left the
meeting. During the meeting, Jamie Costello asked Sadonya’s therapist what she
thought about Sadonya remaining in band class, and “she said if Mr. Kercher feels that
way, [Sadonya’s] not going to gain anything by being in one of his classes.” Sadonya
was then removed from band and placed in a required music appreciation class, which
was also taught by Kercher. Sadonya completed the music appreciation class despite
Kercher’s comments. Several other students and parents mentioned to Jamie Costello
that Kercher had also been verbally, and occasionally physically, abusive toward other
students in his classes.

      Early in the second semester, principal Halley convened an SAT meeting with
Sadonya and various staff members, including Yauney and Sadonya’s social studies
teacher, to discuss ways to improve Sadonya’s academic situation. Sadonya
subsequently signed a contract with Mitchell that required her to ask for more help
from teachers when she needed it. Sadonya’s grades continued to drop during the

                                         -4-
spring, however, and the Costellos were sent several notices in January, March, and
May about her failing grades. Sadonya also was less social and had more absences
than during the prior semester. Mitchell’s staff members sent letters on behalf of the
school seeking additional information from various health professionals about
Sadonya’s current impairments and contacted the Costellos about the need for more
medical information. In the absence of such information, Sadonya’s case stalled and
she received no formal special education services.

      In May of 1997, Dr. Mark R. Scanlan, a psychiatrist, wrote a letter to Mitchell,
concluding that if Sadonya “returns to school at this point her situation would only
worsen, both physically and mentally.” Sadonya has been home-schooled since that
time. She has suffered from depression and suicidal thoughts and receives counseling
and treatment.

      Sadonya and her parents filed suit in the district court, bringing three 42 U.S.C.
§ 1983 claims, two for violations of the Due Process and Equal Protection Clauses of
the United States Constitution and one for violations of the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. §§ 1400-1487, the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101-12213, and the Rehabilitation Act, 29 U.S.C. § 794.
They also brought separate claims under the IDEA, ADA, and Rehabilitation Act and
a state-law claim of intentional infliction of emotional distress. All claims were brought
against Mitchell School District 79 and the Board of Education of Mitchell Public
Schools, as well as against Kercher, Halley, and district superintendent Donald
Wagner, individually and in their official capacities.

      On November 22, 1999, the district court2 granted partial summary judgment
against the Costellos and Sadonya, holding that the individual defendants were entitled


      2
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

                                           -5-
to qualified immunity and dismissing on the merits the intentional infliction of emotional
distress claim. On September 14, 2000, the court3 granted summary judgment in favor
of the remaining defendants. The Costellos and Sadonya appeal.

                                           II.

      We review the district court’s grant of summary judgment de novo. Henerey
v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is
proper if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).

                               A. Due Process Clause

      The Costellos and Sadonya argue that they have a liberty interest in Sadonya’s
education and that the school district’s acquiescence in Kercher’s harassment
constituted a violation of substantive due process. They also allege a procedural due
process violation, arguing that the defendants were required to provide special
education services to Sadonya.

      Assuming the existence of a protected liberty interest, we turn first to the
procedural due process issue. The record shows that Sadonya’s disability was not
verified. Her records at Morrill Elementary show her as a student with a disability
consisting of an “other health impairment,” but they lack the required written report
detailing her current health status. See Neb. Admin. R. & Regs. tit. 92, ch. 51, §
006.04I3a. Accordingly, Mitchell informed the Costellos that more information was
needed. Mitchell subsequently followed appropriate procedures to determine

      3
      The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska, presiding by consent of the parties pursuant to 28 U.S.C. § 636(c).

                                           -6-
Sadonya’s entitlement to special educational services. An SAT monitored Sadonya,
considered all facets of her adjustment to Mitchell, and concluded independently that
she did not qualify for special education services. Accordingly, we conclude that the
plaintiffs have failed to create a genuine issue of material fact on a procedural due
process violation.

       We also conclude that the plaintiffs’ substantive due process claim, based on
Kercher’s verbal harassment of Sadonya, fails. To establish a substantive due process
claim, the plaintiffs must show that the “government’s actions either shock the
conscience or offend judicial notions of fairness or human dignity.” Young v. City of
St. Charles, 244 F.3d 623, 628 (8th Cir. 2001) (internal quotation marks omitted).
Although Kercher’s behavior, as alleged by the plaintiffs, strikes us as being singularly
unprofessional, we conclude that the plaintiffs have not raised a genuine issue of
material fact on whether his behavior was sufficiently shocking to the conscience to
state a substantive due process claim. See Collins v. City of Harker Heights, 503 U.S.
115, 126 (1992); cf. Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1258
(10th Cir. 1996) (teacher repeatedly calling student a prostitute and turning a deaf ear
while her classmates did so held not to constitute a substantive due process violation).

                                B. Equal Protection

      Plaintiffs acknowledge that a disability like retardation is “not ‘a quasi-suspect
classification calling for a more exacting standard of judicial review than is normally
accorded economic and social legislation.’” Heidemann v. Rother, 84 F.3d 1021,
1031 (8th Cir. 1996) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
442 (1985)). A plaintiff may bring an equal protection claim as a “class of one” where
she alleges “that she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).


                                          -7-
        The plaintiffs argue that Sadonya’s removal from band class violated her equal
protection rights. We conclude that the plaintiffs have not raised a genuine issue of
material fact on whether removing Sadonya from the band was rationally related to a
legitimate governmental purpose--namely, providing Sadonya with a public education
that is conducive to learning. Although removal from band may not have been the only
option available to Mitchell, we conclude that there is no issue of material fact about
whether this determination was rationally related to a legitimate governmental purpose.
See Heidemann, 84 F.3d at 1031 (finding no equal protection violation where restraint
technique was not “beyond the scope of professionally acceptable choices”).


                                    C. The IDEA

      The IDEA was intended to ensure that children with disabilities receive an
education that is both appropriate and free. Florence Cty. Sch. Dist. 4 v. Carter, 510
U.S. 7, 13 (1993); 20 U.S.C. § 1400(d)(1)(A). Under the IDEA, a child with a
disability is defined as having one of certain enumerated conditions, which includes
“other health impairments.” 20 U.S.C. § 1401(3)(A)(i). Under Nebraska law, a
diagnosis of “other health impairment” must include the analysis and documentation
of such an impairment in a “signed, written report from a physician which describes
the current health status and gives any medical implications of the impairment.” Neb.
Admin. R. & Regs. tit. 92, ch. 51, § 006.04I3a. The parents of a child who has a
disability within the meaning of the IDEA are entitled to written prior notice whenever
the local educational agency proposes or refuses to initiate or change “the
identification, evaluation, or educational placement of the child.” 20 U.S.C. §
1415(b)(3).

      In granting summary judgment in favor of the defendants on the IDEA claim, the
district court found that the Costellos and Sadonya had failed to raise a genuine issue
of material fact on whether Sadonya had a verified disability. The plaintiffs argue that
Mitchell violated the IDEA because Sadonya did not receive special education services

                                          -8-
despite a verified disability and because they did not receive proper notice that
Sadonya’s services would be discontinued when she entered Mitchell.

      Although Morrill Elementary treated Sadonya as having a verified “other health
impairment,” her records from that school lacked the necessary physician’s report on
Sadonya’s current health impairments. Mitchell was required under the appropriate
regulations to determine if Sadonya was qualified for special education services at her
current level of functioning, not her past levels. See Neb. Admin. R. & Regs. tit 92,
ch 51, § 006.04I3 (1992). Accordingly, Mitchell properly did not consider Sadonya
as a child with a disability within the meaning of the IDEA.

       Turning to the procedural issue, the IDEA requires parental notice whenever an
educational “agency proposes to initiate or change or refuses to initiate or change the
identification, evaluation, or educational placement of the child.” 20 U.S.C. §
1415(b)(3). The IDEA does not refer to “verified” disabilities. That term occurs only
in Nebraska’s administrative code. 4 The IDEA contemplates that the parents of a child
in any stage of the verification process receive prior written notice of all initiations or
refusals of action by the agency. Mitchell identified and evaluated Sadonya, but it
refused to institute an educational placement that included special education services.
This is a refusal within the meaning of the IDEA. Thus, Sadonya’s parents should
have received the written notice required by § 1415(c), which details the specific
information an educational agency must include in the notice.

      Not all procedural errors result in a loss of educational opportunity. See J.D.
v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); Heather S. v. Wisconsin, 125
F.3d 1045, 1059 (7th Cir. 1997) (quoting W.G. v. Bd. of Trustees, 960 F.2d 1479,


      4
        Section .006.04A states: “School districts, county superintendents, or
approved cooperatives shall provide special education services only to children with
verified disabilities.”

                                           -9-
1483 (9th Cir. 1992)). Despite the failure to provide the notice required by § 1415,
Mitchell requested, both orally and in writing, a current medical report. In response
to these requests, the plaintiffs provided only outdated diagnoses that did not describe
any current health impairment. In light of their failure to provide information that might
well have helped Mitchell in its continuing efforts to evaluate Sadonya’s condition, the
plaintiffs will not now be heard to complain of Mitchell’s failure to comply literally with
the terms of the relevant statutes. Accordingly, we conclude that the court properly
granted summary judgment to the defendants on the IDEA claim.

                        D. The ADA and Rehabilitation Act

      The plaintiffs argue that Sadonya was disabled within the meaning of the ADA
because she has a disability, was regarded as disabled, or has a record of disability,
and that the defendants therefore violated the ADA and Rehabilitation Act by denying
her the benefits of participating in band class. See 42 U.S.C. § 12132 (“no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity”); see also 29
U.S.C. § 794(a). 5

       Under the ADA, disability is defined as: “(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual; (B)
a record of such impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2). “[W]hether a person has a disability under the ADA is an
individualized inquiry.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999).


      5
       The parties argue both claims primarily under the ADA standards, so for the
purposes of this appeal, we do likewise. See Gorman v. Bartch, 152 F.3d 907, 912
(8th Cir. 1998) (ADA similar to Rehabilitation Act so that cases interpreting either are
applicable and interchangeable).

                                           -10-
An impairment is “substantially limiting” if it renders an individual unable to perform
a major life activity that the average person in the general population can perform, or
if it significantly restricts the condition, manner, or duration under which an individual
can perform such an activity compared to the general population. 29 C.F.R. §
1630.2(j)(1)(i)-(ii) (2001). Major life activities include learning. 29 C.F.R. § 1630.2(i)
(2001).

       Sadonya and her parents point to her past impairment diagnoses to support a
claim of actual disability. They present no evidence, however, of a physical or mental
impairment that substantially limits Sadonya in the life activity of learning. The
evidence demonstrates that it is more difficult for her to learn than for her peers, but
that this limitation has not prevented Sadonya from advancing to the next grade each
year or from currently working toward her G.E.D. The evidence points to the
conclusion that whatever Sadonya’s impairments may be, they are only moderately
limiting. Indeed, in the beginning of seventh grade, before band class became
intolerable, Sadonya’s grades were average, and later in the year, educational
professionals still believed that Sadonya would be able to keep up with her class so
long as she asked for and received some additional help. The plaintiffs have therefore
not shown that Sadonya’s impairment causes a substantial limitation when compared
to the general population. See Cody v. CIGNA Healthcare of St. Louis, Inc., 139
F.3d 595, 598 (8th Cir. 1998) (difficulties in life that do not hinder performance of
required tasks not substantial limitation); Weber v. Strippit, Inc., 186 F.3d 907, 914
(8th Cir. 1999) (describing moderate limitation as insufficient), cert. denied, 120 S. Ct.
794 (2000). Accordingly, Sadonya has not shown that she is actually disabled within
the meaning of the ADA.

      We turn then to the plaintiffs’ assertions that Sadonya was regarded as disabled
by the defendants. To be regarded as disabled under the ADA, an individual must
show that she has an impairment that “does not substantially limit major life activities
but is treated by a covered entity as constituting such limitation.” 29 C.F.R. §

                                          -11-
1630.2(l)(1); see Cody v. CIGNA Healthcare, Inc., 139 F.3d 598-99 (8th Cir. 1998).
The evidence shows that the defendants treated Sadonya as if she was student without
a substantially limiting impairment. Indeed, the main thrust of the plaintiff’s IDEA
claims is that Mitchell did not treat Sadonya as disabled when it should have.
Kercher’s name-calling alone is insufficient to raise a genuine issue of material fact on
the matter.

       Finally, we address plaintiffs’ contention that Sadonya had a record of
disability. To establish the existence of a record of a disability, an individual must
show that she “has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life activities.” 29
C.F.R. § 1630.2(k). As previously mentioned, Sadonya’s records do not show a
substantially limiting impairment, and thus she has not raised a genuine issue of fact on
her claim that she has a record of a disability.

        We conclude that there exists no genuine issue of material fact on the issue of
whether Sadonya was disabled within the meaning of the ADA and Rehabilitation Act,
and summary judgment was therefore properly granted in favor of all defendants on
this claim.


                 E. Intentional Infliction of Emotional Distress

      With regard to the intentional infliction of emotional distress claim, the district
court concluded that the Costellos and Sadonya had failed to present a genuine issue
of material fact under Nebraska law on whether Kercher’s actions were so outrageous
in character and so extreme in degree as to go beyond all possible bounds of decency.

      To constitute intentional infliction of emotional distress, a plaintiff must show




                                          -12-
        (1) [t]hat there has been intentional or reckless conduct; (2) [t]hat the
       conduct was so outrageous in character and so extreme in degree as to
       go beyond all possible bounds of decency and is to be regarded as
       atrocious and utterly intolerable in a civilized community; and (3) [t]hat
       the conduct caused emotional distress so severe that no reasonable
       person should be expected to endure it.

Gall v. Great W. Sugar Co., 363 N.W.2d 373, 377 (Neb. 1985). Assuming that the
plaintiffs have raised a genuine issue of material fact on the first and third parts of the
test, we agree with the district court that Kercher’s words and conduct, however
unprofessional, intemperate, and unworthy of one entrusted with the responsibility of
educating students, did not rise to the level that would satisfy part two of the test set
forth in Gall. Accordingly, the district court did not err in granting summary judgment
in favor of all defendants on the merits of this claim.

       The judgment is affirmed.

HAMILTON, Circuit Judge, concurring in part and dissenting in part:

       I concur in all of the court’s opinion but the part that affirms the district court’s
grant of summary judgment in favor of Roger Kercher (Kercher) with respect to
Sadonya Costello’s (Sadonya) claim alleging intentional infliction of emotional distress
under Nebraska common law. With respect to this claim, the court rejects it,
concluding that, while “unprofessional, intemperate, and unworthy of one entrusted
with the responsibility of educating students,” ante at 13, Kercher’s conduct was not
so outrageous in character and so extreme in degree as to go beyond all possible
bounds of decency and is not to be regarded as atrocious and utterly intolerable in a
civilized community. The court’s decision on this claim is not only unfortunate for
Sadonya and our Nation’s public schools, but, more importantly, it is not grounded
upon a reasonable interpretation of the record in this case. Accordingly, because I
would vacate the district court’s grant of summary judgment in favor of Kercher with

                                           -13-
respect to Sadonya’s claim of intentional infliction of emotional distress under
Nebraska common law and remand for further proceedings, I dissent in part.

                                         I
      To fully appreciate the unquestionably deplorable nature of Kercher’s conduct,
a recitation of the relevant facts is necessary.

      On August 2, 1996, Sadonya celebrated her thirteenth birthday. Approximately
one month later, Sadonya began attending the seventh grade at Mitchell High School,
a school completely new to her. Sadonya initially enrolled in band class, taught by
Kercher, wherein she played the clarinet. Kercher knew that Sadonya was a new
student at Mitchell High School because she had introduced herself to Kercher as such
during her tour of Mitchell High School prior to the start of the school year.

      For Sadonya, her seventh grade year began reasonably well. She earned
passing grades for the first half of the first semester, was very social, and seemed to
be well accepted by her peers. By the beginning of the second half of the first
semester, however, Sadonya began to have performance problems in all her classes.
With respect to band class, Sadonya asked Kercher for after-school help on a regular
basis. For a while he complied with her requests without complaint. Then, every day
for approximately one month prior to Christmas vacation, Kercher told Sadonya in
front of her fellow band classmates that she was retarded, stupid, and needed to go
to a school where retarded people were taught. Kercher almost always made these
humiliating statements in response to Sadonya’s continued requests for after-school
help with her clarinet.

       On one occasion, Kercher snapped at Sadonya in response to a request for
after-school help: “If you’re so retarded, you don’t need to be in this classroom.”
(J.A. 329). Furthermore, during this same time period, Kercher threw Sadonya’s band
notebook (that he had just been grading) at her while calling her “stupid” and declaring

                                           -14-
that if she “could not do any better than that, then he didn’t want somebody like [her]
in his class.” (J.A. 330). The notebook hit Sadonya in the face. This notebook
incident also took place in front of Sadonya’s fellow band classmates.

      Kercher’s crass behavior toward Sadonya resumed after Christmas vacation.
For example, during a school basketball game at which the school band performed,
Kercher told Sadonya that he was going to kick her out of the band because she was
“too stupid.” (J.A. 347). Moreover, Kercher’s statements referring to Sadonya as
stupid and retarded in front of her classmates continued on a frequent basis during the
entire nine weeks that Sadonya was enrolled in Kercher’s music appreciation class,
which began in late January 1997, despite the fact that Kercher learned on January 22,
1997 that Sadonya had recently begun mental health counseling.

      Over the course of time, Kercher’s cruel behavior toward Sadonya caused her
extreme emotional distress. On January 27, 1997, Sadonya reported to her treating
psychiatrist, Dr. Mark Scanlan, M.D. (Dr. Scanlan), that she had particular problems
at school with her band teacher being mean towards her, and as a result, she had been
more moody and tearful. Dr. Scanlan reported that Sadonya felt quite stressed by the
school situation. He diagnosed her with major depression. 6

        On April 2, 1997, Dr. Scanlan examined Sadonya again. His notes reflect that
she continued to have trouble with teachers, particularly Kercher. His notes from this
visit further state: “She states she tends to rush though her work and is otherwise
distracted and anxious about school problems. She also appears somewhat more
depressed lately with decreased mood, [and] variable sleep pattern.” (J.A. 173).


      6
       Following a psychiatric examination by Dr. Scanlan of Sadonya on December
19, 1996, Dr. Scanlan reported in his notes that although issues of depression suffered
by Sadonya needed to be addressed with an individual therapist, he ruled out major
depression at that time.

                                         -15-
Again, he diagnosed her with major depression and ordered her to continue individual
mental health counseling.

      By early May 1997, Sadonya’s mental and emotional state had reached an all
time low with her becoming suicidal. Thus, on May 7, 1997, Dr. Scanlan again
examined Sadonya and diagnosed her with major depression. His notes reflect he felt
that Sadonya withdrawing from the remainder of the school year at Mitchell High
School was “important for her overall improvement” and Sadonya’s treatment at
school “was certainly a cause of her recent decompensation.” (J.A. 170). On the
same day, Dr. Scanlan sent a letter to Mitchell High School stating that if Sadonya
“returns to school at this point her situation would only worsen, both physically and
mentally.” (J.A. 145).

                                         II
      To recover for intentional infliction of emotional distress under Nebraska
common law, Sadonya must prove the following elements by a preponderance of the
evidence: “(1) that there has been intentional or reckless conduct, (2) that the conduct
was so outrageous in character and so extreme in degree as to go beyond all possible
bounds of decency and is to be regarded as atrocious and utterly intolerable in a
civilized community, and (3) that the conduct caused emotional distress so severe that
no reasonable person should be expected to endure it.” Brandon v. County of
Richardson, 624 N.W.2d 604, 620-21 (Neb. 2001). The evidence in the present case,
when viewed in the light most favorable to Sadonya, is sufficient for a reasonable jury
to find in her favor with respect to each of these elements, and thus, the district court’s
grant of summary judgment in favor of Kercher was, in my opinion, reversible error.

      A reasonable jury could infer that Kercher intended to inflict emotional distress
on Sadonya from the nature of his statements to her under all the facts and
circumstances of this case. In determining whether a defendant’s conduct meets the
second element of an intentional infliction of emotional distress claim, the extreme and

                                           -16-
outrageous element, all of the facts and circumstances of the particular case must be
considered. Id. at 621. For example, the relationship between the parties is an
important factor to be considered because the extreme and outrageous character of
the defendant’s conduct may arise from the defendant’s abuse of a position of power
or trust, or a relation with the plaintiff, which gives the defendant actual or apparent
authority over the plaintiff, or power to affect the plaintiff’s interests. Id.; Restatement
(Second) of Torts (Restatement) § 46 cmt. e (1965). Another important factor to be
considered in determining whether a defendant’s conduct meets the extreme and
outrageous element is whether the defendant knew the plaintiff was particularly
susceptible or vulnerable to emotional distress. Brandon, 624 N.W.2d at 621;
Restatement § 46 cmt. f. “[C]onduct which might otherwise be considered merely rude
or abusive may be deemed outrageous when the defendant knows that the plaintiff is
particularly susceptible to emotional distress.” Brandon, 624 N.W.2d at 621.
Generally, the extreme and outrageous element is met when recitation of the facts to
an average member of the community would arouse his resentment against the
defendant, and lead such member “to exclaim, ‘Outrageous!’” Restatement § 46
cmt. d.

       There is no doubt that recitation of the facts in the present case, as set forth
above, to an average member of the Nebraska community would arouse resentment
against Kercher and lead such member of the community to exclaim “Outrageous!”
In his capacity as Sadonya’s teacher, Kercher intentionally attempted to publicly
humiliate Sadonya, a child, on the topic of the inadequacy of her intelligence, knowing
that she would be particularly susceptible to resulting emotional distress given her
young age, the fact that she was a new student at Mitchell High School, and that she
was already doing poorly in his class. Additionally, as of January 22, 1997, Kercher
knew that Sadonya required the services of a mental health counselor. Under these
facts, I cannot say, as a matter of law, that Kercher’s conduct was not so outrageous
as to exceed the bounds of decent society. Cf. Baird v. Rose, 192 F.3d 462 (4th Cir.
1999) (holding that plaintiff stated cause of action under Virginia common law for

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intentional infliction of emotional distress against her seventh grade show choir teacher
where plaintiff alleged that the teacher, in her capacity as the plaintiff’s teacher,
intentionally attempted to humiliate the plaintiff in front of her classmates, knowing that
plaintiff was suffering from clinical depression). Sadonya has met the second element
of her intentional infliction of emotional distress claim against Kercher. Brandon, 624
N.W.2d at 620-21.

       Sadonya has also met her burden of proffering sufficient evidence to survive
summary judgment with respect to the last element of her intentional infliction of
emotional distress claim--that Kercher’s conduct caused Sadonya emotional distress
so severe that no reasonable person should be expected to endure it. Id. That
Sadonya suffered extreme emotional distress, including major depression and thoughts
of suicide, as the result of Kercher’s conduct is well documented in Sadonya’s
medical records. Indeed, Kercher’s conduct left Sadonya in such a fragile emotional
state that she was not able to finish out the short remaining period in the school year.

                                            III
       In sum, I concur in the court’s opinion except that I would allow Sadonya’s
intentional infliction of emotional distress claim against Kercher to go to a jury. If all
of Sadonya’s allegations about Kercher’s conduct are true, society would
immeasurably benefit from the imposition of civil liability upon such conduct.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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