Ohio County Board of Education Asks Judge to Dismiss Suit
WHEELING — The Ohio County Board of Education is asking a circuit judge to reconsider his decision that allows a lawsuit filed by a former student, accusing his teacher of sexual abuse, to continue against the board.
The school board filed a response Friday with Ohio County Circuit Judge Jason Cuomo. The board’s attorneys, Susan Deniker and Jeffrey Cropp, request Cuomo revisit his decision to allow the civil lawsuit by Christopher Birch, now 28, to proceed.
Birch’s lawsuit, filed April 4, accuses former teacher Elizabeth Harbert of engaging in a lengthy sexual relationship with him that began when he was 13.
It also named the Ohio County Board of Education and board member Christine Carder, who had served as principal of Wheeling Park High School while Birch and Harbert were there.
Cuomo ruled on May 31 that the claims against Harbert and Carder should be dismissed because the two-year statute of limitations on filing such a lawsuit had expired in December 2010, two years after Birch turned 18. Most counts in the lawsuit against the board also were dismissed, but Cuomo allowed one count of negligent retention, hiring and supervision count to proceed.
The board’s filing contends that Birch had the information needed to have filed his lawsuit sooner, within the two-year statute of limitations, and that the board did not conceal any information from him.
The sexual relationship between Birch and Harbert allegedly began in September 2004 when Birch was just 13 and Harbert was a 28-year-old teacher at Bridge Street Middle School.
The relationship produced four children before the couple ended it last summer, according to court documents.
Harbert, who later worked as a teacher at Wheeling Park, resigned from her position in August.
“Based on Birch’s own allegations, he had sufficient factual knowledge to know that he had a potential claim against the OCBOE for hiring, retaining and failing to suspend Harbert,” the board maintains in its filing.
Birch’s lawsuit insists that the board had been notified about the sexual relationship, but he did not know that at the time. The board — without admitting it had been informed about the relationship — states that it would not have mattered when Birch became aware of the alleged notification, because Birch already had access to a “plethora” of other information about the relationship.
“In fact, based on the allegations in his complaint, the only fact that Birch allegedly did not know was that individuals had allegedly reported Harbert’s conduct to the OCBOE. Conveniently, Birch allegedly did not learn this fact until August 2018,” the board’s filing states. “Regardless, knowledge of this single fact alone could not have possibly tipped the balance from Birch not knowing that he had a potential claims against OCBOE to Birch knowing that he had a potential claim against the OCBOE.”
Deniker, the board’s attorney, declined to comment on the case except to say the response is “referring to the allegations in the complaints.”
Harbert was Birch’s science teacher and track coach when he was in eighth grade at Bridge Street Middle School, according to court documents. Harbert asked to be transferred to Wheeling Park High School when Birch moved into the ninth grade, according to Birch’s lawsuit.
Birch’s lawsuit claims he moved in with Harbert and her husband during the summer of 2005, with his grandmother’s approval, and shortly thereafter a sexual relationship began. As a high school freshman, Birch was interviewed at some point during the 2005-06 school year by a social worker after a neighbor reportedly raised concerns about possible abuse. He told the social worker he was not involved in a sexual relationship with Harbert.
Harbert and her husband divorced in 2006, and she and Birch had the first of four children when he was just 16, according to court documents.
Harbert, 43, of 8 Four Sisters Drive, Moundsville, was arrested April 24 and charged by Ohio County sheriff’s deputies with sexual abuse by a parent or guardian, being in a position of trust and allowing sexual abuse to be inflicted upon a child and displaying of sex organs by a parent, guardian or custodian. She is free on $10,000 bond after waiving her preliminary hearing on the criminal charges May 15.
She and Carder are scheduled to be deposed July 8 for the civil lawsuit.
Birch’s two Wheeling-based attorneys, Shari McPhail and Teresa Toriseva, could not be reached for comment Monday.