GOODWIN v. PENNRIDGE SCHOOL DISTRICT et al

RESPONSE in Opposition re MOTION for Summary Judgment with 75 exhibits - 21 to 75 under other event

E.D. Pa.February 13, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARBIANNE GOODWIN : : Civil Action No: 17-cv-02431-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : ORDER AND NOW, this _____ day of ______________, 2019, upon consideration of Plaintiff's Motion for Partial Summary Judgment as to Counts III and IV, and Defendants Pennridge School District, Jacqueline A. Rattigan, and Gina DeBona's Response thereto, it is hereby ORDERED and DECREED that Plaintiff's Motion for Summary Judgment is DENIED. BY THE COURT: HONORABLE TIMOTHY R. RICE U.S. Magistrate Judge Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 1 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARBIANNE GOODWIN : : Civil Action No: 17-cv-02431-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : DEFENDANTS PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DEBONA'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants, Pennridge School District ("PSD"), Jacqueline A. Rattigan ("Rattigan") and Gina DeBona ("DeBona"), by and through their counsel, Marshall Dennehey Warner Coleman & Goggin, respectfully oppose Plaintiff DarbiAnne Goodwin's Motion for Partial Summary Judgment. In support of their Opposition, PSD, Rattigan and DeBona submit the attached Memorandum of Law, and Response to Plaintiff's Statement of Undisputed Facts, which are incorporated herein and are being filed contemporaneously with the instant Response. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 2/13/2019 Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 2 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARBIANNE GOODWIN : : Civil Action No: 17-cv-02431-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DEBONA'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant, Pennridge School District ("PSD"), Jacqueline A. Rattigan ("Rattigan") and Gina DeBona's ("DeBona"), by and through their attorneys, Marshall Dennehey Warner Coleman & Goggin, submit this Memorandum of Law in Opposition to Plaintiff DarbiAnne Goodwin's ("Darbi") Motion for Partial Summary Judgment. I. RESPONSE TO PLAINTIFF'S FACTUAL ALLEGATIONS A. In March 2015 Darbi Reported to Pennridge High School that H. Raped Her Off-Campus During Christmas Break On or about March 12-13, 2015, Darbi informed her counselor, Pete Cortazzo ("Cortazzo"), that H., a junior at Pennridge High School ("PHS"), raped her over Christmas break while they were in H.'s car that was located in the parking lot of the Country Place Restaurant1. (Defs. SOUF, ¶ 45, Ex. 26, Goodwin-PSD 0148).2 (See also, Defs. Resp. to Pltf. SOUF, ¶ 10). On March 13, 2015, Cortazzo emailed DeBona; Scott Hegen ("Hegen"), who was Darbi's assigned Assistant Vice Principal; David Laboski ("Laboski"), who was H.'s assigned Assistant Vice Principal; and Guidance Counselor Lori D'Angelo ("D'Angelo") advising that 1 The alleged rape occurred on the evening of December 27, 2014, which was a Saturday. Defendants learned during discovery that no rape occurred. (Ex. 5 to Defs. SOUF). 2 To avoid burdening the record with duplicate materials, Defendants will refer to their Statement of Undisputed Facts ("SOUF") and exhibits relied upon in support of Defendants own Motion for Summary Judgment, filed on the same day as Plaintiff's Motion, rather than reproducing the exhibits here. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 3 of 58 2 Darbi's mother, Laurie Axe ("Axe"), requested a meeting with Cortazzo for later that day. (Defs.' SOUF, ¶ 45, Ex. 26, Goodwin-PSD 0148). Shortly thereafter, on the morning of March 13, 2015, upon learning of the reported rape Hegen called the Pennridge Police Department to determine what the police knew about the incident. Hegen learned that the alleged rape took place in Bedminster Township and that Darbi lodged a charge of rape. (Ex. 15 to Defs. SOUF, ¶ 123:25-124:23; 126:13-23; 128:6-11; 130:23-131:4). Hegen endeavored to learn what PHS could do to support Darbi and met with Darbi's family. Hegen wanted to ensure Darbi's safety at school. Hegen notified Principal DeBona that Pennridge Police contacted Bedminster Police who referred the matter to the Bucks County District Attorney ("DA"). (Defs. SOUF, ¶ 48). Laboski spoke with H. and asked whether H. raped Darbi. H. denied raping Darbi and said that there were no witnesses to the alleged rape. H. told Cortazzo that he and Darbi were the only two people present at the time of the incident. Laboski instructed H. to immediately eliminate contact with Darbi both inside and outside of school. H. assured Laboski that he would not communicate with or attempt to contact Darbi. DeBona testified that once PHS learned of the alleged assault, Laboski told H. and his parents, that as a result of the report by Darbi, H. was to have no contact with Darbi. (Defs. SOUF, ¶ 52, Defs. Resp. to Plaintiff's SOUF, ¶ 12, 15). H. specifically testified that Laboski informed him that he "was to completely stay away from her [Darbi]." Laboski told H. to have nothing to do with Darbi. Laboski informed H. not to "create any problems." H. said he knew that he was to have no contact with Darbi, that he understood "what no contact means," and that he stayed away from Darbi. H. testified he interpreted Laboski's instruction to mean that he was never to contact Darbi; not to talk to Darbi; not to text Darbi; and not to speak to Darbi. H. stayed clear of Darbi. He said no one from PHS told him to "figure it out" on his own in order to interpret the "no contact" instruction. H. said he Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 4 of 58 3 was 16-17 years old and completely understood what "no contact" means. (Defs. Resp. to Pltf. SOUF, ¶ 15). On April 1, 2015, Cortazzo informed multiple PSD employees (including Darbi's teachers) that Darbi was going through a difficult time and experiencing anxiety. He requested that the teachers permit Darbi to leave class, without providing an explanation, if Darbi were to become emotional or request to go to the Guidance Office. Darbi was free to go, at any time, to the Guidance Office for support. On April 9, 2015, Cortazzo followed-up with Darbi and she reported that H. was not bothering her at school. Cortazzo testified that H. had been warned to stay away from Darbi and that "part of her [Darbi's] safety plan" was to keep Darbi and H. away from each other. In order to avoid Darbi's observation of H. in the hallway, Hegen requested a "pass" to permit Darbi to arrive early or late for classes. Cortazzo said that people were "watching out" for Darbi in the lunch room and hallways. Darbi was also offered a safety plan whereby she could leave class early and travel the school accompanied by an escort, but this was refused. PHS also offered Darbi a safety plan that included changing her schedule to avoid seeing H. or any of his friends, but Darbi said she "denied them changing my [Darbi's] schedule. (Defs. SOUF, ¶ 56-59; 66; 68; Defs. Resp. Pltf. SOUF, ¶ 16). The Bedminster Township Police records reflect that the Department was informed of Darbi's reported rape before Darbi told the school in March 2015. The police records state that on February 12, 2015, Bucks County DA Megan Hunsicker forwarded a mandatory report for sexual assault to the Police Department after Darbi's therapist, John Getz, reported that Darbi was digitally penetrated over the 2014 Christmas break. (Defs. SOUF Ex. 22, Goodwin-PSD 2642-2645). Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 5 of 58 4 Darbi and H. were interviewed by and provided very similar factual accounts of the reported rape to the police. They both said that they were with a group of friends at the Country Place. Thereafter, Darbi and H. agree that H. drove her home. (Defs. SOUF, ¶ 35-36). Even accepting Darbi's statement to the police as true, in Pennsylvania, the actions of H. do not constitute rape as defined by 18 Pa. C.S. § 3121. Darbi and H. did not have sexual intercourse on December 27, 2014 and the sexual activity reported to the police by Darbi and H. do not constitute a rape in the Commonwealth of Pennsylvania. Neither Pennridge Police Department nor Bedminster Police Department arrested H. for rape or any other crime. There is no indication that probable cause ever existed to arrest H. for any crime. (Defs. SOUF, ¶ 37-39). In her Motion for Summary Judgment, Darbi asserts that the "Court need not accept the veracity of Ms. Goodwin's allegations regarding H.'s conduct to grant summary judgment in her favor." Darbi claims that she is entitled to summary judgment on her Section 1983 claims because Defendants' responses to Darbi's complaints of sex-based harassment were inadequate as a matter of law. At the same time, the Amended Complaint faults PSD for not taking "any REDACTED PER SUPPLEMENTAL STIPULATION Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 6 of 58 5 disciplinary action in response to the rape" and "did not initiate an investigation or discipline H." as a result of the rape. First, no rape occurred, and PSD properly responded to Darbi's reported rape that occurred nearly three months before receiving notice of an off-campus incident that took place on a Saturday night when school was closed for Christmas break and the police were already investigating the incident. Secondly, the record demonstrates that the only "discipline" that would satisfy Darbi and her mother would be expulsion of H., which the Amended Complaint claims Rattigan had the final decision to make. (Ex. 2 to Defs. SOUF, ¶ 10, 19). This claim is false as only the Pennridge School Board can expel a student. (Ex. 8 to Defs. SOUF, Dep. of Rattigan, 100:14-18). PSD appropriately responded to Darbi's report of rape by: meeting with Darbi; meeting with Darbi's family; speaking to H.; contacting H.'s parents; instructing H. to stay away from Darbi both inside and outside of school, which instruction H. completely understood; contacting the police department; offering Darbi supports at school; and offering Darbi safety plans for avoiding H. in the school building, most of which were rejected by Darbi and her mother. (Defs. SOUF ¶43-44, 48, 51-52; Defs. Resp. Pltf. SOUF ¶ 15-16). Based on the information obtained by PSD in response to Darbi's report of an off-campus rape that occurred when the school was not in session, PSD could take no further action against H., to include disciplinary action because it interviewed the only two people who were inside the car on the evening of the event and they each provided conflicting reports. Moreover, when the incident occurred, H. was not on the property of PSD or PHS, but was off school grounds, when school was closed, and PSD did not exercise substantial control over H. or the context of the alleged assault when it occurred. Williams v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 (E.D. Pa. December 14, 2018) (harassment that takes place off of school grounds and/or outside of school hours does not occur Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 7 of 58 6 under circumstances when the District exercised substantial control over either the harasser or the context in which the harassment occurred) (internal citations omitted). Next, Darbi claims that in April 2015 she visited her Guidance Counselor in tears because H. bragged to his friends that he commits sexual assaults. (See Darbi's Memorandum of Law, p. 4). On the contrary, Cortazzo's notes reflect that on April 21, 2015, Darbi came to Cortazzo in tears because she was sent to Hegen for plagiarizing in English class. At that time, Darbi said she felt H.'s presence in school. The notes reflect that Darbi informed Cortazzo "H. told friends 'that is what I do,'" but the notes do not state that H. told his friends that he commits rape or sexual assaults. This allegation is not supported by the evidence. Further, there is no evidence as who allegedly heard H. make this statement or the context in which it was allegedly said. Given that the record now demonstrates that the rape allegation is false, it is inconceivable that H. made a statement that he was a rapist. Darbi's attorneys elected to refrain from questioning Cortazzo regarding this specific notation when he was presented for deposition, but questioned him regarding other notations on the document. (Defs. Resp. Pltf. SOUF, ¶ 21). B. Darbi Snitched to the Police on B. and then He Sent Darbi a Threatening Text Message Darbi's father, William Goodwin, testified that Darbi informed the police that the boys whom Darbi claims harassed her3 broke into an abandoned house because Darbi wanted the boys to get into trouble. Axe's version of a Timeline ("Timeline") she created states in April 2015 Darbi told the police that she knew H. was involved in breaking into an abandoned house, which resulted in "rumors made about her naming others." Darbi confirmed that during the police 3 The Amended Complaint asserts that H., B., C. and N. harassed Darbi. (Ex. 2 to Defs. SOUF, ¶ 2, 39). Student "N." in this case is not the same student identified as "N." in Doe v. Pennridge Sch. Dist., et al., Case No. 17-cv- 03570-TR. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 8 of 58 7 investigation of the alleged assault, she told the police that H. was involved with breaking into the abandoned house. (Defs. SOUF, ¶ 72-74). On May 20, 2015, Darbi confronted B. in the lunch room about the rumors that Darbi provided names to the police. Darbi said that B. was alone when she confronted him in the cafeteria. Later that day, B. sent his girlfriend, K2, a text message stating that Darbi was getting jumped and B. was setting it up. B. said that Darbi needed to learn her place. Thereafter, K2 sent a screenshot of B.'s text message to Darbi. (Defs. SOUF, ¶ 75). PHS fully investigated this incident and levied appropriate consequences, including, contacting B.'s mother, placing B. on a three-day out-of-school suspension, placing B. in an alternative placement setting, and reporting the incident to the police. (Defs. SOUF, ¶ 80, 86-90). Darbi claims that when B. returned to PHS upon completing his suspension on May 27, 2015, Darbi experienced a panic attack; was sent home; and her medical provider notified Hegen that it was in Darbi's best interest to remain at home from May 28 to June 12, 2015. Cortazzo's notes state that on May 27, 2015, Darbi "says she was having a panic attack," but there is no reference or correlation between the reported panic attack and B.'s return to school. The Penn Foundation4 note authored by Certified Registered Nurse Practitioner, Martine Susko, and therapist, Jon Getz, states that Darbi was receiving care for past trauma, but events of February 2015 have exacerbated her systems. Ms. Susko stated that Penn Foundation felt it was in Darbi's best interest to remain at home for the remainder of the school year (which was about two weeks) while she participates in Individualized Group and Medication Counseling. There is no reference in the note specifying what events of February 2015 allegedly exacerbated Darbi's past 4 Darbi began treating with Penn Foundation on May 7, 2012 – over 2 ½ years before the alleged rape (Defs. Resp. Pltf SOUF ¶ 29). Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 9 of 58 8 trauma, and there is no reference to any trauma or issues Darbi experienced during March, April or May, 2015, or any other time than February 2015. (Defs. Resp. Pltf. SOUF ¶ 28-29). On June 5, 2015, Hegen wrote to a large group of PSD employees advising that Darbi was struggling with high anxiety, and after speaking with her therapist, Darbi would obtain a doctor's note to complete the school year at home. At that time, the school year was nearly over. Hegen worked with Darbi and her mother to provide Darbi with work to complete at home and arrange a schedule for Darbi to take her final examinations during the afternoons of June 16-18, 2015. (Defs. Resp. Pltf. SOUF, ¶ 29). C. N. Sent Darbi a Text Message During the Summer When PHS Was Not in Session Axe's Timeline states that Darbi reportedly received a text message from N. in July 2015, which was obviously during the summer when PHS was not in session. The message stated: Why did you give the cops my name?? That's fucking redickulas (sic) what did I do to you? Hoe. I spelled it wrong because your (sic) a cunt. (Defs. SOUF, ¶ 92-94). There are numerous spelling errors in the text message5, but N.'s text message is clearly not related to the alleged assault by H. or sexual harassment. N.'s text message is not threatening as claimed in Axe's Timeline. As stated directly in the text message, N. sent the message in response to Darbi reporting N. to the police for breaking into an abandoned house along with the other boys. (Defs. SOUF, ¶ 92-94). PSD Title IX Coordinator, Jacqueline McHale, produced a copy of the July 2015 text message from N. and her notes confirm that N. sent the text message because he believed that Darbi reported his name to the police. (Defs. SOUF, ¶ 96). DeBona testified that in September 5 Contrary to Darbi's allegations, N. misspells a number of words in the text, and the misspellings were clearly not calculated or intended to include a syllable of a word that refers to what Darbi construes to be a sexual reference. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 10 of 58 9 2015, when PHS learned of N.'s text message, Darbi and her mother were instructed to contact the police and file an Incident Report. (Ex. 11 to Defs. SOUF, 255:18-256:11). D. Darbi's Junior Year Claims PSD produced Hegen's notes concerning a telephone call he had with Axe on August 18, 2015 where there is a notation stating "received text from a group of boys." Hegen said he was not "sure who all the boys were6." During the call, Axe requested that PHS schedule Darbi in different gym and lunch periods than H., N., B. and C. Hegen informed Axe that he could not guarantee that the boys would not be present in these classes and that the student's schedules had not been finalized. He told Axe that it may be difficult to accommodate her request, but the school would do its best. (Defs. SOUF, ¶ 101). When school began less than two weeks later, Darbi was scheduled in the same lunch as B., C. and N. On August 31, 2015, Axe called Henrysen and was angry that the boys were scheduled in Darbi's lunch, yet she did not want Darbi's schedule changed. Axe threatened to contact the newspapers, other press outlets and said the Title IX Coordinator should be involved. Axe did not want any of the boys in the "vicinity" of Darbi, which was an unattainable request since they attended the same school as Darbi. (Defs. SOUF, ¶ 106-107). On August 31, 2015, a meeting was held with Darbi's junior year counselor, Eric Henrysen ("Henrysen"), DeBona, Hegen and Darbi. The group discussed the presence of the boys in Darbi's lunch and three options were presented to Darbi. Darbi could remain in her lunch with security present; Darbi could keep her lunch period, but eat somewhere else such as the library or with Henrysen; or Darbi's lunch period could be changed. Axe said that Darbi refused to change her lunch because 6 Axe's Timeline only references one text message that Darbi received during the summer from N. in July 2015. (Defs. Resp. to Pltf. SOUF, ¶ 32). The Timeline states that "B. was in the company of N. when the call/text was made." When asked about the basis for the statement in the Timeline that B. and N. were together at the time the text was sent, Darbi said she does not recall why she thought the two were together. (Defs. SOUF, ¶ 95). There is no evidence that any text messages were sent by H. or C. There is no evidence that Darbi had any contact with H. over the 2015 summer months. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 11 of 58 10 she was already set-up at her lunch table with her friends. (Defs. SOUF, ¶ 108-109). Presumably, so were all the other students. On September 2, 2015, another meeting was held with Axe, McHale, PSD Director of Administration Troy Price ("Price"), DeBona, Hegen and Henrysen. Hegen noted that Darbi and her mother refused to change Darbi's schedule because she was the victim. The group devised a safety plan for Darbi's lunch whereby several adults would monitor Darbi and the boys during the lunch period. The monitors included teachers, security personnel, and an Assistant Principal, all of whom were made aware of Darbi's concerns about the boys. H.'s counselor was informed of Darbi's return to school and instructed H. to stay away from Darbi. (Defs. SOUF, ¶ 113-114). Approximately a week later, it was reported that H. and then B. were present in Darbi's Study Hall. What actually occurred is that H. and B.'s Study Hall classes, which were different classes with different teachers than Darbi's Study Hall class, were scheduled into the same location, the cafeteria, as was Darbi's Study Hall period. Darbi testified that H. was only present once in the cafeteria during Study Hall. PSD immediately rescheduled H. and B.'s Study Halls classes to locations other than the cafeteria. Darbi's Study Hall location never changed. (Defs. Resp. Pltf. SOUF, ¶ 40, 42). There was no conflict or issues between or among Darbi, H. and/or B. in Darbi's Study Hall. When Darbi returned to school for the Fall 2015 semester, all of the boys were instructed to avoid and stay away from Darbi. Laboski, in his capacity as H.'s Assistant Vice Principal, informed H. of Darbi's return to the school and instructed him to stay away from Darbi. As stated previously, H. completely understood this direction and did not require any "guidance," as claimed by Darbi, to interpret this self-explanatory instruction. (Defs. Resp. Pltf. SOUF, ¶ 43, 39). Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 12 of 58 11 The Amended Complaint alleges that in October 2015, Darbi attended a World Cultures Assembly and H. was present. Darbi testified that she observed H., but he did not say anything to her and she immediately left the Assembly before H. was seated. Darbi reported to the Guidance Office where she met with Henrysen, who returned with Darbi to the Assembly and remained for the duration of the program. (Defs. SOUF, ¶ 145-146). There was no issue or encounter between Darbi and H. at the Assembly. On November 19, 2015, Darbi completed an Incident Report stating that she observed H. in the hallway and initiated conversation by stating, "Wow, speak of the devil." Darbi wrote that she was walking with K. in the hall when H. appeared by the staircase. H. was walking with his friends and in response to Darbi's comment, H. turned to his friends (who Darbi said must have heard them ask "what was that" or something along those lines) and H. said "I don't know shes (sic) a fucking bitch." Darbi admitted during her deposition that she provoked H. by initiating communication with him. Thereafter, they both continued walking in the direction they had been traveling. There was no physical contact or altercation between Darbi and H. (Defs. SOUF, ¶ 156-157). Upon learning of the incident, Henrysen met with Darbi and informed Laboski of what occurred. Laboski acknowledged receipt of the information and said he would meet with H. that same day, November 19, 2015. (Defs. SOUF, ¶ 157). Laboski testified that he recalled the incident and he did, in fact, meet with H. afterwards. H. admitted using the slur and Laboski believes he disciplined H. Laboski also contacted H.'s parents. (Ex. 16 to Defs. SOUF, 158:23 – 160:3. Notably, the November 19, 2015 meeting by the staircase is the only conflict ever reported to PSD that occurred in the school building, on the school campus, or at a school related Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 13 of 58 12 activity or event. Darbi testified that she has no recollection of H. saying anything to her in school before the November 19, 2015 incident. (Defs. SOUF, ¶ 160). There is absolutely no reported conflict between Darbi and H. that occurred after this event, notwithstanding the preposterous allegations in the Amended Complaint that "[t]his [harassment] campaign continues today even after all the boys have graduated7." (Ex. 2 to Defs. SOUF, ¶ 2). On January 4, 2016, Darbi reported to Henrysen that she was upset because C. texted her over Christmas break on December 26, 2015 and asked her to "hang out." The Amended Complaint alleges that the text was sent on "the one-year anniversary of Ms. Goodwin's rape" and that C. sent the message as "a cruel reminder of the sexual assault." However, Darbi testified that she did not know whether C. sent the message because he wanted to hang out with Darbi. (Defs. SOUF, ¶ 164, 169; Ex. 2 to Defs. SOUF, ¶ 52). Once informed of the text message, Hegen communicated with Laboski who met with C. on January 5, 2016. C.'s parents were contacted. Hegen recommended that Axe report C.'s text to the local police. DeBona said the school followed-up to ensure a police report was on file. (Defs. SOUF, ¶ 164, 166, 168; Defs. Resp. to Pltf.’s SOUF, ¶ 56). Laboski met with C., who deleted Darbi's phone number from his phone and agreed to have no contact with Darbi. (Defs. Resp. to Pltf.’s SOUF, ¶ 56). Darbi claims in her Memorandum that by January 2016, McHale and Rattigan were informed of Darbi's PTSD diagnosis, but according to her attorney, Matt Graves, "never evaluated Darbi for an Individualized Education Program ("IEP") or Section 504 plan." The Affidavit of Matt Graves at Paragraph 13 should be deemed incompetent evidence under the 7 Darbi attends Fairleigh Dickinson University in Teaneck, New Jersey and testified that she resides on campus. H. and B. are in the United States Marine Corps. (Ex. 2 to Defs. SOUF, p. 1:1-16; Ex. 146 to Defs. SOUF, p. 40:21- 41:22). There is no evidence that Darbi had any conflict with or was harassed by H., B., C. or N. since they graduated in June 2016. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 14 of 58 13 advocate-witness rule. See United States v. Birdman, 602 F.2d 547, 551-52 (3d Cir. 1979) (Plaintiff's Memorandum, p.6-7). On April 6, 2016, Darbi completed an Incident Report where she described that C. was walking in the hallway in the opposite direction from her and they got "shoulder-to-shoulder and he bumped into me." (Defs. SOUF, ¶ 171). Henrysen observed Darbi crying in the hallway with her boyfriend, D. Henrysen brought Darbi and D. to review the security camera, but the camera did not capture the bump. Henrysen remained with Darbi for two hours until Darbi returned to class. (Defs. SOUF, ¶ 173). Multiple meetings were held with Darbi and high level PSD personnel and administrators. Ultimately, DeBona, Henrysen, C. and Darbi met, and during that meeting, C. apologized to Darbi and said he just wanted to "move on." (Defs. SOUF, ¶ 173, 176, 181; Defs. Resp. Pltf. ¶ 63-64). The Amended Complaint alleges that when Darbi attended the College Fair during Spring 2016, she ran into H. (Ex. 2 to Defs. SOUF, ¶ 50). However, there is absolutely no evidence that there was any dialogue, confrontation or conflict between Darbi and H. at the College Fair. The Amended Complaint alleges that by the Spring 2016, Darbi was "fed up" and on April 11, 2016, Axe sent an email to Henrysen, Price, DeBona, Rattigan and McHale advising that Darbi was leaving PHS. (Ex. 2 to Defs. SOUF, ¶ 54; Defs. SOUF, ¶ 186). Subsequently, Darbi dis-enrolled from PHS and attempted to register in a cyber school, but the program was full.8 After contacting Henrysen, Darbi re-enrolled at PHS and entered a pilot cyber program that PSD created and implemented solely for Darbi. Darbi successfully completed that program and concluded her junior year. (Defs. SOUF, ¶ 187-188, 190-192, 196-197). 8 Given that the school year was nearing conclusion, Darbi and her mother must not have been surprised that the cyber program was full. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 15 of 58 14 E. Darbi's Senior Year Claims Darbi returned to PHS for her senior year of high school. The Amended Complaint asserts that during her senior year, “B. was allowed back into PHS for a military recruiting event” and “H., Miss Goodwin’s rapist, visited PHS for another military recruitment event.” (Ex. 2 to Defs. SOUF, ¶ 65, 67). However, Darbi was not present in the school building when either B. or H. were briefly present. Darbi never had contact with B. or H. and never observed B. or H. in school during her senior year. (Defs. Resp. to Pltf. ¶ 73; Defs. SOUF, ¶ 217-220, 222). Lastly, Darbi claims that in May 2017, she contacted Hegen for assurance that B., who was dating her friend and fellow PHS senior classmate, M., would be prohibited from attending the Senior Prom. (Defs. SOUF, ¶ 223-224). Ultimately, PSD had multiple communications with Darbi and her mother and created and executed a safety plan for Darbi whereby Darbi would attend the first portion of the prom and M., who was also a senior at PHS, would attend the second half of the prom with her date, B. Ultimately, B. never attended the prom and there were no problems or conflict that Darbi encountered at the prom. (Defs. SOUF, ¶ 223-231, 234). F. PSD thoroughly trained its employees on sexual harassment During the 2013-2014 school year, former PSD Title IX Coordinator, Ray Scarpantonio visited each PSD school, including PHS, and provided harassment training at faculty meetings held in September and/or October 2013. (Defs. SOUF, ¶ 245). On August 27, 2014, an in-service day was held for PSD staff during which harassment and discrimination training was presented to the staff. (Defs. SOUF, ¶ 246). PSD has administered harassment, discrimination, bullying and cyber-bullying training to its employees through various PowerPoint Presentations. (Defs. SOUF, ¶ 247). Bullying/Cyber-Bullying Prevention Programs were held throughout the District during the 2014-2015 school year and the 2015-2016 school year. (Defs. SOUF, ¶ 248). Prior to Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 16 of 58 15 GCN trainings, discussed below, PSD staff were presented with and trained via annual PowerPoint Presentations about harassment, sexual harassment, workplace harassment and student harassment. (Defs. SOUF, ¶ 263). PSD also conducts a summer two-day training seminar for administrators during which attorneys present and discuss different topics, including harassment and sexual harassment. (Defs. SOUF, ¶ 302). Beginning with the 2015-2016 school year, and currently, PSD employees were/are required to complete online training for matters that include bullying, cyberbullying, sexual harassment, general harassment and other related topics, through the District provider, Global Compliance Network (“GCN”). GCN provides employees with ACT 126 mandated reporting training every five years and harassment training every other year. All new PSD employees complete both training programs at or near the time they are initially hired. (Defs. SOUF, ¶ 249). ACT 126 mandated reporter training includes training regarding: An Introduction to ACT 126-PA; Child Abuse Awareness-PA-Revised 7/1/14; Child Abuse Policies-Pennridge; Confidentiality; Cyberbullying; Ethics & Boundaries for School Employees; Internet Safety; Professional Educator Discipline Act-Revised 7/1/14; Student-to-Student Hazing and Harassment; and Teen Dating Violence. (Defs. SOUF, ¶ 250). The GCN Harassment Training included training regarding General Harassment; Sexual Harassment; AB-1825 Sexual Harassment; Abuse of Conduct Employee/Supervisor. (Defs. SOUF, ¶ 251). Throughout the 2015-2016 school year, at least six Secondary Principal Meetings were held wherein PSD policies were reviewed and discussed. (Defs. SOUF, ¶ 256). Additionally, during the 2015-2016 school year, PSD conducted bullying and harassment trainings, revised bullying report forms and created a new bullying investigation form; implemented bullying and cyber-bullying prevention programs; and reviewed bullying and harassment policies with Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 17 of 58 16 principals. (Defs. SOUF, ¶ 257). Prior to the GCN trainings, PSD staff were presented with and trained via annual PowerPoint Presentations about harassment, sexual harassment, workplace harassment and student harassment. (Defs. SOUF, ¶ 263). GCN creates a list of PHS staff who completed GCN training so that Price and McHale can identify those staff members who will need to complete the training. DeBona follows-up and ensures all staff members are trained. (Defs. SOUF, ¶ 349). (See, also, Defs. SOUF, ¶ 3479) (listing courses taken by PSD employees identified below). All PSD administrators attended a Peace Center training on January 30, 2017. The agenda for this training identifies discussion topics such as: (1) bullying and how things such as race, ethnicity, religion, gender and sexual orientation are concerns as students face increased harassment; (2) bullying vs. peer conflict; (3) cyberbullying and the school’s responsibilities in dealing with it. (Defs. SOUF, ¶ 253). The Peace Center provided bullying training to PSD staff through a PowerPoint Presentation titled, "Creating a Culture of Peace, Acceptance and Community." (Defs. SOUF, ¶ 254). PSD held and continues to hold annual Summer Workshops for administrators during which PSD provides updates in education law and harassment training. (Defs. SOUF, ¶ 196). In March 2017, a bulletin titled “Bullying FAQ’s” was created and posted on the District’s website for review by employees, parents and students. (Defs. SOUF, ¶ 255). On February 13, 2018, Network of Victim Assistance (“NOVA”), presented a program to Pennridge High School regarding peer conflict, bullying and harassment. (Defs. SOUF, ¶ 259). Assistant Principal Scott Hegen attended dozens of trainings at PHS throughout the 2015- 2016 school year regarding harassment and sexual harassment, including Child Abuse 9 Defendants' Statement of Undisputed Facts (ECF No. 95) on pages 92 through 96 mis-numbered paragraphs Nos. 340 – 347 (these numbers are duplicative of previously numbered paragraphs). Defendants corrected the numbering error in its Praecipe to Substitute Pages 92 through 96 (ECF No. 107). For purposes of this Memorandum of Law in Support of Defendants' Answer in Opposition to Plaintiff's Motion for Partial Summary Judgment, the Court's attention is respectfully directed to pages 1- 91 of ECF No. 95 and pages 92-96 of ECF. No. 107. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 18 of 58 17 Awareness, Sexual Harassment, Suicide Prevention, Student-to-Student Hazing and Harassment, and Teen Dating Violence. (Defs. SOUF, ¶ 260). Hegen also attended Child Abuse training specific to PSD Policy 806 regarding Child Abuse. (Defs. SOUF, ¶ 261). Hegen is familiar with the School District’s Bullying and Cyberbullying policy and the School District’s Student Discipline policy. (Defs. SOUF, ¶¶ 265 & 266). Policy Review Meetings are held every Monday morning and Thursday afternoon, which Hegen attends. (Defs. SOUF, ¶ 267). Hegen attended similar online trainings through GCN throughout the 2016-2017 school year, which included Sexual Harassment: abusive conduct, employee/supervisor and sexual harassment overall. (Defs. SOUF, ¶ 262). Since 2015, Hegen received training on peer-to-peer sexual harassment, which focused on peer conflict, bullying, harassment and sexual harassment (Defs. SOUF, ¶ 269). Additionally during the 2016-2017 school year and since Director of Administration, Dr. Troy Price, was hired in July 2015, Hegen attended Quarterly Assistant Principal Meetings run by Dr. Price. During these Quarterly Meetings, District policies were reviewed, including the Unlawful Harassment Policy and the Bullying and Cyberbullying Policy. Discussions during these meetings concerned the policies and procedures set forth for investigating allegations of peer-to–peer sexual harassment (Defs. SOUF, ¶ 264). Hegen received Title IX training in the context of sexual harassment as recently as August 2017. (Defs. SOUF, ¶ 268). Building Principal Gina DeBona received annual harassment training provided by the Compliance Officer/Title IX Coordinator. (Defs. SOUF, ¶ 270). DeBona is aware of the reporting process outlined in the School District’s policy regarding Unlawful Harassment (Defs. SOUF, ¶ 271). DeBona receives training at the beginning of each year through online GCN videos for topics that include sexual harassment, harassment, child mandated reporting, bullying Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 19 of 58 18 and child abuse. (Defs. SOUF, ¶ 272). The GCN training exercises include "links" to PSD policies. (Defs. SOUF, ¶ 273). DeBona completed online GCN harassment trainings since it was implemented. Prior to that, she received harassment training via PowerPoint Presentations by the HR Director (Defs. SOUF, ¶ 274). Each summer, DeBona attended and attends the Special Education Academy where she receives training in PSD policies and updates in education law. (Defs. SOUF, ¶ 275). DeBona received Title IX training through GCN and the PowerPoint Presentation trainings. (Defs. SOUF, ¶ 276). DeBona is aware of the PSD policy regarding Title IX and harassment of PSD procedures for responding to cyberbullying, which are/were discussed during summer workshop trainings. (Defs. SOUF, ¶ 277 & 278). Former Superintendent, Dr. Jacqueline Rattigan, obtained a Certificate in Training and Development and was educated in how to design and present workshops for staff. (Defs. SOUF, ¶ 279). Rattigan’s staff was trained to ensure proper handling of and responses to reports of bullying and harassment (Defs. SOUF, ¶ 280). She received training from PSD regarding harassment in 2013-2014; 2014-2015 and twice since the 2014-2015 school year. (Defs. SOUF, ¶ 281). Rattigan presented to the PSD staff at the beginning of the 2014-2015 school year. (Defs. SOUF, No. 289) The presentation discussed the importance of creating an environment of safety and trust for students. (Id.) This presentation was shown to all new hires at PSD via a PowerPoint Presentation. (Id.) Rattigan also received training regarding bullying when the Peace Center presented to administrators. (Defs. SOUF, ¶ 282). The GCN trainings Rattigan completed also covered the PSD policy on Unlawful Harassment. (Defs. SOUF, ¶ 283). Through the GCN trainings, Rattigan learned about general harassment; sexual harassment; cyberbullying; PSD policies regarding harassment; the manner in which a school should handle reports of harassment; and Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 20 of 58 19 PSD policy regarding cyberbullying. (Defs. SOUF, ¶ 284). Administrators and Rattigan attended summer workshops regarding harassment and changes in the law and received training on special education issues. (Defs. SOUF, ¶¶ 285 & 286). Rattigan also received training in June 2017 on PSD Policy 248, Unlawful Harassment. (Defs. SOUF, ¶ 290). Human Resources Director, Jacqueline McHale, also received Title IX training. (Defs. SOUF, ¶ 291). She holds a Certificate in Senior Professional in Human Resource Management, which required training related to Title IX. (Id.) She is a member of several professional organizations which provide annual conferences, seminars and training on harassment and Title IX. (Id.) McHale reviews the training that is provided to PSD employees regarding sexual harassment, including student-to-student sexual harassment and Title IX. (Defs. SOUF, ¶ 292). Prior to her employment at PSD, McHale was the Title IX coordinator at Lake Lehman School District and was responsible for monitoring regulations and training employees. (Defs. SOUF, ¶ 293). McHale is familiar with and understands the School District’s policy regarding Unlawful Harassment, and her role as Title IX coordinator is to ensure this policy is monitored and implemented as needed. (Defs. SOUF, ¶ 294). McHale and Dr. Price ensure that all employees, including new hires, complete online GCN training on harassment, including sexual harassment, every two years or as soon as they are hired. (Defs. SOUF, ¶¶ 295 & 296). The online GCN trainings incorporate PSD’s specific harassment policy, and it is designed such that the user cannot bypass review of PSD’s specific policy because the user must review the policy before moving to the next module. (Defs. SOUF, ¶ 297). Sexual assault, violent sexual assault and the reporting of violent sexual assault to authorities are all topics covered in the training. (Defs. SOUF, ¶ 298). PHS administrators are Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 21 of 58 20 provided with online harassment training in order to investigate complaints of student-to-student sexual harassment. (Defs. SOUF, ¶ 299). Dr. Price received harassment and sexual harassment training from PSD within his first month of employment and as recently as August 2017. The trainings are provided through GCN on a bi-yearly basis. All new-hires are trained at the time of hire and then are cycled into regularly scheduled training. Dr. Price conducts monthly principal meetings during which he discusses District-wide policies that include harassment, bullying and cyberbullying. During Price's meetings with Principals and Assistant Principals he reviews PSD expectations for student safety and investigations, and the administrators are instructed to "investigate everything." (Defs. SOUF, ¶ 301). On January 11, 2017, Dr. Price held a Secondary Principal Meeting where he discussed bullying and the difference between bullying and peer conflict. (Defs. SOUF, ¶ 258). PSD policies, including Policies 248 and 249 regarding Harassment and Bullying, are introduced, summarized and discussed by Dr. Price at Monthly Principal Meetings. (Defs. SOUF, ¶ 303). Dr. Price holds Quarterly Assistant Principal Meetings during which PSD policies are reviewed, including School District Policies 248 and 249 regarding Harassment and Bullying. (Defs. SOUF, ¶ 304). Dr. Price understands Policy 248 regarding Unlawful Harassment and Policy 249 concerning Bullying and the procedures outlined in the policies and is familiar with PSD Policy 218 regarding student discipline. (Defs. SOUF, ¶¶ 306 & 310). In 2018, Rattigan, Dr. Price and McHale attended a NOVA seminar, which provided training on bullying and the difference between bullying and student-to-student conflict. (Defs. SOUF, ¶ 288). Assistant Principal, David Laboski, received annual online training from PSD regarding harassment and sexual harassment. He most recently received this training in August 2017. The Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 22 of 58 21 online platform provided training on different topics such as harassment, sexual harassment, bullying and cyberbullying and prompts users to take a test at the end of each segment. (Defs. SOUF, ¶ 312). Laboski attended The Peace Center training concerning harassment and sexual harassment. (Defs. SOUF, ¶ 313). Assistant principals attend four meetings a year with Dr. Price to discuss District policies on harassment and sexual harassment. (Defs. SOUF, ¶ 314). The Quarterly Assistant Principal Meetings provide a forum and opportunity for administrators to ask questions concerning the harassment policies. (Defs. SOUF, ¶ 315). Laboski received online Title IX training. (Defs. SOUF, ¶ 316). Laboski is familiar with PSD's policy on bullying and cyberbullying. (Defs. SOUF, ¶ 317). Laboski received harassment trainings when he worked for his previous employer, Saucon Valley School District, when attorneys came to the District and held meetings throughout the year. (Defs. SOUF, ¶ 318). Guidance Counselor, Lori D’Angelo, received training from PSD regarding student-on- student harassment, student-on-student sexual harassment, bullying and discrimination. (Defs. SOUF, ¶ 319; Ex. 19 to Defs. SOUF, pp. 33:18-35:19). Prior to the 2015-2016 school year, at the beginning of each school year, Ray Scarpantonio provided harassment training to all PHS staff, including Lori D'Angelo. (Defs. SOUF, ¶ 320). D’Angelo completed continuing education credits on bullying and harassment, including Mean Boys and Girls; A Look Into Bullying Prevention in the School; and How to Protect Students from Online Victimization. (Defs. SOUF, ¶ 321). D’Angelo received online harassment and sexual harassment during the 2016-2017 school year. (Defs. SOUF, ¶ 322). The online GCN modules are completed each school year and provide videos and slides regarding examples of harassment, bullying and discrimination and a quiz must be completed at the end of each section. (Id.) PSD enacted a policy concerning Title IX and D’Angelo understands Title IX. (Defs. SOUF, ¶ 323). D'Angelo confirmed that the Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 23 of 58 22 District's policies are linked within the online trainings in a way that the policies must be read before the training recipient can click on the next item and move forward. (Defs. SOUF, ¶ 324). D’Angelo is aware of the District’s policy concerning Title IX. (Defs. SOUF, ¶ 325). D’Angelo received GCN training regarding sexual harassment. (Defs. SOUF, ¶ 326). Guidance Counselor, Erik Henrysen, received online training on harassment, appropriate conduct amongst colleagues and suicide prevention. The online trainings concluded with a test on each topic. (Defs. SOUF, ¶ 327). Henrysen participated in group training with Ray Scarpantonio, former Human Resources Director. (Defs. SOUF, ¶ 328). The online training segments vary in time from 20 minutes to over an hour. Completing the test is part of the training. (Defs. SOUF, ¶ 329). Henrysen received online training through his former employer, Central Bucks School District. (Defs. SOUF, ¶ 330). The Central Bucks training included modules regarding sexual harassment and bullying. (Defs. SOUF, ¶ 331). Henrysen understands PSD's discipline policy and is aware of PSD's policies regarding harassment, bullying and discrimination. (Defs. SOUF, ¶ 332). School Psychologist, Dr. Ross Owens, received training from PSD regarding harassment, bullying and sexual harassment. When he was initially hired, he received training via live presentations at in-service meetings. Currently, the annual training is conducted through online modules. (Defs. SOUF, ¶ 333). Dr. Owens attended bullying and sexual harassment training. (Defs. SOUF, ¶ 334). GCN provides online annual training, and Dr. Owens participates in a full in-service days to complete the modules. (Defs. SOUF, ¶ 335). Dr. Owens received training on Title IX through GCN. (Defs. SOUF, ¶ 336). Dr. Owens receives annual training on bullying and cyberbullying at PHS and has attended outside conferences and training on bullying. (Defs. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 24 of 58 23 SOUF, ¶ 337). Owens received discrimination training through the GCN modules. (Defs. SOUF, ¶ 345). Owens is aware of a PSD policy that pertains to Title IX. (Defs. SOUF, ¶ 346). Guidance Counselor, Peter Cortazzo, received training from PSD regarding harassment at least once a year, and the trainings were provided by PSD employees and outside speakers. (Defs. SOUF, No. 339). The outside speakers provided sexual harassment training during an in- service day. (Id.) Cortazzo was also trained concerning Title IX. (Defs. SOUF, ¶ 340). PSD maintained policies pertaining to a student's report of sexual harassment, which Cortazzo knew to follow when presented with such a report. (Defs. SOUF, ¶ 341). He attended trainings on PSD policies, and also PowerPoint presentations on harassment during in-service days, which were presented by PSD's Compliance Officer/Title IX Coordinator. (Defs. SOUF, ¶¶ 342 & 343). He is knowledgeable of PSD's policy regarding cyberbullying. (Defs. SOUF, ¶ 344). A former PHS student, H., also provided testimony as to the programs that PHS had in place to educate and assist students with harassment and bullying. (Defs. SOUF Ex. 146, attached hereto, H. Depo., pp. 13:16-16:13). Defendants' liability expert, Martin J. Hudacs, Ed.D., reviewed the evidence of record and concluded that the administration and staff at PSD were appropriately trained to respond to and investigate claims of sexual and unlawful harassment. (Defs. SOUF, ¶ 350). G. PSD Did Not Have a Policy or Custom of Failing to Address Student-On- Student Sex-Based Harassment at PHS 1. Darbi's allegations regarding an alleged policy or custom of failing to notify the Title IX Coordinator of harassment complaint Darbi's first "policy or custom" argument is that Defendants maintain a policy or custom of not involving PSD's Title IX Coordinator in any harassment investigations until after the investigation is complete. Darbi is misconstruing the evidence that is cited and relied upon in her Statement of Undisputed Facts. PSD employees typically took action immediately upon Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 25 of 58 24 receiving a report from a student by interviewing those involved and holding conferences with parents, if warranted. This is reflected above, with regard to Darbi's reports. Nonetheless, Darbi claims that PSD had an "unwritten policy" of not notifying PSD's compliance officer of harassment complaints because PSD employees undertook to immediately investigate reports rather than wait to investigate until after the compliance officer could become involved. (Plaintiff's Memorandum of Law, p. 11). Darbi's claim relies heavily upon the testimony of Title IX Coordinator Jacqueline McHale—specifically, an allegation that Ms. McHale testified that PSD has a policy of granting "sole" authority to conduct an investigation to PSD administrators. Ms. McHale never made such a statement. Those were Plaintiff's counsel's words, which were never agreed to or adopted by Ms. McHale. (Defs. Resp. to Pltf. SOUF, ¶ 91). Ms. McHale's actual testimony was that PSD employees have authority to investigate reports, not that they had "sole" authority. (Id.) Authority to investigate, which was the subject of Ms. McHale's testimony, is not the same as "sole" authority to investigate, and it is extremely misleading for Darbi and her counsel to make such a representation to the Court—even going so far as to put the words in quotations and attribute them to McHale. Similarly, Ms. DeBona never testified that Ms. McHale would not be notified "unless" it was determined at the conclusion of an investigation that there was clear and pervasive harassment, nor did she testify that Ms. McHale would not be notified until after the investigation was completed. (Compare Pltf. SOUF, ¶ 92 with Defs. Resp. to Pltf. SOUF, ¶ 92). Darbi's slight modifications to witness testimony and insertion of certain words never used by these witnesses completely changes the meaning of their testimony, as it suggests that Ms. McHale was intentionally kept in the dark about investigations that took place. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 26 of 58 25 As Ms. DeBona explained, PSD would notify the Title IX Coordinator if the administrators' investigation found that the reported incident rose above peer conflict to harassment. (Ex. 11 to Defs. SOUF, p. 226:15-24). She also explained, in the portion of her testimony immediately preceding that which is cited by Darbi, that they will sometimes notify McHale immediately if they believe her involvement is necessary based upon the nature of the report. (Id., p. 226:7-10). Since Darbi's counsel was only using the term "harassment" and not "sexual harassment," DeBona clarified that she answered as she did because McHale would become involved "when it is harassment as it would pertain to sex and gender under Title IX." (Id., p. 226:15-22). Darbi also improperly relies upon proclamations that certain events never took place merely because her counsel did not obtain discovery relating to them. For instance, Darbi cites to Ms. McHale's name not appearing in a set of discipline records produced in response to a Court Order compelling records pertaining to "peer conflict" as probative that investigation of "harassment" did not take place. (Pltf.'s SOUF, ¶ 95). These records primarily consisted of student-drafted incident reports and form discipline referrals and, moreover, related to incidents of peer conflict, not harassment. (Defs. Ex. 151, attached hereto, Declaration of K. Heisner). Defendants interpreted the Court's use of the term "involving" in its Order very broadly. Records were produced even where the use of a derogatory word was merely ancillary to the incident. For example, the records produced included altercations such as two female students fighting, in which one called the other a bitch; a male student calling another male student a bitch; female students calling another female student a bitch; a male student calling another male student a bitch and threatening to fight; a female student threatening to punch another student in the "fucking face;" a fight between female students because one suggested the other does not have a Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 27 of 58 26 butt; and various other incidents that are not examples of "sex-based harassment," despite Darbi's representations to the contrary. (See, e.g., Defs. Ex. 152, Goodwin-PSD 3437, 3443, 3452, 3468, 3482). Additionally, Darbi references 46 pages of harassment-related records, but fails to acknowledge that these are only log entries for unrelated incidents. (Defs. Ex. 151, attached hereto, Declaration of K. Heisner). Defendants objected to producing any and all records relating to these incidents as overly broad and not proportional to the needs of this case, and Plaintiff never pursued this discovery. (Id.) It is extremely misleading to suggest to the Court that other harassment complaints were not investigated (which they were) merely because Darbi does not have the records for those other incidents. Moreover, Darbi is now alleging a much broader "policy or custom" claim than that pled in her Amended Complaint. In paragraph 92 of Darbi's Amended Complaint, she alleges that Defendants "maintained a policy, custom, and practice of (i) refusing to investigate sexual harassment, including sexual assault, that occurs off-campus and/or does not result in the criminal conviction of the alleged assailant, even if the assault contributes to an on-campus hostile environment, and (ii) encouraging victims to leave PHS." (Ex. 2 to Defs. SOUF, ¶ 92) (emphasis supplied). As explained above, Darbi was never subjected to a hostile environment at PHS following the alleged rape. 2. Darbi's allegations regarding alleged policies or customs of (1) failing to investigate and discipline students for harassment that occurs outside of a school activity and (2) failing to investigate or discipline students for sexual assault independent of police activity Darbi also claims that PSD has a pattern and practice of not investigating harassment which occurs outside of school, and a related claim that PSD has a pattern and practice of relying upon the police to address student reports of sexual assault rather than conducting their own, Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 28 of 58 27 separate investigation. (Pltf.'s Memorandum of Law, p. 12). She cites to testimony of DeBona pertaining to Goodwin's rape allegation, but does so by piecing together portions of DeBona's testimony in such a way as to place it out of context and change its meaning. (Compare Pltf.'s SOUF, ¶ 96 with Defs. Resp. to Pltf.'s SOUF, ¶ 96). Ms. DeBona's testimony was, "[w]e don't have the resources outside in the community. We can investigate in-house and speak to the students in-house, but we don't have the resources, nor, I believe, the jurisdiction to go out and interview community members." (Ex. 9 to Defs. SOUF, p. 187:12-17). Ms. DeBona went on to explain, when asked whether PSD will investigate incidents where police are also involved, that PSD "will investigate the students in-house and oftentimes in collaboration with the police.” (Ex. 11 to Defs. SOUF, p. 188:2-8). With regard to incidents that occurred out in the community and were unrelated to PSD's property or activities, however, the local police would "take the lead." (Id., at p. 188:8-10). She went on to explain that PSD and the police have a great relationship and are able to collaborate on investigations. (Id., at p. 189:11- 21). At no point did Ms. DeBona or any other representative of PSD have a policy or custom of simply ignoring and refusing to investigate any incidents that did not occur on PSD property. Darbi's allegation pertaining to an alleged refusal to discipline students for off-campus conduct was never pled as part of her Amended Complaint and should not be considered. Even if it were, her allegation is an oversimplification of PSD's policy. The reason that H. was not disciplined in response to Darbi's allegation that he raped her was because it was a single, isolated incident that occurred on a weekend, while PHS was in winter recess, away from school grounds. Moreover, there were conflicting accounts of the events, but neither was more credible than the other. (Ex. 11 to Defs. SOUF, DeBona dep., pp. 238:23-245:22). DeBona testified that, under these facts, when a student is accused of rape or sexual assault, investigated by the police, Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 29 of 58 28 and no charges are brought, she considers the student not guilty in the eyes of the law and does not impose punishment as though the student is presumed to be guilty. (Ex. 11 to Defs. SOUF, DeBona dep., p. 260:12-17). At the same time, DeBona will, and in fact did, respect the female [Darbi] and protect her rights and provide comfort in the school. (Ex. 11 to Defs. SOUF, DeBona dep., pp. 260:4-261:14). Darbi does not contend, nor could she truthfully, that PSD never disciplines students who are accused of sexual harassment of other students. As is demonstrated by the log notes and discipline files provided in discovery, several students have been disciplined for such actions. (Ex. 130 to Defs. SOUF, Discipline Log Report). Darbi's bald assertion that DeBona does not discipline students for sexual assault in the absence of a criminal charge is a complete mischaracterization of her testimony. (See, Defs. Resp. to Plf.'s SOUF, ¶ 99). Darbi also mischaracterizes PSD's Board Policies by arguing that they require PSD to investigate all allegations of sexual harassment by their students, regardless of where and when the alleged conduct takes place. (Pltf.'s SOUF, ¶¶ 100 & 101). These policies clearly identify that they apply "in the school setting," along with similar language. (Defs. Resp. to Pltf.’s SOUF, ¶¶ 100 & 101). There must be some connection to PSD school operations or property in order to trigger an investigation and the conduct at issue must meet the definition of unlawful harassment. Here, Darbi's alleged December 2014 off-campus rape was not even reported until months after it occurred and there is no record that Darbi and H. interacted at all until nearly a year later, in November 2015, when Darbi initiated and provoked a confrontation with him. (Defs. SOUF ¶¶ 41, 155-156, 158, 160). Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 30 of 58 29 3. Darbi's allegations regarding an alleged policy or custom of failing to create and submit written reports of harassment investigations to the Title IX Coordinator Finally, Darbi argues that her equal protection claim is supported by the fact that DeBona did not submit a written report of harassment to McHale during the time period from June 2015 to June 2017. (Pltf.'s Memorandum of Law, p. 13). While it is true that Ms. DeBona did not personally submit a written report of a harassment complaint to the Title IX Coordinator during this time period, Darbi neglects to acknowledge that assistant principals did submit such reports on DeBona's behalf. (Defs. Resp. to Darbi's SOUF, ¶ 102). Darbi also makes no effort to draw any connection between the identity of who submitted these reports and the alleged harm to Darbi. II. STANDARD OF REVIEW Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, "show that there is no genuine issue as to any material facts and a moving party is entitled to judgment as a matter of law." F.R.C.P. 56(c). The court must view the facts and all inferences drawn therefrom in the light most favorable to the non-moving party. Gorman v. Twp. of Manalapan, 47 F. 3d 628 (3d Cir. 1995). The role of the court is not to weigh the evidence and determine the truth of the matter, but to determine whether, construing the facts and inferences therefrom in the light most favorable to the moving party, there is a genuine issue for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Caltex Corp. v. Catlett, 477 U.S. 317 (1986). If the moving party makes a showing, the burden is on the non-moving party to Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 31 of 58 30 demonstrate that there is a genuine issue of material fact by coming forward with sufficient evidence from which a reasonable jury could return a verdict for the non-moving party. United States v. 107.9 Acre Parcel of Land in Warren Twp., 898 F. 2d 396 (3d. Cir. 1990). III. LEGAL ARGUMENT A. Darbi's Heavy Reliance Upon Highly Distinguishable Case Law From Another Circuit Fails to Support Her "Failure to Train" Claim 1. The Doe v. Forest Hills Sch. Dist. decision is an unpublished district court decision from Michigan, involving a faulty legal defense not raised here Throughout her motion, Darbi relies upon the Western District of Michigan's unpublished opinion in Doe v. Forest Hills School District, No. 1:13-cv-428, 2015 WL 9906260 (W.D. Mich. March 31, 2015) ("Forest Hills") to support her claims for violation of Equal Protection Rights, along with various other cases from other jurisdictions. (See Pltf.'s Memorandum of Law, pp. 18-25, 31-33) (citing to and relying upon Forest Hills). Plaintiff's motion is noticeably bereft of Third Circuit precedent on the contested issues in this case. The Forest Hills decision is not binding precedent. In fact, due to the nature in which it was decided, it is not even persuasive authority. There is no indication in the trial court's opinion that the defendants argued that their training on Title IX issues was adequate. Instead, it appears that the defendants in Forest Hills opposed the plaintiff's motion "on the basis that she ha[d] not identified any custom or policy of the District that caused its employees to violate her rights." Id., at *49. The trial court found that the "[d]efendants plainly misstate[d] the law by asserting that a school district may be held liable only if an unconstitutional act was committed pursuant to an official school policy or custom." Id., at *50. The school district in that case admitted that it did not provide any training whatsoever to its employees on how to respond to sexual assault Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 32 of 58 31 complaints, unlike PSD here. Id., at *53. In fact, there were numerous factors in the Forest Hills case that distinguish it from the present matter. 2. The Forest Hills decision is distinguishable from the present matter in several critical respects The Forest Hills case involved a male high school student who, on November 3, 2010, allegedly sexually assaulted and attempted to rape a female student while he pinned her to the ground in the school's band room after the school day ended. Id., at *3-4. The plaintiff told two friends about the assault and reported the incident to a teacher, who relayed it to the school principal. Id., at *4-5. The school principal never interviewed the students who received the plaintiff's report of the incident and never asked the police for a copy of the rape kit report. Id., at *7. Approximately two weeks later, the assailant was reported to have sexually assaulted another female student. Id., at *7-8. Over one month after the original assault took place, the building principal told the plaintiff's father that he could not discipline the assailant without proof and that he was waiting for the police investigation to conclude. Id., at *8. Around that same time, the assailant was formally charged with Criminal Sexual Conduct-Fourth Degree. Id., at *12. He pled guilty to misdemeanor assault on June 27, 2011. Id., at *17-18. On October 5, 2011, the plaintiff's father was advised by the school that the investigation was closed. Id., at *18. During the approximately seven-month period following the assault, the assailant and other students were reported to have engaged in an ongoing campaign of harassment against the plaintiff as retaliation for reporting the sexual assault. Id., at *8-17. Although school officials repeatedly told the assailant to stay away from the plaintiff, he would follow her around school, block her exits from bathrooms and classrooms, call her ugly and a liar, hiss at her, key her car, and push people into her in the hallways. Id., at *9-10. The plaintiff was also ostracized and cyberbullied, was involved in a confrontation with another student who was defending the Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 33 of 58 32 assailant, and was chanted at until she left a basketball game (the assailant played for the team). Id., at *10. The assailant followed the plaintiff at a track event, "whispering things" to her from behind. Id., at *15. One of his friends admitted that the assailant pushed somebody into the plaintiff on purpose. Id., at *16-17. The plaintiff's father reported that "small acts of intimidation" were continuing to take place as late as May 2011. Id., at *17. The school district claimed that these instances were never reported to them, but they were contradicted by the evidence showing that the plaintiff's parents repeatedly reported instances of harassment. Id. The plaintiff in Forest Hills argued that the school district was deliberately indifferent because it merely talked to the assailant while he and others harassed the plaintiff for the remainder of the school year, put the onus on the plaintiff to report incidents, and conducted a very limited investigation of the alleged incident while it waited for the police to conclude its own investigation. Id., at *31-33. Although the trial court found that it was possible that a jury could find the school district to have been deliberately indifferent, it also noted that the school district did act by contacting the police, that a school's failure to follow Title IX guidance does not automatically mean that it was deliberately indifferent and that, therefore, it could not be determined as a matter of law that the school district was deliberately indifferent. Id., at *35-36. The Forest Hills case is distinguishable from the present matter in several important respects. Unlike the present matter, the case involved a forcible sexual assault by another student that occurred on the school campus on the floor of a band practice room. Here, Darbi contends that the alleged rape occurred on a Saturday evening when neither she nor H. was under the care, custody or supervision of PSD or any of its representatives. Instead, Darbi and H. were alone in H.'s car that was located in an off-campus restaurant parking lot while the school was closed for Christmas break. There were no witnesses to the incident. The alleged Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 34 of 58 33 rape occurred on December 27, 2014, but the school was not notified of the claim until nearly three months later. The record reflects that Darbi never had an encounter with H. on school property until 11 months later, on November 19, 2015, when H. stated to his companions that Darbi was a "fucking bitch." This statement was provoked by Darbi's initial statement to H. when she said, "Wow, speak of the devil." (Defs. SOUF ¶¶ 29, 41, 155-156, 158, 160). When PSD initially learned of the reported rape, it took immediate action by contacting two different police departments, meeting with Darbi and her family, meeting with H., contacting H.'s parents, and instructing H. to have no contact with Darbi inside or outside of school. PSD undertook these actions and did not wait for the police investigation to conclude. PSD asked H. whether he raped Darbi and H. said he did not rape Darbi. (Defs. SOUF ¶43-44, 48, 51-52). PSD spoke with the only two people who were present in the vehicle on December 27, 2014. There was no one else to interview or speak with about what occurred inside the car. While PSD had ongoing communications with Darbi and her family, and instructed H. to stay away from Darbi, PSD could not investigate further a reported rape that occurred months ago on a Saturday night in a restaurant parking lot. H. was never charged with a crime and there is no indication that probable cause ever existed to arrest H. for the off-campus incident. Recently, the Eastern District of Pennsylvania held that "harassment that takes place off school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred.” Williams v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 at * 20 (citing M.S. v. Susquehanna Twp. Sch. Dist., No. 13- 2718, 27 U.S. Dist. LEXIS 47916, 2017 W.L. 6397827 at *10 (M.D. Pa. 2017) (harassment through social media not within school district's control). Here, the incident occurred both off Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 35 of 58 34 school grounds and outside of school hours. PSD had no control over the incident or H. when it occurred. Moreover, this case is unlike the sexual allegation in Forest Hills, where there was an admission of guilt or corroborating evidence to establish whether Darbi's allegations against H. were true. See, Forest Hills, supra at *28 (acknowledging the "tension" when considering disciplinary action against a student for unproven allegations, and the legal exposure it creates). See also, C.R. v. Novi Cmty. Sch. Dist., No. 14-14531, 2017 U.S. Dist. LEXIS 18394, at *47n. 23 (E.D. Mich. Feb. 9, 2017) (distinguishing and finding Forest Hills "inopposite" because the perpetrator plead guilty to the plaintiff's allegations in the related criminal case). Here, H. never plead guilty and was never charged with any crime by the police. Both Darbi and H.'s statements to the police demonstrate that they were the only two individuals present in the vehicle when the alleged assault occurred. H. also told Laboski that there were no witnesses to the incident. (Defs. SOUF ¶ 35-36, 51). H. abided by Laboski's instruction to stay away from Darbi and the two had no communication until Darbi initiated it in November 2015. (Defs. Resp. Pltf. SOUF ¶ 43, 51; Defs. SOUF ¶ 160. There is no indication that during this intervening time period that H. harassed Darbi. Moreover, the nature of the harassment in Forest Hills was much more severe than anything reported by Darbi in the present matter. Darbi was not stalked by H. – she initiated the only reported communication involving them almost a year after the alleged assault occurred. Although the Incident Report reflects that H. turned to his friends and stated that Darbi was a "fucking bitch," H. did not follow Darbi around school, block her exists from bathrooms and classrooms, hiss at her, key her car, or push people into her in the hallways like the assailant in Forest Hills was reported to have done to the plaintiff in that case. (Defs. SOUF ¶ 156). Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 36 of 58 35 Darbi was never chanted at by other students until she had to leave school events. Rather her primary complaint had to do with the mere presence of H. and his friends at her high school. The conduct of B., C. and N. about which Darbi complains does not constitute sexual harassment and the majority of Darbi's complaints resulted from Darbi's reporting these boys to the police for breaking into an abandoned house. (Defs. SOUF ¶¶ 72-84, 94-100). Moreover, B. was soundly disciplined for sending Darbi a threatening text message and the matter was reported to his family and the police. (Defs. SOUF ¶ 87). N. and C. sent Darbi text messages while "off school grounds" and "outside of school hours." When C. bumped into Darbi in the hallway, the matter was investigated and resolved, albeit not to Darbi's satisfaction. (Defs. SOUF ¶¶ 171, 173-182). Yet, these isolated instances do not constitute sexual harassment or harassment of any nature whatsoever. 3. The other non-binding case law from other jurisdictions cited by Darbi is similarly distinguishable. Darbi cites to six circuit court cases—but none from the Third Circuit—to support her claim that a public school's failure to address student-on-student harassment constitutes discrimination that was clearly established as a matter of law during the relevant time period to this case. (Darbi's Memorandum of Law, p. 14). In deciding whether qualified immunity applies, a court must decide whether the facts the plaintiff has shown make out a constitutional violation. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633 (3d Cir. 2015). The court must also determine whether the right at issue was clearly established at the time of defendant’s alleged misconduct. Spady, 800 F.3d at 637. Here, none of Darbi's constitutional rights have been violated and she was not harmed by any of Defendants' actions. Consequently, qualified immunity is applicable and appropriate, and the individual defendants are entitled to summary judgment in their favor. Moreover, Darbi has Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 37 of 58 36 not shown that a clearly established right existed at the time of any alleged violation of a constitutional right. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable school district employee that his or her conduct was unlawful in a situation confronted. Such is not the case here. The cases cited by Darbi do not demonstrate a clearly established right in the Third Circuit, nor are they factually analogous to the present case. As outlined below, the cases upon which Darbi relies involve much more egregious actions by both the student harassers and the school employees. As such, there is nothing in these cases that would place Defendants on notice that their conduct was unlawful. In fact, when compared to the facts of the cases cited by Darbi, Defendants' actions appear entirely reasonable and appropriate. In Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015), the Eleventh Circuit affirmed the grant of summary judgment to a school board and all individual defendants except for the school president. Id., at 985-86. The case involved a middle school student who was anally raped when a teacher's aide convinced her to participate in a "rape bait" sting operation by agreeing to meet a male student in the school's bathroom to have sex. The male student had been propositioning her for sex for two weeks leading up to the rape, had been involved in sexual harassment incidents with other girls, and was serving a 20-day in-school suspension for sexual harassment at the time of the rape. Id., at 971-72. Despite medical evidence and photographs showing anal lacerations, rectal bleeding, redness and swelling, all of which corroborated the plaintiff's claim that she was anally raped, the school principal and assistant principals testified that they could not determine whether a rape occurred because the assailant only admitted to kissing and they did not think a rape could occur unless prosecutors bring criminal charges. Id., at 965. The building principal did not change any school policies as a result of the incident because he thought that they did a Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 38 of 58 37 good job in handling the incident. Id. The Eleventh Circuit described the case as having "highly unique and extreme facts," given that the "administrators effectively participated in CJC's sexual harassment by setting Doe up in a rape bait scheme involving CJC in order to 'catch him in the act.'" Id., at 972-73. In Shively v. Green Local Sch. Dist. Bd. of Educ., 579 Fed. Appx. 348 (6th Cir. 2014), a student brought equal protection and other claims relating to allegations that she was subjected to "constant name-calling, harassment based on her religion, teasing and verbal intimidation, and on several occasions, physical violence" over the course of several years because she identified as Jewish. Id., at 350-51. Defendants filed an interlocutory appeal of the denial of their motion for judgment on the pleadings and, therefore, the Sixth Circuit merely looked to whether the allegations set forth a plausible claim when viewing the complaint in a light most favorable to the plaintiff. Id., at 352. When viewing the allegations in the light most favorable to the plaintiff, including allegations that she was put on a "kill list" by a student who was expelled but then allowed on school grounds just three weeks later, that the school was aware of ongoing harassment over several years and "did nothing to address the situation," and other allegations, the Sixth Circuit found that the complaint adequately pled a violation of equal protection claim. Id., at 358. Not only is an entirely different standard applicable to the present motion, but Darbi's allegations of conduct by PSD students, including H., is nowhere near as severe and pervasive as the allegations in Shively. The next case relied upon by Darbi is DiStiso v. Cook, 691 F.3d 226 (2d Cir. 2011), in which the plaintiff alleged that elementary school administrators were deliberately indifferent to racial harassment of a student while in kindergarten and first grade. The student testified that, on an almost daily basis, he had been called racial slurs by other students, was pinched, punched Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 39 of 58 38 and hit by other students, told he had to use a brown crayon to draw a picture of himself by a teacher, and dragged across a floor by a teacher, all on school grounds. Id., at 230-32. The Second Circuit, in considering the appeal by the defendants from denial of their motion for summary judgment, found it possible that a jury could find the classmates' comments, particularly the use of "the reviled epithet 'nigger'" directed toward the kindergarten student approximately eight and possible as many as fifteen times, along with other racially motivated comments, to constitute severe harassment. Id., at 242-43. Although the school claimed that its employee stated that he would talk to the children who were name-calling and that this was a reasonable response, the Second Circuit noted that there was evidence sufficient to permit a reasonable jury to find that the school did "nothing" in response to several of the complaints of racial name-calling. Id., at 244 (emphasis in original). Thus, construing the facts in favor of the plaintiff, the Second Circuit found that there were issues of credibility that required a jury determination as to whether the school district acted appropriately. Id., at 245. The next case cited by Darbi, Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003), involved anti-homosexual harassment of several students by other students in the form of homophobic slurs, pornography placed in their lockers, a death threat, having food thrown at them, being beaten to the point of needing hospitalization while being called a faggot, and having rumors spread by a campus monitor about engaging in intercourse on school grounds. Id., at 1132-33. The school employees were alleged to have told one of the plaintiffs, "don't bring me this trash anymore. This is disgusting." in response to one of the plaintiff's complaints of the notes being left in their lockers. Id., at 1133. Another teacher responded to a complaint by instructing the plaintiff to change clothes away from the locker room so that the other students would not feel uncomfortable by her presence. Id. The Ninth Circuit found that there was Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 40 of 58 39 sufficient evidence for a jury to potentially find deliberate indifference when an assault victim was merely told to report the on-campus incident to police, only one of several students who distributed the pornographic images was disciplined and who subsequently bragged about his light punishment, failure to take any disciplinary action against five of the six students involved in hospitalizing one of the plaintiffs, and other allegations supported by the record were considered. Id., at 1135-36. In Murell v. School Dist. No. 1, 186 F.3d 1238 (10th Cir. 1999), the next case relied upon by Darbi, the plaintiff mother brought an action on her own behalf and on behalf of her developmentally disabled daughter arising out of the harassment, assault and battery of her daughter. Id., at 1242. The school was advised that another developmentally disabled student was making harassing phone calls to the plaintiff's daughter at her home and had a history of sexually inappropriate conduct. Id., at 1243. The assailant then sexually assaulted the plaintiff's daughter on multiple occasions on school property, including one which resulted in her vomiting and bleeding. Id. Instead of reporting the incident to the mother, the school employees hid the evidence of the incident by tying other clothing around her waist, told her not to tell her mother, and encouraged her to forget that it happened at all. Id., at 1244. After being released from a stay at a psychiatric hospital, the student was assaulted by the assailant again upon her return to the school and ridiculed for the prior sexual assault. Id., at 1244. The Tenth Circuit upheld the dismissal of the claims against the school district, but reversed dismissal of the equal protection claims against the individuals on the basis that their failure to ever report the incidents to police, discipline the assailant, or even remove him from his assistant janitorial position could constitute deliberate indifference. Id., at 1245. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 41 of 58 40 Finally, Darbi relies upon the Seventh Circuit's opinion in Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), in which a student alleged that he was harassed and abused over the course of both his middle school and high school years by other students because he was homosexual. Id., at 449. The incidents included use of homophobic slurs, striking the plaintiff, spitting on him, pinning him down for a "mock rape" while approximately twenty students watched and laughed, and other acts of harassment spanning several years. Id. at 451. The school principal allegedly promised to take action, but "took no action," told the plaintiff that "boys will be boys," and told him that if he was "going to be so openly gay," that he should expect such behavior from other students. Id. Construing the facts in the light most favorable to the plaintiff, the Seventh Circuit found that a reasonable fact-finder could conclude that the school district and its employees discriminated against the plaintiff due to his gender or sexual orientation. Id., at 460- 61. B. Darbi's Failure to Train Claim Against PSD, Rattigan and DeBona Must Be Dismissed as a Matter of Law10 Darbi's motion cites the standard for a failure to train claim set forth in Thomas v. Cumberland Cnty., 749 F.3d 27 (3d Cir. 2014), which holds that a failure to train claim requires a showing that there was (1) an identified deficiency in the training program, (2) the failure amounts to deliberate indifference, and (3) the identified deficiency was closely related to the ultimate injury. Id. Here, Darbi does not meet a single one of these elements. 1. Training did not have identified deficiencies The training provided by PSD to its employees is outlined in great detail above, in Section I(F). Yet, Darbi premises her entire argument that the training provided by PSD was 10 Defendants moved for dismissal of Count III to Plaintiff's Amended Complaint in their own motion for summary judgment and incorporate by reference their arguments set forth in that motion to avoid unnecessary duplication, as it serves as a de facto opposition to the present motion. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 42 of 58 41 inadequate on a review of certain slides and on counting the number of times that certain terms appear on those slides (albeit erroneously). (Darbi's Memorandum of Law, pp. 16-17). Darbi fails to acknowledge that the PowerPoint slides were used in live, in-person presentations, and therefore were not the sole source of information at these presentations. (Ex. 19 to Defs. SOUF, pp. 33:18-35:19) (testimony discussing the live presentations by Scarpantonio). The presenter was the former Title IX Coordinator for PSD, Raymond Scarpantonio, who was made available for a deposition, but Darbi chose not to proceed with it. With regard to the GCN training, which Darbi claims only mention "Title IX" twice and "sexual harassment" once (it actually appears five times in the document), Darbi declines to advise the Court that this nine-page training document also contains over 40 references to the shortened form of the term, "harassment," which is specifically explained on page one to include sexual harassment. (Pltf. Ex. 69, Goodwin-PSD 1358-1366). It is extremely misleading and improper to suggest that this document does not address sexual harassment merely because it does not place the word "sexual" before each and every use of the term "harassment." Yet, this is what Darbi relies upon to establish an "identified deficiency" in PSD's training program. Darbi also omits all of the other training provided to PSD employees on Title IX and sexual harassment, which are outlined above, and blatantly misrepresents that the GCN training provides no guidance on PSD board policies. In fact, the GCN training exercises include "links" to PSD policies, incorporate PSD’s specific harassment policy, and are designed such that the user cannot bypass review of PSD’s specific policy because the user must review the policy before moving to the next module. (Defs. SOUF, ¶¶ 273 and 297). The mere fact that Darbi relies upon such a faulty understanding of PSD's training program is, itself, sufficient to dismiss this claim. She is either mistaken or intentionally Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 43 of 58 42 misleading as to some of the training provided and merely ignores the vast majority of the other training that was provided to PSD employees. Without it being established that there was an identified deficiency in PSD's training regimen, there is no need for the Court to go any further in its analysis. This claim should be dismissed. 2. Even if an identified deficiency in PSD's training existed, Defendants were not deliberately indifferent "Failure to adequately screen or train municipal employees can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations." Does v. SE. Delco Sch. Dist., 272 F. Supp. 3d 656, 668 (E.D. Pa. 2017) (quoting Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). However, "[i]n a narrow range of circumstances," a plaintiff may proceed on a "single-incident" theory of liability. Id. Darbi does not proceed on a "single-incident" theory of liability—rather, she claims in her Amended Complaint that "PSD administrators have a pattern and practice of sweeping sexual harassment under the rug by refusing to investigate victims' claims and encouraging the victims to drop out of PHS and attend this alternative school." (Ex. 2 to Defs. SOUF, ¶ 3). To the extent that the Amended Complaint implicitly references the Jane Doe v. Pennridge School District, et al. companion manner, in support of her claims in the Amended Complaint, a Motion for Summary Judgment is pending in the Doe case, which seeks dismissal of the entire case. The Amended Complaint refers to the race discrimination case filed by Modupe Williams against Pennridge School District, but Darbi Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 44 of 58 43 now drops any reference to Ms. Williams because PSD has prevailed in a Motion for Summary Judgment in that matter11. Additionally, Darbi references 601 pages (the actual number of pages was 608) of records that were produced in response to a Court Order compelling production of records relating to "peer conflict" and suggests that these records demonstrate a pattern of "sex-based harassment." This is deliberately misleading and inappropriate, compounded by the fact that Darbi relies upon a declaration from her counsel purporting to summarize these records rather than attaching the records themselves. Defendants interpreted the Court's use of the term "involving" in its Order very broadly, as was explained to Darbi's counsel when the records were produced. (Defs. Ex. 151, attached hereto, Declaration of K. Heisner); (See also Defs. Ex. 152, Goodwin-PSD 3330- 3936) (constituting records purportedly summarized in Graves Declaration). The records produced included altercations such as two female students fighting, in which one called the other a bitch; a male student calling another male student a bitch; female students calling another female student a bitch; a male student calling another male student a bitch and threatening to fight; a female student threatening to punch another student in the "fucking face;" a fight between female students because one suggested the other does not have a butt; and various other incidents that are not examples of "sex-based harassment," despite Darbi's representations to the contrary. (See, e.g., id., Goodwin-PSD 3437, 3443, 3452, 3468, 3482). See Bumbarger v. New Enter. Stone & Lime Co., 170 F. Supp. 3d 801, 827 (W.D. Pa. 2016) ("Case law within the Third Circuit 'does not reflect uniform results with respect to whether 'bitch' does or does not constitute 11 Modupe Williams filed a race discrimination lawsuit against PSD in a case captioned, Williams v. Pennridge Sch. Dist., United States District Court for the Eastern District of Pennsylvania, No. 15-4163, in which Darbi's present counsel represented Ms. Williams for a period of time. In dismissing all claims against PSD and the individual defendants, the Court found that isolated conduct that took place in school amounted to non-severe incidents that did not have a systemic effect of denying Williams equal access to education and such incidents were not pervasive; and that Williams failed to set forth any allegations that defendants purposely treated her less favorably than any other similarly situated individuals. (Defs. SOUF, Ex. 139) (Order and Opinion of the Honorable Mitchell S. Goldberg). Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 45 of 58 44 sexual harassment.'") (quoting Davis v. SEPTA, No. 13-CV-6864, 2016 U.S. Dist. LEXIS 2106, at *18 n.9 (E.D. Pa. Jan. 8, 2016)). Finally, Darbi must demonstrate that a PSD policymaker was aware of the constitutionally violative conduct—i.e., the allegedly inadequate training—at a time when PSD could have prevented Darbi's injuries. See M.S. v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412 (2014) (citing Johnson v. Elk Sch. Dist., 283 F.3d 138 (3d Cir. 2002)). Darbi must show that PSD knew of the risk to her before her injuries occurred. Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001). "Ordinarily, a pattern of similar constitutional violations by untrained employees is necessary to demonstrate deliberate indifference for the purposes of failure to train." Thomas v. Cumberland County, 749 F.3d 217, 233 (3d Cir. 2014) (internal citations omitted). By referencing events that occurred around the same time as her own reports (i.e., events pertaining to Jane Doe and/or Modupe Williams), Darbi fails to establish how PSD could have adjusted its training programs in advance of her alleged injuries taking place. The events at issue in this case and the Doe case occurred at approximately the same time. 3. Even if an identified deficiency in PSD's training existed and Defendants were deliberately indifferent, both of which are denied, neither caused harm to Darbi As the final element for a failure to train claim, Darbi is required to draw a connection between the allegedly inadequate training and the injuries caused to her. In fact, there is no connection. Prior to March 2015, PSD had no knowledge that Darbi had any concerns about H. or that he allegedly assaulted her. Once informed of Darbi's rape claim, as set forth previously and incorporated herein, PSD met separately with Darbi and H.; communicated with their families; contacted the police; and instructed H. to stay away from Darbi, a self-explanatory instruction, which H. said he clearly understood. There is absolutely no evidence, as claimed by Darbi, that Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 46 of 58 45 H. harassed her "for the remainder of the school year after she reported her claim to the school." (Darbi's Memorandum of Law, p. 23). Darbi claims that, had PSD "punished H," Darbi's emotional distress would have been mitigated. (Darbi's Memorandum of Law, p. 23-24). However, H. denied that he raped Darbi and there is no way PSD could have investigated further an alleged rape that took place three months before the report in a vehicle that was parked in the parking lot of an off-campus restaurant. While PSD contacted the police, the police were still investigating the incident and the school was ultimately informed that the District Attorney would not prosecute H. (Defs. SOUF ¶ 61-63). PSD would not be permitted to obtain the police investigation of the reported rape inasmuch as no civil litigation had yet been initiated and H. was a minor at the time. In the instant case, Darbi objected to Defendants' efforts to obtain the police investigation during discovery so there is no indication that Darbi would have agreed to provide PSD with any portion of the police investigation back in 2015. After Darbi reported the rape, there is no evidence that H. harassed or contacted Darbi for the remainder of the school year, during her sophomore year. H. testified he understood and complied with the "stay away" instruction. During Darbi's junior year, the only reported issue between Darbi and H. occurred in November 2015 when Darbi initiated the communication. Darbi testified that H. never previously spoke to her in school and there is no indication that there were any issues after November 2015. Darbi alleges that PSD's suspension of B. for three days after he threatened to jump her was "an inadequate response" and that PSD did not provide B. with an instruction to "stay away" from Darbi when he returned to campus. (Darbi's Memorandum of Law, p. 24). While it is clear that a three day out-of-school suspension, placement in an alternative placement setting, contacting B.'s parents, and reporting the matter to the police is certainly a more than an adequate Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 47 of 58 46 response to B.'s threat, what Darbi fails to inform the Court is that there was never another issue between Darbi and B. for the remainder of her time at PHS. As stated repeatedly, Darbi reported B. to the police, rumors ensued, Darbi confronted B., and then B. sent Darbi a threatening text message. The matter was investigated and resolved and the evidence reflects that this was an isolated incident between Darbi and B., and was not related to Darbi's sex. There was no further action that was required of PSD because Darbi had no further conflict with B. Contrary to Darbi's claims, there is absolutely no evidence that N. or C. participated in "ongoing harassment . . . for the remainder of the school year," i.e., Darbi's sophomore year. (Darbi's Memorandum of Law, p. 23). This is simply argument of Darbi's attorneys. There was no conduct that occurred to "punish" N. and C. as claimed by Darbi for harassment that occurred “for the remainder of the school year" because N. did not send his text message until July 2015 and C. did not ask Darbi to “hang out” until December 26, 2015, which occurred on a Saturday during the time that PHS was in recess. The innocuous bump in the hallway occurred in April 2016, and the matter was investigated and resolved. Darbi cannot establish that any deficiency in training caused any violation of Darbi's equal protection right to be free from student-on- student harassment. (Darbi's Memorandum of Law, p. 25). There exists no causal relationship between any lack of training and any alleged constitutional harm suffered by Darbi, and this claim fails. Thomas v. Cumberland Cty., 749 F.3d 217 (3d Cir. 2014). C. Darbi Cannot Support a § 1983 Claim Against Defendants For Allegedly Maintaining Policies and Customs of Failing to Address Reports of Student- On-Student Sex-Based Harassment 1. Darbi does not plead such a claim in her Amended Complaint. Count III to Darbi's Amended Complaint is entitled "Failure to Train," and relates solely to an alleged failure to properly train PSD employees on reporting and addressing on-campus and off-campus sex-based harassment. (Ex. 2 to Defs. SOUF, ¶¶99-105). There are no Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 48 of 58 47 allegations relating to an alleged policy or custom. (Id.) Darbi now seeks summary judgment in her favor on Count III to her Complaint based upon a § 1983 claim that "PSD maintained municipal policies and customs of: (i) failing to notify the Title IX coordinator of all harassment complaints; (ii) failing to investigate or discipline students for harassment that occurs outside of a school activity; (iii) failing to investigate or discipline students for sexual assault independent of police activity; and (iv) failing to submit written reports of harassment investigations to the Title IX coordinator." (Darbi's Memorandum of Law, pp. 19-20). Darbi cannot be granted summary judgment on such a claim because she never asserted the claim in the first place. It is axiomatic that a plaintiff cannot be granted judgment in their favor on a claim that she never brought. Aldinger v. Spectrum Control, Inc., 207 Fed. Appx. 177, 180 n.1, 181 (3d Cir. 2006) (affirming district court's dismissal of claim that was not pled in complaint and was first raised in summary judgment opposition brief); Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 233 (3d Cir. 2015) ("But even though appellant raised the First Amendment in her brief, she did not plead a First Amendment claim in her complaint. Therefore, there is not a First Amendment claim properly before us.") Here, Count III to Darbi's Amended Complaint is based upon an alleged failure to train, which is addressed above. Darbi's claims relating to alleged "policies and customs" is an entirely different claim, which was never raised before her motion for summary judgment and should not be considered. Moreover, as discussed below, these claims would fail even if Darbi had properly asserted them. 2. There was no policy or custom of "failing to notify the Title IX coordinator of all harassment complaints," nor does Darbi connect this allegation to any constitutional violation Darbi's first "policy and custom" claim is that Defendants Rattigan and DeBona allegedly "knew of and agreed with the 'unwritten policy' that school administrators do not notify Ms. McHale of any reports of harassment unless they believe that the complaint is 'legitimate' or Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 49 of 58 48 'substantiated.'" (Pltf.'s Memorandum of Law, pp. 27-28). The very premise of this allegation is based upon a mischaracterization of witness testimony. Darbi claims that Ms. McHale testified that PSD administrators have "sole" authority to investigate a complaint of harassment without notifying her. (Pltf. SOUF, ¶ 91). Those were Plaintiff's counsel's words, however, which were never agreed to or adopted by Ms. McHale. She only testified that PSD administrators have authority to investigate complaints—not that they have "sole" authority to investigate. (Defs. Resp. to Pltf. SOUF, ¶ 91). Similarly, Darbi claims that Ms. DeBona testified that PSD employees would not notify Ms. McHale of a complaint of harassment "unless" it was determined "at the conclusion of the investigation" that "there's clear and pervasive harassment." (Pltf.'s SOUF, ¶ 92). Once again, Darbi is twisting the witness's testimony to suit her agenda. Ms. DeBona never said "unless," and the discrete insertion of that word by Darbi is deceptive. DeBona testified that they would notify the Title IX Coordinator if their investigation found that a reported incident rose above peer conflict to harassment. (Defs. Resp. to Pltf.'s SOUF, ¶ 92). Her testimony was in no way limiting, however. She explained, in the portion of her testimony immediately preceding that which is cited by Darbi, that they will sometimes notify McHale immediately if they believe her involvement is necessary based upon the nature of the report. (Id.) Since Darbi's counsel was only using the term "harassment" and not "sexual harassment," DeBona also clarified that she answered as she did because McHale would become involved "when it is harassment as it would pertain to sex and gender under Title IX." (Id.) Administrators immediately investigate reports by students in order to ascertain the nature of the complaint and whether it constitutes harassment, since a student's mere use or non-use of the word "harassment" is not sufficient to make such a determination. Declining to refer a complaint to the Compliance Officer/Title IX Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 50 of 58 49 Coordinator merely because the student did not use the term "harassment," or vice versa, would elevate form over substance. (Defs. Resp. to Darbi's SOUF, ¶ 92). Darbi's reliance upon records produced in response to a Court Order pertaining to "peer conflict" is improper, for the reasons previously explained. In sum, Darbi has not put forth evidence of record establishing that PSD had a policy or custom of not referring sexual harassment complaints to PSD's Compliance Officer/Title IX Coordinator. Her contention that such a policy existed is based upon a faulty interpretation of witness testimony. However, even if such a policy did exist, Darbi's claim would still fail because she has not suffered any constitutional violation. Moreover, there is no correlation or close relation between Darbi’s claims of sexual assault and her claim that PSD had an alleged custom of failing to notify the Title IX Coordinator of harassment complaints. The school had no notice of any concern about H. before Darbi reported the alleged rape in March 2015. There were no further issues between Darbi and H. for the remainder of the school year. B’s text message did not constitute sexual harassment, and neither did N.’s text message sent over the summer of 2015. McHale then became involved with Darbi and her mother in September 2015. C.'s text message to "hang out" sent over Christmas break was not sexual harassment and neither was the April 2016 "bump" in the hallway. None of the complained about conduct that occurred on school grounds and under the school’s control constitutes sexual harassment and this claim fails. 3. There were no policies or customs of failing to investigate or discipline students for harassment that occurs outside of a school activity or for sexual assault independent of police activity, and Darbi does not connect these allegations to any constitutional violations Darbi’s next two claims are that PSD maintained customs of failing to investigate and discipline students for harassment that occurs outside of a school activity and failing to Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 51 of 58 50 investigate or discipline students for sexual assaults independent of police activity. (Darbi’s Memorandum of Law, p. 27). In support, Darbi asserts that Rattigan and DeBona do not investigate or discipline students for harassment that occurs outside of a school activity and that PSD policies require employees to “investigate all reports of harassment, regardless where they occur.” This is simply a misstatement of the record. In fact, DeBona testified that “[w]e don’t have the resources outside in the community. We can investigate in-house and speak to the students in-house, but we don’t have the resources, nor, I believe, the jurisdiction to go out and interview community members.” (Defs. Resp. Pltf. SOUF, ¶ 96). DeBona was asked whether PSD undertakes an independent investigation when the police are also investigating an incident. DeBona stated that “we will investigate the students in-house and often times in collaboration with the police, but outside incidents the police are responsible for --- would take the lead.” DeBona testified that PSD “collaborates” with the police and has a great relationship with its police department. (Ex. 11 to Defs. SOUF, p. 188: 2- 21). PSD also provides reasonable accommodations to students if needed based upon an off- campus incident. (Defs. Resp. to Plf. SOUF, p. 97). PSD does investigate claims of harassment independent of police activity as evidenced by the "other" students claims of harassment that were reported; investigated; acted upon—by contacting parents, police and third parties, as necessary; and imposing consequences. (Defs. SOUF ¶¶ 352-358). With regard to Darbi’s rape claim, the alleged event occurred off-campus on a weekend night and was uncorroborated by any other information available to PSD. DeBona said that because there were no charges filed against H. and there was no restraining order, PHS made every attempt to provide reasonable accommodations and supports for Darbi, but under the facts Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 52 of 58 51 presented at the time, with no witnesses or evidence other than the statements provided by Darbi and H., the school could not punish H. (Defs. Resp. Pltf. SOUF, ¶ 99). PSD Policy No. 218, Student Discipline, provides that the Board establishes rules and regulations regarding the conduct of students in the school district “during the time that they are under the supervision of the school or at any time while on school property, while present at school-sponsored activities, and while traveling to or from school, and school-sponsored activities.” (Pltf. Ex. 2). Policy No. 218 further provides that PSD can only discipline students for conduct that occurs off school property when the conduct at issue has a “direct nexus to attendance at school or at a school- sponsored activity.” None of the off-campus conduct or events identified in Policy No. 218 arguably permitted PSD to have disciplined H., C. or N. for conduct that occurred off-campus. B. was disciplined for his threatening text message. PSD Policy No. 248, Unlawful Harassment, provides definitions for harassment and sexual harassment that must be met before PSD undertakes an investigation. None of the conduct at issue here was sufficiently severe, persistent or pervasive that it affected Darbi’s ability to participate or benefit from an educational program or activity; had the purpose or effect of substantially or unreasonably interfering with Darbi’s academic performance; or otherwise adversely affected Darbi’s learning opportunities. None of the conduct at issue was conduct of a sexual nature that deprived Darbi of any educational aid, benefits, services or treatment. None of the alleged sexual harassment was sufficiently severe, persistent or pervasive that it had the purpose or effect of substantially interfering with Darbi’s school performance or created an intimidating, hostile or offensive educational environment. (Defs. SOUF Ex. 110, Goodwin- PSD 1068-1071). The purpose of Policy No. 248 was to “maintain an educational environment in which harassment” was not tolerated. The purpose was not to require PSD to undertake off- Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 53 of 58 52 campus investigations of conduct that had no nexus or correlation to school conduct and activity. Moreover, “[R]epeatedly Courts have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred.” Williams v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 at * 20-21 (internal citations omitted) (attached as Ex. 129, to Defs. SOUF). Finally, Darbi cannot connect an alleged custom of failing to investigate or discipline students for harassment that occurs outside of a school activity or for sexual assault independent of police activity to any constitutional violation she allegedly suffered. 4. There was no policy or custom of "failing to submit written reports of harassment investigations to the Title IX coordinator," nor does Darbi connect this allegation to any constitutional violation Next, Darbi contends that DeBona maintained a municipal "policy" of failing to create and submit written reports of harassment investigations to Ms. McHale, and that Dr. Rattigan acquiesced to this policy. While it is true that Ms. DeBona did not personally submit a written report of a harassment complaint to Ms. McHale during the time period at issue in this case, assistant principals did so on her behalf. (Defs. Resp. to Darbi's SOUF, ¶ 102). Darbi simply ignores this fact, suggesting that no reports were ever submitted. Darbi also, once again, misrepresents witness testimony by recasting Ms. McHale's testimony, relating specifically to Darbi, as relating to any and all instances of harassment. Darbi also once again fails to draw any connection whatsoever between this alleged failure and a constitutional violation. Darbi has not suffered a constitutional violation, as explained above. But even if she did, she merely relies upon conclusory statements that an alleged failure to send written reports to McHale somehow caused harm to her. She does not even offer a theory as to how McHale receiving written reports from assistant principals and/or Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 54 of 58 53 verbal reports pertaining to other instances of harassment, as opposed to written reports from principal DeBona directly, had any influence on the handling of Darbi's complaints. D. The Record Does Not Support Valid Supervisory Liability Claims Against Rattigan or DeBona, and Count IV to Darbi's Amended Complaint Should Be Dismissed12 For all of the reasons set forth above as to why Darbi's claim under Count III must fail, so too must her supervisory liability claim asserted in Count IV. As Darbi acknowledges, such a claim cannot be sustained if she cannot meet the elements for municipal liability. Defendants incorporate by reference the arguments set forth above. Additionally, Darbi's supervisory liability claims should be dismissed because it is appropriate to dismiss the claims against these defendants in their official capacity and retain them against the real party in interest. Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988) (citing Kentucky v. Graham, 473 U.S. 159 (1985)) (reasoning that claims raised against local officials in their official capacities are only a duplication of the counts against the Township itself). Defendants incorporate by reference the arguments set forth in their own Motion for Summary Judgment on this issue. For Darbi to succeed on a supervisory liability claim, it is also required that there be "some affirmative conduct by the supervisor." Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (citing Rizzo v. Goode, 423 U.S. 362, 377 (1976)). The Amended Complaint claims Rattigan and DeBona maintained a policy and custom of (i) refusing to respond to reports of sexual harassment that occurred in whole or in part off-campus and/or did not result in criminal convictions; and (ii) encouraging victims to leave PHS. (Ex. 2 to Defs. SOUF, ¶ 114). Darbi’s Memorandum claims that Rattigan and DeBona maintained policies of 12 Defendants moved for summary judgment on Count IV and incorporate by reference their Motion and Memorandum of Law as if set forth herein at length. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 55 of 58 54 “failing to address reports of student-on-student sex based harassment." (Pltf.’s Memorandum, p. 33). There is no evidence that there were “other” claims of sexual harassment that occurred in the PSD educational environment or had a nexus to the educational environment that PSD refused to investigate because the conduct did not result in criminal convictions. There is no evidence that PSD maintained a policy to encourage “victims” to leave PHS. Jane Doe requested to enter the PSD Twilight Program. (Defs. Ex. 153, Doe-PSD 0084-0085, 0144-0145). As stated repeatedly, here PSD was not required to further investigate Darbi’s reported rape and PSD did not maintain a custom of failing to address reports of student-on-student harassment. Here, Darbi did not suffer a constitutional violation as a result of any conduct on the part of Rattigan or DeBona. However, even if Darbi could establish a constitutional violation, DeBona and Rattigan would not be responsible under a theory of supervisory liability. Supervisors who maintain generalized knowledge of a situation cannot be liable for the conduct of subordinates. Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010) (affirming grant of summary judgment for supervisor who was kept abreast of an investigation, but did not direct his subordinate to take or not take any particular action). While supervising public officials may not authorize, encourage or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct. Chinchello v. Fenton, 805 F.2d 126 (3d Cir. 1986). Importantly, Darbi has not demonstrated any manner in which DeBona or Rattigan were deliberately indifferent to Darbi's rights. Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 56 of 58 55 IV. CONCLUSION For the foregoing reasons, Defendants, Pennridge School District, Jacqueline A. Rattigan and Gina DeBona, respectfully request that this Honorable Court deny Plaintiff's Motion for Partial Summary Judgment, grant Defendants' Motion for Summary Judgment, and dismiss Plaintiff's claims against Moving Defendants with prejudice pursuant to Federal Rule of Civil Procedure 56. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 2/13/2019 LEGAL/120752672.v1 Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 57 of 58 CERTIFICATE OF SERVICE I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of the foregoing Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona's Response in Opposition to Plaintiff’s Motion for Partial Summary Judgment and Memorandum of Law in Support was electronically filed with the Court this date and is available for viewing and downloading from the ECF System. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 2/13/2019 Case 2:17-cv-02431-TR Document 110 Filed 02/13/19 Page 58 of 58