GOODWIN v. PENNRIDGE SCHOOL DISTRICT et al

RESPONSE to Plaintiff's Statement of Undisputed Facts re MOTION for Summary Judgment with 75 exhibits - 21 to 75 under other event to Plaintiff's Statement of Undisputed Facts

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. : DEFENDANTS PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DEBONA'S RESPONSE TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF PLAINTIFF'S MOTION FOR 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, submit this Answer to Plaintiff's Statement of Undisputed Facts in Support of Plaintiff's Motion for Summary Judgment. 1. Admitted. 2. Admitted. 3. Admitted that Dr. Rattigan was Superintendent of PSD beginning in 2013. It is denied that she is currently the Superintendent of PSD, as she has since retired. The averments regarding PSD Board Policy 218, cited to by Plaintiff (also referred to as "Darbi"), is denied as stated. PSD Policy 218 states, "the Superintendent or designee shall ensure that reasonable and necessary rules and regulations are developed to implement Board policy governing student conduct." (Pltf. Ex. 2, p. 2). By way of further response, it is denied that Rattigan has any current responsibilities, given her retirement from her position as Superintendent. (Defs. SOUF Ex. 8, p. 319:7-13). 4. Admitted that Dr. Rattigan was Jacqueline McHale's ("McHale") supervisor at the time of Ms. McHale's deposition on January 29, 2018 and that Ms. McHale has been PSD's Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 1 of 51 2 Compliance Officer/Title IX Coordinator since May 2015. It is denied that Dr. Rattigan is currently Ms. McHale's supervisor, as she retired effective July 1, 2018. (Defs. SOUF Ex. 8, p. 319:7-13). 5. Admitted that Ms. DeBona has been the Principal of Pennridge High School ("PHS") since 2014. The remaining averments of this paragraph are denied as stated, insofar as Plaintiff references written Board policies which speak for themselves. By way of further response, the Board policies cited by Plaintiff require that the complaints constitute harassment before the procedures cited are triggered. Additionally, DeBona was not solely responsible for assigning student discipline, as this could be and often was delegated to assistant principals. 6. Admitted that Ms. DeBona is Mr. Hegen's and Mr. Laboski's supervisor. The remainder of this paragraph is denied as stated. Ms. DeBona testified that she has final say over Mr. Hegen's decisions when they have a disagreement—not as to every action that he takes. (Pltf. Ex. 6, pp. 149:13-21). Plaintiff cites to no evidence of record in support of her representation that Ms. DeBona has "final say" over decisions by Mr. Laboski. 7. Admitted. 8. Admitted. 9. Admitted in part; denied in part. It is admitted that H., B., C. and N.1 were 11th grade students at PHS during the 2014-2015 school year. Troy Price testified that it was his "understanding" that the boys were friends. It is admitted that Plaintiff's mother, Laurie Axe ("Axe"), reported in September 2015 that B., C. and N. were friends of H. (Pltf. Ex. 7, Laboski dep., 193:16-18; Pltf. Ex. 8, Price dep., 204:8-10). Darbi testified that she and H., C., N. and B. "were all in the same friend group." K2 was also in the friend group as well as "a few other 1 The student identified as "N." in this action is not the same individual as the student identified as "N." in the matter captioned, Doe v. Pennridge Sch. District, et al.. Case No. 17-cv-03570-TR. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 2 of 51 3 boys." (Ex. 1 to Defendants' Statement of Undisputed Facts ("Defs. SOUF"), Pltf’s Dep., p. 19:25 – 21:9). H. said B. was not in his "friend group." (Defs. SOUF Ex. 146, attached hereto, pp. 40:21 – 41:17). H. testified that he went on the date with Darbi, when they drove around in his Jeep while H. was looking for jobs. (Defs. Ex. 146, attached hereto, pp. 58:24 – 59:7). 10. Denied as stated. Darbi did not report that she was "sexually assaulted" by H. Instead, Darbi stated that "she had been raped over Christmas break by a junior at our school named H." On March 13, 2015, Pete Cortazzo ("Cortazzo"), Darbi's Counselor, sent and email to Principal DeBona, Assistant Principal Hegen, Assistant Principal Laboski and Counselor Lori D'Angelo ("D'Angelo") stating that Darbi informed Cortazzo that she had been "raped over the Christmas break." The email further stated that Darbi "alleges that the rape occurred in the parking lot at the Country Place Restaurant" and that Hegen "confirmed that the charge had been made with Pennridge Regional Police." Cortazzo further stated that he and Hegen were scheduled to meet with Axe in Hegen's office at 2:30 p.m. that day. (Pltf. Ex. 10, Goodwin-PSD 0148). Moreover, Darbi's Amended Complaint identified the alleged assault as a "rape" dozens of times. The Amended Complaint alleges 10 times that H. was Darbi's rapist. (Defs. SOUF, ¶28). The Amended Complaint was filed on June 29, 2017, before the police investigation of the alleged rape was produced. On March 23, 2018, after Defendants served a subpoena for the investigative documents and responded to a motion filed by the police department to quash the subpoena, in which it was noted that Darbi objected to the records being disclosed, the documents pertaining to the police investigation were produced. It was only after the police records were produced that Darbi and her attorneys began referring to the incident as a "sexual assault," not a rape. (Defs. SOUF, ¶40). The police investigation, which contains statements provided by both Darbi and H., demonstrate that the sexual conduct that took place between Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 3 of 51 4 Darbi and H. did not constitute a rape in the Commonwealth of Pennsylvania. (Defs. SOUF, ¶¶ 35-40). 11. Denied as stated. Plaintiff's Paragraph 11 cites DeBona's deposition testimony where she was asked whether the school administration investigated, "the rape that occurred?" DeBona testified that the school "would not investigate the rape" that reportedly occurred off- campus. Darbi's citation to the Rattigan testimony pertains to whether PHS investigated her complaints pursuant to PSD Policy 248. Rattigan said that the complaints were not investigated under Policy 248 because "there were four separate incidents that happened over a period of time" and that Darbi's complaints did not rise to the level of severe, persistent or pervasive conduct. (Pltf. Ex. 4, DeBona dep., p. 358:15-18; Defs. SOUF Ex. 8, Rattigan dep., pp. 286:20 – 289:15). While PSD employees did not conduct a physical off-campus investigation of a report of rape that Darbi said took place inside H.'s vehicle, which was located in a restaurant parking lot while PHS was not in session, multiple PSD employees took action to make inquiries concerning the reported rape and met with Darbi, her mother and H.; and, they further undertook efforts to separate Darbi from H. and provide Darbi with support after she reported the alleged rape. (Defs. SOUF, ¶¶44-63). 12. Denied. Laboski actually testified that, "I investigated it by speaking with H. and telling him what to do." Laboski said he asked H. whether he raped Darbi, which H. denied. Laboski said that H. said that no one else was present during the alleged rape. Laboski told H. to have no contact with Darbi. Laboski did state that the police were handling "whether or not he raped her [Darbi] or not." Laboski said his communications with H. were an investigation, but he was not "actually investigating like a police officer would be investigating." (Pltf. Ex. 7, Laboski dep., pp. 133:17-18, 134:7-135:7). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 4 of 51 5 13. Denied as stated. It is admitted that Laboski asked H. whether he raped Darbi. Laboski said that H. was uncomfortable, but denied that he was involved in anything criminal. Laboski said he believed H. because "at that point," Laboski "had no other information to confirm or deny what he was telling me." (Defs. SOUF Ex. 16, pp. 132:7-133:2). Laboski testified that Hegen was Darbi's assigned Assistant Principal. (Defs. SOUF Ex. 16, p. 135:14- 16). Laboski said that had Darbi reported the rape to him, Laboski would have spoken with H. and contacted his parents. However, Laboski would first determine whether Darbi was okay, whether she was able to go from class to class, and whether she had classes with H. (Defs. SOUF Ex. 16, p. 130:4-20). Laboski instructed H. to immediately eliminate contact with Darbi both inside and outside of school. H. assured Laboski that he would not contact Darbi. (Defs. SOUF, ¶52). Hegen did in fact initiate a fact-finding mission and endeavored to learn what PHS could do to support Darbi. Hegen's investigation involved calling the police and meeting with Darbi's family. (Defs. SOUF, ¶48). Thus, Laboski's testimony regarding how he would have reacted to Darbi's complaint of rape was consistent with the actions taken by Hegen. H. testified that Laboski told him "to stay away" and not "have anything to do with her." H. testified that he fully understood and complied with this instruction. (Defs. SOUF Ex. 146, attached hereto, pp. 86:25- 87:10; 96:10-23). 14. Denied as stated. Hegen said that he learned of the alleged rape in March 2015 and he subsequently had a meeting where he interviewed Darbi and her mother. Cortazzo was also present at the meeting. (Defs. SOUF Ex. 15, Hegen dep., pp. 311:24-312:12). Thereafter, Hegen spoke with Principal DeBona and summarized the meeting he had with Darbi and her mother where Darbi stated that she was raped several months earlier. (Defs. SOUF Ex. 15, Hegen dep., pp. 314:13-315:10). That same day, Hegen communicated with Pennridge Regional Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 5 of 51 6 Police Department regarding Darbi's rape claim. Hegen informed Cortazzo that Hegen would follow-up with the police. (Defs. SOUF Ex. 15, Hegen dep., pp. 316:3-317:23). Hegen stated that he was not physically investigating the off-campus incident, but was ensuring that the proper authorities were notified. Hegen was assured that the matter was in the hands of the police. Darbi and her mother informed Hegen that Darbi's therapist had contacted ChildLine. (Defs. SOUF Ex. 15, Hegen dep., p. 321:8-21). It is admitted that Hegen did not speak with H. about Darbi's reported rape. 15. Admitted in part; denied in part. It is admitted that Laboski directed H. that H. must "cut off contact with her [Darbi], which he [H.] assured me he would do." (Defs. SOUF Ex. 16, Laboski dep., p. 133:19 – 134:5). Laboski said "H. was instructed to not have any contact with her, and that was both inside and outside of school." Laboski instructed H. "to keep his distance from her." (Defs. SOUF Ex. 16, Laboski dep., p. 138:11-139:1). Laboski told H. "you don't want to make this situation worse than it is, so you can make sure that you're not having any contact with her [Darbi]." (Defs. SOUF Ex. 16, Laboski dep., p. 134:7-24). H. corroborated Laboski's testimony. H. said he "was told to stay completely away from her [Darbi]." (Defs. SOUF Ex. 146, attached hereto, p. 36:14-23). Laboski told H. not to have anything to do with Darbi. Laboski informed H. not to "create any problems." Defendants deny that PHS had to further explain or provide guidance to H. on the meaning of the phrases "stay away" or "no contact." H. said he understood what "no contact means." H. 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 that no one told him to "figure it out" on his own in order to interpret the instruction of "no contact." He said he was 16-17 years old and completely Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 6 of 51 7 understood what "no contact" means. (Defs. SOUF Ex. 146, attached hereto, H. dep., pp. 36:14- 23; 86:25-87:10; 91:11-92:9; 95:19-96:23; 98:1-99:3). 16. Denied as stated. It is admitted that 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 Counseling Office. Moreover, 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 safety plan" was to keep Darbi and H. away from each other. On April 16, 2015, Hegen emailed PHS personnel, including Cortazzo, stating that "the other person" is seen by Darbi when she is "coming/going to her period 3 class." Hegen requested a "pass" to permit Darbi to get to period 3 a minute or so late so that she does not see H. Cortazzo confirmed that Darbi could go to the Guidance Counselor's Office at any time and that people were "watching out" for Darbi in the lunchroom and hallways. In May 2015, PHS offered Darbi a safety plan whereby Darbi could leave class early and travel the school accompanied by an escort. This was refused. PHS offered a safety plan to Darbi where she could change her schedule to avoid seeing any of the boys, but Darbi said that she "denied them changing my [Darbi's] schedule." Darbi was also offered a safety plan regarding her junior year lunch period. By way of further response, paragraph 10 of the Affidavit of Matt Graves should be deemed incompetent as evidence under the advocate-witness rule. See United States v. Birdman, 602 F. 2d 547, 551-52 (3d Cir. 1979). (Defendants' SOUF, ¶¶56-59; 66; 68; 108-109; 113-114; Defs. SOUF Ex. 17, Cortazzo dep., pp. 64:17-65:13; 69:9-16). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 7 of 51 8 17. Denied as stated. Darbi and H. reported very similar sexual accounts to the police. H. testified that he never read Darbi's statement that she gave to the police, but the "detective himself said these [statements of Darbi and H.] are very similar in writing . . . your statement and her statement are very similar." (Defs. SOUF Ex. 146, attached hereto, pp. 65:13-66:5). 18. Denied as stated. The police report states that Assistant District Attorney Megan Hunsicker determined that "due to insufficient evidence this case would not proceed forward." The Pennridge Police Department did not arrest H. or charge him with any crime. There is no indication that probable cause existed to arrest H. for any crime. It is admitted that Detective Lewis reported to Hegen that the decision to prosecute H. "was in the hands of the District Attorney's Office." When Hegen spoke to Lewis, he informed Hegen that no charges would be filed against H. (Pltf. Ex. 6, Hegen dep., p. 369:19-370:4). REDACTED PER SUPPLEMENTAL STIPULATION Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 8 of 51 9 19. Admitted in part; denied in part. It is admitted that at certain times PHS would have authority to discipline students who engaged in conduct that constituted sexual assault pursuant to Level IV infractions. The PHS Student Handbook specifically provides at page 29 that: The Pennridge School District has the authority to make reasonable and necessary rules regarding the conduct of students in its schools. Pennsylvania School Code dictates 'every teacher, Assistant Principal, and Principal in the public schools shall have the right to exercise the same authority as to conduct and behavior over the pupils attending his school, during the time required in going to and from their homes, as the parents, guardians, or persons in parental relation to such pupils may exercise over them.' (emphasis added). Moreover, the Student Handbook further provides that "[T]he handbook is not a contract between the school and parents/guardians or students . . . Because a handbook of this nature cannot cover every possible item or incident that may arise, final resolution of each of these situations will be made by the school administration." Here, Darbi repeatedly reported that she was raped, and H. denied that he raped her. On April 9, 2015, Darbi reported to her counselor, Cortazzo, that H. was not bothering her at school. There are no reports by Darbi or anyone that H. sexually assaulted Darbi or sexually harassed Darbi after she reported the rape to the school. In fact, Cortazzo said he repeatedly questioned Darbi whether H. had "said" or "done anything" to Darbi and Darbi "never . . . responded affirmative to that." The police were investigating Darbi's rape claim, which turned out to be false. PHS employees are not trained investigators or police personnel and were not charged with the physical, off-campus investigation of a false rape report that took place three months prior to the report to the school inside a privately owned motor vehicle that was located in an off-campus parking lot while PHS was on Christmas break. At that time, Darbi's parents were responsible for Darbi's oversight and supervision. DeBona testified that the school is not "privy" to the police investigation. PHS would not get involved in Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 9 of 51 10 an "off-campus" sexual assault unless the conduct "was brought into the school or if there is a plan or there's something we can do to support them, but if it is certainly a legal matter, this happens outside, we trust our local police department and District Attorneys' Office . . . to do their investigation." (Pltf. Ex. 15, Doe-PSD 0861; 0889-0890; 0900; Pltf. Ex. 12, Goodwin-PSD 0151; Defs. SOUF Ex. 17, Cortazzo dep., p. 62:15-63:9; Defs. SOUF Ex. 11, DeBona dep., p. 243:4-244:3). 20. Admitted in part; denied in part. It is admitted that H. was not disciplined. DeBona testified that she had communications with Hegen regarding Darbi's report that H. raped her. Hegen spoke with the police and Darbi. Laboski spoke with H. DeBona said the school did not obtain statements from Darbi and H. because the police were already investigating the rape report. DeBona said that the school would get involved if "it's brought into the school or if there is a plan or there's is something we can do in school to support them." On the other hand, DeBona said if it is a legal police matter that occurred off-campus, PHS trusts their local police department and District Attorney's Office to investigate a report of a crime. PHS does not do independent investigation in-house. If PHS obtains additional information, it will share the information with the police because they "work collaboratively." DeBona said that if a student committed a sexual assault in the school building, the student who committed the assault would be arrested and taken out of school. In Darbi's case, because the alleged rape occurred off- campus three months prior to the report to the school, PHS "provided [Darbi] access to the guidance counselor, schedule changes, every possible reasonable accommodation we would provide to any student who felt unsafe in the building." (Defs. SOUF Ex. 11, DeBona dep., pp. 238:23-245:22). DeBona instructed Hegen to "put a plan in place to support her [Darbi]." (Defs. SOUF Ex. 11, DeBona dep., p. 249:24-250:8). When Darbi's attorney asked DeBona what she Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 10 of 51 11 did "when the rape was reported," DeBona said she first spoke to Hegen. Hegen and DeBona discussed whether Darbi and H. shared classes together; whether they saw each other in the hallway; whether they were in the same lunch; and they agreed that teachers should be notified in the event that Darbi and H. shared classes together. DeBona learned that Darbi did not share classes with H. and was not in H.'s lunch. PHS notified its security personnel to be on alert. DeBona said these measures constituted "reasonable accommodations in place to support her." (Defs. SOUF Ex. 11, DeBona dep., pp. 251:4-253:2). 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 these facts presented at the time, with no witnesses or evidence other than Darbi and H., the school could not punish H. (Defs. SOUF Ex. 11, DeBona dep., pp. 260:4-261:14). DeBona testified that, under these facts, when a student is accused of rape or sexual assault, investigated by the police, and no charges are brought, that she considers them not guilty in the eyes of the law and does not impose punishment as though they are presumed to be guilty. (Defs. SOUF Ex. 11, 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. (Defs. SOUF Ex. 11, DeBona dep., pp. 260:4-261:14). 21. Denied. It is denied that Cortazzo's notes state that Darbi came to him in tears because H. told his friends that he commits sexual assaults. On the contrary, Cortazzo's notes reflect that on April 21, 2015 Darbi came to him in tears because she was sent to Hegen for plagiarizing in English class. Darbi says she felt H.'s presence in the school. The notes reflect "H. told friends 'that is what I do.'" The notes do not reflect that H. told his friends that he commits sexual assaults. Darbi's attorneys elected to refrain from questioning Cortazzo regarding this Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 11 of 51 12 specific notation when he was deposed. Cortazzo was questioned regarding other notations on the referenced document. (Pltf. Ex. 12, Goodwin-PSD 0151; Defs. SOUF Ex. 17, Cortazzo dep., pp. 63:14-67:15). 22. Admitted in part; denied in part. It is admitted that Hegen testified that he read in the Amended Complaint that H. and his friends were spreading rumors about Darbi. Hegen said that Laboski informed him about rumors being spread about Darbi, but he does not "remember specifics about it." (Defs. SOUF Ex. 15, Hegen dep., p. 160:23-161:7). Hegen said he does not recall whether "the rumors concerned DarbiAnne Goodwin sleeping with other students." He does not recall the substance of the rumors. (Defs. SOUF Ex. 15, Hegen dep., pp. 166:15- 167:17). Darbi's attorneys elected not to question Laboski regarding any such alleged "rumors" during his deposition. 23. Admitted in part; denied in part. It is admitted that in September 2015, over eight months after the alleged rape occurred, Axe sent her version of a Timeline that stated in December 2014 "rumors spread that Darbi had sex with two people on the same night." However, the school was not informed about the alleged rape until March 2015, three months after both the alleged occurrence and the time when the alleged rumors were being spread. Axe's Timeline claims the rumors were spread after the rape, but during December 2014 when PHS was not in session. Axe's Timeline states that "H. makes statements around school 'That's just what I do' . . . rape." There is no indication as to whom such alleged statements were made, or the factual basis for which Axe included this statement in her Timeline that she submitted to the school in September 2015, nine months after the alleged statements were made. (See Plaintiff's Exhibits to Paragraph 23 in her Statement of Undisputed Facts). Importantly, however, Darbi Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 12 of 51 13 testified that she does not remember from whom she learned that H. made the statement "that's just what I do." (Defs. SOUF Ex. 1, Darbi dep., pp. 81:3-82:7). 24. Admitted in part; denied in part. It is admitted that PSD did not "investigate" whether H. made the statement that it was "just what he did." It is denied that alleged statement pertains to the alleged sexual assault. The Timeline uses the word "rape," but Plaintiff's Statement of Undisputed Facts now uses the term "sexual assault." Once the police investigation was produced and the documents demonstrated that what occurred between Darbi and H. was not a rape, Darbi's attorneys began referring to the sexual activity as a "sexual assault." Darbi does not even recall the source for the statement "that's just what I do." It is admitted that PSD did not investigate "rumors" that Darbi had sex with two people on the same night. According to the Timeline, when H. and his friends allegedly spread rumors, it was after the December 27, 2014 alleged rape and before the school reopened in September, 2015. Any such rumors are alleged to have been "spread" off-campus when school was not in session and this vague statement was not investigated by the school once it obtained the Timeline in September, 2015. Further, there is absolutely no evidence that there was any conflict between H. and Darbi in September, 2015 when the school received the Timeline. (Defs. SOUF Ex. 25, Timeline; Defs. SOUF Ex. 1, Darbi dep., pp. 81:3-82:7). 25. Admitted in part; denied in part. It is admitted that H. was not disciplined for Axe's report regarding the alleged "this is what I do" comment. There is no evidence that Darbi reported such a claim. When asked at her deposition for the basis of the statement in the Timeline, Darbi could provide no information and could not identify the source of this comment. It is admitted that H.'s friends were not "disciplined" for the comment attributable to H. Defendants deny that H.'s alleged comment constitutes unlawful harassment as defined by PSD Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 13 of 51 14 Policy 248. The only sexual rumors referenced in Axe's Timeline concern rumors that occurred in December 2014, which occurred after the alleged rape and while PSD was closed for Christmas break. The Timeline was not sent to PHS until nine months later, in September 2015. At her deposition, Darbi first testified that she did not know who was spreading the rumor that she had sex with multiple people. Later in her deposition, Darbi testified that she learned H. told his friend, J.T., about the "rumor." Darbi said that she learned that J.T. told B.S. about the "rumor." B.S. told Darbi about the "rumor." There is no evidence that the alleged "rumor" was spread by B., C. or N. The Timeline does not claim that B., C. or N. spread rumors in December 2014. In fact, the Timeline does not state that the rumors were spread by H., his friends or anyone. There is no evidence that H. was spreading rumors throughout PHS that Darbi had sex with multiple people. (Defs. SOUF Ex. 25, Timeline; Defs. SOUF, ¶41). 26. Admitted in part; denied in part. It is admitted that Axe's Timeline references no confrontations between Darbi and any of the boys until May 20, 2015 when "Darbi confronted B. at lunch about such rumors." Darbi testified that B. was alone when she confronted him. Thereafter, B. sent K2 a threat [text message] about Darbi. K2 sent a screenshot of the message to Darbi. B. sent the text message "out of anger" after Darbi confronted B. about the rumors of breaking into an abandoned house. It is denied that the break-in was "unrelated." B. specifically sent the text message to K2 because he was angry at Darbi for reporting him to the police. (Defs. SOUF, ¶75). Further, Defendants deny that the alleged note regarding "slut" is attributable to B. (Pltf. Ex. 24, Goodwin-PSD 0296). These notes further reflect that Darbi said to B. "don't call me a snitch because I didn't say anything. I know about the urine test." PHS noted that it was looking into "who else was in café that we can interview." Id. As stated previously, Darbi said B. was alone when she confronted him. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 14 of 51 15 27. Admitted in part; denied in part. It is admitted that PSD swiftly responded to B.'s text message that he sent to K.2. B.'s Assistant Principal Laboski requested B. to contact him only to learn that B. was already in Laboski's office writing a statement concerning a conflict he had with Darbi's boyfriend. B. admitted sending the threatening text message and stated he did so in anger and frustration. Laboski contacted B.'s mother to inform her that B. will be suspended out-of-school for three days. School security escorted B. to AIP (Alternative Instruction Program) for the remainder of the school. Mrs. B. returned Laboski's call and a reinstatement meeting was scheduled. Mrs. B. agreed with Laboski's recommendation to refer B. to VisionQuest for the remainder of the school year and into next year as well. A referral was made on May 20, 2015. The next day, Laboski emailed Rattigan, DeBona, Hegen and others attaching a report of the screenshot/text message incident and sent a letter to Pennridge Regional Police providing details of the incident. Hegen testified that Laboski "did a great job making sure everyone knew" of the incident. Hegen said there were no further issues between Darbi and B. (Defs. SOUF, ¶87). The evidence reflects after May 20, 2015, there was never any further conflict or issues between Darbi or B. Defendants deny the allegations concerning Laboski's testimony because Laboski was not referring to the May 20, 2015 incident when he testified regarding his opinions of B. (Defs. SOUF Ex. 16, pp. 33:8-34:18). 28. Admitted in part; denied in part. It is admitted that Cortazzo's notes reflect that, on May 27, 2015, Darbi reported she was having a panic attack and was sent home. It is denied that the notes reflect any relationship between B.'s return to school and Darbi's alleged panic attack. (Pltf. Ex. 12, Goodwin-PSD 0151). 29. Admitted in part; denied in part. It is admitted that what was submitted to PSD was an undated note from Penn Foundation Behavioral Health Services authored by Certified Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 15 of 51 16 Registered Nurse Practitioner, Martine Susko (who is not a psychiatrist nor a medical doctor), stating that Darbi was receiving care from a licensed Professional Counselor and a Nurse Practitioner for past trauma,2 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 home for the remainder of the year while she participates in Individual Group and Medication Counseling. There is no reference in the note specifying the events of February, 2015 that allegedly exacerbated Darbi's past trauma. (Defs. SOUF, ¶65). It is admitted that 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 she would obtain a doctor's note to complete the school year. Hegen said that "Darbi would like to continue to obtain work (mom is part of this email so you can send electronic work home)." Hegen informed the group that Darbi would like to take her final exams during the afternoons of June 16-18, 2015. On May 27th, Hegen wrote to a group of PSD employees requesting that they send Darbi's work home "via mom's email" or to leave it in guidance so that Darbi's sister can pick up the work to take it home. It is denied that Hegen's request to the teachers was contrary to the request from Darbi's medical provider, Darbi and/or Axe. (Pltf. Ex. 29, Goodwin-PSD 0164). 30. Admitted in part; denied in part. It is denied that Hegen did not offer Darbi accommodations to remain in school. During the Spring 2015 school semester, Darbi was provided with a number of options to make her feel safe and secure in school so that she could complete her work in the school building. (Defs. SOUF, ¶¶48; 54; 56-59; 66; 68; 69-70; Defs. SOUF Ex. 17, Cortazzo dep., p. 63:14-65:13). It is admitted that PSD did not evaluate Darbi for an IEP or a 504 plan. The Amended Complaint does not claim that Darbi should have been 2 Darbi began treating with Penn Foundation on May 7, 2012 – over 2 ½ years before the alleged rape (Defs. SOUF Ex. 21). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 16 of 51 17 evaluated for a 504 plan. (Defs. SOUF. Ex. 2, Answer, ¶ 34). It is denied that there was a request for an IEP or an 504 Plan relative to the claims at issue. Axe testified that she never requested PHS to provide Darbi with an IEP and that Darbi's medical providers never suggested to Darbi or Axe that Darbi obtain an IEP. Axe testified, ". . . and what good would an IEP do her? Was that going to make her feel safer?" (Defs. SOUF, ¶212). 31. Admitted in part; denied in part. It is admitted that Darbi performed well academically at PHS and was involved in certain extracurricular activities. It is admitted that the difference between her weighted grade point average from the end of her freshman year to the end of her sophomore year is .588. It is denied that this amounts to any type of drastic decline in grades. Darbi performed well throughout her years at PHS. (Defs. SOUF, ¶209; Defs. SOUF Ex. 3, Answer ¶13). 32. Admitted in part; denied in part. It is admitted that Hegen produced notes relative to a telephone call he had with Axe on August 18, 2015 where there is a notation stating: "received texts from the group of boys." It is denied that the authors of the alleged text messages were H., N., B. and C. Hegen testified that he "would imagine that it [text message] was in reference to H., et al., and I am not sure who all the boys were." Hegen did not know what the text was and did not recall whether the "text message describ[ed] something that occurred between the summer of Darbi's sophomore and junior year or something that happened in her sophomore year." Further, Hegen's notes referencing H., N., B. and C. relate to Axe's request that these boys not be present in Darbi's lunch or gym class. (Pltf. Ex. 31, Goodwin-PSD 0308; Defs. SOUF Ex. 15, Hegen dep., pp. 205:21-208:22). Axe's Timeline identifies only one text message during the summer of 2015, which is N.'s July 2015 text at 1:15 a.m. and Axe claimed B. was in the company of N. when the text/call was made. This message was transmitted during the Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 17 of 51 18 summer break when Darbi was not attending PHS. N.'s text message is clearly not related to the alleged assault by H. or sexual harassment. N.'s text messages 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 "cops." (Defs. SOUF, ¶¶93-96). 33. Admitted in part; denied in part. It is admitted that on September 2015, Axe sent Rattigan and McHale a Timeline that stated that N. texted Darbi at 1:15 a.m. with abrasive verbiage that was considered threatening. It is denied that the numerous spelling errors in the text were intentional. Axe stated that she sent the screenshot of the message to Detective Lewis who later told Axe to file a report with the Bedminster Police. Axe states in the Timeline that she sent the screenshots to the Bedminster Police. The text message stated as follows: 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. N.'s text message is not related to the alleged assault by H. and does not constitute 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 "cops." It is denied that N. misspelled the word "redickulas" to intentionally contain the word "dick." (Defs. SOUF Ex. 25, Timeline; Defs. SOUF, ¶¶93-96). 34. Denied as stated. Plaintiff's Amended Complaint makes no reference to N.'s July 2015 text message and Darbi's claims regarding this text message should be stricken. It is denied that N. sent a threatening message to Darbi. It is denied that Laboski's testimony regarding N. pertained in any way to N.'s treatment of Darbi and/or the text message he allegedly sent to Darbi. Darbi produced no records pertaining to any alleged text messages she received over the summer of 2015 from H., B. or C. Darbi's Answers to Interrogatories reference no harassing text messages from H., B. or C. during the summer of 2015. (Defs. SOUF Ex. 2, Amended Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 18 of 51 19 Complaint; Defs. SOUF Ex. 4, Darbi’s Answers to Interrogatories; Defs. SOUF Ex. 16, Laboski dep. p. 36:20-24). 35. Denied as stated. The Student Handbook states that, "[a]dministrative discretion may be used depending upon the severity of the incident and/or the student's disciplinary record." As such, it is denied that the Student Handbook "requires" certain discipline to be assessed. It is admitted only that the Student Handbook recommends two Saturday morning detentions for abusive/obscene language directed at student(s) and that the recommended discipline for harassment/threats/bullying/cyber bullying is as described by Plaintiff. It is denied that no discipline was assessed relating to text messages sent to Darbi. (Pltf. Ex. 16, Goodwin-PSD 2730-2731) (assessing three day out-of-school suspension). See also Defendants' Responses to Paragraphs 33 & 34, above. 36. Admitted, with clarification. It is admitted that on August 18, 2015 Axe called Hegen and requested that the school schedule Darbi in different gym and lunch periods than H., N., B. and C. At that time, Hegen recalled that Darbi had previous concerns about H. and B., but had no knowledge that Darbi had any issues with C. or N. Hegen informed Axe that he could not guarantee that the boys would not be present in these classes and that the students' schedules had not yet been completed. Lunch scheduling is particularly complex because PHS has 800-plus children in each of the three lunches. It is difficult to schedule students to specified lunch periods when they are also taking certain classes that are only offered once a day or at pre-selected times during the day. Hegen informed Axe that it may be difficult to accommodate her request; that the school would do its best; but, he could not make any guarantees that the boys would be scheduled in different lunch periods than Darbi. Hegen's notes made during the call state that she "received text from the group of boys." There is no indication that the text was harassing or Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 19 of 51 20 concerned the alleged rape. (Defs. SOUF, ¶101; Pltf. Ex. 33, Goodwin-PSD 0003). On August 24, 2015, Axe wrote to McHale requesting a meeting and stated that Darbi was a junior at PHS who "was raped by another student H. last year." Axe specifically identified H. by name. In the email, Axe requested that H., N., C. and B. "are NOT in her lunch, gym or other possible classes." Axe specifically stated that she had "messages from N. and B." that she could forward to McHale if needed. There is no mention of a text from a "group of boys" as reflected in Hegen's notes. Axe's August 24, 2015 email simply refers to B.'s May 2015 text and N.'s July 2015 text. Subsequently, DeBona was informed of Axe's request to separate Darbi from the boys in lunch, gym and other classes. (Defs. SOUF, ¶103). 37. Admitted in part; denied in part. It is admitted that, on August 19 and 31, 2015, Axe requested a meeting with McHale. McHale had not previously had any interaction with Axe, but was knowledgeable of her because Axe was an employee of the District. McHale began her employment with PSD in May 2015. McHale was "new" to the PSD Title IX Coordinator position when she received notice of Axe's August 19, 2015 telephone call requesting a meeting. It is denied that there is any report that N. sexually assaulted Plaintiff. McHale was asked at her deposition whether she first "learned of Ms. Goodwin's rape" when she was contacted by Axe. McHale testified that she had not been previously aware of the rape report. (Defs. SOUF Ex. 14, McHale dep., pp. 17:9-10; 69:23-72:18; Pltf. Ex. 34, Goodwin-PSD 0097). 38. Admitted, with clarification. This occurred less than two weeks after Axe's first request to Hegen to separate Darbi from the boys during lunch and gym, and seven days after Axe requested McHale to separate Darbi from the boys in lunch, gym or other possible classes. (Pltf. Ex. 31, Goodwin-PSD 0308; Pltf. Ex. 33, Goodwin-PSD 0003). On August 31, 2015, Axe called Henrysen and advised that she was unhappy with PHS because Darbi was scheduled in the Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 20 of 51 21 same lunch with the boys who were involved with bullying her last year. Axe did not want Darbi's schedule changed. Axe threatened to contact the papers and the press and said that the Title IX Coordinator should be involved. (Defs. SOUF, ¶106). Henrysen's notes from his August 31, 2015 meeting with DeBona, Hegen and Darbi reflect the group's discussion of the presence of the boys in Darbi's lunch. Three options were presented, namely: (1) Darbi could remain in her lunch with security present; (2) Darbi can keep her lunch period, but eat somewhere else as the library or with Henrysen; or, (3) Darbi's lunch period could be changed. (Defs. SOUF, ¶108). Henrysen's notes reflect the conference call held on August 31, 2015 with Axe, DeBona, Hegen and Darbi. These notes also reflect that "Darbi snitched on B., C. and N. about a break-in. Bullying started after." (Defs. SOUF Ex. 50, Goodwin-PSD 0165). 39. Denied as stated. Defendants deny the facts of record are accurately reflected in Plaintiff's characterization of events as alleged in Paragraph 39 where Plaintiff simply "cherry picks" certain out-of-context verbiage from documents. McHale produced her notes of September 2, 2015 reflecting a meeting with McHale, Price, DeBona, Hegen, Henrysen and Axe. (Axe is identified as "L" in McHale's notes). (Pltf. Ex. 9, Goodwin-PSD 0101-0102). The notes reflect that Price said that the "lunch period" is usually excluded as a "separation area; back-up plan was in place; no schedule changes." Price noted that H.'s counselor was informed of Darbi's return to the school and that H. is instructed to stay away from Darbi. The group discussed the safety plan for Darbi such that several adults would oversee Darbi's lunch, monitor the boys and keep watch for any issues. McHale's notes stated that Axe claimed that Hegen "said [it was] discrimination to move boys last year." McHale's notes reflect that the staff overseeing the lunch included five teachers, one security guard and one administrator, Mr. Laboski. Laboski also testified that arrangements were made to oversee Darbi's lunch and the safety plan included Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 21 of 51 22 placing a security officer and six teachers in the lunch. Laboski said that there were two other teachers who assisted on the outside of lunch in terms of a lunch line. An administrator was also present. (Pltf. Ex. 7, Laboski dep., p. 175:1-8). During the September 2, 2015 meeting, the group discussed two options for Darbi. The first was for Darbi to stay in the same lunch with the boys, but to move the boys to different sections of the lunch room while the seven adults monitored the lunch room. The second option was to offer Darbi another location to have lunch with a friend. Axe stated that "Darbi is a victim and shouldn't have to change her side of the lunch." DeBona attended the meeting and testified that "the outcome" of the meeting was that Darbi decided to stay in the cafeteria with the same lunch period as C., N. and B. DeBona said that PHS moved Darbi's seat "so that she and the boys would be far away from each other, but visible on camera." The security officers and teachers in the cafeteria were notified to keep a watchful eye over Darbi and the boys. A teacher was positioned to stand near Darbi to watch her in the cafeteria. DeBona was present when Laboski spoke to C., N. and B. and told them not to "approach her [Darbi] or talk to her." The three boys "understood" and "accepted" those restrictions, but Darbi did not. Darbi moved her seat closer to the boys and later "confronted" the boys at their lunch table. (Defs. SOUF, ¶114). Cortazzo testified he questioned Darbi about reports from the lunch monitors that Darbi actually "went up and . . . got in someone's face in lunch. And that seemed inconsistent with what . . . you know, she is afraid of these kids." (Defs. SOUF Ex. 17, Cortazzo dep., p. 62:15-63:8). On October 6, 2015, McHale wrote to DeBona and Price and questioned whether there was a possibility of a second semester schedule that would alter the present lunch schedule inasmuch as Axe3 had mentioned it in a phone conversation. Within the hour, DeBona sent a return email to McHale explaining that there are only three lunches and five students 3 Axe is identified as "L" in Pltf. Ex. 36, Goodwin-PSD 0029-0030. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 22 of 51 23 involved in the situation. DeBona said there was no reason to change the other student's schedules. She said "lunches do not change; however, study halls may change." (Pltf. Ex. 36, Goodwin-PSD 0029). Price testified that he had inquired whether it was possible to ensure that Darbi would not be in the same lunch as the four boys. He recalls that the boys were seniors and the boys may not have been able to schedule the classes they needed to graduate if their lunch periods were changed. (Defs. SOUF Ex. 13, Price dep., pp. 161:19-162:23). Price attended the September 2015 meeting and said that the high school team conducted research before the meeting and the team explained to Axe that it was not possible to change the senior boy's schedules and allow them to graduate on time. Thereafter, Price periodically inquired whether any issues or problems occurred in the lunch room and Price never learned of any such problems. Similar to Cortazzo, Price found it unusual that Darbi said she felt "afraid" and wanted the boys to be "switched" out of the lunch period, yet she moved herself closer to the boys. Darbi admitted that she never encountered any problem or issue with the presence of N., C. and B. in the lunch room during her junior year. (Defs. SOUF, ¶115). 40. Admitted in part; denied in part. It is admitted that Darbi, H. and B. were scheduled to attend Study Hall in the cafeteria with different sections and different teachers. It is denied that Darbi, H. and B. were scheduled and were located in the same section of the cafeteria at any time. On September 8, 2015, Axe emailed Henrysen and advised that H. was in Darbi's Study Hall. Henrysen promptly responded with an apology explaining that Darbi and H. are scheduled in two different Study Halls with different teachers. Unfortunately, the location for the two different Study Halls was the café (cafeteria). H.'s Study Hall was removed from the cafeteria. Even Darbi testified that H. was present in her Study Hall for one occasion when Darbi and H. were located in different quadrants of the cafeteria and each had different Study Hall Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 23 of 51 24 teachers. (Defs. SOUF, ¶¶119-121). On September 9, 2015 at 9:16 a.m., Axe advised Price that B. was in Darbi's Study Hall. Thirty minutes later, Price emailed Axe and advised that he had spoken with the PHS team and learned that B. was assigned to a different Study Hall teacher than Darbi, but several Study Hall sections were located in the café. Price assured Axe that the situation would be remedied and the boys Study Hall periods will be relocated. (Defs. SOUF, ¶122). Both H. and B. were removed from Darbi's Study Hall and Darbi's schedule was never changed. (Defs. SOUF, ¶¶125-126). 41. Admitted, with clarification. It is admitted that McHale's notes reflect that Axe reported during the September 2, 2015 meeting that Darbi saw H. three times a week. There is no indication that Darbi and H. had any conflict or problems when Darbi reportedly observed H. (Pltf. Ex. 9, Goodwin-PSD 0101). Darbi said that she rarely availed herself of the opportunity to leave class early or arrive at class a few minutes late to avoid H. Darbi also "denied" PHS' offer to change her schedule. Axe said PHS' offer to provide Darbi with an escort was flat out rejected. (Defs. SOUF, ¶¶66, 68). 42. Admitted in part; denied in part. It is admitted that on September 9, 2015 Axe informed PSD that B. was in Darbi's Study Hall. That same day Price wrote to Axe informing her that the High School team was examining the Study Hall classes in order to make changes in the cafeteria to relocate H. and B. before the next Day No. 6 of the school cycle. Axe knew that the next Day 6 cycle was September 16, 2015. On September 15, 2015 at 10:55 a.m., Axe wrote to Hegen and others inquiring whether H. and B. were removed from Darbi's Study Hall. Axe's email stated that she has not "heard anything." Ten minutes later, Hegen sent an email response to Axe stating that H. and B. have been removed from Darbi's Study Hall. DeBona testified that there was a brief delay in Hegen's ability to inform DeBona that the school effectuated the Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 24 of 51 25 change removing H. and B. from Darbi's Study Hall because "we were off, it was a weekend, we were in training the week before, and so he did it the first moment he had been back in his office from training." It is admitted that Hegen's September 9, 2015 email stated that H. and B. could leave their Study Hall classroom and enter the café to obtain food. DeBona testified that the "first three periods of the day our cafeteria is open for students for breakfast, certainly for those that have free and reduced lunch, so they have access to start their day with a meal." It is denied that there is any evidence supporting any confrontation or problem between Darbi and H. and/or B. that occurred in the cafeteria during Darbi's Study Hall class. There is no evidence that H. or B. even entered the cafeteria during Darbi's Study Hall. (Defs. SOUF Ex. 11, DeBona dep., pp. 283:20-285:8; p. 287:18-288:12; Pltf. Ex. 39, Goodwin-PSD 0111-0112; Pltf. Ex. 40, Goodwin- PSD 1474-1475). 43. Admitted in part; denied in part. It is admitted that DeBona testified that she was not sure why Henrysen's notes reflect that B., C., and N. were on "zero tolerance." DeBona testified that it was communicated to the "boys" that they would face consequences if they approach Darbi. It is denied that Pltf. Ex. 41, Goodwin-PSD 0168, which are Henrysen's September 2, 2015 notes, state that DeBona and/or Laboski warned B., C. and N. that if they approached Darbi or talked to her they would face consequences. However, as previously stated, PHS instructed H., B., C. and N. to stay away from Darbi. It is denied that H. needed a "reminder" about Laboski's instruction to "stay away" from Darbi. H. testified that he understood that he was to stay away and have no contact with Darbi. 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. (Defs. SOUF Ex. 146, attached hereto, H. dep., pp. 36:16-17; 87:5-10; 92:6-8; 95:19- 96:23; Defs. SOUF Ex. 11, DeBona dep., pp. 273:14-275:23; Pltf. Ex. 41, Goodwin-PSD 0168). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 25 of 51 26 44. Admitted in part; denied in part. It is admitted that Darbi was not "prescribed specific hallway routes" so that she would not encounter H., B., C. or N. in the halls. It is denied that there were no accommodations provided to Darbi to minimize the likelihood that she would see any of the boys. Darbi was permitted to leave class early and arrive at class late, but seldom availed herself of that opportunity. Darbi was provided an opportunity to change her schedule, but she "denied" the school changing her schedule. Axe testified that the school's offer to provide Darbi with an "escort" was rejected. DeBona testified that PHS is a "confined school with 2,400 students, so it's reasonable to think that they might pass each other in the hall; but if there was an assigned program that we could let her know in advance, we would." Henrysen testified that during her junior year, Darbi indicated that she would pass H. in the hallway, "but not regularly." Henrysen does not recall Darbi telling him that she felt like H. was "purposely encountering her in the hallways." (Defs. SOUF Ex. 18, Henrysen dep., p. 208:1-9; Defs. SOUF Ex. 11, DeBona dep., p. 292:4-13; Defs. SOUF Ex. 1, Plaintiff dep., p. 164:1-18; Defs. SOUF Ex. 6, Axe dep., p. 134:23-135:22). 45. Denied as stated. DeBona testified that when Darbi would "see the boys or she would interact with the boys, she would let Mr. Hegen know that she didn't feel safe." Hegen reported these events to DeBona. DeBona said that Darbi had a "fluid safety plan" and PHS made modifications to the plan to protect Darbi. DeBona testified that she recalls speaking with Dr. Rattigan about Darbi during Darbi's junior year and she provided Rattigan with "updates along the process." (Pltf. Ex. 4, DeBona dep., pp. 293:8-24; 298:14-19). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 26 of 51 27 46. Admitted, with clarification. It is admitted that Darbi testified that she observed H. when she entered a World Cultures Assembly.4 H. did not say anything to her and Darbi left the Assembly before H. was seated. Darbi reported to Guidance and requested that Henrysen attend the Assembly with her. Henrysen attended the Assembly with Darbi and stayed in the back of the auditorium for the duration of the Assembly. (Defs. SOUF Ex. 1, Pltf. dep., p. 198:22-200:2). Henrysen testified that he recalled the World Cultures Assembly that Darbi attended with the entire 11th grade class. It was not previously known that H., who was a senior, would also be in attendance at the Assembly. Darbi was upset and went to see Henrysen. In order to make Darbi feel comfortable, he attended the Assembly with Darbi. (Defs. SOUF Ex. 18, Henrysen dep., p. 213:8-215:6) (See also, Defs. SOUF ¶¶148-149 stating that Darbi was present in the Assembly briefly before she left to get Henrysen. The Assembly took place in the auditorium. Darbi and H. were located in different sections of the 1,200 seat auditorium). Henrysen testified that the junior and senior classes attend separate portions of the annual college fair. The senior class attends the initial portion of the fair and thereafter the junior class attends the fair. When Darbi attended the College Fair, H. was present, because he "lingered" after the senior class completed attending its portion of the College Fair. Henrysen confirmed that the administration, Laboski, Hegen and Principal DeBona, monitored the College Fair to ensure that H., B., N. and C. were not lingering at the fair when Darbi attended. Henrysen believes that Hegen removed H. from the fair. Henrysen spoke with Darbi about her observation of H. at the Fair. There is no evidence demonstrating that Darbi was harassed, sexually harassed, teased or taunted during the College Fair. (Defs. SOUF, ¶184). 4 The World Cultures Assembly was attended by junior students at PHS because the PHS curriculum required juniors to take a World Cultures class. (Defs. SOUF Ex. 15, Hegen dep., pp. 251:5-252:9). It was not known to the PHS team that H., who was a senior at the time, would be in attendance at the Assembly. (Defs. SOUF Ex. 11, DeBona dep., p. 295:5-17). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 27 of 51 28 47. Denied as stated. On September 17, 2015, Virginia Afman, Masters of Social Work, noted that Darbi's mood was anxious and that her CPSS was consistent with "severe PTSD." She was diagnosed with PTSD and OCD (obsessive-compulsive disorder) on January 13, 2015. Darbi received this diagnosis before PSD was even informed about the alleged assault. However, no medical or psychological record documents symptoms consistent with a diagnosis of PTSD for Darbi. Defendants' expert, Dr. Barbara Ziv, concluded that "all available objective information indicates that DarbiAnne Goodwin does not have PTSD, but is malingering the psychiatric symptoms she attributes to the events of December 27, 2014 and the actions of personnel at Pennridge High School." (Pltf. Ex. 43; Defs. SOUF Ex. 147 attached hereto, Dr. Ziv Report, p. 49, 65, 66, 68, 73; Defs. SOUF Ex. 154, attached hereto, Dr. Ziv CV; Defs. SOUF Ex. 148 attached hereto, Goodwin-Penn 0114). 48. Admitted in part; denied in part. It is admitted that in September 2015 Axe forwarded her version of a Timeline to McHale and Rattigan, which states that, in February 2015 (seven months before Axe submitted her Timeline to PSD), Darbi experienced "extreme bouts of depression/cutting/angry/suicidal thoughts." At that time, PSD had no medical records demonstrating that Darbi manifested such actions or was diagnosed with depression. The Timeline does not state that Darbi's behavioral and emotional issues occurred "since her reported sexual assault by H." By way of further answer, Darbi entered therapy at age 12, prior to high school and identified numerous struggles in her family environment that were serious and disturbing. (Defs. SOUF Ex. 147 attached hereto, Ziv Report, p. 63; Pltf. Ex. 17, Timeline). 49. Admitted in part; denied in part. It is admitted that on January 5, 2016 Axe sent an email to DeBona, McHale, Hegen and others advising that B. sent Darbi a text over Christmas break. The email stated, "I know to you this may seem nonthreatening, however to someone Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 28 of 51 29 struggling with PTSD its (sic) a REAL threat." (Pltf. Ex. 44, Goodwin-PSD 0037). It is denied that PSD received any other documents reflecting that Darbi was medically diagnosed with PTSD by January 5, 2016. 50. Admitted in part; denied in part. It is admitted that PSD did not evaluate Darbi for an IEP or Section 504 plan concerning Darbi's claims in this case. The Amended Complaint does not allege that Darbi required a Section 504 plan, or make any allegation regarding a 504 plan, and this claim should be stricken. By way of further answer, Axe testified that she never requested PHS to provide Darbi with an IEP and that Darbi's medical providers never suggested to Darbi or Axe that Darbi obtain an IEP. Axe testified, ". . . and what good would an IEP do her? Was that going to make her feel safer?" (Defs. SOUF, ¶212). Although Darbi was diagnosed with PTSD, it is denied that she ever displayed symptoms consistent with this diagnosis and/or required an IEP or a Section 504 Plan. (Defs. SOUF Ex. 147 attached hereto, Ziv Report, p. 66, 73). 51. Admitted in part; denied in part. It is admitted that on November 19, 2015 Darbi submitted an incident report that stated: I was walking down the hall with K. I was talking about a story that involved H. As we turned to get down the stairs H. appeared. My immediate reaction was 'wow, speak of the devil' and kept walking. Then when he turned to his friends who must have heard they asked 'what was that' or something along those lines (wasn't audible). Then he said out loud 'I don't know she's a fucking bitch.' It is further admitted that Darbi failed to inform the Court that she initiated the conversation with H. in Paragraph 51. (Defs. SOUF, ¶15). Laboski testified that H. admitted making the statement about Darbi, but H. said he made the statement "out of frustration" because "she [Darbi] was talking about me." Laboski said it was a "happenstance meeting on the staircase" and that Laboski had no information that H. had a history of meeting her on the staircase or in the Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 29 of 51 30 hallways. Darbi testified that she did in fact initiate the conversation with H. Thereafter, H. made the reactionary comment to his friends, not to Darbi. There was no physical contact or altercation between Darbi and H. Laboski said he contacted and informed H.'s parents about the incident. It is admitted that an Incident Report completed by H. has not been located by Defendants. (Defs. SOUF Ex. 16, Laboski dep., pp. 159:1-160:14; 161:4-162:2). 52. Denied. Although the PSD Student Handbook provides, by way of example, that abusive/obscene language directed at a student may permit an administrator to provide a consequence to the offending student of two Saturday morning detentions, the Handbook specifically requires that Level II infractions "require the intervention of administrative personnel." Moreover, it is specifically stated that: Administrative discretion may be used depending upon the severity of the incident and/or the student's disciplinary record. Laboski testified that after the stairway incident initiated and provoked by Darbi, he met with H. and notified H.'s parents. Laboski believed that the incident was "reactionary" in that "he [H.] reacts to what she's [Darbi's] saying ["speak of the devil"]. (Defs. SOUF Ex. 16, Laboski dep., pp. 159:11-160:14). The November 19, 2015 incident is Darbi's only documented encounter with H. since the time of the alleged December 27, 2014 incident. Darbi testified that she has no recollection of H. saying anything to her in school before November 19, 2015. The staircase incident occurred eleven months after the December 27, 2014 alleged assault. Darbi confirmed that she first said "speak of the devil" about H. before he made a reactionary statement to his companions. H.'s statement was actually made to his companions, not directly to Darbi. (Defs. SOUF, ¶¶160-161). It is denied that H.'s statement was directed at Darbi. PHS elected to implement its discretion afforded to it by the School Board and refrain from requiring H. to attend detention. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 30 of 51 31 53. Denied as stated. It is denied that the "happenstance meeting on the staircase" as described by Laboski violated a "stay away order." Darbi's own Incident Report states that "H. appeared" by the stairs. His appearance was not to intentionally confront Darbi, because that is not what occurred. DeBona testified that the November 19, 2015 incident "was the first time in the building [PHS] that she [Darbi] had written a statement up about H." Since that incident, there were never any further documented or known confrontations between H. and Darbi. As DeBona testified, given the confined footprint of the brick and motor building, it would be unreasonable to expect that Darbi and H. would attend PHS and never pass one another in the hallway. (Defs. SOUF Ex. 16, Laboski dep., p. 161:15-19; Defs. SOUF Ex. 11, DeBona dep., p. 313:2-7, 314:1-315:1). H. testified that for the remainder of that school year, from December 2015 through his graduation in June 2016, H. had no other confrontation with Darbi and he never spoke to her. In fact, H. said during the entire time that he was in high school, the November 19, 2015 incident was the only time that H. had "interaction" with Darbi. (Defs. SOUF Ex. 146, attached hereto, H. dep., pp. 39:16-23; 40:13-18). It is admitted that H. testified that Laboski stated that H. was not creating problems during the "happenstance" meeting in the stairwell. It is denied that H. did not understand the "stay away" or "no contact" instruction. (Defs. SOUF Ex. 146, pp. 36:14-23; 39:6-15; 86:25-87:10; 91:11-92:9; 95:19-96:23; 98:1-99:3). 54. Denied as stated. Rattigan was informed of the incident by DeBona. Rattigan specifically stated that she "followed-up" with DeBona to learn how the situation was handled. DeBona informed Rattigan that Darbi initiated the discussion with H. stating "speak of the devil" and H.'s response was to call her a bitch. However, Darbi's Incident Report confirmed that H. made the statement to his companions, not Darbi. DeBona describes H.'s statement as "a reactionary comment" to Darbi starting the conversation. She said the term "fucking bitch" Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 31 of 51 32 could, at times, be considered a gender slur, but did not believe it was used as a gender slur by H. and compared H.'s use as similar to other times when she had heard a male student call another male student a "bitch." Darbi was specifically told not to speak to or have any conversations with the boys, and for that reason, Darbi was wrong in initiating the conversation. DeBona said that Darbi's statement "does not make what he [H.] did right either." DeBona believed H. was annoyed after Darbi initiated the communication—not that he targeted her because she is female. (Defs. SOUF Ex. 8, Rattigan dep., pp. 196:15-197:8; 197:19-198:9; Defs. SOUF Ex. 11, DeBona dep., pp. 309:4-312:21). DeBona said that PHS "put reasonable accommodations to support her [Darbi] in that building. She [Darbi] knew, mom [Axe] knew, that there may be times that they would see each other because it's a brick and mortar environment." (Defs. SOUF Ex. 11, DeBona dep., p. 313:2-7). 55. Denied as stated. It is admitted that Axe sent the January 5, 2016 email, however, she stated that C. contacted Darbi "on the anniversary of the rape," not "right around" the one- year anniversary of the sexual assault. It is admitted that Henrysen's January 4, 2016 email stated that C. texted Darbi over the break asking her to "hang out." Henrysen said the timing of the contact was "right around the same time of the H. situation from last year." (Pltf. Ex. 47, Goodwin-PSD 0172; Pltf. Ex. 44, Goodwin-PSD 0037). By way of further answer, Darbi testified that she was not sure whether C. simply wanted to "hang out" as stated in the text message. (Defs. SOUF Ex. 1, Pltf. dep., p. 112:8-24). Nonetheless, there is nothing sexual or harassing about the text message that was sent on a Saturday during Christmas break when PHS was not in session. C.'s December 26, 2015 text was not sent on the one year anniversary of the alleged December 27, 2014 alleged assault. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 32 of 51 33 56. Admitted in part; denied in part. It is admitted that on January 5, 2016 at 6:47 a.m., Axe informed PSD that Darbi received contact from “one of the boys that was involved with the threat to beat her up and jump her." It is denied that C. threatened to beat up Darbi and jump her. On January 5, 2016 at 7:43 a.m., Hegen informed DeBona, Laboski, Henrysen and Carol Ressler that Darbi received contact from C. over the holiday break and is feeling unsafe with C. in her lunch. One minute later, Laboski asked Hegen to provide him details of C.’s contact with Darbi. By 8:39 a.m. that same day, Laboski informed Hegen and Henrysen that he had already met with C., who deleted Darbi’s telephone number from C.’s phone. C. specifically agreed “not to have contact with her [Darbi] outside of school." Laboski said he is “going to follow up with an email to his parents and Jamie Cooper, his P.O. (Probation Officer). Three minutes later, Henrysen advised Hegen that he would meet with Darbi that same day at 9:15 a.m. Laboski testified that he told C. “not to have any contact with her [Darbi] outside of school, inside of school” and that C. deleted Darbi’s phone number from C.’s phone. Laboski said he called C.’s parents. Shortly thereafter, at 9:59 a.m., Hegen wrote to Axe advising that Henrysen also informed him of the contact by C. over break. Hegen said he “just communicated with Mr. Laboski and the lunch staff that are in their lunch period (8th) so they can continue to keep an eye on the boys and Darbi." Hegen also stated that C. “met with Mr. Laboski this am to reinforce the expectations of a safe environment for Darbi and all students. His family has been communicated to about this concern as well." Hegen informed Axe that Henrysen again met with Darbi “to keep the support conversation going." Hegen stated in his email that he thought the contact was a deliberate act. Hegen instructed Axe to contact the police. DeBona testified that PHS followed- up to ensure a police report was filed. Laboski testified that he followed Hegen’s instruction to “keep more observant in the lunchroom" to keenly observe C. in relationship to the location of Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 33 of 51 34 Darbi. Henrysen offered to be in the lunch with Darbi. Laboski said he never observed any incidents in the lunchroom involving Darbi and N., H., B. or C. Although C. deleted Darbi’s number from his phone, when Axe was asked during her deposition whether she considered having Darbi change or make an adjustment to her phone whereby she could block the boys’ text messages, Axe responded, “Absolutely not. Why should she?" Axe stated it would “only cause more anxiety." Axe said that neither she nor Darbi ever considered blocking the boys’ phone numbers from Darbi’s phone. (Defs. SOUF Ex. 84, Goodwin-PSD 0036-0037; Defs. SOUF Ex. 149 attached hereto, Goodwin-PSD 1527, 0174-0175; Defs. SOUF Ex. 16, Laboski dep., pp. 173:15-21, 174:12-22, 176:3-13, 176:24-177:23, 178:1-12; Defs. SOUF Ex. 6, Axe dep., pp. 143:15-145:8; Defs. SOUF Ex. 11, DeBona dep., p. 338:15-21). 57. Denied. Hegen sent an email to DeBona, Rattigan, McHale, Price, Henrysen and Laboski advising that Darbi informed Henrysen of the contact by C. Hegen said he had communicated with Laboski and that he and others were keeping a watchful eye over Darbi and C. during lunch. Hegen noted that the “teachers in there have been on top of this all year." Laboski met with C. regarding Darbi’s concerns. Hegen noted that the school would keep the doors open for Darbi to seek guidance if she is feeling unsafe while in school. See Defendants' Response to Paragraph 56, above. (See also Defs. SOUF Ex. 82, Goodwin-PSD 0033). 58. Denied as stated. It is denied that C.’s text message that he sent on a Saturday over the Christmas break when PHS was not in session that asked Darbi to “hang out” constitutes unlawful harassment pursuant to School Board Policy 248. (Defs. SOUF, ¶243). 59. Denied as stated. DeBona testified that she did not believe that consequences were imposed on C. for the text sent to Darbi because the contact took place over the school break and the content of the message was not “threatening." DeBona said the contact occurred Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 34 of 51 35 outside of school and Darbi’s parents contacted the police. When asked whether there was an investigation into the incident, DeBona said Laboski spoke with C. inasmuch as Laboski was C.’s principal. (Defs. SOUF Ex. 11, DeBona dep., pp. 326:14-328:20). 60. Admitted. See also Defendants’ Answers to Paragraphs 55-59, above. 61. Denied as stated. Henrysen testified that on February 9, 2016, he sent an email to Axe stating that “Darbi made it through the day." Henrysen met with Darbi during her English period because the topic of the book Darbi's class was reading turned to “a sexual assault." Henrysen said at that “point in the school year,” Darbi struggled “at times with getting through the day." Her visits with Henrysen “went up and down." He estimated that Darbi was coming to see him every couple days. Darbi would leave early “if she was too upset to get through the day." Laboski said that there came a time when Darbi was having trouble getting through the day, but he did not know when that time period occurred. Henrysen said that during the second semester of her junior year, “Darbi was also going through a break up with a new boyfriend, so it wasn’t all just specific to . . . these boys. So we kind of talked about that, too. So that would kind of interweave to some degree." (Defs. SOUF Ex. 18, Henrysen dep., pp. 245:16-248:10, Defs. SOUF Ex. 150, Goodwin-PSD 0180). In fact, Darbi’s absences during the first semester of the 2014-2015 school year were quite similar to her absences during the second semester 2014-2015 school year. (Defs. SOUF, ¶210, p. 61). 62. Denied as stated. Henrysen testified that “part of her [Darbi] discomfort/unease at school had to do with seeing H." (Pltf. Ex. 42, Henrysen dep., p. 79:8-12). See also Defendants’ Answer to Paragraph 61, above, where Defendants reference that Darbi was also visiting Henrysen, leaving school early and was absent from school because she was “also going through Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 35 of 51 36 a breakup with a new boyfriend, so it wasn’t all just specific to . . . these boys." (Defs. SOUF Ex. 18, Henrysen dep., pp. 246:24-247:14). 63. Admitted in part; denied in part. It is admitted that on April 6, 2016, Darbi completed an Incident Report where she describes an April 5, 2016 incident in the hallway. It is denied that the Incident Report states that C. “purposely bumped into her in the hallway." The Incident Report stated as follows: I was walking from Mr. Valetti’s room and C. was walking from the opposite direction. We got shoulder-to-shoulder and he bumped into me. (Defs. SOUF Ex. 86, Goodwin-PSD 0321-0322). It is admitted that on April 5, 2016, Henrysen informed DeBona, Hegen, Laboski and others that approximately two hours before he sent the email, C. and Darbi bumped into one another. Darbi claimed that C. bumped into her on purpose. DeBona informed Rattigan of the incident. Rattigan said that the surveillance video was viewed and it reflected “a lot of students in the hallway and bumping goes on." Henrysen noted that when he first observed Darbi after the bump she was emotional and could not speak. Henrysen stayed with Darbi for two hours; placed a call to Axe; and said he would follow-up with Axe via email. (Pltf. Ex. 49, Goodwin-PSD 0184; Defs. SOUF Ex. 8, Rattigan dep., pp. 219:9-220:5). 64. Denied as stated. Henrysen testified that he observed Darbi and her boyfriend in the hallway and Darbi was crying. Her boyfriend, D., explained that Darbi and C. bumped into one another. Henrysen brought Darbi to the security cameras to view the incident. Henrysen said, “You see both of them kind of go into a cluster of people, they walk past one another. You can’t see the interaction, you can’t make it out, and then they keep going that way. D. [Darbi’s boyfriend] is waiting for Darbi a few steps away and C. walks the other way." Darbi herself testified that the video showed both she and C. walking into and out of a crowd of people. Darbi Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 36 of 51 37 said the video did not “determine anything from what happened inside the crowd of people." Darbi admitted that she was not knocked down by the bump. Henrysen said that she felt very safe with her boyfriend D., and her prior boyfriend, J., when she walked the halls. It is denied that Hegen’s testimony cited in Plaintiff’s Paragraph 64 pertains to Hegen's review of the subject videotape or PSD's response to the bump in the hallway. Plaintiff cites Hegen’s testimony pertaining to an investigation of Jane Doe’s claims (in the case Doe v. Pennridge School District, et al., Eastern District of Pa., Civil Action No.: 17-cv-03570-TR), and Hegen's statement that there was no video evidence of Doe’s claims that N. raised his hand to Doe. Hegen said that if two students have two different accounts of an incident, it is helpful to have additional witnesses to evaluate the veracity of the account. Hegen said that photographical and videographical evidence are helpful in evaluating such incidents. When presented with a conflict between two students, absent evidence other than the two students' verbal accounts that conflict each other, then Hegen typically determines such incidents to be inconclusive, and he prefers to make the incident a “teachable moment." (Defs. SOUF, ¶¶174-175; Defs. SOUF Ex. 18, Henrysen dep., pp. 249:2-250:18; Defs. SOUF Ex. 15, Hegen dep., pp. 470:5-473:14). 65. It is denied that the innocuous bump involving C. and Darbi constituted a physical assault, aggressive behavior or a Level III infraction pursuant to PHS’ 2015-16 Student Handbook. (Defs. SOUF, ¶¶171-182). 66. Admitted in part; denied in part. It is admitted that on April 7, 2016, Axe sent an email to Price and Henrysen stating that: (1) we are clear that we are instructing C. to stay away from Darbi, not to avoid each other; (2) Henrysen is requested to communicate with Darbi’s therapist to get a letter for absences because Darbi is genuinely petrified to come to school; (3) Hegen “IS NOT TO SPEAK ON OUR PART” because she “HATES” Hegen and Darbi has no Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 37 of 51 38 respect for him; (4) Axe inquires whether she needs “to go to Title IX?" It is denied that PSD did not take any steps to help Darbi feel safe after she bumped into C. As stated above, Henrysen met with Darbi for two hours. DeBona testified that Darbi told the school administrators that she wanted to be present when the bumping issue was addressed with C. DeBona did not think that was a fair request because PHS does not permit students to be present in disciplinary meetings with "other" students. DeBona said that the school did not conclude that C. purposely bumped into Darbi. DeBona said that in an effort to avoid the bump, Darbi could have taken a step or two away from C. as she walked down the hallway. Ultimately, a peer mediation was held with C. and Darbi. DeBona said that the school continued “to make a fluid document of providing accommodations for her” and as Darbi’s schedule changed throughout the year, additional staff were apprised of Darbi’s accommodations. Mr. Martin from Youth Services maintained a watchful eye to observe Darbi, and the boys in the hall. Laboski met with C. and called his parents regarding the bump in the hallway. McHale and Price were involved in the decision- making process. PSD told Darbi and C. to stay away from one another, and if they observed each other, they were to walk in opposite directions. (Pltf. Ex. 50, Goodwin-PSD 0328; Defs. SOUF Ex. 11, DeBona dep., pp. 337:10-24; 339:8-341:23, 334:24-345:3). 67. Admitted, with clarification. By way of further answer, Plaintiff’s Exhibits’ 50-54 demonstrate that multiple high-level PSD administrative personnel were involved and worked to resolve Darbi’s concerns about C. in connection with the bump in the hallway. Axe thanked Price for listening to Darbi and stated that their meeting “validated” that someone cares. Henrysen’s April 11, 2016 notes reflect that during the meeting, C. agreed to stay away from Darbi and C. “verbalized [his] desire to move on." Darbi remained “upset." DeBona testified that the meeting with Darbi and C. was not for purposes of reprimanding C. because “we don’t have Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 38 of 51 39 students in disciplinary meetings with other students." DeBona said that C. apologized to Darbi; and said, "I'm sorry for everything you've gone through. I just want to move on." (See Plaintiff’s Exhibits to Paragraph 67 and Defs. SOUF Ex. 11, DeBona dep., pp. 337:23-24; 352:4-9). 68. Admitted, with clarification. It is admitted that on April 11, 2016, at 7:17 p.m., Axe sent an email to Henrysen, Price, DeBona, Rattigan and McHale thanking them for their help, but “as a result of too little TOO LATE,” Darbi would need to change schools. Axe presented questions to DeBona concerning Darbi’s decision to transfer schools. The next day, on April 12, 2016 at 7:43 a.m., DeBona responded to Axe’s email, stating that she was sorry that things have not worked out to Axe’s satisfaction, and noted that PSD made every effort to help Darbi. DeBona provided informed and comprehensive responses to Axe’s questions. (Defs. SOUF, ¶¶186-187). 69. Denied as stated. While DeBona’s prompt and comprehensive response on April 12, 2016 did not “offer suggestions for how Darbi could remain at PHS,” DeBona advised Axe: “do not hesitate to contact Mr. Henrysen or me [DeBona] should you have additional questions." After Darbi dis-enrolled from PHS, and once Henrysen learned that the cyber school in which Darbi was trying to register was filled to capacity, Henrysen promptly informed Axe that he contacted DeBona about “a potential option of having Darbi participate in a Pilot Cyber Program that is scheduled to begin after May 1, 2015." Clearly, Henrysen and DeBona offered suggestions to and options for Darbi and Axe after Axe informed PHS that Darbi was voluntarily leaving the school. (Defs. SOUF, ¶¶187-190). 70. Denied as stated. It is admitted that PSD, with the assistance of DeBona, Henrysen and Mrs. Gurysh, created and implemented a pilot cyber program for Darbi because after Darbi voluntarily chose to leave PHS, Darbi was unable to enter a different cyber program. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 39 of 51 40 Henrysen explained to Axe that because PSD was creating a brand new pilot program they "will need to be a bit more creative and/or match courses that are similar [to those that Darbi would like to take]." It was Darbi's decision to leave PHS during the Spring, 2016 semester. Not one representative from PSD even suggested that Darbi leave PHS. (Pltf. Ex. 57, Goodwin-PSD 0195). 71. Denied as stated. In support of Darbi's statement in Paragraph 71 that she "had to leave her position on the student council and turn down a nomination to be the student council president" because she left PHS, Darbi cites to her deposition at 134:20-135:2. This statement is taken completely out of context. During her deposition, Darbi was questioned regarding her Answer to Interrogatory No. 8, which requested Darbi to "identify all individuals with whom she communicated regarding the rape alleged in the Amended Complaint." Darbi identified several individuals in her Answer to Interrogatory No. 8. During her deposition, she was asked about these individuals. Darbi testified that her "friend" identified at 134:7 and 134:10 "would have witnessed the pattern of me leaving school early. And I also had to drop from Student Council, where she was the Vice-President. And I also had to decline my presidency nomination to her." Darbi said this occurred at the end of her junior year. (Defs. SOUF Ex. 1, Pltf dep., pp. 125:25- 126:6, 134:6-135:4; Defs. SOUF Ex. 4, Plaintiff's Answers to Interrogatories No. 8, pp. 10-11). 72. Admitted. 73. Admitted, with clarification. It is admitted that, on October 12, 2016, Axe emailed PSD personnel advising that B. and H., who were in the Marine Corp, briefly visited PHS. Darbi was not present during the time that B. and/or H. were in the PHS building. (Pltf. Ex. 62, Goodwin-PSD 0067-0068; Defs. SOUF, ¶¶217-222). DeBona testified that B. and H. were not "banned from campus" after their visit, but she informed Laboski that "the boys from the year Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 40 of 51 41 before" were not to be in the building [on a going-forward basis] during the day when Darbi may be present. (Defs. SOUF Ex. 11, DeBona dep., pp. 421:17-422:11). 74. Admitted in part; denied in part. It is admitted that Darbi informed Hegen that a friend of Darbi's, M., who was also a senior, was dating B. and her friend wanted to bring B. to the senior prom. It is admitted that Goodwin-PSD 0131-0132 represents a proposed safety plan for Darbi's attendance at the prom that was discussed with Darbi on May 18, 2017. It is denied that DeBona stated that B.'s presence might cause Darbi to have an "emotional breakdown" or become "too distraught" to stay at her own prom. On the contrary, the proposed safety plan set forth in Plaintiff's exhibit stated that part of the safety plan considered that Darbi may feel emotional regarding B.'s attendance at the prom and "anticipating emotional breakdowns, Mary Beth Seeley will be available days leading up, days of, and days after to offer strategies in supports and coping." The safety plan also anticipated that Darbi may decide to stay for the entire prom rather than attending only the first part of the prom. If Darbi chose to stay at the prom when B. was anticipated to arrive at 8:30 p.m., Henrysen will assess Darbi's mental status and call Axe "and let mom she is on her way home. If she [Darbi] is determined to be too distraught, we will ask mom to come and get her." (Pltf. Ex. 63, Goodwin-PSD 0131-0132). 75. Denied as stated. It is admitted that on May 18, 2017, Axe emailed DeBona, Price and Michelle Burkholder informing them that she, along with Darbi, "give our consent to have B. attend the prom in full." On May 22, 2017, DeBona emailed Axe and others advising that the school will permit B. to attend the last 1.5 hours of the prom. DeBona advised of several additional supports that will in place for Darbi. On May 18, 2017, Hegen informed DeBona, Price and Burkholder that "right now we believe that B. will not be there [the prom] until after 9 due to flights home . . . but we will stick with the 8:30 at the earliest." DeBona did not "refuse" Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 41 of 51 42 to change the safety plan, she was following PSD's counsel's [Rob's] advice to permit B. to attend the second half of the prom. On May 22, 2017, Axe emailed DeBona and others stating that "Darbi has a right under Title IX to access school events including prom free from sexual harassment . . . the added attention on DarbiAnne along with the restrictions on B. will only cause more anxiety and possibly retaliation." On May 23, 2017, Price emailed DeBona questioning whether Axe should be informed that the safety plan was presented to B.'s date, M., and DeBona learned that B. and M. would not be arriving until later so that Darbi is not the cause of this and no retaliation is anticipated. However, there was no retaliation and B. never attended the prom. (Defs. SOUF, ¶¶228-230; Pltf. Ex. 63, Goodwin-PSD 0131-0132; Pltf. Ex. 75, Goodwin-PSD 1959-1960). 76. Admitted in part; denied in part. It is admitted that Darbi's attorney from the National Women's Law Center placed at least one call to DeBona. It is denied that Darbi's attorneys' statements that permitting B. to attend Darbi's prom would violate Title IX and would "continue the hostile environment" Darbi faced, have any basis in law or fact. On May 24, 2017, prior counsel for Plaintiff, Alexandra Brodsky, wrote to PSD Solicitor, Robert M. Cox, Esquire, referencing their telephone call earlier that day and informing Cox that Darbi would prefer to attend the prom without B. present. PSD consulted with its Solicitor, Cox, concerning Darbi's prom concerns. Certainly, it was PSD's prerogative and right to have its counsel respond to Darbi's counsel regarding what Brodsky claims were PSD's "legal and ethical obligations" to bar B. from the prom. PSD had absolutely no obligation to speak directly to Plaintiff's attorneys. (Defs. SOUF, ¶235). DeBona testified that administrators do not return attorney's calls. (Defs. SOUF Ex. 11, DeBona dep. pp. 465:7-466:10). By way of further response, the phone call and e- Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 42 of 51 43 mail from Plaintiff's counsel should be deemed incompetent as evidence under the advocate- witness rule. See United States v. Birdman, 602 F.2d 547, 551-52 (3d Cir. 1979). 77. Denied as stated. When Darbi asked Henrysen when B. would arrive at the prom, Henrysen immediately "explained that he would not attend at all." Henrysen believes he learned that B. would not be attending the prom when he arrived at the prom, or sometime in-between his arrival at school and when he later arrived at the prom. After Henrysen advised Darbi that B. was not attending the prom, he told Darbi to "go enjoy your night," which she did. (Pltf. Ex. 65, Goodwin-PSD 0082; Defs. SOUF Ex. 18, Henrysen dep., pp. 287:22-288:19). 78. Admitted. PSD also provided its employees with numerous other training on harassment. Defendants incorporate by reference paragraphs 245 through 350 of their Statement of Undisputed Facts in support of Defendants' Motion for Summary Judgment. 79. Denied. See, e.g., Pltf. Ex. 67, Doe-PSD 2611, 2626-31. See also Defendants' response to Paragraph 78, above. 80. Denied as stated. The PowerPoint slides referenced in this paragraph are written documents that speak for themselves and therefore Plaintiff's characterization of them is denied. By way of further response, these slides were used in live, in-person presentations, and therefore were not the sole source of information at these presentations. (Pltf. Ex. 66, No. 14, p. 6). The presenter was the former Title IX Coordinator for PSD, Raymond Scarpantonio, who was made available for a deposition but Plaintiff chose not to proceed with it. (Defs. SOUF Ex. 19, pp. 33:18-35:19) (testimony discussing the live presentations by Scarpantonio). Additionally, PSD produced the PowerPoint files that they were able to locate, but Mr. Scarpantonio used other materials as well that PSD could not locate. Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 43 of 51 44 81. Admitted that there are two specific references to "Title IX." It is denied that the subsequent slides do not also discuss the requirements of Title IX or that it was not discussed during the presentation. By way of further response, it is denied that a presentation effectiveness is governed by the number of times that "Title IX" appears within the slides. 82. It is admitted that the trainings referenced in this paragraph address workplace harassment. By way of further response, however, Plaintiff has omitted from this paragraph the various trainings addressing the harassment of students that are also required by PSD. (Defs. SOUF, ¶¶ 245-350). 83. It is admitted that PSD employees are required to complete the referenced trainings since 2015. The remaining averments are denied, both factually and as conclusions of law, insofar as this paragraph purports to set forth certain legal requirements of PSD. The GCN training exercises include "links" to PSD policies. (Defs. SOUF, ¶273). 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). Various other trainings are also provided which are tailored specifically to PSD. (Defs. SOUF, ¶¶245-350). 84. Denied. Ms. DeBona only testified that she, personally, did not receive other trainings during that time period. She did not testify that all other PSD employees did not receive other trainings, which is false. (Defs. SOUF, ¶¶245-350). 85. Denied. The term "sexual harassment" appears five times. By way of further response, it is denied that the number of times that a specific term appears has any effect on the sufficiency of training. Moreover, Plaintiff omits from this paragraph that, in addition to the references specifically to "sexual harassment," this nine-page training document contains over 40 Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 44 of 51 45 references to the shortened form of the term, "harassment," which is specifically explained on page one to include sexual harassment. (Pltf. Ex. 69, Doe-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." 86. Admitted. By way of further response, PHS staff did receive such training. (Defs. SOUF, ¶¶245-350 (detailing training provided to PHS staff). 87. Denied. Defendants produced 608 pages of records following a Court Order being issued on October 17, 2018. In the November 16, 2018 letter producing these documents to Plaintiff's counsel, it was specifically explained that "Defendants were required to review a very large volume of records to locate and identify documents which could fall within the scope of the Court's October 17, 2018 Order. The Court Order required production of records 'pertaining to peer conflict involving a sexual or gender-based derogatory term, gesture, or conduct.' To avoid any disputes over the manner in which incidents are classified as peer conflict vs. some other characterization, all records involving a sexual or gender-based derogatory term, gesture, or conduct between students were produced. As such, the documents produced may, and likely do, include incidents that were not classified as peer conflict." (Defs. SOUF Ex. 151 attached hereto, Declaration of K. Heisner) (emphasis supplied). (See also Defs. SOUF Ex. 152, Goodwin-PSD 3330-3936, constituting records purportedly summarized in Graves Declaration). Plaintiff's representation that the entire set of records pertain to peer conflict is not accurate, and therefore denied as stated. Moreover, 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 Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 45 of 51 46 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 Plaintiff’s representations to the contrary. See, e.g., Defs. SOUF Ex. 152, Goodwin-PSD 3437, 3443, 3452, 3468, 3482. 88. It is admitted that, on August 18, 2015, Mr. Hegen asked Ms. DeBona for the name of PSD's Title IX coordinator. By way of further response, it has previously been explained that Mr. Hegen did so because, although he knew who Ms. McHale was and what she did, he referred to her as the "Compliance Officer" and not the Title IX Coordinator. (Defs. SOUF Ex. 11, p. 258:3-6 (DeBona explaining that everybody at PHS knew the Title IX coordinator as the "compliance officer"). It is denied that Mr. Hegen asked whether PSD was required to investigate a report of rape in the absence of the criminal charge. This is a mischaracterization by Plaintiff, as she is well aware that, by the time of this e-mail, the report had already been investigated. See id., pp. 259:6 to 261:3 (explaining that Mr. Hegen was uncertain as to assessing discipline, not as to whether to investigate). See also Defs. SOUF Ex. 15, pp. 336:5 to 338:16 (Hegen outlining, generally, subsequent steps that he took). By way of further response, Plaintiff's citation to a portion of Mr. Hegen's deposition testimony in support of this averment is misleading, as that portion of Hegen's testimony related to Doe—not Ms. Goodwin's rape allegation. 89. Denied, insofar as Plaintiff refers to the four students as "harassers." By way of further response, Defendants attempted to accommodate Ms. Goodwin by offering her multiple Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 46 of 51 47 options but she would not agree, as they explained to her that it was not feasible to place all of these students with new schedules. Moreover, it had already been explained to Ms. Goodwin by Ms. DeBona that lunch separation could not be guaranteed because the school only had three lunch periods. (Defs. SOUF Ex. 11, p. 257:6-14). It is denied that PSD placed Darbi in the same Study Hall class as H. and B. As explained previously, Darbi was assigned to a different Study Hall class than H. and B., with different teachers. H. and B. were relocated to Study Hall classes outside of the cafeteria. See Defendants Response to Paragraph 40, above. 90. Admitted that Ms. Goodwin expressed these feelings. Denied that they were warranted based upon any of PSD's actions. 91. Denied. It is a gross mischaracterization to attribute the phrase "sole authority" to Ms. McHale's deposition testimony. Those were Plaintiff's counsel's words, which were never agreed to or adopted by Ms. McHale. Authority to investigate, which was the subject of Ms. McHale's testimony, is not the same as "sole" authority to investigate. (Defs. SOUF Ex. 14, p. 248:23-249:14). 92. Denied. Ms. DeBona did not say "unless" which changes the meaning of her actual testimony. Rather, Ms. DeBona testified that they would notify the Title IX coordinator if their investigation found that the reported incident rose above peer conflict to harassment. (Defs. SOUF Ex. 11, p. 226:15-24). She also explained, in the portion of her testimony immediately preceding that which is cited by Plaintiff, 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 Plaintiff'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., p. 226:15-22). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 47 of 51 48 93. Admitted. By way of further response, preliminary investigation is sometimes necessary to determine whether a complaint constitutes unlawful harassment. It is denied that Goodwin's complaints regarding other students' conduct at PHS met the legal or PSD Board Policy requirements to constitute harassment. (Pltf. Ex. 5, Doe-PSD 1087-1090). 94. Admitted that this was true as of the January 2018 deposition. 95. Denied as stated, as these written records speak for themselves. See also Defendants' Response to Paragraph 87, above. By way of further response, Ms. McHale would not necessarily be involved in discipline that did not rise above the level of peer conflict. Additionally, the 46 pages referenced in this paragraph by Plaintiff are only log entries for unrelated incidents. 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. Plaintiff was provided with the full student files for Doe and DarbiAnne Goodwin. (Defs. SOUF Ex. 151, attached hereto, Declaration of K. Heisner; Defs. SOUF Ex. 152 attached hereto; Defs. SOUF Ex. 130, Discipline Log Report). 96. Denied. 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." (Defs. SOUF Ex. 11, p. 187:12-17. See also id., p. 188:2-21 (describing how PHS works with police, but that police take the lead for instances such as Darbi's rape allegation). 97. Denied as stated. The testimony cited by Plaintiff pertains to a specific allegation of assault that occur off-campus, which Plaintiff has broadened to encompass all off-campus conduct. By way of further response, PSD provides reasonable accommodations to a student if needed based upon an off-campus incident. (Pltf. Ex. 4, p. 246:3-5). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 48 of 51 49 98. Denied as stated. Dr. Rattigan's testimony pertained to off-campus allegations of rape or sexual assault which are being investigated by the police. As explained by Ms. DeBona, PSD works with the police in such instances to investigate an alleged incident, but the police take the lead because they have better resources and have the jurisdiction to interview community members. (Defs. SOUF Ex. 11, p. 188:2-21). 99. Denied as stated. Ms. DeBona's testimony was provided in the context of Darbi's allegations, which occurred off-campus on a weekend and was uncorroborated. 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 presented at the time, with no witnesses or evidence other than the statements of Darbi and H., the school could not punish H. (Defs. SOUF Ex. 11, pp. 260:4-261:14). DeBona testified that, under these facts, when a student is accused of rape or sexual assault, which is investigated by the police, 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. (Id., 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. (Id., pp. 260:4-261:14). 100. Denied, both as to Plaintiff's characterization of the substance of these written document and as a legal conclusion regarding PSD's duties. Pltf. Ex. 15 states, "[l]ikewise, you as students have the right to be free of discrimination and/or harassment in the school setting." (Pltf. Ex. 15, Doe-PSD 0865) (emphasis supplied). Pltf. Ex. 5 states, "[t]he Board strives to provide a safe, positive learning climate for students in the schools. Therefore, it shall be the policy of the district to maintain an educational environment in which harassment in an form is not tolerated." (Pltf. Ex. 5, Doe-PSD 1087) (emphasis supplied). Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 49 of 51 50 101. Denied as stated. The portion of Exhibit 15 that is referenced by Plaintiff refers to bullying and is a carve-out from the general rule that bullying must be school related. (Pltf. Ex. 15, Doe-PSD 0866). It is denied that this case involves allegations of bullying. Therefore, this Board policy is irrelevant. See also Defendants' Response to Paragraph 100, above, regarding Pltf. Ex. 5. Finally, Pltf. Ex. 2 specifically requires some connection to school operations or property in order to apply. (Pltf. Ex. 2, PSD Student Discipline Policy). 102. Denied, insofar as this paragraph references PSD building "principals" (plural). Defendants' discovery responses specifically state that they are limited to PHS and do not include information as to other schools. It is admitted that Ms. DeBona did not personally submit a written report of a harassment complaint to the Title IX Coordinator during the time period referenced, but assistant principals did do so on her behalf. (Pltf. Ex. 73, No. 24, p. 5). 103. Denied. Ms. McHale's testimony related solely to Ms. Goodwin's reports, which she testified that she addressed through conversations. Plaintiff's effort to broaden her testimony beyond the circumstances of Ms. Goodwin's reports is improper and incorrect. (Pltf. Ex. 3, p. 52:1-53:2). 104. Admitted. As the Superintendent, Dr. Rattigan did not receive these documents. 105. Admitted. 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: 02/13/2019 Case 2:17-cv-02431-TR Document 111 Filed 02/13/19 Page 50 of 51 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 to Plaintiff's Statement of Undisputed Facts in Support of Plaintiff's Motion for Summary Judgment 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 111 Filed 02/13/19 Page 51 of 51