GOODWIN v. PENNRIDGE SCHOOL DISTRICT et al

REPLY to Response to Motion re MOTION for Summary Judgment REDACTED

E.D. Pa.February 28, 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. : REPLY BRIEF OF DEFENDANTS PENNRIDGE SCHOOL DISTRICT, JAQUELINE A. RATTIGAN AND GINA DEBONA IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Plaintiff, DarbiAnne Goodwin ("Darbi"), cannot rely upon bare allegations in her Amended Complaint to defeat Defendants' Motion for Summary Judgment, or distance herself from her allegations, once they have been proven false. See Celotex v. Catrett, 477 U.S. 317, 322 (1986). Moreover, Darbi's judicial admissions in her Amended Complaint are binding on her as the party who made the admission. Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 211 n. 20 (3d Cir. 2006); Parilla v. IAP Worldwide Ervs. VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004). Thus, Darbi is wrong when she faults Defendants for "ask[ing] the Court to focus on the allegations in the pleadings . . ." (Pltf. Mem. of Law IOT Defs. MSJ ("Darbi's Opposition"), p. 5-6). Defendants request the Court to focus on the Amended Complaint and the evidence of record. The vast majority of the evidence cited in Darbi's Opposition does not support her claims. As pointed out below, Darbi's Opposition plays fast and loose with the evidence of record and her overstated claims are simply not supported by the facts. Similarly, the law cited in Darbi's Opposition is incorrectly summarized, much of the case law is not from the Third Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 1 of 49 2 Circuit, and in many instances, the cited law does not support Plaintiff's articulated liability claims against Defendants.1 The majority of conduct about which Darbi complains did not take place during school hours or on school grounds. Indeed, several alleged incidents occurred during the 2014 and 2015 "Christmas breaks" and others occurred while PHS was closed during the summer months. Darbi's specifically cites to case law and states in her Opposition that "the School District cannot be liable for the assault that occurred during the summer and off of school property."2 (Pltf. Opposition, p. 28, citing S. Columbia, 2013 WL 2371413, at *9). Darbi's citation is consistent with the recent holding in Williams v. Pennridge Sch. Dist., No. 15-4163, 2018 U.S. Dist. LEXIS 205957, at *20-21 (E.D. Pa. Dec. 4, 2018), where Judge Goldberg stated "[r]epeatedly, Courts have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred." Contrary to Darbi's assertions, the male students were not under PSD's disciplinary authority when they engaged in certain behavior off-campus and during the time that PHS was not in session. All of Darbi's claims must fail because (1) the conduct she complains about did not constitute sexual harassment that was severe, pervasive and objectively offensive; (2) she has not established that Defendants were deliberately indifferent; (3) the conduct about which she alleges 1 Defendants incorporate by reference their Answer in Opposition to Darbi's Motion for Partial Summary Judgment and Memorandum of Law in Support wherein Defendants distinguished much of the case law relied upon in Darbi's Opposition to the pending Motion for Summary Judgment. 2 Consequently, the alleged assault (December 27, 2014); alleged rumors (December 2014 per the Timeline); alleged text messages sent during summer months from N. and others (Summer 2015); and C.'s text to "hang out" (December 26, 2015) constitute conduct for which PSD cannot be liable because it all occurred both off school grounds and outside school hours. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 2 of 49 3 constituted deliberate indifference is not causally related to her alleged harm; and (4) her supervisory, policy and custom allegations have been proven false. II. INSTANCES OF ALLEGED HARASSMENT ARE NOT SUPPORTED BY ACTUAL EVIDENCE OF RECORD AND DO NOT CONSTITUTE ACTIONABLE SEXUAL HARASSMENT A. The Report of the Off-Campus Rape Counselor Pete Cortazzo was the first PSD representative to whom Darbi told in March 2015 that she was raped in December 2014 during Christmas break. Cortazzo immediately brought Darbi to meet with Assistant Principal Hegen. Darbi's mother, Axe, later joined the meeting and "said that Darbi was being transported by H., who then demanded sex if she wanted to get the rest of the ride home." (Defs. SOUF Ex. 17, pp. 40:22-41:5; Ex. 26, Goodwin-PSD 0148). Darbi never mentioned this scenario to the police or during her deposition. Both Darbi and H. provided the police with similar versions of their sexual activity that took place in H.'s car, including , and varying statements as to the sexual activity that occurred afterwards. However, contrary to Darbi's statements in her Opposition, Darbi never testified that she (Defs. SOUF Ex. 5, Goodwin-PSD 2639-2640). In fact, Darbi testified she had no idea where . (Defs. SOUF Ex. 1, p. 36:1-12). H.'s statement to the police does not constitute "an admission" that he physically forced Darbi On the contrary, H. stated that 3 Plaintiff testified during her deposition that H. . (Defs. SOUF Ex. 1, p. 35:6- 7). She failed to state that during the encounter there was . Defendants only learned about the after the police report was produced, over Darbi's objection. For the first time in this case, at the summary judgment stage Darbi now claims that the "rape" as reported to PSD and as alleged in the Amended Complaint was Redacted per Supplemental Stipulation Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 3 of 49 4 (Defs. SOUF Ex. 5, Goodwin-PSD) 2640. Once the alleged rape was reported to PHS, as presented in Defendants' moving papers, the school took prompt action by speaking with Darbi and her family; questioning H.; contacting H.'s parents; and instructing H. to stay away from Darbi, which was an uncomplicated instruction that H. said he fully understood. The complained about conduct took place off school grounds and outside of school hours, and based upon the information reported to the school, PSD was not required to discipline H. (Defs. SOUF ¶¶48-49, 52-53; Defs. SOUF Ex. 146, pp. 95:19-99:3). Indeed, Darbi testified that she had no contact or issues with H. from the time of the December 27, 2014 event until the time she reported a rape to the school. (Defs. SOUF Ex. 1, pp. 55:6- 56:15). Darbi is wrong that PHS was required to levy an immediate out-of-school suspension upon H. The incident was in dispute and the police were already investigating her claim.4 Further, PSD policies provide that in order for PSD to levy consequences for out-of-school behavior, there must be some nexus to conduct that occurs in the school. Darbi said that at the time she reported the rape, she was having no conflict with H. (Pltf. Ex. 2, PSD Student Discipline Policy; Defs. SOUF Ex. 1, pp. 55:6-56:15). Moreover, school policies "do not set the 4 Darbi continually faults PSD for not investigating further the events of the night of the assault and claims that Defendants take issue with Darbi's delay in reporting the rape, which is not true. PSD could not investigate further an off-campus assault that occurred three months before the report. Moreover, Darbi herself testified that she has no knowledge of the identity of any of the individuals who accompanied her to the Country Place Restaurant prior to the alleged assault. She said that C., B. and N. did not go to the restaurant. Darbi and H. left the restaurant together and entered H.'s car. (Defs. SOUF Ex. 1, pp. 31:22-33:12). Once it received the rape report, PSD spoke with the only individuals who were present in the car, Darbi and H. Further, Darbi is wrong that Defendants believe they are not responsible for investigating student-on-student sexual assault and cannot discipline students for assaults absent a criminal charge or restraining order. PSD would investigate an on-campus report of sexual assault and would discipline students as required notwithstanding the non-existence of a criminal charge or restraining order. (Defs. SOUF Ex. 11, pp. 570:24-572:19; Defs. Resp. to Pltf. SOUF ¶96). Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 4 of 49 5 standard by which Title VI and Title IX claims must be judged and it is outside the [District] Court's province to enforce these policies." Williams at *27. The reported off-campus assault did not occur under circumstances during which PSD had control over H. or the context in which the alleged harassment occurred. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999). B. There is Neither a Claim Alleged Nor is there Evidence that from December 2014 through February 2015, PSD had knowledge that H. and His Friends Spread Rumors that Darbi had Sex with Two People on the Same Night The Amended Complaint at Paragraph 16 asserts that Darbi "discovered H.'s friends were spreading rumors among fellow students about the night she had been raped," and according to Darbi's friend, "H.'s friend told others that on the night of the rape, Miss Goodwin had consented to have sex with multiple PHS students." (Defs. SOUF. Ex. 2). Nowhere in the Amended Complaint does Darbi claim that PSD employees were ever informed about these rumors. Darbi cannot present any such claim. It is axiomatic that a plaintiff cannot be granted summary judgment, nor oppose a dispositive motion, through reliance on a claim that she never brought. Aldingee v. Spectrum Control, Inc., 207 Fed. Appx. 177, 180 n.1, 181 (3d Cir. 2006) (affirming district court's dismissal of a claim that was not pled in Complaint); Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 233 (3d Cir. 2015) ("But even though appellant raised the First Amendment in her brief, she did not plead a First Amendment claim in her Complaint. Therefore, there is not a First Amendment claim properly before us."); see also MJG v. Sch. Dist. of Phila., 2017 U.S. Dist. LEXIS 80117, 2017 WL 2277276 (E.D. Pa. May 25, 2017). Thus, Darbi cannot defeat Defendants' Motion for Summary Judgment with her new claim that PSD had knowledge of "rumors" being spread about her. Further, it is truly disconcerting that Darbi next distorts Hegen's testimony when she claims Hegen was aware of the "rumors" that Darbi had sex with multiple people on the night of Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 5 of 49 6 the alleged assault. (Pltf. SOUF ¶22; Pltf. Opp. p. 8). He never said he was aware of such rumors. None of the exhibits identified by Darbi support her allegations that from December 2014 through February 2015, H. and his friends spread false rumors that Darbi had sex with two people on the same night. Darbi cites the following testimony from Hegen: Q. Do you have personal knowledge about H. and his friends spreading rumors about DarbiAnne Goodwin? A. Mr. Laboski5 made me aware of - - that it was going on, but he was dealing with it on his end. (Pltf. SOUF ¶22). However, Darbi fails to cite the following highly relevant testimony from Hegen that confirms he does not recall the substance6 of the rumors. Hegen testified: Q. But didn't she allege that H. and his friends were engaging in abusive conduct to her? Ms. Kane: Objection. A. No. Q. Or spreading rumors? Ms. Kane: Objection. A. You asked me about that a couple hours ago. I don't remember hearing about those rumors. Q. But you know that H. and his friends had spread rumors? A. I don't know anything, no. Q. But someone had told you that there was an issue as to spreading rumors, right? Ms. Kane: Objection. A. I'm pretty sure I told you no, I didn't know about what that was, you referenced it, and I didn't know there were issues. 5 Darbi's attorneys neglected to ask Laboski about the alleged rumors. 6 None of Hegen's testimony even suggests that the rumors related to Darbi having sex with multiple people on the same night. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 6 of 49 7 * * * Q. And the last time we talked, you mentioned that you knew there were rumors being spread about Darbi, right? Mr. Santarone: Objection. A. I do not remember that part of our conversation. * * * A. . . . So I read about them in the documentation, the amended complaint, but I do not recall specific - - what those specific rumors were. (emphasis added). Q. Do you see the question, do you have personal knowledge about H. and his friends spreading rumors about DarbiAnne Goodwin, at the bottom of page 160? A. I do see that. And my response was, he made me aware that it was going on, and he was dealing with it, but I don't remember what those specifics were. I do not remember what the rumors were. (emphasis added). (Defs. SOUF Ex. 15, pp. 289:2-22; 323:23-324:5; 325:13-326:3). In support of her "rumors" claim, Darbi also cites to her Ex. 18, the Timeline, that states as follows: Series of Events Dec. 2014  The rape by H. [12/27/14].  Rumors spread that Darbi had sex with two people on the same night. (emphasis added). February 2015  Rumors continue with the relationship of K2.7 Nothing in the Timeline states that from December 2014 through February 2015, H. and his friends spread false rumors that Darbi had sex with two people on the same night. The only 7 As stated previously, K2 was Darbi's female friend. (Defs. SOUF Ex. 1, p. 21:3-6; 66:19-22). The Timeline does not state that in February 2015 rumors spread that Darbi had sex with multiple people on the same night; these rumors are only identified as occurring in December 2014. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 7 of 49 8 mention of such "rumors" that occurred during the referenced time period is in December 2014 after the alleged rape, which was obviously the time period when PHS remained closed during Christmas break. Thus, any alleged rumors that occurred in December 2014 after the alleged assault occurred "off of school grounds and/or outside of school hours" and were not under circumstances where PSD exercised substantial control over the person who allegedly spread the rumors or the context in which the rumors were allegedly spread. Williams. Darbi also cites to her Exhibits Nos. 13 and 17 to support her "rumors" claim, but these exhibits are her mother's email to Rattigan and McHale enclosing the Timeline. These documents do nothing to substantiate (and it was never pled) that PHS knew that, from December 2014 through February 2015, rumors were spread about Darbi. Finally, Darbi credits her own testimony wherein she testified that she told the school about the rumors. (Pltf. Ex. 77). However, Darbi fails to cite to her testimony where she identifies the source from whom she learned about the alleged rumors. Perhaps Darbi omitted this testimony because it constitutes several layers of hearsay and cannot be used at the summary judgment stage to support her claim that H. and his friends spread rumors that Darbi had sex with two people on the same night. Darbi testified as follows: Q. If you look at the top of it [the Timeline], it has December 2014, it has rumors spread that Darbi had sex with two other people on the same night. Who was spreading those rumors? A. I don't know who was spreading them. Q. Okay. How did you learn that this rumor was being spread? A. A girl had come up to me and asked if it was true, and I told her no. And I asked her where she heard it, but she would not tell me. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 8 of 49 9 Q. Do you know who the name of that - - do you know the name of that girl? A. B.S. Q. Did you hear that rumor from anyone else besides B.S.? A. No. No. Q. Okay. Did she tell you who the two people allegedly were [who were spreading the rumors]? Attorney Brodsky: Objection. A. H. and C. Q. And how long after December 27, 2014 was it that you heard - - - that you talked to B.[S.] and she told you this rumor? A. First day back at school. * * * Q. But as you sit here today, you don't know the source of those rumors? A. No, sir. * * * Q. It [the Amended Complaint] says H.'s friends had told others on the night of the rape Ms. Goodwin had consented to have sex with multiple PHS students. When we just went over that, the friend didn't tell you where she heard the rumor. Correct? A. That is correct. * * * Q. Okay. Were these rumors anything that, to your knowledge, anyone in the school administration knew about? Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 9 of 49 10 A. They were eventually told about the rumors. I am not sure if it was immediate, or I don't know about the Timeline,8 but they were definitely made sure (sic) of those rumors. * * * Following the lunch break, Darbi testified as follows: A. I would just like to make a clarification on the record. When we discussed 16, paragraph 16 [of the Amended Complaint], and the Timeline that we discussed earlier. At that moment in time, I did not remember that I was given the name of a girl who had told B.S. about the rumor, and that's how I was made aware that it was from the boys, because she was a friend of the boys. * * * Q. You were told by who? A. B.S. Q. Okay. And B.[S.] said what? A. She said that there was a rumor that I had sex with a couple of the boys at a party. And when I had asked who it was, originally she did not tell me, and then she had told me it was J.T., who was a friend of H. Q. And J.[T.] is a female? A. Yes, sir. Q. Did she say that J.T. told her who was spreading the rumor? A. I don't understand the question. Q. Did J.[T.] tell B.[S.] as to who she heard the rumor from? A. H. Q. She's told - - - she said that she heard it from H.? A. Yes. 8 There is no claim in the Amended Complaint that PSD was informed about the alleged rumors. There is no evidence of record indicating when Darbi allegedly informed the school administration about the alleged rumors. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 10 of 49 11 Q. Okay. Did you talk to J.[T.] at all? A. No, sir. (Defs. SOUF Ex. 1, pp. 64:3-65:10; 65:25-66:2; 142:3-11; 142:15-23; 156:25- 157:10; 157:15-158:16). The source of the rumors, if accurate, constitutes quadruple-hearsay, which is obviously evidence that would not be admissible at trial. Plaintiff has not produced affidavits or deposition testimony from J.T. or B.S. and "[a]s Plaintiff has not demonstrated that such quadruple-hearsay testimony would be admissible at trial, and thus available for consideration by the jury, it cannot be considered on summary judgment review." Williams, at *31 (citing Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999)) ("[A] hearsay statement that is not capable of being admissible at trial should not be considered on a summary judgment motion.") Thus, Darbi's testimony that there were rumors spread that she had sex with multiple people on the same night cannot be considered to defeat Defendants' summary judgment motion. Moreover, all other evidence cited by Darbi simply does not support her claim about the rumors. C. There is no Competent Evidence that H. Bragged that He is a Rapist Axe's Timeline states as follows: April * * *  H. makes statements around school "That's just what I do" . . . . rape9 When questioned during her deposition about the statement in the Timeline that Axe attributes to H. bragging that he is a rapist, Darbi testified: Q. And where was it that you learned this information? A. Someone at school had told me that's what he said. 9 According to Axe's Timeline, she does not attribute the word "rape" as a quote from H. Axe testified that she created the Timeline based upon information provided to her by Darbi. (Defs. SOUF Ex. 25, Goodwin-PSD 0022; Defs. SOUF Ex. 6, p. 66:16-23). Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 11 of 49 12 Q. Okay. Do you remember who told you? A. I really don't know.10 (Defs. SOUF Ex. 1, p. 82:1-7). As stated previously, Axe's Timeline was not sent to the school until September 2015, five months after H. allegedly made the statement. The only school document that Plaintiff links to her claim that H. bragged about being a rapist is Cortazzo's notes, which does not support Darbi's claim. Cortazzo's notes state as follows: * 4-21-15 – Came to see me in tears; sent to Hegen plagiarizing in English – Mad at Hegen & I[.] Said we are doing nothing to help her. "Feels" H. presence in school. H. told friends "that is what I do." (Defs. SOUF Ex. 30, Goodwin-PSD 0151). (emphasis added). Nothing in the Cortazzo notes supports Darbi's claim that H. bragged to others that he was a rapist. There is no reference in the notes to "rape" or "sexual assault," and it is disingenuous for Darbi to claim that Cortazzo's notes state that H. "bragged to his friends" that he raped Darbi. As stated previously, Darbi's attorneys elected not to question Cortazzo about this note during his deposition. D. There is no Evidence that "B. Repeatedly Called Darbi a Slut"11 To support this false claim, Darbi relies upon Hegen's notes from an "interview" with Darbi's former boyfriend J. The notes were written by Hegen on May 20, 2015 after Darbi confronted B. in the lunch room. J. told Hegen that Darbi said to B. "don't call me a snitch behind my back because I didn't say anything." "I know about the urine tests." Hegen's notes reflect that he questioned J. as to who else besides B. was present in the café in order for the 10 Once again, this is hearsay that cannot be considered to defeat summary judgment. Williams, at *31. (internal citation omitted). 11 (Opposition, p. 9). Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 12 of 49 13 school to conduct an interview of anyone else present when Darbi confronted B. However, Darbi previously testified that B. was alone when she confronted him. (Pltf. Ex. 24, Goodwin- PSD 0296; Defs. SOUF Ex. 1, pp. 86:23-87:2). The notes further reflect that J. advised Hegen that Darbi had "texted with K2." According to Hegen's note, the text message stated: Stop being selfish b/c you don't understand 1/2 the shit I'm going through with this And the "sluts"12 and laughs Because if I hear one more f'ing rumor about me I'm going to literally kill myself Nothing in Hegen's notes connects the "slut" comment to B. Attached as Ex. 155 to this Reply Brief is a Declaration from Hegen verifying that he wrote the notes while interviewing Darbi's boyfriend and that the notes do not reflect, and the notes were never generated to suggest, that B. repeatedly called Darbi a slut. Darbi's attorneys elected not to ask any PSD representative about Hegen's notes.13 Consequently, there is no evidence that B. repeatedly caused Darbi a slut. Contrary to Darbi's statement in her Opposition, Rattigan and DeBona were never informed that B. repeatedly called Darbi a slut, and there is no evidence to suggest otherwise. E. There is No Evidence that Darbi Suffered Daily Sexual Harassment from H., B., N. and C. in the months leading up to April 2016 Darbi cites to her deposition testimony as support for her claim that she suffered daily sexual harassment, but upon review of the actual testimony, it does not support any claim for daily sexual harassment. Darbi testified as follows: Q. From that point on after that meeting ended [the meeting regarding the bump in the hallway with C. that occurred on 12 This comment is not attributed to B. or anyone else. 13 However, Darbi's attorney questioned Defendants' medical expert, Dr. Ziv, about the notes. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 13 of 49 14 or about April 11, 2016], did you have any more negative interaction with C. A. I removed myself from the school. So, no, I did not. Q. Ok. How long after the meeting was it that you removed yourself from the school? A. The very next day, which would have been April 12th, my birthday. Q. Other than these events before April 12th, was there - - - other than what we talked about, were there any other interactions or contact that you had with any of these four boys other than what we talked about? Attorney Brodsky: Objection. A. During school, there was very obvious teasing, pointing, laughing, but nothing that I recorded because it was a daily issue. In those days, I was petrified to go to school. So if I did end up going to school, something would either happen that they laughed or pointed at me . . . (emphasis added). * * * Q. And who was it that you saw teasing and pointing at you? A. All of the boys. Q. Were there any people that were with you who saw this teasing and pointing at you. A. No, sir. It happened just about every day. It was really hard to even tell really. They kind of made it very obvious to me, but not to other people. (Defs. SOUF Ex. 1, pp. 121:14-122:16; 122:23-123:9). There is no evidence that Darbi reported this alleged daily "teasing, pointing and laughing" to anyone at PSD. This conduct is obviously omitted from the Timeline. Nonetheless, the daily conduct about which Darbi complains, does not rise to the level of Title IX sexual harassment. The conduct amounts to banter, laughing, pointing and teasing and is not actionable. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 14 of 49 15 "It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing and gender-specific conduct that is upsetting to the student subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 651-652 (1999). Clearly, Darbi cannot meet her burden of proof that she underwent daily sexual harassment and/or that PSD was notified of alleged daily sexual harassment. F. Darbi's Request to Complete Two Weeks of School at Home On May 31, 2015 and June 1, 2015,14 Axe informed PHS that Darbi would not return to school, and would complete her school work at home. On June 5, 2015, Hegen informed Darbi's teachers that she would complete school work at home and return to take her final exams on June 16-18, 2015. (Defs. Ex. 162, attached hereto this Reply Brief, Goodwin-PSD 0158, 1401; Defs. SOUF Ex. 37, Goodwin-PSD 1410). Darbi was not forced out of PHS. Additionally, Darbi's claim that her sophomore year grades were negatively impacted by the alleged assault is simply false. Attached as Ex. 158 is a historical summary of Darbi's grades for the 2014-2015 school year. Darbi's first semester grades (pre-alleged assault) are consistent with the grades she obtained second semester (post-alleged assault). Darbi received A's and B's throughout her sophomore year – with one exception, she received a C in "Honors American Lit" 14 Darbi claims that "from February to April 2015 she suffered from extreme bouts of depression, cutting, anger and suicidal thoughts as the result of H.'s assault and the ensuing harassment by him and his friends." (Opposition, p. 9). However, there is no evidence of the alleged "ensuing harassment." Darbi's March 10, 2015 Psychiatric Evaluation from Penn Foundation states that Darbi reported The notes reflect Darbi had (Defs. Ex. 156, attached hereto). Redacted per Stipulation Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 15 of 49 16 in the fourth quarter. But Darbi improved from a B in the second quarter to an A in the third quarter in "Honors American Lit." In her Opposition, Darbi alleges that PSD failed to evaluate Darbi for a mental health accommodation via an IEP or Section 504 plan. Darbi never made a claim for a 504 Plan in her Amended Complaint and this claim should be stricken. Darbi's mother testified that she did not want an IEP for Darbi. (Defs. Ex. 6 to SOUF, p. 176:14-23 (testifying that she never asked for an IEP, and adding, "What good would an IEP do her? Was that going to make her feel safer?)). Nevertheless, Darbi's claims for both an IEP and 504 plan fail because Darbi's parents never requested a due process hearing seeking relief from PSD and Darbi failed to exhaust her administrative remedies before she filed her original Complaint (ECF Doc. No. 1, filed on May 30, 2017) in federal court at the time she was still a student at PHS. Swope v. Cent. York Sch. Dist., 796 F. Supp. 2d 592 (M.D. Pa. 2011). Consequently, these claims are barred and cannot be used to defeat summary judgment. G. Darbi's Remaining Claims of In-School Conduct were Properly and Effectively Handled Briefly stated, B.'s May 20, 2015 threatening text message15 that he sent to his girlfriend K2, a screenshot of which was later sent to Darbi, was properly investigated by PSD and was reported to the police by PSD. (Defs. SOUF ¶87). The text was not related to H.'s alleged assault and did not constitute retaliation for Darbi reporting a rape as claimed in the Amended Complaint.16 (Defs. SOUF Ex. 2; Defs. SOUF ¶78; Defs. SOUF Ex. 40, Goodwin-PSD 0297- 0298). PSD acted swiftly and appropriately. See, P.K. v. Caesar Rodney High Sch., 212 U.S. 15 There is absolutely no evidence that B. sent the text "with C. by his side." (Opposition, p. 9). This is pure fabrication. Bare accusations and speculation are not evidence. Blanding v. PA State Police, 811 F. Supp. 1084, 1095 (E.D. Pa. 1992), aff'd, 12 F.3d 1303 (3d. Cir. 1993) (holding that accusations and speculation are not enough to survive summary judgment). 16 The text message in which B. threatened to have Darbi "jumped" for reporting an alleged break-in also states that Darbi was getting "jumped" for confronting B. about his girlfriend allegedly "pee[ing] in a cup for [B.]." Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 16 of 49 17 Dist. LEXIS 9572 (Dist. De. 2012) (In response to harasser pushing his girlfriend into a locker and slapping her, the high school reported the harasser to the police and the harasser was arrested and suspended from the high school. The girlfriend was permitted to leave class early to avoid encountering the harasser in the hallways and was ultimately permitted to complete the remainder of her school year from home.) Darbi, just like the P.K. plaintiff, reported the improper conduct to PHS, who contacted the police, and B. was suspended from school. Darbi was permitted to leave class early to avoid the boys. PHS also accommodated Darbi's request to complete school work at home for the remaining two weeks of classes and she returned to take her final exams. (Defs. SOUF ¶¶66, 68, 213; Defs. Ex. 37, Goodwin-PSD 1410). When Darbi returned to PHS in September 2015, she, H. and B. were in her Study Hall on one occasion. H. and B. were not "consistently" in Darbi's "Study Halls" as claimed in the Amended Complaint. (Defs. Ex. 2, ¶ 45). Once Darbi chose to remain in her lunch period with B., C. and N., there were not "two PSD employees monitor[ing] her and her three [alleged] harassers."17 Instead, there were seven adults who were informed of Darbi's concerns and who monitored Darbi and the boys. (Defs. SOUF Ex. 57, Goodwin-PSD 0101). In November 2015, when Darbi unexpectedly ran into H. in the hall, she confronted H. who responded by stating to his companions that Darbi was a "fucking bitch." This was an isolated incident and the only documented report of any conflict between Darbi and H. in school. In fact, H. testified that this was the only time he ever encountered Darbi in the PHS building during high school. (Defs. SOUF ¶¶158, 160-162; Defs. SOUF Ex. 146, p. 40:13-18). 17 Darbi cites to notes made by Director of Administration Troy Price to support her claim that only two adults monitored her and the boys. (Pltf. SOUF ¶39; Pltf. Ex. 9). However, Darbi fails to advise the Court that these notes also state: "Adults supervising lunch aware to monitor situation and watch for any issues. Staff overseeing lunch: 5 teachers, 2 security guards, 1 administration – Mr. Labosky . . . Different sections, seven adults monitoring the room. Mr. Labosky and Mr. Branch aware to watch for any issues." Hegen explained that all adults in the lunch room monitored Darbi and the boys. (Defs. SOUF Ex. 15, pp. 339:7-343:1). DeBona said that Darbi's lunchroom seat was visible on the security camera. (Defs. SOUF Ex. 11, p. 272:12-20). Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 17 of 49 18 Darbi's observations of H. in a World Cultures Assembly and at a college fair do not constitute sexual harassment or deliberate indifference by PSD. The only remaining encounter during the 2015-2016 school year occurred when Darbi reported the April 2016 "bump" with C. Defendants' moving papers document the extensive investigation undertaken by PSD to determine what occurred in the hallway, identifies the numerous personnel who participated in resolving the issue, and the actions taken by PSD. Darbi demanded to be present when PHS met with C. and attended a peer mediation with C., Henrysen and DeBona. C. apologized to Darbi and said he wanted to move-on. (Defs. SOUF ¶¶171-182). Darbi and her mother were dissatisfied with the manner in which PHS handled the encounter. But, under federal law, Darbi cannot demand or dictate discipline and PSD's disciplinary decisions should not be "second guessed." Davis v. Monroe County Bd. of Educ., 526 U.S. (1999).18 Subsequently, Darbi's mother voluntarily dis-enrolled Darbi from PHS. She was not pushed-out, forced to leave or forced to enroll in the pilot cyber program. (Defs. SOUF ¶186). Once Darbi decided to re-enroll at PHS, Cara Gurysh worked to create an appropriate curriculum for Darbi for the pilot cyber school, which was obviously in its development stages and was a more restricted program than the brick and mortar high school curriculum. By April 27, 2016, Darbi was "set up" with the pilot cyber program. (Defs. Ex. 157, attached hereto, Goodwin-PSD 1714-1715, 1709, 1712-1713, 1719). 18 Even Darbi's citation to Feminist Majority Found. v. Hurly, 911 F.3d 674 (4th Cir. 2019), a Fourth Circuit Panel Opinion (one Judge dissenting) states that the Davis Court acknowledged the "great deal of flexibility" that exists to discipline a student and Defendants must refrain from a form of disciplinary action that would expose [them] to constitutional or statutory claims. Id. at 686. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 18 of 49 19 H. Remaining Allegations of Harassment that Occurred Off-School Grounds and Outside of School Hours 1. Summer 2015 In support of Darbi's claim that her alleged harassers continued sending threatening text messages and calls from different phone numbers during the Summer of 2015, Darbi cites to her Ex. 86, which is Darbi's June 8, 2016 missive to various teachers and representatives of PSD. Darbi states as follows: Summer of 2015 *The school had told me they had it handled, but apparently not handled enough because the boys had sent me texts and calls throughout the summer continuing to threaten me, but they did it through different phone numbers and friends so the police couldn't do much about it expect (sic) give a warning to each boy (because it wasn't the same person sending threats, they have to give each person a warning then they are allowed to take action if the bullying continued). (Pltf. Ex. 86, Goodwin-PSD 0055). But for the July 2015 text message from N., Darbi has not produced any text messages she claimed to receive over the Summer of 2015. According to Darbi's statement in her June 8, 2016 communication, the police had already been contacted regarding the summer communications and various communications were allegedly sent to Darbi from different phones, the owners of which were unidentified and unknown. PSD was not equipped and had no jurisdiction or responsibility to undertake an investigation into text messages and calls that took place off school grounds and outside of school hours during the summer months. Darbi cites to N.'s July 2015 text message, which contains inappropriate language and was sent to Darbi because she reported N. to the police for breaking into the abandoned house. (Defs. SOUF Ex. 49, Goodwin-PSD 0099). As previously stated, this text was not sent in Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 19 of 49 20 response to Darbi reporting the alleged assault, nor does it constitute sexual harassment. This text was sent off school grounds and outside of school hours during the summer. Finally, Darbi cites to Hegen's notes that state, in part, as follows: Darbi's mom 8-18-15 - almost functioning normally - received texts from the group of boys - Title 9 Coordinator  Who is it? ? Lunch & not in gym? H. N. B. C. (Defs. SOUF Ex. 52, Goodwin-PSD 0308). Significantly, Hegen's notes do not identify the individuals who reportedly sent Darbi "texts" over the summer months or state when the texts were sent. However, the texts were sent off school grounds and outside of school hours. The "texts" were not sent when PSD had substantial control over the alleged unknown harassers and the context in which the alleged harassment occurred. 2. C.'s December 26, 2015 Text Message Asking Darbi to "Hang Out" Contrary to Darbi's allegation, C.'s text message was not sent on the anniversary of her alleged rape. It was sent on a Saturday during Christmas break when PHS was closed and not in session. As stated in Defendants' moving papers, Darbi did not know whether the purpose of the message was simply a request to "hang out." Nonetheless, once school resumed and Darbi reported the text, PHS representatives spoke to C. about the text message and requested C. to delete Darbi's contact information from his phone, and C. complied with this request. PHS Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 20 of 49 21 instructed Darbi to file a police report. There is no evidence that C. sent further text messages or attempted to further communicate with Darbi. (Defs. SOUF ¶¶164-169). III. DARBI HAS FAILED TO ESTABLISH THE ELEMENTS OF A TITLE IX CLAIM When Darbi's Title IX claim is analyzed based upon the accurate facts of record, to include review of the actual testimony and documents, rather than incorrect characterizations of the evidence, it is clear that there is no dispute that she cannot establish the elements of a Title IX claim. The case law Darbi relies upon in her Opposition, much of which is from circuit courts other than the Third Circuit detailing much more egregious and abhorrent conduct than that even alleged by Darbi, does not support Darbi's claims of off-campus sexual harassment; that sexual harassment occurred on-campus; that alleged harassment occurred under circumstances wherein PSD exercised substantial control over the alleged harasser and the context in which the harassment occurred; that PSD had actual knowledge of the harassment; that PSD was deliberately indifferent to the alleged harassment; or that the harassment was so severe, pervasive and objectively offensive that it deprived Darbi of access to educational opportunities or benefits provided by PHS. Davis v. Monroe Cty. Bd. of Edu., 526 U.S. 629 (1999). Darbi cites to the Sixth Circuit decision of Vance v. Spenser Cnty. Public Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2009) for the proposition that "one incident can satisfy a claim" of sexual harassment. Id. Yet, Darbi ignores the much more horrific factual scenarios in Vance where the Court made that statement while also referencing a student being stabbed and who was pinned down while students tore off her clothing. Id. Nonetheless, the Vance Court did not find that one incident satisfied the Vance plaintiff's requirement of severity and pervasiveness. Instead, the Court said "[t]hese physical attacks merely layer the testimony regarding verbal propositioning and name calling . . . Given the frequency and severity of both the verbal and Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 21 of 49 22 physical attacks" the severity and pervasiveness requirement was met. Id. (emphasis added). However, Darbi is wrong because "there is no cause of action for deliberate indifference to a single instance of 'one-on-one peer harassment.' No matter how severe." Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 372 (citing Davis, 526 U.S. at 652-53, 119 S. Ct. at 1676, 143 L. Ed. 2d at 860 (holding that, "[a]though, in theory, a single incident of sufficiently severe . . . harassment could . . . have such an effect," it was "unlikely that Congress would have thought such behavior sufficient . . . in light of the inevitability of student misconduct and the amount of litigation would [thereby] be invited . . ."). Consequently, the dicta Darbi cites in the Vance Sixth Circuit decision has no place here. Darbi claims that C.S. v. S. Columbia Area Sch. Dist., 2012 U.S. Dist. LEXIS 188133 (M.D. Pa. 2012) supports Plaintiff's claim that "PSD is liable for the out-of-school harassment Darbi experienced because after receiving notice, PSD failed" to address the fact that Darbi attended the same school with her harassers and encountered them at school. (Opposition, p. 36- 37). Initially, Plaintiff fails to inform the Court that the Opinion in Southern Columbia is a Report and Recommendation on a Motion to Dismiss, not a Motion for Summary Judgment. At the Motion to Dismiss stage, the District Court does not look outside the four corners of the Complaint. W. Run Student House Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165 (3d Cir. 2013). Moreover, when reviewing a Motion to Dismiss the facts are analyzed to determine whether they constitute a plausible claim and the Court assumes all facts pled by the plaintiff are true. Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367 (E.D. Pa. 2018). Clearly, this is a much lower standard than that which is required in a summary judgment analysis. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Further, the facts of the Southern Columbia case are at odds with the instant case. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 22 of 49 23 In Southern Columbia, the Complaint alleged that the plaintiff was sexually assaulted by two male student athletes. Criminal charges were filed against the male students, and later they were adjudicated delinquent and dependent, one student on a charge of indecent assault and the other student on a charge of aggravated indecent sexual assault. The Complaint alleged that the school district adopted and enforced a disciplinary system designed to protect and maintain athletic eligibility for its male students regardless of their criminal behavior or propensity for violence against female students. In July 2009, the Southern Columbia male students sexually assaulted plaintiff when they lured her into one student's bedroom and, unbeknownst to plaintiff, the second student was hiding in the closet. The two male students held the plaintiff down on the bed against her wishes and sexually assaulted her. Plaintiff and her parents notified school officials of the criminal acts by the male students and requested that the school district remove the male students from school, not place them in classes with plaintiff, and prevent the male students from having contact with plaintiff. The Principal responded that the District would take no action against the male students and that the school "could do nothing to separate" the male students from plaintiff because the assault did not take place on school grounds. When the plaintiff raised concerns about being scheduled in the same Honors English class as one of the male students, the school district refused to offer her any reasonable accommodation. The plaintiff obtained a No Contact Order from the Court that provided that the male students could have no verbal or physical direct or indirect contact with the plaintiff and that the male students may not be in close or adjacent proximity to the residence or business property of plaintiff. The Order provided that the School District "shall take appropriate steps to ensure that [the perpetrators] and the victim will not be subject to contact via placement in the same homeroom, classroom, and bus." Plaintiff was Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 23 of 49 24 unable to deliver her No Contact Order to the high school before the first day of school and plaintiff encountered both male students in her homeroom and other classes throughout the day, sometimes sitting or walking a few feet away from the male students. The No Contact Order was delivered to the high school, but the male students remained in the same lunch period as plaintiff and the male students sat a few feet away from her at lunch in defiance of the No Contact Order. Once again, the school district took no action to protect the plaintiff at lunch even after she voiced her concerns. The male students' friends made rude comments and threats to plaintiff and this was relayed to the Principal. The Principal stated that the District could take no further action without a Court Order. Plaintiff was forced to return to Court for a second Order, which required the School District to make special arrangements for lunch for the male students and separate plaintiff from the male students. The second Order also directed that the male students report directly to their first period classes upon entering the school. The plaintiff in Southern Columbia continued to endure harassing comments from her fellow students and the two male students. The male students sat directly behind C.S. [plaintiff] at a pep rally, they made obscene sexual gestures to C.S.'s family at a school activity, and they yelled at C.S. in the school's hallway. Other students also continued to make rude comments to C.S. and threatened to cover her lunch table with newspaper articles about the assault. Plaintiff reported the violations of the No Contact Order to the Principal and the School District, but they failed to take any reasonable measures to address the harassment. The District continued to assert that it could take no action absent a Court Order because the assault had not taken place on school grounds. The District employees testified in support of the male students during their criminal hearings. After the delinquent adjudications, the District failed to discipline the male students, failed to prevent them from having contact with or harassing plaintiff, and failed to Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 24 of 49 25 restrict the male students ability to attend and participate in extracurricular activities. The District allowed the male students to play on the boys' basketball team that winter depriving plaintiff from the opportunity to participate on the basketball team's cheerleading squad. Plaintiff informed school officials of her desire to participate in the track team and sought to have the male students excluded from the team or restrict their ability to be near plaintiff during the activity. The District refused to place any meaningful restrictions on the male students and plaintiff soon found one of them running just a few feet behind her during track practice. One of the perpetrators was scheduled to take a final exam in the same room as plaintiff. This issue was brought to the attention of the Principal, but he took no action. The Southern Columbia plaintiff encountered problems the following school year (2010- 2011) when she discovered one of the male students in her Study Hall. The Complaint noted that the Assistant Football Coach and Track Coach was the school administrator responsible for class scheduling. On August 30, 2010, the School District Solicitor intervened in a legal matter to assist one of the male students in amending the No Contact Order so the student would have flexibility for his lunch schedule. The harassment continued and plaintiff withdrew from the high school. In its analysis on the Motion to Dismiss, the Southern Columbia Court specifically stated that "the School District cannot be liable for the sexual assault that occurred during the summer and off school property." 2012 U.S. Dist. LEXIX 188133 at *19. The Court stated that the plaintiff did not seek to hold the District liable for the off-campus assault, but rather for the sexually hostile environment she encountered because plaintiff "had to endure numerous contacts with two students who had sexually assaulted her." The Court found that in "construing the complaint in the light most favorable to C.S., as we must when deciding a Motion to Dismiss, we Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 25 of 49 26 cannot say as a matter of law that the encounters were not severe, pervasive, or objectively offensive or that they did not deprive C.S. of access to the educational opportunities and benefits provided by the school." The Court noted that the District had a remedial duty under Title IX to take some action to try to prevent further harassment of plaintiff. The Court found that the Complaint stated a claim upon which relief could be granted for a hostile educational environment claim. The Southern Columbia Court did not, however, find that the District was "liable for out-of-school harassment" as falsely claimed by Darbi. (Opposition, p. 36-37). Here, there is no evidence that Darbi encountered her alleged harasser, H., on "numerous" occasions; that H. sat directly behind Darbi at a pep rally or any school event; that H. made obscene sexual gestures to Darbi or Darbi's family at a school activity; or that H. yelled at Darbi in the school's hallway.19 In fact, after reporting the alleged assault, Darbi encountered H. in the school building on one occasion during a brief meeting in the hallway. The facts of Southern Columbia and the instant case are certainly distinguishable and the standard of review for the pending Summary Judgment Motion is not the same as the standard for review utilized in a Motion to Dismiss. Plaintiff cites Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008), for a number of claims including that "sexual assault, physical assault, threats, sexual epithets, and rumors are all forms of actionable sexual harassment under Title IX" and that "notice of possible harassment . . . trigger[s] the District's duty to investigate." (Opposition, p. 21, 26). The Greater Johnstown Opinion constitutes Findings of Fact and Conclusions of Law following a trial. Plaintiff failed to inform the Court that at the summary judgment stage of that Title IX action, the Greater Johnstown Court excluded all claims of harassment that took place "outside of the school . . ." Id. at 366 (citing Dawn L. v. Greater Johnstown Sch. Dist., Civil 19 There is no evidence that C., B. or N. engaged in similar conduct as cited in Southern Columbia. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 26 of 49 27 Action No. 3:2006-19, 2008 WL 857453, at *10 n.3, 614 F. Supp. 2d 555, 2008 U.S. Dist. LEXIS 25705 at *n.3 (W.D. Pa. March 31, 2008)). During the summary judgment stage, the Court previously determined that the harassment that took place outside of school (did not occur during school hours or on school grounds) was conduct that was not under the School District's substantial control pursuant to the seminal Davis case. In Greater Johnstown, the Court found that the Plaintiff was sexually harassed at middle school after it detailed the evidence adduced at trial that included the fact that the plaintiff, a sixth grade female student, was sexually assaulted in the school bathroom by a female eighth grade student. The Court previously dismissed all acts of harassment that occurred outside the school, including incidents in the perpetrator's house, incidents that occurred in plaintiff's house and incidents that occurred during basketball practices. Thus, any sexual harassment or inappropriate touching that took place outside of school was not considered by the Court and the school had no duty to investigate such conduct, just like the Defendants in the instant case. Darbi cites S.K. v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786 (M.D. Pa. 2016) and claims that this case holds the "school district [is] liable for harassment of plaintiff at after school party and workplace" and "a school's attempt to induce a harassment victim to obtain an objectively inferior alternative school" is evidence of deliberate indifference in violation of Title IX. (Opposition, p. 37, 43). Once again, Darbi fails to inform the Court that the N. Allegheny case involved a ruling on a Motion to Dismiss, and the school district clearly was not held "liable for harassment of plaintiff at after school party and workplace." In N. Allegheny, the Complaint asserted that there existed a ritual of freshman student hazing by sophomores at the school, and before the first day of school (N. Allegheny Intermediate School), plaintiff received the first of what would become a barrage and a pattern of threats from older students. The threats included Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 27 of 49 28 a tenth grade student informing plaintiff that "I'm going to cut your fucking face" and "you just dug your grave deeper." As the school year progressed, both male and female students harassed plaintiff on a daily basis as she was called a "slut" and "cunt" as she walked through the hallways and she was frequently taunted about engaging in a multitude of sexual activities. A photograph of plaintiff was altered so that a banana could be placed in her mouth and the picture was then distributed throughout the school. On two occasions, football players threw bananas at plaintiff and loudly proclaimed that she had "herpes." Plaintiff was "pushed, shoved and inappropriately touched by male students in the hallways." Plaintiff was pinned against her locker by a group of football players while others grabbed plaintiff and groped at her in a sexual manner. A student approached plaintiff in the "school hallway and poured a drink on her head and physically assaulted her on multiple other occasions." At one party, a group of girls convinced plaintiff to participate in a rap battle and students later showed up at plaintiff's place of employment to torment her. It is disingenuous for Darbi to claim in her Opposition that the Court held the school district liable for harassment of a plaintiff at a afterschool party and workplace, when she fails to inform the Court of the onslaught of in-school sexual harassment the N. Allegheny plaintiff allegedly suffered and there was no finding of "school district liability" at the Motion to Dismiss stage. Moreover, the N. Allegheny plaintiff attempted to take her own life. After this tragic event, students continued to make derogatory comments about plaintiff and spread rumors, which included stories about her purported death. No action was taken by the school officials in response to complained about behavior. District Officials suggested that plaintiff transfer to another school, and she did. The transferring District paid plaintiff's tuition at an out-of-district school. Plaintiff returned to N. Allegheny Intermediate School for her sophomore year, but the Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 28 of 49 29 harassment continued. School officials failed to control or address the harassment notwithstanding the reports from plaintiff and her parents. The Court found that plaintiff's Complaint adequately pled a discrimination claim in violation of Title IX. The Court stated that "most of the alleged physical harassment occurred on school property while school was in session or at school-sponsored events such as football and basketball games." 168 F. Supp. 3d at 800. The Court did not hold, as claimed by Darbi, that evidence of deliberate indifference was established when the school district permitted plaintiff to transfer to another district and paid at least some of her tuition costs. Darbi cites Jones v. Ind. Area Sch. Dist., 397 F. Supp. 2d 628 (W.D. Pa. 2005) for the proposition that a disciplinary response can be unreasonable if it consists of entirely talking to a harasser, changing his homeroom and moving his locker. In Jones, a female student was harassed by a male special education student beginning when she was in seventh grade. A male student provided plaintiff with unwanted attention and affection; gave her notes every day; drew her pictures; and told her he wanted to be his girlfriend. When plaintiff turned down his request to attend a dance with the male student, he hit a wall in front of plaintiff. When Plaintiff was in eleventh grade, the male student began stalking plaintiff and waited for her during track practice. Plaintiff informed the school that the male student was angry and she heard that he and his friends were looking to beat her up after school. During plaintiff's senior year, the male student attempted to get into her car as she was leaving the school. The male student held onto the door handle and banged on the glass as she tried to get away. Two months later, the male student found plaintiff in the high school weight room and physically blocked her from leaving for half an hour until another student came to her rescue. The Court denied the District's Motion for Summary Judgment because in light of these outlandish facts, which are certainly not present in Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 29 of 49 30 the pending case, the Court was unable to find that the School District's responses were not clearly unreasonable as a matter of law. Darbi cites Krebs v. New Kensington-Arnold Sch. Dist., 2016 U.S. Dist. LEXIS 159059 (W.D. Pa. 2016) claiming that the Court held that severe, pervasive, and objectively offensive harassment had incurred in part because, in the context of other classmates calling the plaintiff sexual slurs (e.g., "slut," "whore"), one student sent the plaintiff a text message with a picture of a person slitting their wrists, and later fractured the plaintiff's nose and bruised and cut her eye. The Court clearly did not hold that severe, pervasive and objectively offensive harassment occurred because the Court ruled on a Motion to Dismiss and found that after "viewing the alleged facts in the light most favorable to the [plaintiffs], they sufficiently pled a plausible claim under Title IX." Krebs at *13. In Krebs, a seventh grade student Destineee Krebs began suffering persistent harassment during seventh grade when her peers labeled her "fat" and "ugly." The harassment intensified during eighth grade when her classmates began calling her a "slut," "whore,""stupid" and "bitch." The parents brought the behavior to the attention of the Assistant Principal, who responded "this was something girls did." During spring semester of Destinee's eighth grade, a female classmate threatened her while they were standing outside of school. The Assistant Principal promised to investigate, but did nothing. Students continued to target Destinee with escalating harassment and bullying during her ninth grade. A student sent a text message to Destinee, which included a picture of a bloody wrist, and later fractured Destinee's nose in multiple places and bruised and cut her eye while at school. After placement in a psychiatric hospital, Destinee returned to school and students continued harassing her. Her ex-boyfriend and fellow classmates repeatedly Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 30 of 49 31 harassed Destinee when she refused to engage in sexual relations with the boyfriend. The Court held that a sufficient Title IX claim had been pled, but stated as follows: While infrequent name calling and bullying among adolescent peers at school may not always rise to the level of harassment required under Title IX, the constant and pervasive harassment with sex-based terms alleged to have endured by Destinee does. Krebs at *10. The facts of the Krebs case are clearly distinguishable from the instant case and so is the legal standard of review. Moreover, Darbi cannot support claims of harassment based upon the mere presence of the boys at PHS. See Frazer v. Temple Univ., 25 F. Supp. 3d 598, 614 (E.D. Pa. 2014) (no Title IX liability where a student remained on campus pending disciplinary hearing, even where he followed and stared at the plaintiff); O'Hara v. Colonial Sch. Dist., No. 99-cv-399, 2002 U.S. Dist. LEXIS 12153 (E.D. Pa. March 25, 2002) ("We do not believe that John Doe's presence at the school by itself constitutes 'harassment that is so severe, pervasive, and objectively offensive that it effectively bars [Meghan's] access to an educational opportunity or benefit.'") (quoting Davis). Based upon the facts as correctly stated in Defendants' Statement of Undisputed Facts, their Response to Darbi's "Additional Facts" and in the instant Reply Brief, the Court must find that Darbi cannot defeat summary judgment on her Title IX claim because she did not suffer sex- based harassment; the alleged harassment did not occur under circumstances wherein PSD exercised substantial control over both the harasser and the context in which the harassment occurred; PSD did not have actual knowledge of sexual harassment; PSD was certainly not deliberately indifferent to the alleged harassment and took more than reasonable measures to accommodate Darbi and her mother's reports; and there was no harassment that was so severe, Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 31 of 49 32 pervasive and objectively offensive that it deprived Darbi of access to educational opportunities or benefits provided by PHS. IV. DARBI IS IMPERMISSIBLY RECASTING HER SECTION 1983 POLICY AND CUSTOM CLAIMS, AFTER HAVING FAILED TO SUPPORT HER ORIGINAL CLAIMS THROUGH DISCOVERY A. Darbi Cannot Allege New Causes of Action for the First Time at the Summary Judgment Stage of this Case It is axiomatic that a plaintiff cannot be granted judgment in her favor, nor oppose a dispositive motion filed by the defendant, through reliance on a claim that she never brought. Aldinger v. Spectrum Control, Inc., 207 Fed. Appx. 177, 180 n.1, 181 (3d Cir. 2006) (affirming district court's dismissal of claim that was not pled in complaint and was first raised in summary judgment opposition brief); Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 233 (3d Cir. 2015) ("But even though appellant raised the First Amendment in her brief, she did not plead a First Amendment claim in her complaint. Therefore, there is not a First Amendment claim properly before us.") For instance, in MJG v. Sch. Dist. of Phila., 2017 U.S. Dist. LEXIS 80117, 2017 WL 2277276 (E.D. Pa. May 25, 2017), the plaintiff argued at oral argument on a dispositive motion that her § 1983 claim against a school district for alleged failure to have a policy addressing how to handle students after student-on-student sexual harassment occurs was "broader than alleged in the Complaint." Id., at *26. The Court rejected this argument, with the Honorable Mark A. Kearney explaining in his opinion that, "[t]his claim, however, is not specifically alleged in the Complaint, so we may not consider it at this time." Id. B. Darbi's Amended Complaint Alleges Different Policies or Customs by PSD Than Those Now Asserted in Response to Defendants' Motion for Summary Judgment Darbi is now alleging a much broader "policy or custom" claim than that pled in her Amended Complaint. In paragraph 92 of Darbi's Amended Complaint, she alleges that Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 32 of 49 33 Defendants "maintained a policy, custom, and practice of (i) refusing to investigate sexual harassment, including sexual assault, that occurs off-campus and/or does not result in the criminal conviction of the alleged assailant, even if the assault contributes to an on-campus hostile environment, and (ii) encouraging victims to leave PHS." (Exhibit 2 to Defs. SOUF, ¶ 92) (emphasis supplied). Discovery has shown that Defendants did not have a policy of "refusing to investigate sexual harassment," and so Darbi now recasts this allegations into four new allegations—and appears to have abandoned her claim that Defendants "encourag[e] victims to leave PHS." Specifically, Darbi's Opposition deviates from her Amended Complaint by alleging that Defendants had a policy or custom of: "(i) failing to notify the Title IX coordinator of all harassment complaints; (ii) failing to investigate and discipline students for harassment that occurs outside of a school activity; (iii) failing to investigate or discipline students for sexual assault independently of the police; and (iv) failing to create and submit written reports of harassment investigations to the Title IX coordinator." (Darbi's Opposition, p. 50). The first and last claims—that Defendants failed to notify their Title IX Coordinator and failed to submit written reports to the Title IX Coordinator, respectively—have no correlation whatsoever to the claims pled in Darbi's Amended Complaint. The second claim—that Defendants failed to investigate and discipline students for harassment that occurs outside of a school activity—bears some resemblance to the original allegation, but still differs materially insofar as it adds a reference to discipline and removes the references to criminal convictions and on-campus hostile environment. The third claim—that Defendants fail to conduct investigations of sexual assault "independently of the police" is an entirely new allegation. Darbi's new policy and custom allegations should not be considered, as they were not pled and are being asserted Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 33 of 49 34 long after discovery closed in this matter. Moreover, as discussed later in this brief, Darbi has failed to support these allegations with proper evidence, even if they were properly pled. C. Darbi Has Not Demonstrated that a Policy or Custom Actually Existed With regard to Darbi's first policy and custom allegation in her Amended Complaint, which is that Defendants maintained a policy or custom of "refusing to investigate sexual harassment, including sexual assault, that occurs off-campus and/or does not result in the criminal conviction of the alleged assailant, even if the assault contributes to an on-campus hostile environment," she has failed to put forth sufficient evidence to create a question of fact on this issue. As previously addressed in Defendants' Opposition to Darbi's Motion for Partial Summary Judgment on these same claims, which is incorporated by reference, Darbi claims that Rattigan and DeBona do not investigate or discipline students for harassment that occurs outside a school activity and that PSD policies require employees to investigate all reports of harassment, wherever they occur. This is not supported by the record. DeBona testified that PSD investigates in-house; PSD does not have the resources or jurisdiction to go out in the community; PSD investigates in collaboration with the police; PSD has a great relationship with the police; and PSD provides reasonable accommodations to students as needed based upon an off-campus incident. (See Defendants' Response to Darbi's Motion for Partial Summary Judgment, pp. 49-52). Similarly, Darbi has failed to put forth evidence supporting her second policy and custom allegation, which is that the Defendants "encourag[e] victims to leave PHS." (See id. and below). Not only has Darbi failed to support the allegations that her own reports were not investigated, but she does not even purport to offer any evidence of a pattern of sexual harassment complaints by other students not being investigated. Similarly, Darbi not only fails to Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 34 of 49 35 support her own allegation that she was forced out of PHS, but she fails to demonstrate a pattern of other students who were victims of sexual harassment being encouraged to leave PHS. Darbi's Amended Complaint states that, "[u]pon information and belief, students of PSD regularly report claims of harassment that involve off-campus behavior. Despite the fact that these reports are common, PSD failed to supervise and train its employees regarding PSD's policy relating to off-campus behavior, which perpetuated the custom or practice of not investigating reports of off-campus harassment." (Exhibit 2 to Defs. SOUF, ¶23). The only "other students" identified in Darbi's Amended Complaint, however, are Modupe Williams and a reference to the plaintiff in the other case currently pending before this Court, filed by Jane Doe. (Id., ¶70). The same is true with regard to Darbi's allegation that Defendants "encourag[e] victims to leave PHS." Darbi alleges that PHS "encouraged [Modupe Williams] to drop out of PHS and attend the alternative school" and "forced [Jane Doe] to transfer to the alternative school." (Id.) No other such students are identified in her Amended Complaint, nor have any others been identified through discovery. Darbi has failed to identify any other students in response to Defendants' Motion for Summary Judgment, or even in support of her own Motion for Partial Summary Judgment on this claim.20 The Williams case was recently dismissed in its entirety. In fact, not only was the case dismissed, but Darbi does not even attempt to put forth evidence pertaining to Modupe Williams. The Doe case is the subject of a pending motion for summary judgment before this Court. Even if the Doe case is not dismissed through a dispositive motion, the circumstances surrounding a single other student do not establish a "custom and practice." 20 To the extent Darbi may attempt to identify students in her Reply Brief, after this deficiency has been pointed out by Defendants in the companion Doe case, Defendants reference Plaintiff counsel's own waiver argument, set forth on pages 52 to 53. Darbi has waived any ability to cure the defect in her Section 1983 claim by purporting to identify additional students in support of her claims who she never previously disclosed, should she now claim any exist. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 35 of 49 36 D. Darbi Attempts to Prove Her Allegation that PSD Offered "No Training" on Title IX and Sexual Harassment by Criticizing the Quality of the Training that it Provided Just as her counsel did in the companion Doe case, Darbi made bold allegations at the outset of this case that PSD offered no training to its employees on Title IX and that, as a result, PSD employees did not know what Title IX was or how to investigate reports of sexual harassment. Defendants demonstrated through discovery that its employees trained early and often on these subjects. Like Doe, Darbi now recasts her allegation that no training was provided by arguing that the quality of the training was not as high as it should have been. (See Darbi's Opposition, pp. 44-47). In doing so, she recognizes that a multitude of trainings were provided on the relevant subjects, but argues that the trainings should have been more effective.21 It is not Defendants' burden of proof to establish that the trainings and meetings were effective, particularly since the quality of the programs was not pled as the basis for her claim. Defendants have offered ample proof that PSD employees were trained on sexual harassment and Title IX, as outlined in their moving papers and Response to Darbi's Motion for Summary Judgment, which is incorporated herein by reference. Defendants disagree that the trainings are deficient but, unlike Darbi's initial allegations that PSD offered "no training" on Title IX or sexual harassment, an allegation that training could be more effective does not support a claim for deliberate indifference. A showing of "simple or even heightened negligence" is insufficient to show deliberate indifference. Bd. of Cnty. of Com'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997). See also MJG, supra, at *26. 21 Darbi's counsel first sought to establish that the trainings were deficient by relying, in her own Motion for Partial Summary Judgment, upon word counts as to how many times certain terms appeared in PowerPoint slides and other materials. Darbi appears to have since moved on from this metric, but still fails to provide evidence to support her claim that PSD effectively offered "no training" on Title IX or sexual harassment. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 36 of 49 37 Moreover, failure to adequately screen or train municipal employees can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations. Turner v. City of Phila., 22 F.Supp. 2d 434, 437 (E.D. Pa. 1998) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)). If no pattern of violations exists, the plaintiff bears a high burden to establish deliberate indifference. She must demonstrate that the violations of federal rights was a highly predictable consequence of the municipality's failure to train its employees regarding how to handle recurring situations. Id. As with her other policy and custom claims, Darbi's Amended Complaint pleads the existence of a pattern of students who were subjected to improper investigations of sexual harassment, but only identifies herself, Jane Doe, and Modupe Williams. 22 (Exhibit 2 to Defs. SOUF, ¶70). With discovery now complete, Darbi has not put forth evidence of any such pattern and has not identified any students other than Jane Doe to support her claims, which is insufficient to support her failure to train claim under Section 1983. V. DARBI CANNOT PROVE HER "POLICY AND CUSTOM" CLAIMS UNDER SECTION 1983 BY RELYING UPON ALLEGED POLICIES AND CUSTOMS THAT POST-DATE THE ALLEGED HARASSMENT To state a claim for hostile educational environment in violation of the Equal Protection Clause, Darbi "must show that the harassment was the result of municipal custom, policy or practice." Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009); Goodwin v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 (E.D. Pa. December 4, 2018) (emphasis supplied). Darbi's Amended Complaint alleges that Defendants "maintained a policy, custom, and practice of (i) refusing to investigate sexual harassment, including sexual assault, that occurs 22 In her Amended Complaint, Darbi acknowledges the similarities between her policy and custom arguments and those in the Modupe Williams v. Pennridge Sch. Dist. litigation. She cannot now disassociate herself from the claims in Williams merely because this Court dismissed Williams' claims that PSD failed to properly train its employees on Title IX and sexual harassment and that PSD had a policy or custom of forcing out students who reported sexual harassment. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 37 of 49 38 off-campus and/or does not result in the criminal conviction of the alleged assailant, even if the assault contributes to an on-campus hostile environment, and (ii) encouraging victims to leave PHS." (Exhibit 2 to Defs. SOUF, ¶ 92). PSD's current Compliance Officer/Title IX Coordinator is Jacqueline McHale, and she began in this role in May 2015. (Exhibit 14 to Defs. SOUF, p. 17:9-10). Prior to May 2015, Raymond Scarpantonio was PSD's Title IX Coordinator since at least 2013 (as reflected by discovery regarding his training presentations) until sometime after August 2014, followed by James Dugan for an interim period from late 2014 until May 2015. (Exhibit 111 to Defs. SOUF, Responses to Interrogatory Nos. 8 & 14); see also (Exhibit 8 to Defs. SOUF, p. 64:4-8); (Exhibit 14 to Defs. SOUF, pp. 17:24-18:10); (Exhibit 15 to Defs. SOUF, p. 209:8-22). The focal point of Darbi's lawsuit is an alleged rape in a restaurant parking lot that she claims occurred during the December 2014 holiday break—approximately five months before Ms. McHale became PSD's Title IX Coordinator. She first reported this alleged rape in March 2015—approximately two months before Ms. McHale became PSD's Title IX Coordinator. At the time Darbi reported the rape, James Dugan was PSD's interim Title IX Coordinator, and before the report, Raymond Scarpantonio was the Title IX Coordinator for several years. (Exhibit 14 to Defs. SOUF, p. 17:9-10); (Exhibit 111 to Defs. SOUF, Responses to Interrogatory Nos. 8 & 14).23 Although neither James Dugan nor Raymond Scarpantonio are employees of PSD, Defendants' counsel endeavored to contact both of these individuals and make them available for depositions pursuant to a request from Plaintiff's counsel. (Defs. Ex. 159, attached hereto, 1/16/18 to 2/1/18). Nonetheless, as of February 1, 2018 Plaintiff's counsel were still 23 Defendants argument in this regard holds true even if the Court considers the improperly recast policy and custom arguments pertaining to alleged failures to notify the Title IX Coordinator of harassment complaints and submit written reports, discussed supra in Section IV. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 38 of 49 39 "considering" whether to call these witnesses and, ultimately, they chose never to proceed with their depositions despite being placed on notice as to the significant roles that these individuals played in the training leading up to Darbi's alleged rape. (Id.) Ms. McHale did not testify as to the practices of PSD prior to her employment there. As such, Darbi's reliance upon her testimony to suggest a policy or custom that led to H.'s alleged rape, the alleged rumors, or B.'s text message clearly fail. Darbi's allegations subsequent to May 2015, with the exception of her claim that she was encouraged to leave PHS, do not correlate to her policy and custom allegations.24 Darbi has failed to put forth sufficient evidence to create a question of fact that (1) a policy or custom actually existed and (2) that it existed prior to the alleged harassment, such that the harassment "was the result of" the custom or policy. Fitzgerald, 555 U.S. at 257. VI. DARBI CANNOT PROVE HER "FAILURE TO TRAIN" CLAIM UNDER SECTION 1983 BY FOCUSING ON TRAINING POST-DATING HER ALLEGED HARASSMENT AND CASTING A BLIND EYE TO TRAINING PROVIDED PRIOR TO HER REPORT OF AN OFF-CAMPUS RAPE Like her "policy and custom" claims under Section 1983, Darbi seeks to support her "failure to train" claim by arguing that Defendants' training on Title IX and sexual harassment after her alleged harassment took place was deficient. When Mr. Scarpantonio was the Title IX Coordinator, a position he held for multiple years leading up to Darbi's alleged rape, he would give presentations to all PSD staff about harassment, sexual harassment, workplace harassment, and peer-to-peer student harassment. (Exhibit 15 to Defs. SOUF, pp. 39:15-22, 43:1-11); (Exhibit 17 to Defs. SOUF, p. 29:17-22); (Exhibit 19 to Defs. SOUF, pp. 34:5-35:19). Darbi has 24 The reported post-May 2015 incidents include a text message from N. in July 2015, which called Darbi a "hoe" [sic] and a "cunt"; H. referring to Darbi as a "fucking bitch" to his friends in the hallway in November 2015; C. sending a text message to Darbi asking to hang out during PHS's winter break in December 2015; and C. bumping into Darbi in the hallway in April 2016. Other complaints by Darbi related to H.'s mere presence at PHS. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 39 of 49 40 waived any right to argue that Mr. Scarpantonio's trainings were deficient, since she did not seek discovery on them other than to obtain some of his PowerPoint presentations from Defendants. 25 Under a failure to train theory, the identified deficiency in a training program must be closely related to the ultimate injury—i.e., it must actually have contributed to causing the injury. Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). Despite holding the burden of proof on this issue, Darbi elected not to take the depositions or obtain records from the Title IX Coordinators who trained PSD staff prior to her alleged harassment—Raymond Scarpantonio and James Dugan. The current Title IX Coordinator for PSD, Jacqueline McHale, did not begin in her role until the end of the 2014-2015 school year—months after the alleged rape and alleged rumors, and the same month as the text message from B. threatening to "jump" Darbi. Darbi cannot prevail on her "failure to train" theory under Section 1983 by critiquing the substance of GCN trainings because, inter alia, these trainings were not provided until the 2015-16 school year. As such, even if Darbi could establish that a constitutional violation occurred, and even if she could establish that PSD's training was deficient, both of which are denied, she has failed to establish the requisite connection between the two. Moreover, "[i]n the context of a failure to train claim, Monell and its progeny require a definite and objective showing by the plaintiff that a specific, alternative training exists which would have reduced the risk of a constitutional violation." Sharp v. Cty. of Dauphin, No. 1:09- cv-00989, 2013 U.S. Dist. LEXIS 62294, at *22 (M.D. Pa. May 1, 2013) (emphasis supplied); see also Herman v. Clearfield Cnty., 836 F. Supp. 1178, 1187 (W.D. Pa. Oct. 12, 1993) (plaintiff must "identify specific training not provided that could reasonably be expected to prevent [the 25 Mr. Scarpantonio provided harassment and Title IX training to PSD employees in conjunction with the use of PowerPoint presentations, some of which were provided in discovery. Darbi's counsel is well-aware, however, that the PowerPoint slides do not constitute the entire training that was provided, were used in live, in-person presentations, and therefore were not the sole source of information at these presentations. (See, e.g., Exhibit 19 to Defs. SOUF, pp. 33:18-35:19) (testimony discussing the live presentations by Scarpantonio). Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 40 of 49 41 harm] . . . and demonstrate that the risk reduction associated with the proposed training is so great and so obvious that the failure of those responsible for the content of the training program to provide it can reasonably be attributed to a deliberate indifference to whether [the injury occurs.]") Darbi has not put forth evidence of a specific, alternative training which would have reduced the risk of a constitutional violation, instead basing her argument entirely on criticisms of PSD's training programs based upon incomplete information. Defendants have not only established that Darbi's allegation that PSD failed to provide its employees with Title IX and sexual harassment training is false, but Darbi has also failed to meet her burden of proof to show any causal connection between the training provided by PSD and her alleged harm. As such, Darbi's "failure to train" claim under Section 1983 must fail and Count III should be dismissed. VII. DARBI CANNOT CREATE A QUESTION OF FACT THROUGH HER EXPERT'S OPINIONS Darbi cites to her Title IX expert's report as creating a question of material fact, but Dr. Howe is not a source of evidence in this case. He was not involved in any of the incidents at issue in this case and his report merely offers commentary on the evidence that is addressed by Defendants in their motion. As such, Defendants did not "fail" to address his report. (See Darbi's Response Brief, pp. 43-44). Much of Dr. Howe's report comments on what PSD "could have" done differently, not the legal standards for deliberate indifference or other issues presented by this motion. (See also Defs. Ex. 160, attached hereto, Dr. Hudacs rebuttal report). Just as Dr. Howe makes recommendations that go beyond what is legally required, Darbi relies upon Title IX guidance letters which make recommendations that are broader than what is legally required by Title IX. See, e.g., Doe v. Bibb Cnty. Sch. Dist., 126 F. Supp. 3d 1366, 1377 n.13 (M.D. Ga. 2015) ("This letter is no doubt helpful to funding recipients trying to comply Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 41 of 49 42 with Title IX, but it is obvious the guidance in this letter is broader than the scope of liability for private causes of action for money damages.") (emphasis supplied). Notably, Darbi also ignores other guidance from the United States Department of Education, such as guidance issued in September 2017 which states that schools do not need to address off-campus incidents. (Defs. Ex. 161, attached hereto, p. 1, n. 3). VIII. DARBI CRITICIZES PSD'S SAFETY PLAN, BUT CANNOT IDENTIFY A REASONABLE, EFFECTIVE ALTERNATIVE In her Response, Darbi criticizes PSD for not developing an "adequate safety plan" and, yet, fails to propose a solution which would have actually addressed her alleged harassment. (Darbi's Response Brief, pp. 41-43). Importantly, the only student who Darbi can even attempt to argue should have been separated from her prior to May 2015 is H., her alleged rapist. Yet, Darbi has only identified a single instance of actual interaction between her and H.—the November 2015 hallway incident—and there is no evidence whatsoever that H. or Darbi knew that they would encounter the other at that location. In short, Darbi cannot establish that PSD's safety plan was ineffective when it resulted in a single in-person interaction between her and her alleged harasser over the course of nearly a year. The first instance in which Darbi identifies one of H.'s friends as an alleged harasser did not occur until approximately May 20, 2015, when Darbi submitted an incident report pertaining to a text message sent by B. to another student threatening to have Darbi "jumped" for confronting him about his girlfriend allegedly "pee[ing] in a cup for [B.]" and/or reporting him Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 42 of 49 43 for an alleged break-in.26 (Defs. SOUF, Nos. 78-80). Prior to May 2015, Darbi's alleged hostile environment at school is only ever attributed to H. and unidentified students spreading rumors. 27 After the May 2015 text incident, for which B. received a three-day suspension as discipline, there are no other instances of any in-person interaction between Darbi and B. Darbi's proposal to keep her and B. separated would have had no effect on B.'s ability to send her text messages. There is no evidence that Darbi attempted to "block" the boys from sending her text messages. When Axe was asked whether she considered having Darbi adjust her phone to block the boys ability to contact Darbi, she said, "Absolutely not. Why would she?" (Defs. SOUF Ex. 6, p. 144:7-12). Similarly, the only in-person interaction between Darbi and C., another of her alleged harassers, was the incident in which C. bumped into Darbi in the hallway.28 Even if this act by C. was presumed to be intentional for the purposes of Defendants' Motion for Summary Judgment, as Darbi alleges, it was the only incident to take place at PHS between Darbi and C. at PHS. Any prior alleged interactions between the two took place through cell phone text messages during summer and winter breaks, which could not be addressed by instructing them to stay a certain distance from each other at PHS. There were no subsequent incidents involving C. after the hallway bump. 26 Darbi claims that B. sent this because Darbi reported that H. raped her. This allegation has no factual support, whatsoever, and the text message itself reflects that there were other, non-sex-based motivations for it. Darbi's citation to her Statement of Undisputed Facts, No. 26 and Statement of Disputed Facts, No. 368, for this proposition is egregiously misleading, as neither of these support such a claim with evidence of record. See Blanding v. Pennsylvania State Police, 811 F. Supp. 1084, 1095 (E.D. Pa. 1992), aff'd, 12 F.3d 1303 (3d Cir. 1993) (holding that accusations and speculations are not enough to survive summary judgment). 27 As previously addressed, the allegation of rumors is based upon hearsay and should not be considered. Even if this allegation is considered, however, PSD was never informed of the rumors and the students allegedly spreading rumors have never been identified and, even if their identities were known, keeping Darbi separated from them would have no effect on their ability to spread rumors. 28 Although Darbi testified that C. had moved increasingly closer to her each day as they walked past each other between classes, she does not claim to have ever placed PSD on notice of this at any point prior to the bump taking place. In fact, there is no record of her ever making this claim until her deposition in this case. Darbi also offers no evidence as to C.'s alleged motive in bumping her—only accusations and speculation. See Blanding, supra, at 1095. Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 43 of 49 44 Even Darbi's criticisms of the measures put in place by PSD make no sense. For instance, she describes the proposal to have lunch monitors watch her during her lunch period as "feckless" because "the monitors were already tasked with overseeing more than 800 other students in the same lunch." (Darbi's Opposition, p. 41). This suggests that the lunch monitors would have had to give every other student as much attention as they gave Darbi, however, which is simply not true. She offers no foundation for her belief that it was not possible for one of the multiple lunch monitors to maintain focus on a single student—Darbi. Similarly, she criticizes the safety plan for not being written down in a single document, without any explanation as to how having multiple written documents instead of one caused her harm. (Id.) She also criticizes PSD for not giving her an IEP or Section 504 plan—ignoring that her mother specifically testified that she did not want one for her daughter.29 (Id.); (Defs. Exhibit 6 to SOUF, p. 176:14-23 (testifying that she never asked for an IEP and adding, "what good would an IEP do her? Was that going to make her feel safer?"). In sum, Darbi's counsel has not identified any additional measures that would have actually addressed her alleged harassment, which only further underscores that Defendants' actions were not unreasonable. IX. AS PREVIOUSLY ADDRESSED IN DEFENDANTS' MOVING PAPERS AND RESPONSE TO DARBI'S MOTION FOR SUMMARY JUDGMENT, DEBONA AND RATTIGAN ARE ENTITLED TO QUALIFIED IMMUNITY. Darbi's Response contends that Defendants did not address the first prong of the qualified immunity analysis: whether Defendants' conduct violated a statutory or constitutional right. (Darbi's Opposition, p. 51). Given the amount of briefing that has already been submitted to the 29 Further, Darbi has not exhausted her administrative remedy if she now claims that she wanted to be evaluated for an IEP or 504 plan. Not only was a challenge to the IEP process never pled as a claim—Darbi is not even permitted to plead it as a claim because she has not exhausted her administrative remedies. See Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994); Annika T v. Unionville Chadds-Ford Sch. Dist., Civil Action No. 08-4944, 2009 U.S. Dist. LEXIS 25508, at *10-18 (E.D. Pa. Mar. 24, 2009). Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 44 of 49 45 Court on this issue, this is an absurd claim. Darbi's allegations of suffering a statutory or constitutional violation has been addressed ad nauseam through the parties' respective briefs, and Defendants do not need to repeat their arguments in each section to avoid a waiver. Darbi also claims that Defendants have not supported the second prong of the qualified immunity analysis: whether the right was clearly established as a matter of law when the underlying conduct occurred. (Id.) Interestingly, yet unsurprisingly, Darbi does not contend that there is Third Circuit case law clearly establishing the rights she claims in this case—that PSD had an obligation to Darbi to investigate and punish students for purely off-campus conduct. That is because, "[r]epeatedly, Courts have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred." Williams v. Pennridge Sch. Dist., No. 15-4163, 2018 U.S. Dist. LEXIS 205957, at *20-21 (E.D. Pa. Dec. 4, 2018) (internal citations omitted). Instead, Darbi seeks to meet her burden to demonstrate a clearly established right with the extremely broad assertion that the Title IX statute, itself, serves to establish such a right. (Darbi's Opposition, p. 52). This is essentially the same argument put forth by the plaintiff in Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633 (3d Cir. 2015), who argued that the clearly established right was a student's "constitutional right to be free from school officials' deliberate indifference to, or acts that increase the risk of serious injury from unjustified invasions of bodily integrity." Spady, supra at 638. The Third Circuit's response to this argument, however, was that "courts are 'not to define clearly established law at a high level of generality.' Instead, courts 'must define the right allegedly violated at the appropriate level of specificity.'" Id. (internal citations omitted). The Third Circuit went on to explain that an argument such as that put forth Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 45 of 49 46 by Darbi in this case, "would . . . convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). Darbi argues that she does not need to identify case law that is identical to her scenario, and that "a right can be clearly established even if there are 'notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." (Darbi's Opposition, p. 53) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). While this is true, Darbi fails to explain the context in which the Supreme Court made these comments in Hope. The Supreme Court in Hope v. Pelzer, 536 U.S. 730 (2002) addressed an argument by prison guards that prior case law finding a constitutional violation when prisoners were handcuffed to fences for extended periods of time did not put them on notice that they could not handcuff prisoners to prison hitching posts for extended periods of time. Id., at 742-43. The Court rejected this argument, explaining that a reasonable person would not have considered it acceptable to handcuff an inmate to a hitching post for an extended period as a punishment merely because the prior case law involved inmates being handcuffed to a different type of object. Id. The issue was the act of handcuffing inmates to an object for an extended period of time, not the type of object. Darbi goes on to cite to the various case law which was previously distinguished by Defendants in their Response to Darbi's Motion for Partial Summary Judgment, which is incorporated herein by reference. (See Defendants' Response to Darbi's Motion, pp. 30-40). The cases relied upon by Darbi, in addition to not being from the Third Circuit, involve highly distinguishable facts and much more egregious allegations. They are not akin to the difference Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 46 of 49 47 between handcuffing an inmate to a fence versus a pole. See, e.g., Spady, supra at 639 (finding that the proper degree of similarity required the plaintiff to show a clearly established "right to affirmative intervention by the state actor to minimize the risk of secondary or dry drowning"). X. DARBI'S OFFICIAL CAPACITY CLAIMS AGAINST DEBONA AND RATTIGAN ARE REDUNDANT. Darbi argues that the Kentucky v. Graham, 473 U.S. 159 (1985) only stands for the proposition that the Supreme Court simply held that there was "no longer a need to bring official-capacity actions against local government officials" if the plaintiff has also sued the local government unit directly, as Darbi has here. Darbi ignores the litany of subsequent Third Circuit cases which have since held that, in such situations, it is appropriate to dismiss the claims against the individual in his or her official capacity and retain them against the real party in interest. See, e.g., Hall v. Raech, No. 08-5020, 2009 U.S. Dist. LEXIS 25406, at *8 (E.D. Pa. Mar. 25, 2009) (citing Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988)); Doe v. Allentown Sch. Dist., No. 06-cv-1926, 2009 U.S. Dist. LEXIS 19418, at *20 n.8 (E.D. Pa. Feb. 26, 2009) (citing Kentucky v. Graham, supra); Irene B. v. Phila. Acad. Charter Sch., No. 02-1716, 2003 U.S. Dist. LEXIS 3020, at *1 (E.D. Pa. Jan. 29, 2003); McCachren v. Blacklick Valley Sch. Dist., 217 F. Supp. 2d 594, 599 (W.D. Pa. 2002); Mitros v. Borough of Glenolden, 170 F. Supp. 2d 504, 506 (E.D. Pa. 2001). Here, it is appropriate for the Court to exercise its discretion to dismiss DeBona and Rattigan as defendants in this action. Even if Darbi could establish a constitutional violation, DeBona and Rattigan would not be responsible under a theory of supervisory liability. Supervisors who maintain generalized knowledge of a situation cannot be liable for the conduct of subordinates. Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010) (affirming grant of summary judgment for supervisor who was kept abreast of an investigation, but did not direct his subordinate to take or not take any particular Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 47 of 49 48 action). While supervising public officials may not authorize, encourage or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct. Chinchello v. Fenton, 805 F.2d 126 (3d Cir. 1986). Darbi has not demonstrated any manner in which DeBona or Rattigan were deliberately indifferent to Darbi's rights. For the reasons set forth in this Reply, in Defendants' moving papers, and in Defendants' Opposition to Darbi's own Motion for Partial Summary Judgment, Plaintiff's claims should be dismissed in their entirety and judgment should be entered in favor of Defendants Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 2/28/2019 Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 48 of 49 CERTIFICATE OF SERVICE I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of the foregoing Reply Brief of Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona in Support of Defendants 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: 2/28/2019 LEGAL/121148949.v1 Case 2:17-cv-02431-TR Document 122 Filed 02/28/19 Page 49 of 49