GOODWIN v. PENNRIDGE SCHOOL DISTRICT et al

REPLY to Response to Motion re MOTION for Summary Judgment REDACTED re: Statement of Disputed Facts

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. : DEFENDANTS PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DEBONA'S RESPONSE TO PLAINTIFF'S ADDITIONAL FACTS RELEVANT TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN STATEMENT OF DISPUTED FACTS In response to the "Additional Facts" set forth in Plaintiff, DarbiAnne Goodwin's ("Darbi") Statement of Disputed Facts, Defendants respond as follows: 360. Denied as stated, as to Darbi's characterization of the written report and her deposition testimony. At no point before or during Darbi's deposition, which occurred prior to the production of police records over Darbi's objection, did she even mention that she on the night of December 27, 2014—much less that she considered that to be part of the alleged rape. Rather, she attributed the rape entirely to the Darbi's initial report to the police also attributes the alleged rape solely to the . While it is admitted that both Darbi and H.'s reports indicate that , they also indicate that As such, H. wrote in his report that . See Defendants' SOUF, Nos. 35 & 36 (providing verbatim quotations of respective reports); see also Defendants' Response to Darbi's SOUF, No. 17. Darbi never testified that she Instead, Darbi testified that she Redacted per Supplemental Stipulation Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 1 of 14 2 . (Defs. SOUF Ex. 1, p. 36:1-12). 361. Denied as stated. Darbi did not report that she was "sexually assaulted" by H. Instead, Darbi stated that "she had been raped over Christmas break by a junior at our school named H." On March 13, 2015, Pete Cortazzo ("Cortazzo"), Darbi's Counselor, sent and email to Principal DeBona, Assistant Principal Hegen, Assistant Principal Laboski and Counselor Lori D'Angelo ("D'Angelo") stating that Darbi informed Cortazzo that she had been "raped over the Christmas break." The email further stated that Darbi "alleges that the rape occurred in the parking lot at the Country Place Restaurant" and that Hegen "confirmed that the charge had been made with Pennridge Regional Police." Cortazzo further stated that he and Hegen were scheduled to meet with Axe in Hegen's office at 2:30 p.m. that day. (Pltf. Ex. 10, Goodwin-PSD 0148). Moreover, Darbi's Amended Complaint identified the alleged assault as a "rape" dozens of times. The Amended Complaint alleges 10 times that H. was Darbi's rapist. (Defs. SOUF, ¶28). The Amended Complaint was filed on June 29, 2017, before the police investigation of the alleged rape was produced. On March 23, 2018, after Defendants served a subpoena for the investigative documents and responded to a motion filed by the police department to quash the subpoena, in which it was noted that Darbi objected to the records being disclosed, the documents pertaining to the police investigation were produced. It was only after the police records were produced that Darbi and her attorneys began referring to the incident as a "sexual assault," not a rape. (Defs. SOUF, ¶40). The police investigation, which contains statements provided by both Darbi and H., demonstrate that the sexual conduct that took place between Darbi and H. did not constitute a rape in the Commonwealth of Pennsylvania. (Defs. SOUF, ¶¶ 35-40). Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 2 of 14 3 362. Denied as stated. Hegen said that he learned of the alleged rape in March 2015 and he subsequently had a meeting where he interviewed Darbi and her mother. Cortazzo was also present at the meeting. (Defs. SOUF Ex. 15, Hegen dep., pp. 311:24-312:12). Thereafter, Hegen spoke with Principal DeBona and summarized the meeting he had with Darbi and her mother where Darbi stated that she was raped several months earlier. (Defs. SOUF Ex. 15, Hegen dep., pp. 314:13-315:10). That same day, Hegen communicated with Pennridge Regional Police Department regarding Darbi's rape claim. Hegen informed Cortazzo that Hegen would follow-up with the police. (Defs. SOUF Ex. 15, Hegen dep., pp. 316:3-317:23). Hegen stated that he was not physically investigating the off-campus incident, but was ensuring that the proper authorities were notified. Hegen was assured that the matter was in the hands of the police. Darbi and her mother informed Hegen that Darbi's therapist had contacted ChildLine. (Defs. SOUF Ex. 15, Hegen dep., p. 321:8-21). 363. Admitted in part; denied in part. It is admitted that Laboski directed H. that H. must "cut off contact with her [Darbi], which he [H.] assured me he would do." (Defs. SOUF Ex. 16, Laboski dep., p. 133:19 – 134:5). Laboski said "H. was instructed to not have any contact with her, and that was both inside and outside of school." Laboski instructed H. "to keep his distance from her." (Defs. SOUF Ex. 16, Laboski dep., p. 138:11-139:1). Laboski told H. "you don't want to make this situation worse than it is, so you can make sure that you're not having any contact with her [Darbi]." (Defs. SOUF Ex. 16, Laboski dep., p. 134:7-24). H. corroborated Laboski's testimony. H. said he "was told to stay completely away from her [Darbi]." (Defs. Exhibit 146, attached to Opposition to Darbi's Motion, p. 36:14-23). Laboski told H. not to have anything to do with Darbi. Laboski informed H. not to "create any problems." Defendants deny that PHS had to further explain or provide guidance to H. on the meaning of the phrases "stay Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 3 of 14 4 away" or "no contact." H. said he understood what "no contact means." H. interpreted Laboski's instruction to mean that he was never to contact Darbi; not to talk to Darbi; not to text Darbi; and not to speak to Darbi. H. stayed clear of Darbi. He said that no one told him to "figure it out" on his own in order to interpret the instruction of "no contact." He said he was 16-17 years old and completely understood what "no contact" means. (Defendants' Exhibit 146, pp. 36:14-23; 86:25- 87:10; 91:11-92:9; 95:19-96:23; 98:1-99:3). It is also denied that the "happenstance meeting on the staircase" as described by Laboski violated a "stay away order." Darbi's own Incident Report states that "H. appeared" by the stairs. His appearance was not to intentionally confront Darbi, because that is not what occurred. DeBona testified that the November 19, 2015 incident "was the first time in the building [PHS] that she [Darbi] had written a statement up about H." Since that incident, there were never any further documented or known confrontations between H. and Darbi. As DeBona testified, given the confined footprint of the brick and mortar building, it would be unreasonable to expect that Darbi and H. would attend PHS and never pass one another in the hallway. (Defs. SOUF Ex. 16, Laboski dep., p. 161:15-19; Defs. SOUF Ex. 11, DeBona dep., p. 313:2-7, 314:1-315:1). H. testified that for the remainder of that school year, from December 2015 through his graduation in June 2016, H. had no other confrontation with Darbi and he never spoke to her. In fact, H. said during the entire time that he was in high school, the November 19, 2015 incident was the only time that H. had "interaction" with Darbi. (Defendants' Exhibit 146, H. dep., pp. 39:16-23; 40:13-18). It is admitted that H. testified that Laboski stated that H. was not creating problems during the "happenstance" meeting in the stairwell. 364. Denied. Plaintiff's averments in this paragraph are both inaccurate and argumentative. Initially, Darbi has identified only five actual encounters with four separate Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 4 of 14 5 individuals, which took place over a span of two years. As such, she was not subjected to "pervasive and persistent behaviors." See Defs. Exhibit 127, p. 7. While efforts were made to reduce the opportunities for Darbi to cross paths with the other boys while at school, PSD also had to be cognizant of the fact that the other students, who were seniors during her junior year, had a right to an education and to be permitted to have a class schedule that would allow them to graduate. See id. Although Darbi was not subjected to harassment at PHS or at PSD activities, Defendants nonetheless took whatever actions they reasonable could to provide her with comfort at the school. See id., pp. 9-19 (outlining litany of actions taken by PSD in response to Darbi's reports). Defendants have addressed the actions taken in response to Darbi's reports throughout their submissions in support of their Motion for Summary Judgment and in their Opposition to Darbi's Motion, which is incorporated herein by reference. 365. Admitted that Mr. Henrysen testified as such. By way of further response, Mr. Henrysen's testimony took place prior to police records being produced, over Darbi's objection, and he was not aware of the true nature of Darbi's alleged "rape." In any event, testimony from Darbi's former guidance counselor as to how he would feel in a hypothetical scenario is not a material fact. 366. Denied. Hegen's testimony was that he saw this allegation in Darbi's Amended Complaint. Hegen said that Mr. Laboski informed him there were certain rumors about Darbi, but Hegen never knew or learned the substance of any rumors. (Pltf. SOUF ¶ 22; Defs. SOUF Ex. 15, p. 289:2-22; 323:23-324:5; 325:13-326:3). Darbi testified that PSD employees were "eventually" told about the alleged rumors, but that she did not know who was spreading the alleged rumors. (Exhibit 1 to Defs. SOUF, p. 142:7-20). Darbi’s testimony as to the alleged rumors consists entirely of inadmissible hearsay and, thus, may not be considered as part of the Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 5 of 14 6 summary judgment record. See Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 600 (M.D. Pa. 2014) (citing Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir.2009)); see also Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 296–97 (3d Cir. 2014) (“We point out, however, that a court's obligation to view the evidence in the light most favorable to a nonmovant does not require the court to take into account evidence that will not be admissible at the trial.”) 367. Denied. The note referenced by Darbi states that she came to Mr. Cortazzo in tears after she was sent to Hegen's office for plagiarizing in English class. (Plaintiff's Exhibit 12, Goodwin-PSD 0151). The note also reflects that an unidentified individual told her that H. told friends "that is what I do," but there is no notation that the comment was "regarding sexual assault," as Darbi represents in this paragraph. Further, this alleged statement is inadmissible hearsay and, thus, may not be considered as part of the summary judgment record. See Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 600 (M.D. Pa. 2014) (citing Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir.2009)); see also Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 296– 97 (3d Cir. 2014). 368. Admitted in part; denied in part. It is admitted that in May 2015 B. sent a text message to another student in which he said that Darbi needed to be "jumped." It is denied and there is no evidence that C. was "by B.'s side" when B. sent the text message. Darbi's claim that B. sent this because Darbi reported that H. raped her, however, lacks any factual support and is a complete fabrication. The text message itself reflects that there were other, non-sex-based motivations for the text message inasmuch as B. threatened to have Darbi "jumped" for confronting him about his girlfriend allegedly "pee[ing] in a cup for [B.]" and/or reporting him for an alleged break-in. (Defs. SOUF, Nos. 78-80). None of Darbi's citations support her claim that B. had a sex-based motivation for his text message. See Blanding v. Pennsylvania State Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 6 of 14 7 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). Additionally, there is no evidence that B. "repeatedly called Darbi a 'slut.'" Notably, not once during her deposition does Darbi actually make this allegation. Rather, Darbi's counsel rely 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 school to conduct an interview of those 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"1 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 Defendants Reply Brief in support of their Motion for Summary Judgment 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, and there is 1 This comment is not attributed to B. or anyone else in the notes. Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 7 of 14 8 no evidence that B. repeatedly caused Darbi a slut. Rattigan and DeBona were never informed that B. repeatedly called Darbi a slut, and there is no evidence to suggest otherwise. 369. Denied. This is a gross misrepresentation of Darbi's testimony. Darbi did not testify that she was not aware of others' involvement in the break-in—rather, she testified that she told the police that "[H.] was there because the boys had been arrested for it and had told me about it before the assault. It may have been after the assault actually." (Exhibit 1 to Defs. SOUF, p. 76:20-25) (emphasis added). Darbi went on to explain that C. told her the names of others involved. (See id., p. 79:3-13). It is admitted that Darbi sent a text stating, "[w]ell I did snitch[.] I told the police everything because of [sic] he didn't get in trouble for what he did to me he can go down for something else," but Defendants have no personal knowledge as to why Darbi gave H.'s name to the police. (Plaintiff's Exhibit 84, Goodwin-PSD 2660). 370. Admitted. 371. Admitted that Laboski used these terms to describe B. To be clear, however, Laboski was responding to a question about "other incidents"—not B.'s interactions with Darbi. (Exhibit 16 to Defs. SOUF, pp. 33:16-34:18). 372. Denied. By Darbi's own admission in the document that she references, she could not identify who was allegedly sending her the text messages, other than one text message from N., and did not produce these text messages in discovery. Darbi stated that the police were contacted and the alleged communications were sent to her from different phones, the owners of which were unidentified and unknown. 373. Admitted that N. accused Darbi of giving his name to the police. Denied that Darbi was not aware of anybody other than H. involved in the alleged break-in, as this is contradicted by her own deposition testimony. (Exhibit 1 to Defs. SOUF, pp. 76:20-25, 79:3-13). Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 8 of 14 9 374. Admitted. By way of further response, Hegen went on to explain at length why B., C. and N., who were seniors, could not have their lunch schedules changed and still take the classes that they needed to graduate. (Exhibit 15 to Defs. SOUF, pp. 218:13-223:1). Additionally, notwithstanding the number of students in the lunch, Darbi does not cite to any evidence for the proposition that the lunch monitors would not be able to pay particular attention to her to ensure that there were no issues, and there was never an issue in the lunchroom other than when Darbi confronted B. 375. It is admitted that H. was told to stay away from Darbi. The note referenced by Darbi states, "H.'s counselor knowledgeable of DA's return and that he is to stay away." (Plaintiff's Exhibit 9). 376. Admitted that H. referred to Darbi as a "fucking bitch" to his friend in November 2015, in response to Darbi making a comment about H. to her friend. It is admitted that Darbi heard H.'s comment, but her claim that he made the comment "knowing Darbi could hear him" is denied, as there is no evidence that H. made the comment with an intention for Darbi to hear it. The remaining characterization of this encounter by Darbi is denied. Darbi's incident report states, "I was talking about a story that involved H." with her friend—not that she was discussing her fear of H. and his friends. (Plaintiff's Exhibit 45, Goodwin-PSD 0313). 377. Admitted that C. deleted Darbi's phone number and was told not to have contact with her. Mr. Laboski also contacted C.'s parents and his probation officer. (Exhibit 16 to Defs. SOUF, p. 176:3-13). It is denied that C.'s text message asking Darbi to hang out, sent on a weekend during PHS's winter break, was "threatening." By way of further response, Darbi and her mother represented to various PSD employees and even alleged in her Amended Complaint that the text was sent on the exact anniversary of the alleged rape—suggesting a deliberateness in Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 9 of 14 10 its timing. (See, e.g., Plaintiff's Exhibit 44, Goodwin-PSD 0037). In fact, as she now recognizes, the text was not sent on the anniversary of the incident with H. 378. Denied. Darbi was also presented with other options, such as being given permission to eat elsewhere if she chose to do so. As has already been explained, it was not possible to change the other students' lunch schedules. (Exhibit 15 to Defs. SOUF, pp. 218:13- 223:1). 379. Admitted that, after the incident with C., Mr. Henrysen encountered Darbi with her boyfriend, crying. It is also admitted that Darbi testified that C. had moved increasingly closer to her each day as they walked past each other between classes. She does not claim, however, 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 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). 380. Denied. Nonetheless, the alleged statement does not amount to a Title IX violation in that the school took all reasonable efforts to ensure Darbi's safety. 381. Admitted in part; denied in part. It is admitted that Mr. Henrysen testified that he thought Darbi was absent more during her second semester of junior year than her first semester, but he also testified that he thought this was partly attributable to a breakup with her new boyfriend. (Exhibit 18 to Defs. SOUF, pp. 247:5-248:6). However, Darbi's attendance records do not support declining attendance in the spring semester as compared to the fall semester. It is denied that Darbi has put forth evidence in support of a claim that she was sexually harassed on a Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 10 of 14 11 daily basis. Rather, she has put forth evidence relating to five incidents involving four individuals, occurring over a span of approximately two years. She has offered evidence of "pointing, teasing and laughing" that was not documented or reported to PSD. But this behavior does not constitute daily sexual harassment. 382. Admitted, with clarification. It is admitted that, on October 12, 2016, Darbi's mother emailed PSD personnel advising that B. and H., who were in the Marine Corp, briefly visited PHS. Darbi was not present during the time that B. and/or H. were in the PHS building. (Pltf. Ex. 62, Goodwin-PSD 0067-0068; Defs. SOUF, ¶¶217-222). DeBona testified that B. and H. were not "banned from campus" after their visit, but she informed Laboski that "the boys from the year before" were not to be in the building [on a going-forward basis] during the day when Darbi may be present. (Exhibit 11 to Defs. SOUF, DeBona dep., pp. 421:17-422:11). 383. Admitted, with clarification. See Response to No. 382, above. 384. Admitted that Darbi's mother wrote in an e-mail that Darbi was in a downward spiral ever since a friend texted her a few days prior that H. visited her class while she was not there. Denied that Darbi's mother is qualified to diagnose Darbi's medical condition. No other evidence is provided in support of this averment by Darbi, and it is therefore denied. At ¶ 209 of her Responses to Defendants' Statement of Undisputed Facts, Darbi acknowledges that she achieved a GPA of 4.0 during her senior year. Darbi's Opposition at p. 34 also states that Darbi's GPA allegedly "tells the story of the hostile environment" and emphasized that she receive a "perfect 4.0 during her senior year." 385. Admitted in part; denied in part. It is admitted that Darbi informed Hegen that a friend of Darbi's, M., who was also a senior, was dating B. and her friend wanted to bring B. to the senior prom. A proposed safety plan for Darbi's attendance at the prom was discussed with Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 11 of 14 12 Darbi on May 18, 2017. (See Plaintiff's Exhibit 63, Goodwin-PSD 0131-0132). The proposed safety plan stated that part of the safety plan considered that Darbi may feel emotional regarding B.'s attendance at the prom and "anticipating emotional breakdowns, Mary Beth Seeley will be available days leading up, days of, and days after to offer strategies in supports and coping." (Id.) The safety plan also anticipated that Darbi may decide to stay for the entire prom rather than attending only the first part of the prom. If Darbi chose to stay at the prom when B. was anticipated to arrive at 8:30 p.m., Henrysen will assess Darbi's mental status and call Axe "and let mom know she is on her way home. If she [Darbi] is determined to be too distraught, we will ask mom to come and get her." (Id.) 386. Denied. Darbi's GPA was already trending downward during her first two semesters, prior to the alleged rape by H. In fact, several of her grades then improved in the third quarter immediately following the alleged rape. Attached as Ex. 158 to Defendants' Reply Brief in support of their Motion for Summary Judgment is a historical summary of Darbi's grades for the 2014-2015 school year. As such, it is denied that Darbi's grades were related to the alleged rape and harassment. 387. Denied as stated. The document referenced by Darbi pertains to bullying and cyberbullying by PSD students, which either occurs in a school setting or, if outside of a school setting, has one of the three listed connections to school operations. Darbi's characterization that disciplinary authority extends to "acts of bullying (which can include harassment) that occur 'outside a school setting'" is denied, as the Policy does not make such a broad statement. Moreover, this case does not involve allegations of bullying by PSD students against Darbi and, therefore, this policy is irrelevant. Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 12 of 14 13 388. Admitted, with clarification. This PSD board policy states, "[t]he Board strives to provide a safe, positive learning climate for students in the schools. Therefore, it shall be the policy of the district to maintain an educational environment in which harassment in any form is not tolerated." (Plaintiff's Exhibit 5, Doe-PSD 1087) (emphasis supplied). Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Dated: 2/28/19 BY: JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 13 of 14 CERTIFICATE OF SERVICE I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of the foregoing Response to Plaintiff's Statement of Disputed Facts in Opposition to Defendants' Motion for Summary Judgment was electronically filed with the Court this date and is available for viewing and downloading from the ECF System. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Dated: 2/28/19 BY: JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona Case 2:17-cv-02431-TR Document 123 Filed 02/28/19 Page 14 of 14