GOODWIN v. PENNRIDGE SCHOOL DISTRICT et alMemorandum re MOTION for Summary Judgment with 75 exhibits - 21 to 75 under other eventE.D. Pa.February 28, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARBIANNE GOODWIN, Plaintiff, v. PENNRIDGE SCHOOL DISTRICT, et al., Defendants. | | | | | | | | | Civil Action No.: 17-cv-2431-TR PLAINTIFF’S MEMORANDUM IN REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 1 of 43 i TABLE OF CONTENTS PAGE INTRODUCTION .............................................................................................................. 1 I. DEFENDANTS’ OPPOSITION LARGELY CONSISTS OF IRRELEVANT AND INACCURATE RED HERRINGS. .......................................................................... 2 A. Defendants Rely on Irrelevant Facts Because Their Opposition Is Based on A Flawed Understanding of the Law ..................................................................2 B. Defendants Misstate the Evidence ...........................................................................6 II. DEFENDANTS WERE DELIBERATELY INDIFFERENT TO THE FACT THAT PSD’S TRAINING MATERIALS WERE FACIALLY DEFICIENT, AND DARBI WAS HARMED AS A RESULT OF THESE DEFICIENCIES ................. 9 A. Defendants’ Training Materials Were Facially Deficient ........................................9 B. Defendants Were Deliberately Indifferent .............................................................14 C. Darbi Was Harmed ................................................................................................18 D. The Forest Hills Case Is Applicable ......................................................................21 III. DEFENDANTS MAINTAINED POLICIES AND CUSTOMS OF FAILING TO PROPERLY RESPOND TO STUDENT-ON-STUDENT SEXUAL HARASSMENT. .............................................................................................................. 23 A. Darbi Pleaded in Her Amended Complaint Section 1983 claims against Each Defendant, including Monell Claims against PSD. ......................................23 B. No Material Dispute Exists that Defendants Maintained Policies and Customs of Not Reporting Sexual Harassment Allegations to the Title IX Coordinator, Not Investigating Reports of Sexual Harassment, and Not Issuing Written Reports of Investigation ...............................................................26 1. Failing to Notify the Title IX Coordinator, Jacqueline McHale ................26 2. Failing to Investigate or Discipline ............................................................29 3. Failing to Prepare Written Reports of Investigation ..................................32 IV. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY ............................................................................................... 32 CONCLUSION ................................................................................................................. 37 Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 2 of 43 ii TABLE OF AUTHORITIES CASES PAGE(S) Abshire v. Boudreaux, No. CV 18-0205, 2018 WL 5316934 (W.D. La. Oct. 26, 2018) .............................................13 Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008) .................................................................................................25 Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001).....................................................................................................18 C.S. v. S. Columbia Sch. Dist., No. 4:12-CV-1013, 2013 WL 2371413 (M.D. Pa. May 21, 2013) ............................................3 Camreta v. Greene, 563 U.S. 692 (2011) .................................................................................................................21 Daubert v. NRA Grp., LLC, 861 F.3d 382 (3d Cir. 2017).....................................................................................................21 Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008) ........................................................................................3 DiStiso v. Cook, 691 F.3d 226 (2d Cir. 2012)...................................................................................34, 35, 36, 37 Doe v. Forest Hills Sch. Dist., 2015 WL 9906260 (W.D. Mich. March 31, 2015) ................................................14, 21, 22, 23 Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) .................................................................................................................34 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) .....................................................................................35, 36, 37 Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367 (E.D. Pa. 2018) .........................................................................................5 Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015) .....................................................................................34, 36, 37 Hope v. Pelzer, 536 U.S. 730 (2002) .................................................................................................................34 L.R. v. Sch. Dist. of Phila., 836 F.3d 235 (3d Cir. 2016).....................................................................................................35 Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 3 of 43 iii MGJ v. Sch. Dist. of Phila., No. CV 17-318, 2017 WL 2277276 (E.D. Pa. May 25, 2017) ................................................26 Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978) .................................................................................................................23 Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999) .........................................................................................35, 37 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ...............................................................................................35, 37 Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .................................................................................................................23 S. County Sand & Gravel Co. v. S. Kingstown, 160 F.3d 834 (1st Cir. 1998) ....................................................................................................35 Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x 348 (6th Cir. 2014) ......................................................................................35, 37 Spireas v. Comm’r Internal Rev., 886 F.3d 315 (3d Cir. 2018); ...................................................................................................33 Thomas v. Cumberland Cnty., 749 F.3d 217 (3d Cir. 2014).....................................................................................................14 United States v. Joseph, 730 F.3d 336 (3d Cir. 2013).....................................................................................................33 United States v. Lanier, 520 U.S. 259 (1997) .................................................................................................................34 Welch v. Laney, 57 F. 3d 1004 (11th Cir. 1995) ................................................................................................25 Statutes 18 Pa. C.S. § 3101 ............................................................................................................................3 18 Pa. C.S. § 3121(a)(1)...................................................................................................................3 Other Authorities U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct at 1 n.3 (Sept. 22, 2017) ..........................................................................................................................................3 U.S. Dep’t of Educ., Office of Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, and Third Parties 21 (Jan. 19, 2001) ................................................................................................3 Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 4 of 43 1 INTRODUCTION Defendants Pennridge School District (PSD), PSD Superintendent Jacqueline Rattigan, and Pennridge High School (PHS) Principal Gina DeBona’s opposition in response to Plaintiff DarbiAnne Goodwin’s (“Darbi”) summary judgment motion misunderstands key legal and factual matters that are core to her motion. When Darbi attended PHS, she reported that (i) an older male PHS student, H., had sexually assaulted her during winter break of her sophomore year; and (ii) H. and his friends N., C., and B. repeatedly sexually harassed her, both in and outside of school, for the next three semesters until they graduated from PHS. Darbi filed suit against Defendants because they repeatedly failed to investigate her reports of sexual harassment, to implement a plan to ensure that she could continue to learn free of fear of her harassers, and to discipline her harassers to address the hostile educational environment she faced. Darbi moved for summary judgment on those claims as to which no material dispute of fact exists: (i) Defendants’ training materials are, on their face, constitutionally deficient because they fail to train PSD employees on how to recognize or respond to student-on-student sexual harassment; and (ii) Defendants maintained—and continue to maintain—District-wide practices that violate the law, as well as PSD’s own board policies on student-on-student sexual harassment. In response to Darbi’s targeted summary judgment motion that focuses on just two of her claims, Defendants have filed a sprawling opposition that touches on issues wholly irrelevant to Darbi’s motion. When Defendants do address relevant issues, they fail to understand the factual record and relevant legal authority. There is no material dispute that Defendants’ written training materials were facially deficient; Defendants were on notice that student-on-student sexual harassment was occurring at PSD and inevitably would occur in the future; and Darbi suffered documented mental health Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 5 of 43 2 issues and ultimately took an extended leave from PHS on two separate occasions because PSD employees’ lack of training led them to improperly address her reports of sexual harassment. It is further undisputed that Defendants maintained policies and customs of not notifying PSD’s Title IX Coordinator of reports of sexual harassment; not investigating reports of sexual assault independently of police activity; not investigating reports of sexual harassment that occurs outside of school; and not preparing written reports of harassment investigations. These undisputed facts, coupled with Rattigan and DeBona’s lack of entitlement to qualified immunity, warrant granting judgment as a matter of law in Darbi’s favor on her Section 1983 claims. I. DEFENDANTS’ OPPOSITION LARGELY CONSISTS OF IRRELEVANT AND INACCURATE RED HERRINGS A number of Defendants’ arguments can be categorized as (i) irrelevant facts based on their flawed understanding of the law, and (ii) inaccurate statements of fact. A. Defendants Rely on Irrelevant Facts Because Their Opposition Is Based on A Flawed Understanding of the Law Defendants offer a number of red herrings that do not create actual disputes of material facts as to Darbi’s Section 1983 claims. For example, they erroneously argue that H.’s December 2014 conduct that Darbi reported to PHS and the police did not constitute criminal rape, and that they were not obligated to address her report because H. was never arrested or charged with a crime. See Defs.’ Summ. J. Opp. (“Defs.’ Opp.”) at 4-5, ECF No. 110. But H.’s conduct in fact constitutes criminal rape under Pennsylvania law and, in any event, the outcome of H.’s criminal investigation is irrelevant to Defendants’ civil rights obligation to address student-on-student sexual harassment. Pl.’s Summ. J. Opp. (“Pl.’s Opp.”) at 25-26, ECF No. 112; 18 Pa. C.S. §§ 3101, 3121(a)(1); Defs.’ Statement of Undisputed Facts (“Defs.’ SOUF”) ¶¶ 36-37, ECF No. 95. Defendants’ longstanding misconceptions of their obligations under Title IX and the Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 6 of 43 3 Constitution establish that PSD employees are still in urgent need of adequate training on issues related to student-on-student sexual harassment.1 Contrary to Defendants’ beliefs, PSD employees are required by the law, Department of Education Guidance, and PSD’s own written policies to investigate reports of sexual assault independent of police activity.2 Defendants are also wrong in claiming that PSD employees lacked “substantial control” over H.’s assault and N.’s and C.’s text messages because these incidents occurred outside of PHS. Defs.’ Opp. at 5-6, 33-35. First, the issue of “substantial control”—i.e., an element of a Title IX claim, not any Section 1983 claim—is irrelevant to Darbi’s limited motion for summary judgment on her failure-to-train, supervisory liability, and Monell claims. In any event, Defendants cannot dispute (and have not disputed) that they exercised “substantial control” over PSD’s deficient trainings, PSD’s policies and customs relating to student-on-student sexual harassment, and PSD’s employees who were responsible for addressing student-on-student harassment.3 1 Moreover, a decision to bring criminal charges against H. would have been entirely legally defensible and ethical. Ex. 78, Canaff Rep. at 7. 2 See, e.g., Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 369, 371-72 (W.D. Pa. 2008) (holding that school principals have “a duty to investigate independently of any police investigation, even if the alleged incident ‘might involve criminal conduct,’” and may not make disciplinary decisions dependent on the filing of criminal charges); U.S. Dep’t of Educ., Office of Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, and Third Parties 21 (Jan. 19, 2001) (hereinafter “2001 Title IX Guidance”) (clarifying that “police investigations or reports . . . do not relieve the school of its duty to respond promptly and effectively”); Ex. 5, Doe-PSD 1089 (PSD Board Policy 248 on “Unlawful Harassment”: “The obligation to conduct this investigation shall not be negated by the fact that a criminal investigation of the incident is pending or has been concluded.”). 3 As to Darbi’s Title IX claims, which are not at issue in this motion, the case law, Department of Education guidance, and PSD’s own written policies plainly establish that PSD exercised “substantial control” over both the harasser(s) and the context of each out-of-school incident. Pl.’s Opp. at 26-29, 36-37; see, e.g., U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct at 1 n.3 (Sept. 22, 2017) (“Schools are responsible for redressing a hostile environment that occurs on campus even if it relates to off-campus activities.”); C.S. v. S. Columbia Sch. Dist., No. 4:12- CV-1013, 2013 WL 2371413, at *9 (M.D. Pa. May 21, 2013); Ex. 97, Doe-PSD 1091. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 7 of 43 4 Similarly, Defendants’ flawed understanding of what constitutes actionable sexual harassment does not affect Darbi’s Section 1983 claims. Defendants repeatedly state that there were no “conflicts” or “encounters” between Darbi and her four harassers during specific time periods and that H. “did not say anything to” Darbi during those timeframes. See, e.g., Defs.’ Opp. at 10-14, 33. But even during those selectively narrow time periods in which there were no direct “encounters,” it is undisputed that Darbi reported to multiple PSD employees that H. and his friends were spreading sexual rumors about Darbi to other students at school, and that H. had bragged to other students at school about sexually assaulting her. Pl.’s Statement of Undisputed Facts (“Pl.’s SOUF”) ¶¶ 21-23, ECF No. 96-3. Moreover, it is undisputed that Darbi reported numerous direct “conflicts” and “encounters” with all four harassers, including with B., who repeatedly calling her a “slut” and threatened to “jump” her in May 2015; with N., who called her a “hoe,” “cunt,” and “redickulas” in July 2015; with all four harassers, who sent her harassing text messages throughout the summer of 2015; with H., who called her a “fucking bitch” at school in November 2015; and with C., who texted her to “hang out” in December 2015, a day before the one-year anniversary of her sexual assault by H., and who purposefully bumped her in the school hallway in April 2016. Pl.’s SOUF ¶¶ 26, 32-33, 51, 55, 63 (emphasis added). In the face of all of these undisputed direct and indirect incidents of harassment, Defendants are wrong in repeatedly attempting to argue that Darbi was not harassed at school. They misstate the record or they do not understand what sexual harassment is, but either way they are mistaken.4 4 Defendants’ inability to recognize sexual harassment is most evident in their description of N.’s text message. Although N. called Darbi “redickulas” and explained, “Hoe. I spelled it wrong because your [sic] a cunt,” Defendants insist that N.’s “misspellings were not calculated or intended to . . . be a sexual reference.” Defs.’ Opp. at 8 n.5. Such an argument is irreconcilable with N.’s explicit acknowledgement that he intentionally misspelled words in his text because he viewed Darbi in a sexually demeaning way. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 8 of 43 5 Defendants’ argument that Darbi’s “primary complaint had to do with the mere presence of H. and his friends” is likewise incorrect. See, e.g., Defs.’ Opp. at 6, 35. As a factual matter, Darbi’s complaints and concerns included not only enduring direct encounters with her harassers but also their repeated, active harassment. And as a legal matter, Defendants fail to understand that even the “mere presence” or “continuing presence” of a harasser can be sufficient to create a hostile educational environment that requires a school’s response. See, e.g., Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367, 375 (E.D. Pa. 2018); see also Pl.’s Opp. at 22, 28, 30. Despite their claim that it was an “unattainable request” to keep Darbi’s harassers out of her “vicinity,” Defendants admit that PSD employees failed to take the simple step of prescribing hallway routes for the harassers to avoid Darbi, and that PSD employees scheduled C., B., and N. into Darbi’s lunch period and scheduled H. and B. into Darbi’s study hall location in the cafeteria—despite multiple prior requests for them not to do so. Pl.’s SOUF ¶¶ 36, 38, 40, 44; Defs.’ Statement of Disputed Facts (“Defs.’ SODF”) ¶ 36, 38, 40, 44; Defs.’ Opp. at 9. Nor do Defendants dispute that they failed to train PSD employees on the basic components of a safety plan, such as issuing and enforcing a unilateral no-contact order for Darbi’s harassers not to come within a certain distance of her (such as the 36-foot restriction mentioned by Dr. Howe); instructing her harassers to leave class a few minutes early or late, instead of putting that burden solely on her; and including a note in each of their student files to alert their teachers to be aware of possible run-ins—all of which was attainable in a school of PHS’s size and density. See William A. Howe Report (“Howe Rep.”) at 18, Ex. 82. Defendants are wrong in suggesting that there is “no evidence” to support Darbi’s claims that she was sexually harassed, or that Defendants’ own records do not “corroborate” her reports. See Defs.’ Opp. at 6, 9, 44-45, 46. To the contrary, Darbi’s claims are frequently corroborated by Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 9 of 43 6 PSD employees’ testimony and other contemporaneous documents. See, e.g., Pl.’s SOUF ¶¶ 17, 21-23, 56, 62-63. In any event, Darbi’s own testimony about what she experienced is evidence. See Fed. R. Civ. P. 56(c)(1)(A). (Defendants’ argument—in addition to being wrong on the facts—is particularly troubling because it perpetuates the harmful myth that, absent corroborating evidence, reports of sexual harassment or assault should be viewed with skepticism or seen as inherently untrustworthy.) B. Defendants Misstate the Evidence Defendants misstate various parts of the record to manufacture factual disputes that do not exist. For example, they claim that H. “completely understood” what he was required to do to comply with the instruction he received to stay away from Darbi, Defs.’ Opp. at 2-3, 10-11, but omit key portions of H.’s testimony regarding the November 2015 “fucking bitch” incident unequivocally establishing that he did not understand the no-contact instruction: Q: Did you ever hear at Pennridge, anyone else in general define the term no contact and what that means at Pennridge? A: No, no. * * * Q: But for instance, if you see Ms. Goodwin walking down the hallway and you’re walking in her direction, does no contact mean that you have to turn around and walk the opposite? A: No. Q: All right. Does no contact mean you that you can’t be within 50 feet of her? A: You can be one foot from her, just no contact. I can’t talk to her. If I’m walking to class, I’m going to my class. Q: All right. So your understanding is, with no contact you can be one-foot away from her as long as you weren’t talking to her? A: Yeah, I could just walk—I mean, I wouldn’t stand one-foot away from her. But I mean, obviously if I’m passing her and it’s a busy hallway, I’m going to try and Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 10 of 43 7 veer away from her. But I’m not going to just turn around and be late to my class go complete opposite way[.] * * * Q: Did that violate the no contact [instruction,] being that close to her? A: No. Q: All right. Did calling her a fucking bitch violate the no contact [instruction]? A: It was not speaking to her directly. I was turned to—my back was to her—to my friends [sic], so no. Ex. 122, H. Dep. 96:5-9, 96:24-97:25, 101:23-102:6. Other misstatements of the record abound. In an attempt to dispute whether Darbi was in fact sexually harassed, Defendants argue that C.’s text message to “hang out” on the anniversary of Darbi’s sexual assault by H. was not related to the prior sexual assault. See Defs.’ Opp. at 12; Defs.’ SOUF ¶ 169. Yet this view is contradicted by undisputed facts. For instance, Hegen wrote in a contemporaneous email that C.’s text was “a very deliberate act . . . to remind Darbi of a horrible day in her life.” Pl.’s SOUF ¶ 56; Defs.’ SODF ¶ 56. And Laboski testified that it was “absolutely” and “obviously offensive” that “[C.] sent a message to her on the anniversary of the incident that took place with her and [H.]” and that it was “reasonable for Darbi to feel threatened after receiving this message.” Pl.’s SOUF ¶ 56; Defs.’ SODF ¶ 56. Defendants cannot overcome these undisputed facts, which are supported by record evidence, by referring obliquely to them as mere “allegations.” See Defs.’ Opp. at 12. Defendants engage in similar tactics to gloss over their repeated failure to discipline Darbi’s harassers. For example, Defendants’ own disciplinary records and H.’s testimony show that H. was never disciplined for sexually assaulting Darbi. To overcome the lack of actual discipline, Defendants rely on Laboski’s testimony that he “believes he disciplined H.”—but Defendants do not (and cannot) dispute both their records showing that his ostensible belief was Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 11 of 43 8 mistaken. Defs.’ Opp. at 11 (emphasis added); Pl.’s SOUF ¶ 19; Defs.’ SODF ¶ 20. Defendants mistakenly argue that only H.’s expulsion would have satisfied Darbi, even though Darbi and her mother explicitly asked for H. to be suspended.5 Ex. 80, Cortazzo Dep. 71:20-25; Pl.’s SOUF ¶ 19; Defs.’ Opp. at 5. Defendants also repeatedly assert that they “resolved” C.’s purposeful hallway bump. Defs.’ Opp. at 35, 46. But it is undisputed that C. was never disciplined for this incident, that DeBona facilitated a non-disciplinary mediation instead, and that Darbi withdrew from PHS for the second time that very evening. Pl.’s SOUF ¶¶ 67-68. All of these undisputed facts regarding the lack of discipline show that summary judgment is warranted in Darbi’s favor on her claims that Defendants failed to train PSD employees on how to discipline students for sexual harassment and maintained customs and policies of failing to discipline students for sexual harassment. In arguing that Darbi was not harmed by their conduct, Defendants offer more flawed arguments. They claim there is “no correlation” between B.’s unrestricted return to campus after threatening to “jump” Darbi, and the panic attack Darbi suffered on the same day that B. returned to school. Pl.’s SOUF ¶¶ 27-28; see Defs.’ Opp. at 7. The direct causal link between the two is obvious. It is absurd for Defendants to suggest that although B. threatened Darbi with physical violence and PSD employees put no protections in place for Darbi when B. returned to school, Darbi had a panic attack the day that B. returned for some other, unrelated reason. In addition, even though Defendants are well aware that Darbi reported the sexual assault to the police in February 2015, they argue that nothing that occurred that month could have exacerbated Darbi’s past trauma or led to her first withdrawal from PHS. See Defs.’ Opp. at 3, 7. Moreover, Defendants admit that they failed to evaluate Darbi for mental health accommodations for her 5 That request was consistent with PSD’s disciplinary policies, which require a four- to ten-day suspension for sexual assault. Pl.’s SOUF ¶ 19. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 12 of 43 9 severe PTSD, so they instead attack the validity of her attorney’s declaration documenting this undisputed fact. Pl.’s SOUF ¶ 50; Defs.’ SODF ¶ 30; see Defs.’ Opp. at 12-13. Defendants claim Henrysen testified that PSD created the “pilot” cyber program “solely for Darbi” after she withdrew from PHS, but he never testified to that effect and the cited portions of his deposition transcript do not support that assertion. Defs.’ Opp. at 13; Defs.’ SOUF ¶ 196 (citing Ex. 87, Henrysen Dep. 291-96). Contemporary emails about the pilot program further confirm that it was not created for Darbi and that this narrative is a post hoc litigation strategy. For instance, DeBona’s April 12, 2016 email to Darbi’s mother mentioned that “[t]here are private schools, cyber schools, and home-school options” but did not mention any “pilot” cyber school specifically created “for” Darbi. Ex. 55, Goodwin-PSD 0118. Similarly, in Henrysen’s April 15, 2016 email first introducing the cyber program, he did not state that it was being “created for” Darbi, only that he was considering a “potential option” for her to “participate” in it, and that it had already been “scheduled to begin after May 1st”—before Darbi had even confirmed that she was willing to “participate” in it. Ex. 56, Goodwin-PSD 0336. As Price testified, it is “unlikely” that PSD “came up with the concept of a pilot cyber program” specifically for Darbi. Ex. 88, Price Dep. 266:21-267:6; Ex. 56, Goodwin-PSD 0336. II. DEFENDANTS WERE DELIBERATELY INDIFFERENT TO THE FACT THAT PSD’S TRAINING MATERIALS WERE FACIALLY DEFICIENT, AND DARBI WAS HARMED AS A RESULT OF THESE DEFICIENCIES A. Defendants’ Training Materials Were Facially Deficient As an initial matter, Defendants do not dispute that Darbi identified in her motion for summary judgment all of the written training materials from the period during which she attended PHS. Employee training on sexual harassment focused almost entirely on the harassment of employees rather than the harassment of students; lacked information concerning Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 13 of 43 10 PSD’s Title IX Coordinator; and failed to explain how to investigate reports of sexual harassment, implement safety plans, or administer discipline. Pl.’s Mot. Summ. J. at 16, ECF No. 96-1 (hereinafter “Pl.’s S.J. Mot.”). In their Opposition, Defendants attempt to argue that one of these contemporaneous training documents addresses issues related to student-on-student sexual harassment. Defs.’ Opp. at 41. Their Opposition is silent as to the substance of the remaining training presentations. The reason their opposition is silent to these remaining presentations is that these presentations are silent on the subject of student-on-student sexual harassment. Defendants are wrong that the one training they discuss, “Student-to-Student Hazing and Harassment,” addresses student-on-student sexual harassment in any substantive way. Ex. 69, Doe-PSD 1358. Defendants do not analyze the substance of this training or provide the Court with quotes from the presentation where this issue of student-on-student sexual harassment is addressed. Instead, their primary argument is that the Global Compliance Network (GCN) training uses the word “harassment” forty times. Defs.’ Opp. at 41. To be clear, Darbi’s criticism is not that the training fails to place the word “sexual” before the word “harassment.” The deficiency is that the training materials fail to deal with student-on-student sexual harassment as a separate, but related, construct to bullying, which has its own unique challenges and issues with reporting, investigating, and remediating. Defendants clearly agree that “sexual harassment” is not synonymous with “harassment” and that not all harassment is sexual harassment; in their Opposition, Defendants note the distinction between Darbi’s counsel asking DeBona about “harassment,” as opposed to “sexual harassment.” See Defs.’ Opp. at 25. With respect to the single training presentation Defendants argue is sufficient, the document offers no explanations of sexual harassment beyond listing it as a type of harassment Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 14 of 43 11 and suggesting that educators should have an understanding of it. Ex. 69, Doe-PSD 1358-66. As to harassment in general, the training defines it as “the creation of a hostile educational environment, most commonly interfering with the psychological well-being of the student.” Ex. 69, Doe-PSD 1359. There is nothing in this abstract definition that would help a PSD employee differentiate sexual harassment from general harassment or even peer conflict. Ex. 69, Doe-PSD 1358-66. Darbi refers the Court to Ex. 67, Doe-PSD 2606-2631; Ex. 68, Doe-PSD 1458-1518; Ex. 69, Doe-PSD 1346-1380; and Ex. 70, CTRL0000539-541, which represents all of Defendants’ written training materials. None of these training materials: Identifies PSD’s Title IX Coordinator; Informs PSD employees of their duty under both Title IX and PSD’s board policies to notify the Title IX Coordinator of all student-on-student sexual harassment; Informs PSD employees of their duty to investigate all reports of sexual harassment, including those that occur outside of school and regardless of police activity; Instructs PSD employees on how to conduct adequate investigations of alleged sexual harassment; Instructs PSD employees as to how to distinguish peer conflict from sexual harassment; Explains how to provide effective safety plans or even what a safety plan is; or Informs PSD employees of their authority to discipline students for sexual harassment, including that which occurs outside of school or in the absence of a criminal charge. Defendants rely heavily on evidence that PSD employees attended training presentations where the above-referenced deficient training materials were presented. Indeed, at times, the Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 15 of 43 12 Opposition repeatedly references the same training.6 It is simply not a material fact how many times PSD employees attended a deficient training program, other than its indication that Defendants did not train PSD employees on how to properly address sexual harassment. Darbi addresses many of the other arguments that Defendants make in support of their training program in her Opposition to Defendant’s affirmative motion, including: Training provided only after Darbi graduated from PSD is, by definition, irrelevant. Compare Defs.’ Opp. at 16, 20 (discussing the attendance of PSD employees at the NOVA training which occurred after Darbi graduated from PSD), with Pl.’s Opp. at 46 (discussing irrelevant trainings which occurred after Darbi left PSD). PSD employees’ knowledge that certain policies existed in no way establishes they understood these policies. Compare Defs.’ Opp. at 17 (stating DeBona is “aware of” the reporting processes in the School District’s Unlawful Harassment Policy), with Pl.’s Opp. at 46 (discussing the many paragraphs of Defendants’ SOUF which state PSD employees were “aware of” PSD policies). Presentations or meetings where PSD policies were discussed that do not indicate that sexual harassment was addressed at those presentations or meetings. Compare Defs.’ Opp. at 17 (stating that Hegen attended Policy Review Meetings), with Pl.’s Opp. at 45-46 (discussing the fact that Defendants cite to meetings where policies are discussed without representing that sexual harassment was actually discussed). Defendants also offer the opinions of certain individuals who believe PSD employees were properly trained on matters related to sexual harassment. See Defs.’ Opp. at 17 (citing DeBona’s deposition), id. at 23 (citing the deposition of Darbi’s sexual assailant, H., as evidence that PHS properly “educate[d] and assist[ed] students with harassment and bullying”). These individuals’ 6 By way of example, Defendants state: “Prior to GCN trainings, discussed below, PSD staff were presented with and trained via annual PowerPoint Presentations about harassment, sexual harassment, workplace harassment and student harassment. (Defs. SOUF, ¶ 263). PSD also conducts a summer two-day training seminar for administrators during which attorneys present and discuss different topics, including harassment and sexual harassment. (Defs. SOUF, ¶ 302).” Defs.’ Opp. at 14-15. On the very next page, Defendants write again: “Prior to the GCN trainings, PSD staff were presented with and trained via annual Power Point Presentations about harassment, sexual harassment, workplace harassment and student harassment. (Defs. SOUF, ¶ 263).” Defs.’ Opp. at 16. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 16 of 43 13 beliefs that that PSD employees were properly trained does not create a material issue of fact. Indeed, immediately after testifying about this training, DeBona admitted she and her staff have never been trained on the difference between peer conflict and sexual harassment. Ex. 107, DeBona Dep. 528:18-529:7. Finally, in their Opposition, Defendants expand upon an argument they briefly addressed in their affirmative motion for summary judgment: there was undocumented, oral training on sexual harassment either in conjunction with the above-referenced written training materials (even though there is no obvious call-out for what would surely be a tangent from the written training material) or during informal trainings or meetings. See Defs.’ Opp. at 41. As noted in Darbi’s opposition, serious credibility and weight issues exist with Defendants’ claims that this oral training occurred, where Defendants have failed to produce a single speaker’s note, attendee’s note, slide, or handout, corroborating that such oral training occurred, let alone that these discussions were legally or factually adequate to ensure constitutional rights would be protected. Pl.’s Opp. at 46. Darbi recognizes that such credibility determinations cannot be resolved at summary judgment. However, the core problem for Defendants is that it is per se deficient to offer no written training on student-on-student sexual harassment and to instead rely on oral trainings that are not in any way documented and at which employees were, apparently, not required to take notes. Cf. Abshire v. Boudreaux, No. CV 18-0205, 2018 WL 5316934, at *5–6 (W.D. La. Oct. 26, 2018) (explaining that an allegation that a municipality lacked written training material was sufficient to state a failure-to-train claim).7 7 Defendants’ criticism of Darbi for not taking Scarpantonio’s deposition is meritless for the same reasons. Defendants confirmed that they had produced responsive answers to Darbi’s multiple inquiries regarding training materials. Ex. 108, Heisner Letter July 6, 2018. As such, Scarpantonio’s testimony would be irrelevant because he could not cure Defendants’ facially deficient training. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 17 of 43 14 B. Defendants Were Deliberately Indifferent Defendants argue that they were not deliberately indifferent because there was not a pattern of violations due to their failure to train employees. See Defs.’ Opp. at 42-43. As an initial matter, Darbi need not establish that there was a pattern of violations to prevail on her Section 1983 failure-to-train claim. Instead, she can prevail under a single-incident theory of liability by showing that the need for training PSD employees on student-on-student sexual harassment was “so obvious” that Defendants’ failure to do so was sufficient alone to establish their deliberate indifference to the rights of all PSD students, including Darbi’s. Pl.’s S.J. Mot. at 17-20 (quoting Thomas v. Cumberland Cnty., 749 F.3d 217, 223-25 (3d Cir. 2014)). Here, the need for training was patently obvious to DeBona and Rattigan. Pl.’s S.J. Mot. at 17-20. First, student-on-student sexual harassment is an “inevitable” problem “in the public high school context.” Pl.’s S.J. Mot. at 18 (citing Doe v. Forest Hills Sch. Dist., 2015 WL 9906260, at *17 (W.D. Mich. March 31, 2015)). Second, DeBona and Rattigan both completed GCN’s nominal online “Student-to- Student Hazing and Harassment” presentation, which provided virtually no training on student- to-student sexual harassment. Pl.’s SOUF ¶ 86. Although wholly inadequate, that presentation explicitly instructed “[s]chool leaders” to “train all staff . . . on the school’s policy and procedures regarding harassment” and on “Title IX.” Id. Defendants nonetheless failed to provide any such training. Pl.’s SOUF ¶¶ 83-84. Having both completed that online training module, DeBona and Rattigan were both on notice of the obvious deficiency of their student-on- student sexual harassment “training” and their unfulfilled, obvious duty as “[s]chool leaders” to provide this training for their staff. Id. Moreover, DeBona was aware that one of her four Assistant Principals did not even know who PSD’s Title IX Coordinator was, or that PSD was Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 18 of 43 15 required to investigate a report of sexual assault despite the absence of a criminal charge. Pl.’s SOUF ¶ 88. Third, Defendants had knowledge that this “inevitable” problem manifested itself on a number of occasions at PHS. In addition to Darbi and Doe’s numerous reports of sexual harassment, Defendants produced more than 600 pages of documents rife with reports of sexual harassment from a single school year. Pl.’s SOUF ¶ 87. Defendants take issue with the fact that these more than 600 pages of “peer conflict” documents substantiate the claim that there is a pattern of mischaracterizing sexual harassment as peer conflict, citing six examples from the records that they believe are clearly examples of peer conflict, not sexual harassment.8 Defs.’ Opp. at 43. As an initial matter, depending on context, these matters could be sexual harassment: it is difficult to tell from the records, though, because there is no evidence that PSD fully investigated these reports. Furthermore, Defendants ignore that many of the records, from a single year, facially raise sexual harassment concerns, such as unwanted touching, unwanted solicitation of sexual acts, threats to send sexually explicit photographs, and girls repeatedly being called, “bitch,” “slut,” and “whore” and were clearly misclassified as “peer conflict”: In February 2016, a female student complained about harassment several male students were subjecting to her on the bus. A male student on the bus would frequently “sit next to me on the bus, and grab my legs, and play with my hair.” One of the boys confronted her in a school hallway. All of the boys posted harassing comments on her Instagram pictures. And they spread rumors about her to other boys, “saying like I’m pregnant and a ton of things that are not true.” (Ex. 109, Doe-PSD 3193-95, 3220.) In March 2016, female students reported that male PHS students had been touching them inappropriately without their consent. Both of the girls filled out an incident report. The first report says the “consistent” harassment happens “every day,” “in class, in the halls or at tech.” In particular, she stated that “for the past few months . . . [the harasser] finds some way to hit or touch me and [another female student]. He slaps, grabs our backpacks, and 8 Defendants also chide Darbi for not attaching all 600-plus pages of incident reports to her summary judgment motion, despite the fact that it would have been patently unreasonable for her to do so, especially where Defendants produced the documents out of order, with documents related to each incident separated throughout the 600-plus-page production. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 19 of 43 16 pulls our back really hard, tries to trip me. Pushes us & hits [the other female student] with anything including candy or pencils. I’ve told him to stop hitting me and touching me in general but every day he still does it. [The other female student] had told me he slapped her butt and touched her places and I knew it was time to finally have something done before he gets even more physical with us or any other girl. He ripped my backpack today when he grabbed my backpack and pulled me toward him.” The second report explains that the male student “is always after me” and asks “for him to stay away from me. She detailed her complaint as follows: “Everyday I’m in class with [male student] and he would hit me or punch me or slap me with whatever he has in his hands. He would touch me in inappropriate places and when I would tell him to stop he would continue doing it. I’m sick and tired of him treating me like this. He won’t stop . . . . I just want him to stop, leave me alone and stay away from me. He has done this every day and I fear it will never stop because he is starting to scare me and I’m so tired of it. He leaves marks on my knuckles and wherever else he can put his hands on me.” (Ex. 110, Doe-PSD 3451-55). In April 2016, a female student filled out an incident report about inappropriate touching and other harassment a male student was subjecting her to on the bus and at school dances. She explained that at homecoming the male student “came up behind me and started dancing with us. He wrapped his arms around me so I was unable to get away and he started moving his hands down lower.” She grabbed his hands and told him to stop, and then left homecoming early. Again at prom, the harasser “came up behind me and gripped the sides of me.” Once again, the student called her friend and asked her friend to take her home early from prom. Finally, on the bus, the student “would forcefully pull” her “onto him”—one time “[h]e tried to go under my clothes and down my pants.” She stopped him, but other inappropriate touching occurred, including forceful hugging. (Ex. 111, Doe-PSD 3406-07.) In April 2016, a female freshman student submitted an incident report to her guidance counselor about sexual harassment that a tenth-grade male student was subjecting her to for about six weeks. The harassing student was “being disrespectful and trying to be very sexual,” including by offering the victim “money (large amounts) for me to give him sexual pleasures” and threatening to send inappropriate pictures of her to the whole school, to “spread rumors” about her, and “to ruin [her] life.” (Ex. 112, Doe-PSD 3302-04.) In May 2016, a female PHS student submitted an incident report, complaining that two male students were sexually harassing her on the bus, in the halls, and in class. The student explained that she “was walking in the hall and the two boys behind me would say that they want to grab my butt and they ask what color underwear I’m wearing. They try and dare each other to grab my butt.” (Ex. 113, Doe-PSD 3268-87.) In December 2015, the mother of a female freshman student called PHS administrators to complain that a male student in her class “frequently calls her a whore”; “is always asking questions about her boyfriend and making sexual innuendo”; and “is generally a jerk to her,” including by asking her if she was pregnant in public hallways. The school simply told the harassing student that “he needs to be appropriate.” (Ex. 114, Doe-PSD 3232-35.) Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 20 of 43 17 In November 2015, a student’s mother called and was “very upset because her daughter is being bullied” by a “group of kids who call her names, make crude comments about her body, tell her she should die, etc.” The kids call her “bitch, slut, whore, and other horrible names.” In the hallway. the student was told by a tenth-grade PHS student that “she should kill herself, prove it to him by showing the slit marks on her arms, and hopes she gets run over by a bus today.” The student spoke to her guidance counselor multiple times, and the student’s parents expressed that they were afraid for their daughter’s safety. (Ex. 115, Doe-PSD 3053-61.) In October 2015, a freshman male student sent a long email to his guidance counsel complaining that three other male, freshman students in his tech class were bullying him, repeatedly calling him homophobic (and racist) slurs. The students frequently called the student “gay” and “a faggot” for the entire class to hear. The student’s email stated: “I have given all of them multiple warnings and told them to stop, but despite my efforts they are not stopping. I’m going through enough as it is in this point in my life, and I don’t need extra damage to my self-esteem or body. I would ask that you let my parents out of this because I don’t want drama at home, nor do I want any attention. These things they’re doing are starting to sadden me and hurt my feelings and I won’t let that happen any longer. . . . These videos our wellness teacher is showing us about how bullying drove people to suicide are sad. Maybe that could be prevented if we worried about right and wrong instead of legal risk and how much money the school is going to have to pay.” Moreover, one of the student’s teachers read his email and admonished, “It is now time for the district to step up and enforce the policy it has spent so much time and effort promoting, advertising, and embracing. This is a documented case of bullying written by a quality student that would have no reason to lie.” (Ex. 116, Doe-PSD 3237-49, 3595-3606.) In October 2015 between PHS administrators—including DeBona—exchanged emails about a PHS student being bullied and harassed during band practice. The student’s mother called PHS to complain about the harassment, including that her daughter was being called a “slut” during band practice. Two days after the initial complaint, the student’s mother called the guidance counselor to complain that “no one was addressing the bullying.” In response, the counselor explained that PHS has “2,400 students and people may make comments that she doesn’t like. Sometimes she has to just ignore people. If it happens consistently, then she needs to report it.” The counselor later dismissed the mother’s concerns, saying “She has too much time on her hands! She was fine, just wanted an update. We will be hearing from her a lot!” (Ex. 117, Doe-PSD 3022-43, 3062-65, 3196- 3217.) In October 2015, a female freshman student complained that she was being harassed by another female student in the lunchroom and on the bus. The harasser repeatedly tried to start a fight on the bus and called Student 1 “all kinds of names such as slut, whore and a bitch.” At lunch, the harasser would kick the student out of her seat, call her a whore to all her friends, threaten her, and make her find another seat in the cafeteria. The student told the school safety officer that she felt unsafe riding the bus. The school safety officer completed an incident report, classifying the incident as a “student issue.” (Ex. 118, Doe- PSD 3017-20, 3050-51, 3073-77.) Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 21 of 43 18 Such reports clearly put Defendants on notice that student-on-student sexual harassment was inevitable at PSD. There is no better testament to the training failures at PSD than the fact that Defendants erroneously classified these reports as “peer conflict” and maintain after nearly two years of litigation that none of these ten incidents constitute a report of sexual harassment.9 Finally, Defendants also erroneously claim that “Darbi must show that PSD knew of the risk to her before her injuries occurred,” Defs.’ Opp. at 44 (emphasis added) (citing without a pincite to Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001)). But as Darbi explained in her opening brief, the Third Circuit in Beers-Capital recognized that she need only prove that Defendants were on notice of the risk of injury to PSD students generally—i.e., that “the risk of constitutionally cognizable harm was ‘so great and so obvious that the risk and the failure of supervisory officials to respond [or train] w[ould] alone” amount to deliberate indifference. Pl.’s S.J. Mot. at 33 (citing Beers-Capitol, 256 F.3d at 136-37). C. Darbi Was Harmed The repercussions of Defendants’ deficient training is reflected in the testimony of PSD employees, including DeBona and Rattigan, who repeatedly identified the harassment that Darbi, Doe, and others reported as “peer conflict,” which in turn caused Darbi to suffer serious, legally cognizable harm. See, e.g., Ex. 107, DeBona Dep. 538:19-539:4 (testifying that what happened to both Darbi and Doe was not harassment); Ex. 120, Rattigan Dep. 288:19-289:19 (testifying 9 Indeed, these incidents are so clearly reports of sexual harassment that they should have been produced in response to our original request seeking “[a]ll Complaints (written or verbal), grievances, allegations or charges, formal or informal and relating to discrimination, harassment, bullying, or cyberbullying . . . submitted to Pennridge High School, and all documents concerning any investigation conducted in response to such complaints.” Ex. 119, Defs.’ Answers to Pl.’s Request for Production of Documents (“Defs.’ Answers to Pl.’s RFP”), No. 2. Darbi intends to separately move to re-open discovery between summary judgment proceedings and trial to determine whether Defendants also failed to produce responsive records from the 2016-2017 academic year and to re-depose witnesses who clearly should have been confronted with these records. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 22 of 43 19 that an investigation under PSD’s unlawful harassment policy was not conducted for Goodwin because the conduct was not severe or pervasive). Indeed, PSD did not classify a single incident reported by Goodwin (or Doe) as a report of sexual harassment. Ex. 107, DeBona Dep. 540:4-20. After identifying Darbi’s reports as “peer conflict,” PSD employees took minimal remedial action: (i) verbally instructed her four harassers to have “no contact” with her, and then repeatedly failed to discipline them when they repeatedly violated this instruction; (ii) offered only arrangements that would have required Darbi to miss class or to walk around the school with an escort, subjecting her to uncomfortable questions and potential further harassment; and (iii) after scheduling her into the same lunch period and study hall as all four of her harassers, placed the burden on her to change her lunch or have two PSD employees monitor her harassers—in addition to the more than 800 other students they were already tasked with monitoring. Pl.’s SOUF ¶¶ 15-16, 39, 43-44, 50, 52-54, 58-60, 65-66; Ex. 77, Goodwin Dep. 99:23-25; Ex. 81, Axe Dep. 134:23-135:15. Defendants are wrong when they argue that Darbi did not suffer harm as a result of their failure to train their employees. These undisputed, inadequate responses by PSD employees were the direct result of training that failed to explain how to properly respond to such situations. Had PSD employees been properly trained, they would have conducted adequate investigations for each of Darbi’s reports of harassment, provided an effective safety plan to keep Darbi’s harassers away from her, and properly disciplined her harassers. Instead, their failure to take any of these steps caused Darbi to endure an increasingly hostile educational environment, as well as additional harassment from H., C., B., and N. See Pl.’s S.J. Mot. at 20-25. As a result, Darbi suffered severe psychological harm, including at least one panic attack; extreme bouts of depression, cutting, anger, and suicidal thoughts; and a diagnosis of “severe PTSD.” Pl.’s SOUF Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 23 of 43 20 ¶¶ 28-29, 47-48. Even Darbi’s guidance counselor testified that she visited him “every couple days,” “ha[d] trouble getting through the day,” and left school early whenever she was “too upset to get through the day,” which “stemm[ed] from the fact that [H.] had assaulted her.” Pl.’s SOUF ¶ 61; Ex. 87, Henrysen Dep. 245:16-248:6. In their attempts to argue that Darbi was not harmed by their failure to train PSD employees, Defendants repeat many of the flawed arguments that Darbi has already rebutted, including the unsupported view that H. “clearly understood” and “complied with” his no-contact instruction, that H. spoke “to” her only once during a specific time period, that there was “no evidence” she suffered further harassment after reporting H.’s assault. Defs.’ Opp. at 44-46. They again blame their failure to investigate, in violation of civil rights law, alternatively on the fact that (i) the police were still investigating, (ii) the district attorney declined to bring criminal charges, and (iii) PSD employees did not have access to the police report. See Defs.’ Opp. at 45. Defendants’ continued reliance on concurrent police activity does not create any disputes of material fact as to Darbi’s Section 1983 claims. Instead their deliberate failure to investigate, based on a mistaken understanding of their civil rights obligations, only proves that Defendants: (i) lacked adequate training on how to address sexual harassment (which includes sexual assault), (ii) maintained customs of not investigating sexual assault independently of police activity, and (iii) maintained customs of not disciplining students for sexual assault in the absence of a criminal charge. Significantly, Defendants do not even attempt to argue that Darbi did not suffer academically as a result of the sexual harassment she reported. Defendants do not (and cannot) dispute that after reporting that she was being sexually harassed by H., B., C., and N. for more than a year: Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 24 of 43 21 Darbi withdrew from PHS on two separate occasions. Pl.’s SOUF ¶¶ 29, 70. The cyber program required Darbi to drop three of her junior year courses and repeat a course she had already completed her sophomore year. Pl.’s SOUF ¶ 70. Withdrawing from PHS required Darbi to leave her position on the student council and turn down a nomination to be student council president. Pl.’s SOUF ¶ 71. And Darbi’s GPA was a 3.86 for her freshman year before the reported harassment began, dropped to a 3.27 during her sophomore year, remained suppressed at a 3.44 during her junior year, and returned to a perfect 4.0 during her senior year after all four of her harassers had graduated. Ex. 94, Goodwin-PSD 0275. D. The Forest Hills Case Is Applicable Defendants also spend a substantial amount of time arguing the applicability of Forest Hills. Defs.’ Opp. at 31-35. All of these arguments lack merit.10 First, Defendants attempt to distinguish Forest Hills by: (i) incorrectly claiming that H. understood and “abided by” his no-contact instruction; (ii) downplaying the severity of Darbi’s reports of harassment and incorrectly characterizing them as simply disliking the “mere presence” of her harassers; (iii) stating that “no witnesses” were present to “corroborat[e]” Darbi’s testimony; (iv) incorrectly arguing that B., C., and N.’s conduct did not constitute harassment simply because they believed Darbi had reported them to the police; and (v) mistakenly stating that Darbi’s report of C.’s hallway bump was “resolved.” Defs.’ Opp. at 32, 35. Most egregious is their argument that “H. was never charged with a crime” and that he did not “plead guilty” to a criminal offense, irrelevant defenses that are, as explained above, belied by case law, Department of Education guidance, and Defendants’ own written policies. 10 In addition to their substantive arguments, Defendants note that Forest Hills was an unpublished district court decision from another circuit. The fact that it is unpublished is irrelevant: no district court decision—“whether published in a reporter or not”—is binding on any other district court decision, and therefore Forest Hills is no less persuasive here than any other district court decision, including those from within the Third Circuit. Daubert v. NRA Grp., LLC, 861 F.3d 382, 395 (3d Cir. 2017) (quoting Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)); Defs.’ Opp. at 30. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 25 of 43 22 Second, Defendants wrongly characterize PSD’s actions as superior to those of the Forest Hills defendants. Id. They rely on PSD’s single disciplinary response (i.e., suspending B. for threatening to jump Darbi) and PSD’s single and woefully inadequate investigation (i.e., reviewing video surveillance of C.’s bump) to obscure the reality that PSD employees did far less in response to Darbi’s numerous reports of sexual harassment than the Forest Hills defendants did in response to their plaintiff’s single report. Pl.’s S.J. Mot. at 24. In Forest Hills, even though there were no witnesses to the sexual assault, the district did not just speak to the respondent, but also interviewed three people who had been nearby during the assault. 2015 WL 9906260, at *2. Here, PSD failed to adequately investigate Darbi’s numerous reports of harassment. Although Defendants claim “[t]here was no one else to interview or speak with about what occurred inside [H.’s] car,” PSD employees never attempted to identify any PHS students who had heard about the sexual assault directly or learned of it indirectly through the sexual rumors or H.’s bragging. Defs.’ Opp. at 33; Pl.’s SOUF ¶¶ 13, 24. Similarly, when PSD employees realized C.’s bump was not captured on camera, they failed to take any additional investigation steps, such as trying to interview witnesses who were nearby (whom they could have identified from the surveillance footage), as the Forest Hills district did. Pl.’s SOUF ¶ 64. Finally, Defendants erroneously claim that the Forest Hills defendants misstated the law and never argued that their training was adequate. Defs.’ Opp. at 30-31. But those missteps were merely the basis for the Forest Hills court’s denial of the defendants’ motion for summary judgment. 2015 WL 9906260, at *15-*16. In contrast, the court’s decision to grant the plaintiff’s motion for summary judgment was based on undisputed evidence affirmatively showing that the defendants’ training was deficient. Id. at *17. Likewise, Darbi has established that Defendants’ trainings were so woefully inadequate that they were deficient as a matter of law, and she is Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 26 of 43 23 therefore entitled to summary judgment on her failure-to-train claim. Pl.’s S.J. Mot. at 15-17; Pl.’s Opp. at 44-47. No basis exists for distinguishing Forest Hills. III. DEFENDANTS MAINTAINED POLICIES AND CUSTOMS OF FAILING TO PROPERLY RESPOND TO STUDENT-ON-STUDENT SEXUAL HARASSMENT Defendants advance two arguments in opposition to Darbi’s motion for summary judgment on her policy and custom claim: (i) Darbi has not brought such a claim, and (ii) disputes exist as to whether Defendants maintained such policies and customs. Both challenges are without merit. A. Darbi Pleaded in Her Amended Complaint Section 1983 Claims against Each Defendant, including Monell Claims against PSD Darbi pleaded Section 1983 claims against each Defendant based on their involvement in maintaining policies, practices, and customs of inadequately addressing reports of student-on- student sexual harassment. Defendants are undoubtedly aware that this theory lies at the heart of Darbi’s case, as well as the companion case brought by Doe. Defendants are further aware that Darbi has developed a robust record substantiating that theory of liability under Section 1983. But Defendants would prefer not to address these claims or that evidence at all. So, they argue that Darbi did not plead such a claim in her Amended Complaint. Defs.’ Opp. at 46-47. This argument is both factually inaccurate and legally irrelevant. It is well settled that “the touchstone of the § 1983 action against a government body,” such as PSD, “is an allegation that official policy, [practice, or custom] is responsible for a [constitutional] deprivation.” Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690-92 (1978). Even in the absence of a written policy, a single decision by a person with final policy- making authority, such a DeBona and Rattigan, can constitute a policy, practice, or custom under Section 1983. Id. at 694-95; Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (defining Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 27 of 43 24 “policy making” as “a deliberate choice to follow a course of action . . . from among various alternatives”). Relying on these well-settled theories of constitutional tort liability, Darbi has consistently alleged and argued that Defendants are liable under Section 1983 for maintaining policies, practices, and customs relating to sexual harassment and that those policies caused violations of her constitutional right to equal protection under the law. Defendants have ignored numerous paragraphs that plainly allege that Defendants maintained unlawful policies, practices, or customs in violation of Section 1983. See Pl.’s Am. Compl. In the fifth paragraph of the pleading, Darbi alleged that PSD “violated Miss Goodwin’s rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.” Id. ¶ 5. Darbi further alleged that Rattigan and DeBona are “final policymaker[s]” and that “PSD policy grants” DeBona “unreviewable discretion” to “resolv[e] harassment complaints”—i.e., factual and legal predicates for pleading most policy or custom claims. Id. ¶ 11; see also id. at ¶ 31. Moreover, Darbi alleged that “Defendants PSD, Superintendent Rattigan, and Principal DeBona 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”—two of the same exact customs for which she now presents undisputed evidence in support of her motion for summary judgment. Id. at ¶ 92; see also id. at ¶¶ 22-24, 85, 93, 95, 114-16. Defendants are therefore flatly wrong in arguing that there are no allegations relating to an alleged policy or custom in Darbi’s operative complaint. And they are equally wrong that Darbi never pleaded a Section 1983 claim against Defendants for “maintaining polices and customs of failing to address reports of student-on-student sex-based harassment.” Defs.’ Opp. at 46-47. She absolutely did so. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 28 of 43 25 In any event, form does not prevail over substance. Minor nuances in the pleading—such as the caption of a count or the precise articulation of the legal theory—are not dispositive of whether a Section 1983 claim has properly been put before this Court. See, e.g., Welch v. Laney, 57 F. 3d 1004, 1010-11 (11th Cir. 1995) (“Technical errors in the caption should not control over the substance of the complaint.”). Courts should not submit to “tyranny of labels” when assessing a complaint, but rather should assess whether the complaint put the defendant on notice of the nature of the claims at issue. S. County Sand & Gravel Co. v. S. Kingstown, 160 F.3d 834, 836 (1st Cir. 1998); see, e.g., Alvarez v. Hill, 518, F.3d 1152 (9th Cir. 2008) (“Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories.”). Darbi’s complaint clearly put Defendants on notice that they were being sued because their maintenance of various policies, practices, and customs led to violations of her equal protection rights. That is all the federal pleadings standards require.11 Further, Defendants failed to contest the existence of this claim when Darbi referred to it in a previous court filing. In October 2018, Darbi filed a motion to compel (which this Court granted) asserting that the requested peer conflict records were relevant “because they go to the heart of Miss Goodwin’s claims that Defendants . . . had a pattern and practice of deliberate indifference.” Pl.’s Mot. to Compel, ECF No. 81-1, at 7 (emphasis added). Darbi further asserted 11 In the related action involving Jane Doe, Defendants cited wholly inapposite cases to argue that this Court need not consider any argument raised in a dispositive motion that is broader than the allegations in the complaint. See Doe v. Pennridge Sch. Dist., No. 17-cv-03570-TR, Defs.’ Summ. J. Reply (“Doe Defs.’ Reply”) at 13, ECF No. 95. For example, in MGJ v. School District of Philadelphia, the court dismissed the plaintiff’s Section 1983 claims because the plaintiff’s argument that her school district lacked a “policy addressing how to handle students after student-on-student sexual harassment occurs” was “not specifically alleged in the Complaint” and was “broader” than her allegation that better policies of training, supervision, and screening “would have prevented” her assault. No. CV 17-318, 2017 WL 2277276, at *9 (E.D. Pa. May 25, 2017) (emphasis added). In contrast, Darbi’s dispositive motion and Amended Complaint both specifically argue that Defendants maintained policies and customs of failing to address reports of student-on-student student sexual harassment after they occur. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 29 of 43 26 that, “[c]onsistent with the claims she filed, [she] “initially served discovery seeking information related to . . . PSD’s policies, investigation practices, and enforcement procedures related to harassment.” Id. at 2 (emphasis). Defendants objected to producing these documents, but never once argued that Darbi had not asserted a claim based on practices, patterns, and policies. It strains credulity for Defendants to profess surprise at this Monell claim against all Defendants. In any event, Defendants would suffer no prejudice whatsoever were this Court to consider the claims—as it should—because Defendants have already briefed the merits of those claims in their Opposition. Defs.’ Opp. at 47-53. In sum, Darbi pleaded and consistently maintained that Defendants are liable under Section 1983 for maintaining policies and customs of failing to address student reports of sexual harassment. B. No Material Dispute Exists that Defendants Maintained Policies and Customs of Not Reporting Sexual Harassment Allegations to the Title IX Coordinator, Not Investigating Reports of Sexual Harassment, and Not Issuing Written Reports of Investigation 1. Failing to Notify the Title IX Coordinator, Jacqueline McHale The crux of Defendants’ counter to the claim that it maintained policies and customs of not notifying its Title IX Coordinator of reports of harassment is that if PSD employees categorized an incident as peer conflict, the incident was by definition not a report of sexual harassment that required notice to the Title IX Coordinator. This approach ignores the substance of the incidents reported to Defendants and creates a tautology: incidents of sexual harassment were reported to the Title IX Coordinator, so if it was not reported to the Title IX Coordinator, it was not sexual harassment. Discovery has proven this tautology to be false. Not only did PSD employees fail to report to McHale any of Darbi’s or Doe’s reports of harassment, but, as described above, they also failed to report to McHale any of Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 30 of 43 27 the more than 600 pages of “peer conflict,” incidents, including the ten above-referenced incidents that involved unwanted touching, unwanted solicitation of sexual acts, threats to send sexually explicit photographs, and girls repeatedly being called, “bitch,” “slut,” and “whore.” Defendants—in reference to these 600 pages of records that neither contain a reference to McHale or a report of investigation—argue that “Darbi improperly relies upon proclamations that certain events never took place merely because her counsel did not obtain discovery relating to them. For instance, Darbi cites to Ms. McHale’s name not appearing in a set of discipline records produced in response to a Court Order compelling records pertaining to ‘peer conflict’ as probative that investigation of harassment did not take place.” See Defs.’ Opp. at 25. Darbi most certainly relies on the lack of written reports of investigation or references to McHale among these 600 pages to argue that no written reports were prepared of these investigations and these reports were not sent to McHale. This Court ordered Defendants on October 17, 2018 to produce “records containing reports, investigations, and/or discipline pertaining to peer conflict involving a sexual or gender-based derogatory term, gesture, or conduct.” Order Compelling Production, ECF No. 83 (emphasis added). Either written reports and referrals to McHale do not exist with respect to these 600 pages of records or Defendants have failed to comply with the Court’s order. McHale’s testimony strongly suggests that the former is the case, not the latter. McHale recalled working with only one parent during her entire tenure as Title IX Coordinator, Darbi’s mother. This was initiated by Darbi’s mother; Defendants use the passive voice to state that McHale “became involved with Darbi and her mother” to avoid admitting that PSD employees played no role in initiating McHale’s “involve[ment].” Ex. 121, McHale Dep. 37:23-38:5; Defs.’ Opp. at 49. McHale has “never met with a student directly, either in person or over the phone.” Id. at 39:10-18. She has only, by her own admission, ever worked on one Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 31 of 43 28 investigation apart from Darbi’s involving a student in PSD—a matter regarding the booster club. Id. at 39:23-40:15. Tellingly, Defendants fail to offer any evidence that McHale was notified of more than the two investigations McHale identified. No argument exists that the Title IX Coordinator was notified of reports of sexual harassment. Rather than dealing with this unequivocal evidence, Defendants attempt to manufacture an issue, arguing that McHale did not agree that PSD administrators had “sole” authority to investigate sexual harassment claims without notifying her. McHale could not have testified more clearly that building-level administrators did not involve her in investigations into allegations of sexual harassment. When asked, “In your experience as Title IX coordinator, at what point does administration or guidance reach out to you regarding student issues?” McHale answered, “[t]hey have not at Pennridge.” Ex. 121, McHale Dep. 42:23-43:2. McHale could identify no instances where PSD administrators felt that a report rose to her level in order to have the PSD administrators contact her: Q. So student sexual harassment is handled at the building level, correct? A. Yes. Q. In those instances you are not alerted to sexual harassment? A. Not unless they feel it rises to my level. Q. And when does it rise to your level? A. It hasn’t at Pennridge School District. Ex. 121, McHale 45:21-46:5. In fact, McHale acknowledged that it was an “unwritten policy” at PSD that PHS administrators “had the authority in their position as a high school administrator to investigate a student complaint”: Q: Where in this [sexual harassment] policy, Exhibit 15, is the administration given authority, sole authority, to investigate complaints of sexual harassment? Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 32 of 43 29 A: I’m not aware of it. Q. So then the administration does not have the authority to solely investigate a complaint of sexual harassment, correct? A. Not in accordance with this board policy. Q. And is there any other policy that you’re aware of that gives administrators authority to investigate complaints of sexual harassment? A. I think it would be unwritten policy that they had the authority in their position as a high school administrator to investigate a student complaint[.] Ex. 3, McHale Dep. 248:23-249:14 (emphasis added). McHale also acknowledged that her “understanding of the policy” is that “in order to ensure compliance . . . with Title IX, it’s important that sexual harassment complaints be reported” to her. Ex. 3, McHale Dep. 249:20-24. McHale’s testimony was unequivocal and no matter how much Defendants try to parse her or any other witness’s testimony, the facts bear out that PSD employees had a custom of not notifying McHale of, or involving her in, claims of sexual harassment, despite PSD board policy requiring that she be notified of sexual harassment allegations: McHale has only ever been involved in two matters related to students, one of which was initiated by Darbi’s mother. 2. Failing to Investigate or Discipline Defendants’ arguments are internally inconsistent. For example, despite repeated (and flawed) arguments that Darbi’s report against H. did not constitute criminal rape, that H. was not arrested or charged with criminal rape, and that Darbi lacked a criminal restraining order, Defendants nonetheless deny that they maintained a custom of failing to investigate or discipline students for sexual assault independent of police activity. Similarly, despite repeatedly pointing out that certain incidents occurred outside of school, and indeed, despite organizing their motion for summary judgment by the location of Darbi’s reported incidents, they nonetheless deny that they maintained a custom of failing to investigate or discipline students for sexual harassment Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 33 of 43 30 that occurs outside of school. Compare Defs.’ Opp. at 49-52, with Defs.’ S.J. Mot. at 7, 10, 21, 26-31, 36, 38, 42, 46, 52; Defs.’ Opp. at 27-28, 33-34. Although Defendants claim to be restricted by certain PSD board policies, it is undisputed that PSD is authorized under its own written policies to discipline students for acts of bullying—which can include harassment—that occur “outside a school setting,” and that PSD’s duty to investigate harassment “shall not be negated by the fact that a criminal investigation of the incident is pending or has been concluded.” Defs.’ Opp. at 51; Ex. 97, Doe-PSD 1091 (PSD Board Policy 249); Ex. 5, Doe-PSD 1089 (PSD Board Policy 248). Defendants erect a strawman, arguing that DeBona acknowledged that PSD, theoretically, had the ability to investigate sexual assaults that occurred off campus. Defs,’ Opp. at 50. Regardless of what might be theoretically possible, DeBona testified that PHS does not in fact investigate out-of-school incidents aside from, perhaps, contacting the local police: Q. Okay. Do you know if Mr. Hegen took investigatory steps [with respect to Darbi’s report of sexual assault] outside of possibly calling the police? A. For the outside incident other than speaking to the students, probably not. Q. Okay. A. We put it in the hands of the police officers, incidents that happen outside of school, and we trust that they do their job. Q. Okay. You mentioned earlier, though, that Pennridge has a responsibility to investigate off-campus incidents? A. That may be contacting the local police. Ex. 4, DeBona Dep. 186:8-22 (emphasis added). Defendants appear to erroneously equate this practice of “may[]be contacting the local police” with “investigat[ing] . . . in collaborat[ion] with the police.” Defs.’ Opp. at 50. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 34 of 43 31 This custom of failing to investigate out-of-school harassment was observed by Hegen, who testified that he would not investigate off-campus incidents that did not involve a school- related function: Q. Did you reach any conclusions as part of your investigation in this incident? A. I was not investigating the incident. I was making sure that the proper authorities had been notified, and I was assured that it was in the hands of the police . . . and it was off school grounds. I don’t investigate things that happen off school grounds unless it’s involving something that is, say, an athletic event at another high school, and our students break a rule there. Q. So based on what you said, does that mean you don’t consider what you did in connection with this incident to be an investigation? A. It was not an investigation. Ex. 6, Hegen Dep. 321:8 – 322:8 (emphasis added). Moreover, any investigation would be pointless, because, as DeBona explained, PSD would not take “any disciplinary action” if an event occurs off campus, “unless it is a school-sponsored event.” Ex. 4, DeBona Dep. 246:10-19. Despite Defendants’ best attempts, even they admit at one point: With regard to Darbi’s rape claim, the alleged event occurred off-campus on a weekend night and was uncorroborated by any other information available to PSD. DeBona said that because there were no charges filed against H. and there was no restraining order, PHS made every attempt to provide reasonable accommodations and supports for Darbi, but under the facts presented at the time, with no witnesses or evidence other than the statements provided by Darbi and H., the school could not punish H. Defs.’ Opp. at 50-51 (emphasis added). There is simply no dispute that PSD had a customs of failing to investigate and discipline students for sexual harassment that occurs outside of school and for sexual assault independent of police activity. Darbi and Defendants thus appear bizarrely to be in agreement that Darbi is entitled to summary judgment on her policies and customs claims. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 35 of 43 32 3. Failing to Prepare Written Reports of Investigation Contrary to Defendants’ argument, Darbi’s claim that Defendants failed to prepare written investigation reports of sexual harassment is not limited to the fact that DeBona “did not personally submit” such reports to McHale. Defs.’ Opp. at 52. Instead, Darbi’s claim is based on the fact that no investigation reports were prepared or submitted by anybody. Defendants argue that assistant principals submitted reports on DeBona’s behalf, but no evidence supports that contentiom. Darbi requested “[a]ll complaints (written or verbal), grievances, allegations or charges, formal or informal and relating to discrimination, harassment, bullying, or cyberbullying, including all completed ‘Report Form for Complaints of Harassment/Bullying/Cyber-Bullying,’ submitted to Pennridge High School, and all documents concerning any investigation conducted in response to such complaints.” Ex. 119, Pl.’s RFP, No. 2. Defendants have not produced a single report of investigation in response to this request, and they tellingly do not append a single investigation report to their opposition in support of their claim that the PHS assistant principals prepared these reports. Furthermore, McHale candidly acknowledged that she did not receive any written reports related to Darbi’s matter, Ex. 3, McHale Dep. 52:1-53:14, and that it was a violation of PSD’s written policies that she had not received such reports. Ex. 121, McHale Depo. 221:7-12. No dispute exists that PSD employees failed to prepare written reports of investigation in response to sexual harassment reports. IV. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY DeBona and Rattigan have offered conflicting and ever-shifting arguments in support of their purported entitlement to qualified immunity. In their affirmative summary judgment motion, they argued without a single legal citation that Darbi’s constitutional rights were not clearly established. Defs.’ Mot. Summ. J. at 52, ECF No. 94 (hereinafter “Defs.’ S.J. Mot.”). In Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 36 of 43 33 doing so, Defendants have waived their ability to assert such an argument in support of their affirmative summary judgment motion.12 Further, Defendants are wrong on the law. Darbi has a clearly established right under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution to have PSD and its administrators, DeBona and Rattigan, address student-on- student sexual harassment. Defendants tellingly offer no legal authority to support their claim that despite a plethora of case law to the contrary, Darbi’s equal protection right was not clearly established at the time of the events in this case. Defs.’ Opp. at 35-40. Their primary argument is the cases Darbi cites involved “much more egregious” harassment. Id. at 36. As an initial matter, this is not even true. In DiStiso v. Cook, the Second Circuit held that the principal and teacher were not entitled to qualified immunity as to the plaintiff’s reports of “racial name-calling”—separate and apart from reports of physical harassment, thus recognizing that a school district’s failure to address verbal harassment alone is a violation of a student’s clearly established equal protection right. DiStiso v. Cook, 691 F.3d 226, 250 (2d Cir. 2012); see also Defs.’ Opp. at 37-38. It strains credulity for Defendants to claim that Darbi’s reports of H.’s sexual assault, the subsequent sexual rumors and H.’s bragging, C.’s physical assault, B.’s threat of physical assault, and numerous sexual 12 In the related action involving Doe, Defendants erroneously argue that they did not waive their arguments as to the second element of qualified immunity under United States v. Joseph, 730 F.3d 336 (3d Cir. 2013). First, they mistakenly argue that Joseph pertains only to waiver in criminal cases, failing to recognize that the Third Circuit has extended Joseph’s waiver framework to civil cases. Spireas v. Comm’r Internal Rev., 886 F.3d 315, 321 n.9, 324 (3d Cir. 2018); see Doe Defs.’ Reply at 22-23. Second, Defendants incorrectly argue that Joseph allows them to “more fully explain” their qualified immunity argument in subsequent briefs despite not doing so in their opening brief. Id. at 23. On the contrary, the court in Joseph held that the defendant waived his argument regarding one element of the legal rule because, inter alia, his original argument concerned a different element of that same legal rule. Joseph, 730 F.3d at 342- 43. Similarly, Defendants in their opening Doe brief only developed arguments relating to the first element but not the second element of qualified immunity. Doe v. Pennridge Sch. Distr., Pl.’s Summ. J. Opp. at 45-48, ECF No. 88. Therefore, Defendants in Doe waived any arguments as to that second element. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 37 of 43 34 epithets, including N.’s calling her a “cunt,” were somehow much less egregious than the DiStiso plaintiff’s reports of racial epithets alone. Moreover, the Supreme Court has held that a constitutional right is “clearly established” if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right,” and that it is by no means necessary for “the very action in question [to] ha[ve] previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). The Court has “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.” Id. at 741 (citing United States v. Lanier, 520 U.S. 259 (1997)). In fact, a right can be clearly established even if there are “novel factual circumstances” or “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.” Id. at 740. The right to be free from sexual harassment in school is clearly established under the Equal Protection Clause. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009). A decade ago the Supreme Court clarified that a student may pursue claims based on sexual harassment both under Title IX and § 1983. Id. The case law discussed throughout Darbi’s briefs on the meaning of “deliberate indifference” in the school context—an essential element of claims under each statute—has clearly established that she had a constitutional right to have PSD and its administrators address student-on-student sexual harassment while she was a student at PHS. Moreover, an abundance of precedent demonstrates that Darbi’s constitutional rights were clearly established during the relevant time period of her case. For instance, Darbi has cited six federal appellate court decisions recognizing an equal protection right to be protected from student-on-student harassment since as early as 1988. Hill v. Cundiff, 797 F.3d 948, 978-79 (11th Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 38 of 43 35 Cir. 2015) (concluding that the constitutional right to be free from a school’s failure to address peer sexual harassment had been clearly established since at least 2010); Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x. 348, 350-51, 356-58 (6th Cir. 2014) (concluding that the constitutional right to be free from a school’s failure to address peer religious and sex-based harassment, including online harassment, had been clearly established since at least in 2007); DiStiso, 691 F.3d at 240-41 (concluding that the constitutional right to be free from a school’s failure to address peer racial harassment, occurring both in school and off school grounds, had been clearly established since at least 1999); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1132 (9th Cir. 2003) (concluding that the constitutional right to be free from a school’s failure to address peer sexual orientation harassment had been clearly established since at least 1991); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1250-51 (10th Cir. 1999) (concluding that the constitutional right to be free from a school’s failure to address peer sexual harassment, including via phone calls to a student’s home, had been clearly established “since at least 1992”); Nabozny v. Podlesny, 92 F.3d 446, 455-56 (7th Cir. 1996) (concluding that the constitutional right to be free from a school’s failure to address peer sexual orientation harassment had been clearly established since at least 1988). Moreover, since at least 2013, a clearly established constitutional right has existed within the Third Circuit for students to be protected from off-campus sexual harassment after being removed from school by a third party. L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 250 (3d Cir. 2016). Against this backdrop, Defendants simply cannot show that Darbi’s equal protection right to be free from Defendants’ deliberate indifference to student-on-student sexual harassment, including out-of-school harassment, was not clearly established at all times relevant to this litigation. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 39 of 43 36 Darbi also notes that Defendants make a number of errors in their legal analysis in each of the above circuit court decisions in their attempt to distinguish those cases. For example, they incorrectly state that the Eleventh Circuit in Hill “affirmed the grant of summary judgment to a school board and all individual defendants except for the school president,” when in actuality, the Circuit reversed the district court’s grant of summary judgment to the principal, an assistant principal, and a teacher’s aide. Hill, 797 F.3d at 978-80; Defs.’ Opp. at 36. Furthermore, in an attempt to distinguish Shively, Defendants appear to argue that “an entirely different legal standard is applicable” to Darbi’s motion for summary judgment versus the Shively defendants’ motion to dismiss, even though the question of whether a right is clearly established is purely legal and does not vary materially based on the stage of the litigation in which the issue is raised. Defs.’ Opp. at 37. Finally, although material factual similarities are not necessary, Defendants’ own descriptions of the cases show that there are in fact numerous factual similarities between the aforementioned circuit cases and Darbi’s case. Like the Hill plaintiff, who reported bleeding and swelling as a result of forcible penetration, Darbi reported that H. subjected her to a similarly serious assault. Defs.’ Opp. at 36; Ex. 14, CTRL0000248; Ex. 77, Goodwin Dep. 35:9-12, 36:10- 12. Like the Shively, DiStiso, and Nabozny plaintiffs, who reported “slurs” and physical violence, Darbi reported being subjected to sexual epithets (including “cunt”), physical assault, and a threat of physical violence. Defs.’ Opp. at 37-38, 40. Like one of the Flores plaintiffs, who alleged he was told by a school employee, “don’t bring me this trash anymore” in response to a report of harassment, Darbi reported she was told by DeBona that her reports of harassment had been a “huge waste of everyone’s time.” Defs.’ Opp. at 38; Ex. 77, Goodwin Dep. 121:7-9; Ex. 86, Goodwin-PSD 0056. Like another of the Flores plaintiffs, whose assailant bragged about Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 40 of 43 37 receiving light punishment, and the Murrell plaintiff, who was ridiculed for a prior sexual assault, Darbi reported that H. had bragged about sexually assaulting her and had spread rumors about her having sex with two people on the same night. Defs.’ Opp. at 39; Pl.’s SOUF ¶¶ 21-23. And, like all of the plaintiffs in those cases, she eventually left her school due to the harassment. Hill, 797 F.3d at 965; Shively, 579 F. App’x at 352; DiStiso, 691 F.3d at 229; Flores, 324 F.3d at 1133; Murrell, 186 F.3d at 1244; Nabozny, 92 F.3d at 452. Defendants DeBona and Rattigan have not met their burden of showing they are entitled to qualified immunity on Darbi’s Section 1983 claims against them in their individual capacities. CONCLUSION No material dispute exists that Defendants’ training regarding student-on-student sexual harassment was inadequate or that Defendants maintained policies and custom of not notifying the Title IX Coordinator of reports of sexual harassment; not investigating reports of sexual harassment independent of police activity, including where they involve off-campus conduct; and not issuing written reports of harassment investigations. Defendants were deliberately indifferent to the risk that PSD students would be harmed by their inadequate training and their deficient policies and customs, and Darbi was in fact harmed as a result. Accordingly, she is entitled to summary judgment on the claims on which she has moved. Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 41 of 43 38 Respectfully submitted, February 28, 2019 BY: /s/ Courtney G. Saleski Courtney G. Saleski (Bar No. 90207) Ben C. Fabens-Lassen DLA PIPER LLP (US) One Liberty Place 1650 Mark Street, Suite 4900 Philadelphia, PA 19103-7300 Telephone: 215.656.2431 E-mail: Courtney.Saleski@dlapiper.com Ben.Fabens-Lassen@dlapiper.com Matt Graves DLA PIPER LLP (US) 500 Eighth Street, NW Washington, D.C. 20004 Telephone: 202-799-4469 E-mail: Matthew.Graves@dlapiper.com Shiwali Patel Neena Chaudhry Elizabeth Tang NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, Suite 800 Washington, D.C. 20036 Telephone: 202-588-5180 Email: nchaudhry@nwlc.org spatel@nwlc.org etang@nwlc.org Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 42 of 43 CERTIFICATE OF SERVICE I hereby certify that on the 28th day of February, 2019, I caused the foregoing Plaintiff’s Memorandum in Reply to Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment to be filed with the Clerk of Court of the United States District Court for the Eastern District of Pennsylvania using the ECF system, it is available for viewing and downloading from the ECF system, and a true and correct copy was served via ECF to all counsel of record registered with the ECF system. BY: /s/ Courtney G. Saleski Case 2:17-cv-02431-TR Document 124 Filed 02/28/19 Page 43 of 43
