GOODWIN v. PENNRIDGE SCHOOL DISTRICT et al

MOTION for Summary Judgment REDACTED

E.D. Pa.January 14, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________________________ DARBIANNE GOODWIN : : Civil Action No: 17-cv-02431-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : ______________________________________________________________________________ ORDER AND NOW, this ____ day of _____________, 2019, upon consideration of the Motion for Summary Judgment of Defendants, Pennridge School District, Jacqueline A. Rattigan and Gina DeBona, Memorandum of Law in Support thereof, and any Response thereto, it is hereby ORDERED and DECREED that Defendants’ Motion for Summary Judgment is GRANTED. Judgment is hereby entered in favor of Defendants, Pennridge School District, Jacqueline A. Rattigan and Gina DeBona, and against Plaintiff, DarbiAnne Goodwin, and all claims of Plaintiff against Defendants, Pennridge School District, Jacqueline A. Rattigan and Gina DeBona, are DISMISSED with prejudice. BY THE COURT; ____________________________________ Honorable Timothy R. Rice U.S. Magistrate Judge Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 1 of 55 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________________________ DARBIANNE GOODWIN : : Civil Action No: 17-cv-02431-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : ______________________________________________________________________________ MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DeBONA Defendants, Pennridge School District (“PSD”), Jacqueline A. Rattigan (“Rattigan”), and Gina DeBona (“DeBona”), by and through their undersigned counsel, respectfully move for summary judgment on the grounds that there is no evidence, for which a jury could find in favor of Plaintiff, on her claims against PSD, Rattigan and DeBona. Accordingly, PSD, Rattigan and DeBona are thereby entitled to judgment as a matter of law. In support thereof, PSD, Rattigan and DeBona submit the attached Memorandum of Law and Statement of Undisputed Facts, which are incorporated herein and are being filed simultaneously with the instant Motion. Respectfully, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 1/14/19 Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 2 of 55 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________________________ DARBIANNE GOODWIN : : Civil Action No: 17-cv-02431-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : ______________________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN, GINA DeBONA Defendants, Pennridge School District ("PSD"), Jacqueline A. Rattigan ("Rattigan"), and Gina DeBona ("DeBona"), by and through their attorneys, Marshall Dennehey Warner Coleman & Goggin, submit this Memorandum of Law in support of their Motion for Summary Judgment. I. PROCEDURAL POSTURE, PARTIES, CLAIMS AND STATEMENT OF FACTS A. Procedural Posture On May 30, 2017, Plaintiff filed a Complaint. On June 29, 2017, Plaintiff filed an Amended Complaint. On July 6, 2017, Defendants filed a Motion to Dismiss the Amended Complaint. On March 6, 2018, United States Magistrate Judge Timothy R. Rice entered an Order denying Defendants' Motion to Dismiss as to Claims 1-4 and granted Defendants' Motion as to Claim 5, Intentional Infliction of Emotional Distress. On March 20, 2018, Defendants filed their Answer with Affirmative Defenses to Plaintiff's Amended Complaint, denying liability. The parties have undertaken significant discovery and this case is now ready for the entry of summary judgment in favor of Defendants. B. The Parties PSD operates several public schools in Bucks County, and one high school known as Pennridge High School ("PHS"). (SOUF ¶17) Plaintiff, DarbiAnne Goodwin ("Plaintiff") or Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 3 of 55 2 ("Darbi"), began attending PHS during the 2013 – 2014 school year when she was a freshman. (SOUF ¶3). Rattigan was the Superintendent of PSD from August, 2013 through June, 2018. (SOUF ¶18). DeBona began her employment with PSD on July 1, 2014 as the PHS Building Principal (SOUF ¶19). Plaintiff sued PSD in its capacity as a public school district located in Perkasie, Pennsylvania, that encompasses PHS, and as a recipient of federal funding. (SOUF ¶17) Plaintiff sued Rattigan in her capacity as the PSD Superintendent and an alleged final policymaker with final authority over certain policies within PSD. Plaintiff sued DeBona in her capacity as the Principal of PHS and her alleged position as a final policymaker empowered to make, review and approve final decisions about PHS's functions. The Amended Complaint alleges that PSD policy grants unreviewable discretion to the principal in resolving harassment complaints. (SOUF Ex. 2, ¶10-11). C. Claims The First Claim for Relief in the Amended Complaint alleges a violation of Title IX, 20 U.S.C. §1681(a) – Deliberate Indifference against PSD. The Second Claim for Relief asserts a Violation of the Right to Equal Protection brought under 42 U.S.C. §1983 – Hostile Environment against PSD, Rattigan and DeBona. The Third Claim for Relief asserts a Violation of the Right to Equal Protection, brought under 42 U.S.C. §1983 – Failure to Train against PSD, Rattigan and DeBona. The Fourth Claim for Relief asserts a Violation of the Right for Equal Protection, brought under 42 U.S.C. §1983 – Supervisory of Liability against Rattigan and DeBona. (SOUF Ex. 2). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 4 of 55 3 D. Facts1 1. The Alleged Rape The genesis of this case is Plaintiff’s untruthful claim that on the evening of December 27, 2014, during Christmas break of her sophomore year of high school, H., a junior at PHS, raped her in his vehicle that was located in the parking lot of a restaurant known as Country Place, located in Perkasie, Pennsylvania. (SOUF ¶7). Plaintiff claims that she reported the rape and “repeated reports of sexual harassment” to PHS and the school failed to adequately investigate the rape and respond to Plaintiff’s reports of sexual harassment, and consequently, an environment existed that empowered H. and his friends to retaliate against Darbi for reporting the rape. (SOUF ¶10). The Amended Complaint alleges that in February 2015, Darbi reported the rape to her therapist and mother; that in March 2015, Darbi reported the rape to the police who began an investigation; and that in March 2015, Darbi and her mother met with Assistant Principal Scott Hegen (“Hegen”), and informed Hegen of the rape. (SOUF ¶8-9, 11). During her deposition, Darbi testified that between December 27, 2014 and the time she reported the rape to PHS, she saw H. around school, but he never said anything to her. (SOUF ¶13). The Amended Complaint identifies H.’s friends as N., B. and C. and claims they were Darbi’s “unrelenting harassers.” (SOUF ¶14). Darbi testified that between December 27, 2014 and the time she reported the rape to PHS, she had no contact with B. or N., but had “regular conversations” with C. Darbi said she told C. that H. assaulted her. (SOUF ¶13). 1 Defendants have included certain significant facts below and also incorporate by reference their comprehensive Statement of Undisputed Facts with exhibits. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 5 of 55 4 As will be discussed more fully below, H. never raped Darbi and H. is not a rapist. Nonetheless, in the Amended Complaint the word "rape" is used 27 times to describe Darbi's encounter with H. and alleges H. was her rapist 10 times. (SOUF ¶28). Darbi testified that on December 27, 2014, she and a group of boys went to the Quick Stop in Perkasie, Pennsylvania. There were between seven and nine people in the group, and Darbi was the only girl present. Neither B., N. nor C. were present. Darbi said all the boys in the group attended PHS. The group left Quick Stop and then went to eat at Country Place Restaurant. H. drove Darbi to the restaurant and no one else was present in the vehicle. Darbi testified that after they left the restaurant, H. assaulted her in the car by penetrating her with his finger. Darbi said the assault occurred for about 45 minutes to an hour, and that H. dropped her off at home while still assaulting her. Darbi arrived home before her midnight curfew and noticed that she had bruises on the left side of her chest, but she does not know the cause of the bruising. Darbi removed her shirt she had been wearing and threw it in the hamper because there was blood on the shirt. Darbi said the blood was hers, but she does not know the cause of her bleeding. Darbi’s mother did not see the blood on her shirt, nor did her siblings or mother observe her bruises. (SOUF ¶29-30). Although she does not recall the date, Darbi told her friend K.2 and another friend who attended Easton Area High School about the December 27, 2014 alleged assault. Darbi next told her counselor, Jonathon Getz2 around February 20, 2015. Getz advised Darbi that he would 2 Darbi began receiving counseling from Penn Foundation in May 2012, when she was 13 years old. She began treating with Jonathon Getz in May 2012 to deal with her parents' divorce. Before the December 27, 2014 incident Darbi received treatment for many issues, including frequently being "overly emotional, tearing up, encountering many stresses in her life, losing a friend through suicide, another friend thought about suicide, learning that her sister was cutting, learning that her sister is sexually active and feeling that her family did not allow her to express herself emotionally." Additionally, Darbi reported having panic attacks for no reason. Darbi did not feel safe in her house although there was no legitimate reason for such feelings. Darbi was pre-occupied with being safe, perfect and weak. (SOUF ¶31). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 6 of 55 5 report the incident to authorities. Darbi then informed her mother of the incident within hours of her report to Getz. She said Getz contacted the police. (SOUF ¶31). Darbi's testimony is somewhat confusing regarding the timing of when the police were notified of the alleged assault. Although two facts are clear. First, Darbi testified that she felt that there was a lengthy delay from the time the police were notified of the alleged assault and when she informed the school of her claim. Darbi said that "there was (sic) months of not hearing from the police – or weeks – for (sic) not hearing from the police. So then we discussed it with the school . . . " (SOUF ¶32). Second, the police already knew of the alleged assault by the time that the school was informed of a "rape." (SOUF ¶33). Axe's Timeline further states that the police were notified in February 2015, and the school was told in March 2015. (SOUF ¶41). The February 15, 2015 Bedminster Township Police Report states that on February 12, 2015, Bucks County District Attorney Megan Hunsicker forwarded a mandatory report for sexual assault to the Police Department. It states that Darbi's therapist, John Getz, reported that Darbi was digitally penetrated over the 2014 Christmas break. (SOUF ¶33). As will be more fully established below, Darbi and H. reported very similar factual accounts to the police. REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 7 of 55 6 Thereafter, both Darbi and H. agree that H. drove her home. (SOUF ¶35-36). On March 16, 2015, Darbi gave a statement to Detective Daryl Lewis of the Pennridge Regional Police Department during which she reported that on December 27, 2014: On April 6, 2015, H. reported the following to Detective Lewis: REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 8 of 55 7 Even accepting Darbi's statement to the police as true, in Pennsylvania, the alleged actions of H. do not constitute rape pursuant to 18 Pa. C.S. § 3121. Darbi and H. did not have sexual intercourse on December 27, 2014. Pennridge Police Department never arrested H. for rape; there is no indication that probable cause ever existed to arrest H. for rape; H. was never criminally charged with rape, or with any crime. (SOUF ¶37-39). REDACTED PER SUPPLEMENTAL STIPULATION REDACTED PER SUPPLEMENTAL STIPULATION Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 9 of 55 8 While the Amended Complaint alleges that Darbi later learned that H.’s friends were spreading rumors that on the night she was raped Darbi consented to having sex with multiple PHS students, there are no allegations that such rumors were ever reported to PHS. Plaintiff’s mother, Laurie Axe (“Axe”) created a Timeline of Events (“Timeline”) and Axe testified that the information in the Timeline was provided by Darbi. The Timeline states that in December 2014, “rumors spread that Darbi had sex with two people on the same night” and that in February 2015, “rumors continue with the relationship of K23.” Significantly, PSD was not informed about the alleged rape until March 2015 and was not aware of any rumors regarding the rape in December 2014 and February 2015. From December 27, 2014 through the end of the month, Darbi was on Christmas break and did not attend PHS while the school was closed during the break. There is no indication that the February 2015 “rumors” attributable to Darbi’s friend K2 concerned Darbi’s sexual activity. There is no evidence that Darbi reported to PSD that H.’s friends spread rumors that she consented to having sex with multiple PHS students on December 27, 2014. Axe's own Timeline concedes that the "rumors" occurred in December 2014 and that PHS was not even notified about the alleged rape until three months later in March, 2015. At her deposition, Darbi first testified that she did not know who was spreading the rumors that she had sex with multiple people. Later in the deposition, Darbi testified that she learned that H. told his friend J.T. about the "rumor." Darbi said that she learned J.T. told B.S. about the "rumor" and that B.S. told Darbi about the "rumor." (SOUF ¶41). 3 K2 was Darbi’s friend. Darbi began socializing with H., B., C. and N. during her sophomore year when she began working with K.2 at Yogurt Tree in Doylestown, PA. (SOUF ¶5). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 10 of 55 9 2. Darbi Reported to PHS that H. Raped Her On March 12, 2015, Axe emailed Darbi's school counselor, Peter L. Cortazzo4 ("Cortazzo"), requesting that he call Darbi to his office so "she can share with you the situation at hand." (SOUF ¶43). Darbi informed Cortazzo that she had been raped over Christmas break in the parking lot of Country Place Restaurant by H., a junior at PHS. (SOUF ¶45). Cortazzo accompanied Darbi to meet with Assistant Principal Scott Hegen5 ("Hegen"). Thereafter, the school contacted the police and Darbi's mother. (SOUF ¶44). Upon learning of the "rape" on March 13, 2015, Hegen promptly called Pennridge Police Department to determine what the police knew about the incident. The police informed Hegen that the alleged rape took place in Bedminster Township and confirmed that Darbi lodged a rape charge. (SOUF ¶47). Hegen met with Darbi and her family to learn what PHS could do to support Darbi and ensure her safety at school. Hegen informed Principal DeBona that Pennridge Police contacted Bedminster Police and that Darbi's claims concerning H. were referred to the Bucks County District Attorney. (SOUF ¶48). Counselor Cortazzo knew that the police were investigating Darbi's claims, but confirmed that there were no ongoing incidents or issues taking place at school between Darbi and H. (SOUF ¶49). Laboski was assigned as H.'s Assistant Principal and was charged with handling discipline for H. to the extent that such discipline was warranted. (SOUF ¶50). Laboski spoke with H. and asked him whether he raped Darbi, and H. denied that a rape occurred. H. informed Cortazzo that there were no witnesses to the incident because he and Darbi were the only two people present at the time. (SOUF ¶51). Laboski instructed H. to immediately eliminate contact with Darbi both inside and outside of school. H. assured Laboski that he would not contact 4 Mr. Cortazzo was Darbi's counselor during her sophomore year. Erik Henrysen ("Henrysen") was Darbi's counselor during her junior and senior years of PHS. (SOUF ¶24-25). 5 Hegen was assigned as Assistant Principal to Darbi. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 11 of 55 10 Darbi. (SOUF ¶52). Laboski believes that he contacted and informed H.'s parents about the alleged rape. (SOUF ¶53). Counselor Cortazzo confirmed that H. was instructed to stay away from Darbi. (SOUF ¶54). On March 31, 2015, Axe requested that Cortazzo inform Darbi's teachers of "her situation." Axe reported that the police investigation was going slow and Darbi's anxiety was high. (SOUF ¶56). On April 1, 2015, Cortazzo informed multiple PSD employees, including Darbi's teachers, that Darbi was going through a difficult time and experiencing anxiety. He requested that the teachers permit Darbi to leave class, without explanation, if Darbi were to become emotional or request to go to the Counseling Office. (SOUF ¶57). On April 9, 2015, Cortazzo followed-up with Darbi and noted that the police had questioned H. and would next contact the District Attorney ("DA"). Cortazzo specifically noted that H. was not bothering Darbi at school. (SOUF ¶58). On April 16, 2015, Hegen informed Darbi's teachers that she was involved in something that occurred outside the school and reported that "the other person is only seen by her coming/going to period 3 class." Hegen said that he would give Darbi a "pass" to get to period 3 a minute or so late so that she does not see the other student. He said this approach was needed for Darbi's well-being. Hegen explained that Darbi would then "hang back at the end of class until the hall is empty for her to proceed to the café [i.e., the cafeteria] period 4." The teachers were in agreement with Hegen's proposed safety plan. (SOUF ¶59). On April 20, 2015, Social Studies Teacher, Mike Dertouzos, informed Hegen that Darbi said she had been raped. Hegen responded that the school was "on it," and that it was "not a good situation" for Darbi. (SOUF ¶60). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 12 of 55 11 On April 21, 2015, Assistant District Attorney ("ADA") Hunsicker advised Detective Lewis that there was insufficient evidence to prosecute Darbi's claims against H. On April 21, 2015, ADA Hunsicker discussed the case with Darbi and her mother. Darbi said she had contact with another female who claimed that H. also assaulted her, but the female did not want to come forward. ADA Hunsicker stated that without additional evidence, the case would not be prosecuted and the meeting concluded. (SOUF ¶61). There is no indication that PHS had any knowledge of a second female who claimed she was assaulted by H. or that the second female attended PHS. Instead, Laboski was informed that the police were notified of the incident and that the District Attorney's Office refused to prosecute H. (SOUF ¶62). Hegen reported to Principal DeBona that the police had turned the matter over to the District Attorney, but the DA refused to press charges against H. (SOUF ¶63). On April 21, 2015, Darbi went to Cortazzo in tears. Cortazzo's notes reflect that Darbi was sent to Hegen because her English teacher found that Darbi improperly plagiarized a class assignment. Darbi was angry with Hegen and stated that the school was doing nothing to support her. She said she "felt" H.'s presence in school. Cortazzo called Axe and his notes reflect that the alleged rape did not occur in the school; the police have not charged H.; and we [the school] allowed Darbi to stay out of the hallway so she does not run into H. However, Axe responded that the school was "not supportive." (SOUF ¶64). In May 2015, PHS offered Darbi a safety plan whereby Darbi could leave classes early and travel the school accompanied by an escort. This was refused. Axe said the provision of an escort was unacceptable and "absolutely" would not make Darbi feel safe. (SOUF ¶66). The Amended Complaint alleges that by May 2015 Darbi was regularly missing classes. (SOUF ¶65). On June 1, 2015, Axe emailed Diane Rock at PHS advising that Darbi would not Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 13 of 55 12 return to school, but would complete assignments and turn them in as needed. Hegen advised Axe that PHS required a medical doctor's note to excuse Darbi from school. (SOUF ¶67). Previously, Darbi submitted a note from a nurse practitioner stating that she believed it was in Darbi's best interest to remain home for the remainder of the school year. (SOUF ¶65). Ultimately, Darbi returned to PHS to take her final examinations during June 2015. (SOUF ¶ 69). PHS offered to arrange for Darbi to come to school later in the day to take her finals, but that was once again rejected by Darbi's mother. (SOUF ¶70). 3. B. and N. Sent Text Messages to Darbi Because Darbi Reported to the Police that B., N. C. and H. Broke Into an Abandoned House Darbi's father, William Goodwin, testified that Darbi informed the police that the boys whom Darbi claims harassed her broke into an abandoned house because Darbi wanted the boys who were harassing her to get into trouble. (SOUF ¶72). Axe's Timeline states in April 2015 Darbi told the police that she knew H. was involved in breaking into an abandoned house, which resulted in "rumors made about her naming others." (SOUF ¶73). Darbi confirmed that during the police investigation of the alleged assault, she told the police that H. was involved with breaking into an abandoned house. (SOUF ¶74). The Timeline references no confrontations between Darbi and any of the boys until May 20, 2015 when "Darbi confronted B. at lunch about such rumors." Darbi said that B. was alone when she confronted him in the cafeteria. Thereafter, B. sent K2 a text message stating that Darbi was getting jumped and B. was setting it up. B. said that Darbi needed to learn her place. Thereafter, K2 sent a screenshot of B.'s text message to Darbi. (SOUF ¶75). Although the Amended Complaint alleges that B.'s text was sent in retaliation for reporting the rape, the record demonstrates that B. was angry with Darbi for reporting him to the police. There is nothing in the record that suggests B.'s motive in sending the text message to K2 was in retaliation for Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 14 of 55 13 Darbi reporting the rape. (SOUF ¶77, 79). PHS fully investigated B.'s sending the threatening text messages and levied appropriate consequences, including out of school suspension, alternative placement and contacting the police. (SOUF ¶80, 86-90). On May 20, 2015, Darbi completed an Incident Report stating that she received a screenshot of a text message stating that she was going to get jumped after she confronted B. in the school cafeteria concerning B.'s inquiry as to whether Darbi "snitched" to the police on H., C. and J.2. Darbi specifically stated that the "cause" or reasons she received the screenshot was because H., C. and J.2 broke into an abandoned house. However, during her deposition, she testified that she had no knowledge as to why B. and H. were making statements around school telling people that Darbi was a snitch. (SOUF ¶80-81). Multiple documents produced in discovery reflect that Darbi candidly admitted that she informed the police that the boys broke into an abandoned house. (SOUF ¶82-84). On May 20, 2015, Darbi met with Principal DeBona and DeBona's notes further confirm that Darbi reported that C., J2, H. and B. broke into an abandoned house and that Darbi confronted B. during lunch about her report to the police. (SOUF ¶86). Darbi also met with Henrysen and Price and their notes taken during these meetings and testimony confirm that the boys were angry with Darbi because she reported them to the police. (SOUF ¶79, 82, 87, 93-94, 97-100). Darbi also told Price that the boys were angry with her because she reported the boys to the police. (SOUF ¶95) . Shortly after Darbi reported receipt of the screenshot, B.'s Assistant Principal Laboski met with B. and contacted B.'s mother to inform her that B. would be suspended out of school for three days. School security escorted B. to AIP (Alternative Instruction Program) for the Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 15 of 55 14 remainder of the school day. Mrs. B. agreed with Laboski's recommendation to refer B. to VisionQuest for the remainder of the school year and into next year as well. (SOUF ¶87). On May 21, 2015, PSD contacted Pennridge Regional Police and reported B.'s threatening text message. On May 26, 2015, Detective Lewis met with Laboski at PHS regarding the threatening text message. (SOUF ¶90). Darbi and B. never had any further conflict. (SOUF ¶232). The Amended Complaint fails to identify any alleged harassing behavior by N. However, Axe's Timeline references a text message Darbi reportedly received in July 2015 from N. The Timeline states that "N. text (sic) Darbi at 1:15 a.m.; with abrasive verbiage and considered threatening. B. was in the company of N. while this text/call was made." The message was transmitted during the summer break when Darbi was not attending PHS. N.'s text states: Why did you give the cops my name?? That's fucking redickulas (sic) what did I do to you? Hoe. I spelled it wrong because your (sic) a cunt. (SOUF ¶92-94). N.'s text message is clearly not related to the alleged assault by H., sexual orientation, sexual conduct or sexual harassment. N.'s text message is not "threatening" as claimed in Axe's Timeline. As stated directly in the text message, N. sent the message in response to Darbi reporting N. to the "cops." (SOUF ¶92-94). PSD Title IX Coordinator Jacqueline McHale produced a copy of the July 2015 text message from N. McHale's notes confirm that N. sent the text message because he believed that Darbi reported his name to the police. (SOUF ¶96). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 16 of 55 15 4. When Darbi Begins the 2015-2016 School Year Concerns are Raised Regarding the Presence of Boys in Darbi's Lunch and Study Hall Shortly before the 2015-2016 school year, on August 18, 2015, Axe spoke with Hegen and requested that the school schedule Darbi in different gym and lunch periods than H., N., B. and C. Hegen was aware that Darbi had concerns about H. and B., but had no knowledge that Darbi had any problems with C. or N. Hegen informed Axe that he could not guarantee that the boys would not be present in these classes and that the students' schedules had not been finalized. Scheduling lunch periods is particularly complex because PHS has over 800 students in each of the three lunch periods and it is difficult to schedule students to specific lunch periods when they are taking certain classes that are only offered once a day or at pre-select times during the school day. Hegen advised Axe that it may be difficult to accommodate her request, but the school would do its best. (SOUF ¶101). On August 24, 2015, Axe contacted McHale requesting a meeting and informing her that Darbi was raped last year by PHS student, H. Axe informed McHale that Darbi received threats and bullying texts from H.'s friends. (SOUF ¶103). On August 31, 2015, Axe called Henrysen and advised that she was unhappy with the school because Darbi was scheduled in the same lunch with boys who were bullying her last year. Axe did not want Darbi's schedule changed. Axe threatened to contact the papers and press and said that the Title IX Coordinator should be involved. Axe did not want any of the boys in the "vicinity" of Darbi. (SOUF ¶106-107). On August 31, 2015, a meeting was held with Henrysen, DeBona, Hegen and Darbi and the group discussed the presence of the boys in Darbi's lunch. Three options were presented to Darbi, namely: (1) Darbi could remain in her lunch with security present; (2) Darbi could keep her lunch period, but eat somewhere else such as the library or with Henrysen; or, (3) Darbi's Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 17 of 55 16 lunch period could be changed. (SOUF ¶108). Axe testified that Darbi refused to change her lunch because she was already set up at her lunch table with her friends. (SOUF ¶109). On September 2, 2015, a meeting was held with Axe, McHale, Price, DeBona, Hegen and Henrysen. Henrysen's notes reflect that Darbi and her mother did not want Darbi's schedule changed or altered because Darbi was the victim. Henrysen testified that the group devised a safety plan for Darbi's lunch period whereby several adults would monitor Darbi and the boys during the lunch period. The monitors included teachers, security personnel, and an Assistant Principal, all of whom were aware of Darbi's concerns. (SOUF ¶113). McHale's notes of the September 2, 2015 meeting reflect that H.'s counselor was informed of Darbi's return to the school and H. is to be instructed to stay away from Darbi. (SOUF ¶114). During their depositions, McHale and Hegen detailed the safety plan that was implemented and executed to monitor Darbi and the boys in the lunch room. (SOUF ¶114-115). On September 8, 2015, Axe informed Henrysen that H. was present in Darbi's Study Hall. Henrysen responded that Darbi and H. are scheduled in two different Study Halls with two different teachers, but the location for the two Study Halls was the café. Henrysen promised to address the situation with the administration and work on a solution. On September 9, 2015, McHale and Price called Axe and assured her that H. would not be present in Darbi's Study Hall when she returned to her Study Hall on the next six day cycle. (SOUF ¶119-120). Darbi testified that H. was present in her Study Hall for only one occasion when Darbi and H. were located in different quadrants of the cafeteria and she and H. had different Study Hall teachers. (SOUF ¶121). On September 9, 2015, Axe informed Price that B. was in Darbi's Study Hall. Thirty minutes later, Price emailed Axe and advised that he had spoken with the PHS team and learned Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 18 of 55 17 that B. had been assigned to a different Study Hall teacher than Darbi, but several Study Hall sections were located in the café. Price assured Axe that the situation would be remedied and the boys' Study Hall periods would be relocated. On September 15, 2015, Hegen emailed Axe and advised that the sections of the Study Hall with the boys had been resolved and the boys had been removed from Darbi's Study Hall location. (SOUF ¶122, 125). 5. On September 25, 2015 Darbi Reports a Second Incident with H. that Occurred Prior to December 27, 2014 and H. and Darbi's Boyfriend Engage in a Physical Confrontation Darbi testified about an incident involving H. that occurred before December 27, 2014. She said that she did not have actual knowledge of the event as of December 27, 2014 because she repressed her memory. Darbi said she was hanging out with H., C. and another girl in H.'s bedroom. H. got on top of her and tried to have sex with her. Darbi pushed H. away and told him to stop. H. pulled down Darbi's pants and penetrated her. Darbi pushed H. off of her, told him to stop and he complied with her request. (SOUF ¶127). Darbi recalled the incident after she woke up from a nightmare. (SOUF ¶128). On September 25, 2015, Darbi reported the second incident involving H. to Henrysen. Henrysen contacted Childline and Bedminster Township Police Department produced an Incident Report regarding Darbi's claim. The police determined that no crime was committed. (SOUF ¶130-131). On September 25, 2015, Darbi's then-boyfriend, J., and H. were involved in a physical confrontation. J. completed an Incident Report stating that H. had raped his girlfriend and that Darbi recently remembered a second time that H. raped her. J. spat in H.'s face and a physical confrontation followed. (SOUF ¶133). PHS fully investigated the incident and J. was taken to the Nurse's Office. Both J. and H. were disciplined and their parents were contacted. PHS contacted the police department and the police noted in the Incident Report that both J. and Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 19 of 55 18 H. were suspended from the school due to the altercation. The police took no further action. (SOUF ¶134-142). 6. In October 2015 Darbi Observes H. in a World Cultures Assembly The Amended Complaint alleges that in October 2015, Plaintiff attended a World Cultures Assembly and H. was present. (SOUF ¶145). Darbi testified that she observed H., but he did not say anything to her and Darbi immediately left the assembly before H. was seated. Darbi reported to the Guidance Office where she met with Henrysen who returned with Darbi to the assembly. Henrysen remained in the assembly with Darbi for the duration of the program. (SOUF ¶146). 7. On November 19, 2015 Darbi Confronts H. by the Staircase On November 19, 2015, Darbi completed an Incident Report stating that she was walking with K. in the hall when H. appeared by the staircase. Darbi said "wow, speak of the devil" and kept walking. H. turned to his friends and told his friends that Darbi was "a fucking bitch." (SOUF ¶156). Darbi admitted during her deposition that she initiated the conversation with H. Thereafter, they both continued walking in the direction they had been traveling. There was no physical contact or altercation between Darbi and H. (SOUF ¶158). Upon learning of the incident, Henrysen met with Darbi and informed Laboski of what occurred. Laboski acknowledged receipt of the information and said he would meet with H. on November 19, 2015. (SOUF ¶157). The November 19, 2015 incident is Plaintiff's only documented encounter between Darbi and H. since the time of the alleged December 27, 2014 incident. Darbi testified that she has no recollection of H. saying anything to her in school before November 19, 2015. The staircase incident occurred eleven months after the December 27, 2014 alleged assault. (SOUF ¶160). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 20 of 55 19 PHS obtained statements from Darbi, H. and the other students who were present. DeBona testified that PHS attempted to view the encounter on the security camera. DeBona concluded that H.'s statement was a reactionary response to Darbi initially addressing H. by the staircase. (SOUF ¶162). There are no reports of further conflict between Darbi and H. 8. C.'s Text to Darbi Asking Her to "Hang Out" On January 4, 2016, Darbi reported to Henrysen that she was upset because C. texted her over Christmas break on December 26, 2015 and asked her to "hang out." Darbi responded "no," but felt uncomfortable about the text. Henrysen said that Darbi was now not comfortable with C. in her lunch. (SOUF ¶164). Upon learning of the text message, Hegen stated that he communicated with Laboski who would meet with C. on January 5, 2016 to discuss Darbi's concerns. Hegen said that C. will remain in the lunch and that the staff in the café is aware of Darbi's concerns. (SOUF ¶164). Hegen said he would meet with Henrysen and contact Axe to discuss the school's steps and measures to keep Darbi safe. (SOUF ¶166). On January 5, 2016, Hegen sent an email to the lunch room team that included a picture of C. C. met with Laboski that morning who reinforced the expectations to ensure a safe school environment for Darbi and all students. C.'s family was contacted. Hegen recommended that Axe report C.'s text to the local police. (SOUF ¶168). When asked about the text during her deposition, Darbi said C. "was asking to hang out." She did not know whether C. sent the text for any other alternative reason other than he simply wanted to hang out with her. (SOUF ¶169). 9. In April 2016 C. Bumped Into Darbi in the Hallway On April 6, 2016, Darbi completed an Incident Report where she described that C. was walking in the opposite direction from her and they "got shoulder-to-shoulder and he bumped Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 21 of 55 20 into me." (SOUF ¶171). The Amended Complaint now describes this bump as a "shove." (SOUF ¶172). After the incident, Henrysen observed Darbi crying in the hallway with her boyfriend, D. Henrysen convinced Darbi and D. to accompany him to the Guidance Office. Darbi informed Henrysen that C. simply bumped into her. Henrysen brought Darbi and D. to review the security cameras, but the camera did not capture the bump. Henrysen remained with Darbi for two hours and then Darbi returned to class. (SOUF ¶173). On April 6, 2016, Price met with Darbi and her boyfriend, D., where Darbi informed Price that C. bumped into her in the hallway earlier that week. (SOUF ¶176). On April 11, 2016, a meeting was held with C., Darbi and Principal DeBona. C. agreed to stay away from Darbi and stated he simply wanted to move-on from the incident. (SOUF ¶181). On April 11, 2016, Axe sent an email to Henrysen, Price, DeBona, Rattigan and McHale advising that Darbi was changing schools. She presented a number of questions to DeBona regarding how Darbi should move forward and concerning a transfer to another school. (SOUF ¶186). The following day, DeBona responded to Axe's inquiries. (SOUF ¶187). Subsequently, Darbi dis-enrolled from PHS. (SOUF ¶188). Axe stated that they attempted to enroll Darbi in a cyberschool, but that school was full to capacity. This is not surprising because Darbi sought to enroll in this program close to the end of the school year. Ultimately, the high school team asked Darbi to re-enroll at PHS and worked with Axe and Darbi to create a pilot cyber program for Darbi, which she attended and completed by the end of her junior year of high school. (SOUF ¶190, 197). On June 8, 2016, Darbi wrote to 11 PHS teachers/staff members to "explain what happened to me this year that resulted in me leaving and doing Cyber School with Pennridge Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 22 of 55 21 High School." In this lengthy missive, Darbi identified H. by name and told the 11 teachers/staff that H. raped her, which was startling, outrageous and untrue. (SOUF ¶198). 10. Darbi Returns to PHS in October 2016, Servicemen B. and H. Briefly Returned to PHS when Darbi was not Present at School The Amended Complaint alleges that in September 2016, Darbi decided that she would re-enroll at PHS to complete her senior year. (SOUF ¶216). The Amended Complaint alleges that in October 2016, B. was permitted in PHS for a recruiting event, but Darbi was out of school that day. Darbi testified that when B. returned to PHS, she was home and never observed B. in the building. She learned about B.'s presence in school on someone's social media. (SOUF ¶217). Thereafter in October 2016, H. returned to PHS and spoke with Laboski about how well H. was doing in the Marine Corps. (SOUF ¶219). Admittedly, Darbi was not present when H. briefly returned to the building. (SOUF ¶217). There is no evidence that Darbi had any contact with B. or H. when they were present at school during the Fall 2016. (SOUF ¶222). 11. PSD Implemented and Executed a Comprehensive Safety Plan for Darbi's Senior Prom The Amended Complaint alleges that in early May 2017, Darbi contacted Hegen for assurance that B., who was dating a PHS senior and friend of Darbi, would be prohibited from attending the Senior Prom. (SOUF ¶223). During the next several weeks, the PHS high school team participated in numerous communications and meetings with one another, Darbi and her mother to address Darbi's concerns about B. attending the prom. Ultimately, B. was permitted to attend a portion of the prom and a comprehensive safety plan was enacted and executed to provide comfort and safety to Darbi at the prom. The safety plan included Henrysen's attendance at the prom, his agreement to evaluate Darbi's status throughout the evening, and escort her as needed. (SOUF ¶224-229). Ultimately, Darbi attended the entire prom with her boyfriend, D., Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 23 of 55 22 and B. never attended the prom. (SOUF ¶230). On the evening of the prom, Henrysen learned that B. would not attend the prom. He informed Darbi of this fact and encouraged her to enjoy herself. (SOUF ¶231). There were no reports that Darbi encountered any problems or conflict at the prom. (SOUF ¶234). II. LEGAL ARGUMENT A. Standard of Review Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, "show that there is no genuine issue as to any material facts and a moving party is entitled to judgment as a matter of law." Fed. R.C.P. 56(c). The court must view the facts and all inferences drawn therefrom in the light most favorable to the non-moving party. Gorman v. Twp. of Manalapan, 47 F.3d, 628 (3d Cir. 1995). The role of the court is not to weigh the evidence and determine the truth of the matter, but to determine whether, construing the facts and inferences therefrom in the light most favorable to the moving party, there is a genuine issue for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Caltex Corp. v. Catlett, 477 U.S. 317 (1986). If the moving party makes a showing, the burden is on the non-moving party to demonstrate that there is a genuine issue of material fact by coming forward with sufficient evidence from which a reasonable jury could return a verdict for the non-moving party. United States v. 107.9 Acre Parcel of Land in Warren Twp., 898 F.2d 396 (3d. Cir. 1990). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 24 of 55 23 B. Plaintiff Fails to Establish Proof Required for Title IX Liability for Claims of Student-On-Student Sexual Harassment Title IX of the Education Act, 20 U.S.C. § 1681(a) provides that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance" except for limited exceptions, none of which apply in this case. 20 U.S.C. § 1681(a). In Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court recognized an implied private cause of action under Title IX. The court has also recognized that money damages are available in this type of action. Franklin v. Gwinnett Country Pub. Sch., 503 U.S. 60 (1992). In Gebser v. Lago Vist. Indep. Sch. Dist., 524 U.S. 274 (1998), the Supreme Court held that Title IX liability may be imposed against a school district for sexual harassment of a student by a teacher where the school was deliberately indifferent to the harassment. The Supreme Court has since recognized that Title IX liability may also be imposed under certain circumstances where a school district is deliberately indifferent to student-on-student sexual harassment. Davis v. Monroe Cty. Bd. of Edu., 526 U.S. 629 (1999). To prevail against PSD in her claim of student-on-student sexual harassment, Plaintiff must show: (1) PSD received federal funds6; (2) sexual harassment occurred; (3) the harassment occurred under circumstances wherein PSD exercised substantial control over both the harasser and the context in which the harassment occurred; (4) PSD had "actual knowledge" of the harassment; (5) PSD was "deliberately indifferent" to the harassment; and (6) the harassment was so severe, pervasive and objectively offensive that it [could] be said to [have] deprived [the] victim [Darbi] of access to the educational opportunities or benefits provided by the school. Id. at 645, 650. The Supreme Court clarified that a recipient of federal funds may be liable in 6 Defendants do not dispute that PSD receives federal funds. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 25 of 55 24 damages under Title IX only for its own misconduct. The recipient itself must deny persons from participation in . . . deny [persons] the benefits of, . . . or subject [Darbi] to discrimination under "its programs or activities" in order to be liable under Title IX." Id. at 641 (internal citations omitted) (emphasis added). In order to recover compensatory damages, Plaintiff must establish that Defendants engaged in intentional discrimination. See, Cannon v. Univ. of Chicago, 441 U.S. 677 (1979). In order to establish intentional discrimination based on a sexual hostile educational environment, a Plaintiff must demonstrate deliberate indifference towards harassment "that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim students are effectively denied equal access to an institution's resources and opportunities." Davis v. Monroe Cnty. Bd. of Ed., 526 U.S. 629, 631 (1999). Further, the Davis Court stated: Whether gender oriented conduct rises to the level of actionable 'harassment' thus 'depends on a constellation of surrounding circumstances, expectations, and relationships,' including, but not limited to the ages of the harasser and the victim and the number of individuals involved. Courts, moreover, must bear in mind that schools are unlike adult work places and that children may regularly interact in a manner that would be unacceptable among young adults. Indeed, at least early on, students are still learning to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing and gender-specific conduct that is upsetting to the student subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender, rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive and objectively offensive that it denies the victim the equal access to education that Title IX is designed to protect. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 26 of 55 25 Id. at 651-652 (internal citation omitted). See also, S.C. v. S. Columbia Area Sch. Dist., 2012 U.S. Dist. LEXIS 188133 (M.D. Pa. 2012); remanded on other grounds by 2013 U.S. Dist. LEXIS 71963 (in evaluating "name calling the Court recognized that name calling in school which implicates a student's sex does not itself permit an inference of sex-based discrimination). In analyzing the "severe and pervasive" standard, very recently, the Honorable Mitchell S. Goldberg in Williams v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 (E.D. Pa., December 4, 2018), stated as follows: While the 'severe and pervasive' is case-dependent, Courts have repeatedly found that isolated or sporadic instances of teasing or harassment, even when related to race or sex, are not actionable. For example, in Whitfield v. Notre Dame Middle School, 412 F. App'x 517 (3d Cir. 2011), the Third Circuit addressed what constituted severe and pervasive harassment actionable under Title VI.7 The plaintiff, an African American female student, described several offensive incidents taking place at school. The first occurred in the school lunch room when a Caucasian female student sat next to her, slapped her, spit her in the face, and said that the plaintiff did not belong at the school. A second incident occurred during class, when a student sitting next to the plaintiff exclaimed that another student had not showered and smelled bad. The other student told the plaintiff that 'if I didn't take a shower I would look like you [,] black.' A third incident occurred when the plaintiff, while waiting for the bus, was approached by several female classmates, who scratched her and sent her to the emergency room with an abrasion. Subsequently, a rash of other events took place: students accused plaintiff of saying that another student's family was racist; a student attempted to throw the plaintiff's bag out the window; the plaintiff reported that a Hispanic classmate spit on her bag; and the plaintiff found chewing gum stuck between her books and her locker. The plaintiff sued the school under Title VI and the District Court granted summary judgment in favor of the defendants because, in part, the harassment was not so severe, pervasive, or objectively offensive that it deprived her of access to educational opportunities. On appeal, the Third Circuit affirmed this decision finding that the lower court 'properly concluded that the combined 7 The analysis applicable to Title VI is also applicable to Title IX. See, Canon v. Univ. of Chicago, 441 U.S. 677, 696 (1979); see also, Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 319 (3d. Cir. 2014). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 27 of 55 26 actions and incidents experienced by [the plaintiff] did not rise to the level of severe and pervasive harassment.' (internal quotation marks omitted). 2018 U.S. Dist. LEXIS 205957 at *28-30. Further, in order to succeed in a Title IX claim, a plaintiff must establish that to the extent harassment occurred, "the harassment must take place in a context subject to the school district's control." Davis, 526 U.S. at 645. The Davis Court stated further: Moreover, because the harassment must occur 'under' the operations of a funding recipient, see, 20 U.S.C. § 1687 (defining 'program or activity'), the harassment must take place in the context subject to the school district's control. Webster's Third New International Dictionary of the English Language, supra, at 2487 (defining 'under' as 'in or into a condition of subjection, regulation or subordination;' subject to the guidance of instruction of) . . . These factors combine to limit a recipient's damages liability to circumstances where the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to 'expose' its students to harassment or 'cause' them to undergo 'under' the recipient's programs. Id. at 645. As Judge Goldberg recently held in Williams v. Pennridge Sch. Dist., supra.: [R]epeatedly, court's have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred. M.S. v. Susquehanna Twp. Sch. Dist., No. 13-2718, 2017 U.S. Dist. LEXIS 47916, 2017 W.L. 6397827 at *10 (M.D. Pa. 2017) (harassment through social media not within school district's control); Dawn L. v. Greater Johnstown Sch. Dist., 614 F. Supp. 2d 555, 2008 W.L. 857453 at *10 n. 3 (W.D. Pa. 2008) (excluding from harassment action at the summary judgment stage any acts by the offender that occurred 'outside of the school' (C.S. v. S. Columbia Sch. Dist., No. 12-1013, 2013 U.S. Dist. LEXIS 71963, 2013 W.L. 2371413 at *9 (M.D. Pa. 2013) (holding that the school district cannot be liable for the sexual assault of a plaintiff by other students that occurred during the summer and off Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 28 of 55 27 of school property, but could be held liable for continued harassment by those students during the school day; (see also, HB v. Monroe Woodbury Central Sch. Dist., 11-5881, 2012 U.S. Dist. LEXIS 141252, 2012 WL 4477552, at *16 (S.D.N.Y. Sept. 27, 2012) (allegations of molestation by two other students occurring off of school grounds and outside of school hours does not show control by the school district, even where the school subsequently allowed harassers to be in same lunch period as plaintiff); Doe v. Round Valley Unified Sch. Dist., 873 F. Supp. 2d 1124, 1136 (D. Ariz. 2012) (declining to find 'substantial control' by school district where the offending student sexually assaulted the plaintiff off school premises, even though he asked her out while on school property). Additionally, to succeed in a Title IX claim, a plaintiff must prove that an educational institution had "actual knowledge" or ["actual notice"] if it knows the underlying facts, indicating sufficiently substantial danger to students, and was therefore aware of the danger. Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 361 (3d Cir. 2005) (citations omitted). Actual knowledge is predicated on notice to an "appropriate person." Gebster v. Lago Vist. Indep. Sch. Dist., 524 U.S. 274, 290 (1998). An "appropriate person" is, "at a minimum" an official of the recipient entity with authority to take corrective action to end the discrimination. Id. Liability for a school district, therefore, occurs only when an "appropriate person" has "actual knowledge" of the prohibited activity. Bostic, 418 F.3d at 361. "The institution must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based." T.B. v. New Kensington-Arnold Sch. Dist., 2016 U.S. Dist. LEXIS 161425 (W.D. Pa. 2016) (citing Staehling v. Metropolitan Govt. of Nashville, No. 3:07-0797, 2008 U.S. Dist. LEXIS 91519, at *10 (M.D. Tenn. Sept. 12, 2008). Finally, in order to prevail in a Title IX claim, a plaintiff must establish that a school district acted with deliberate indifference. A school district is deliberately indifferent when it "is advised of a Title IX violation [and] refuses to take action." Gebster v. Lago Vist. Indep. Sch. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 29 of 55 28 Dist., 524 U.S. at 274. The inquiry requires that the school administrators respond to known peer harassment in a manner that is not "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648. The deliberate indifferent standard sets a high bar for plaintiff's seeking to recover under Title IX claims. Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014). "This is an exacting and strict standard requiring that the official disregard a known or obvious consequence of his action or inaction. Therefore, the appropriate remedial action necessarily depends on 'the particular facts of the case – the severity and persistence of the harassment, and the effectiveness of any initial remedial steps . . ." Bernard v. E. Stroudsburg Univ., 2014 U.S. Dist. LEXIS 52091 at *45 (M.D. Pa. Apr. 14, 2014). Here, in Answers to Interrogatories, Darbi identifies seven incidents that were committed against Darbi by her alleged harassers, H., N., B. and C. Of the seven incidents, three alleged events took place off school grounds; two alleged incidents took place on school grounds; and the locations of the remaining two incidents are unknown to Darbi. (SOUF ¶45, 238). None of the alleged incidents constitute Title IX student-on-student harassment under Davis and its progeny. 1. Off-Campus Incidents (a) The Alleged Rape by H. Darbi did not inform the school that she was allegedly raped until March 12-13, 2015. The conduct about which Darbi complained of occurred three months prior to her reporting the events to the school during the time that she was located inside H.'s vehicle, which was in a restaurant parking lot while PHS was not in session, but was on Christmas break. (SOUF ¶41). Clearly, this is alleged harassment that took place off school grounds, outside of school hours and under circumstances where PSD did not and could not exercise substantial control over Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 30 of 55 29 either H. or the context in which the alleged assault occurred. Consequently, Plaintiff's claim regarding this incident should fail outright. Nevertheless, the record is abundantly clear that once informed of the rape (which was later proved to amount to physical contact that did not amount to a rape in this Commonwealth), the school took every effort to support Darbi and her family. Hegen contacted two different police departments, communicated with Darbi and her mother and informed Principal DeBona and the high school counselors as facts developed. Assistant Principal Laboski asked H. if he raped Darbi and H. denied doing so. Laboski instructed H. to immediately eliminate contact with Darbi both inside and outside the school. H. was instructed to stay away from Darbi and multiple safety plans were implemented to allow Darbi to travel throughout the high school without observing H. or to travel with an escort. Although these efforts were offered to Darbi, Darbi's mother testified that the offer to provide an escort was rejected, and Darbi testified that she did not regularly take advantage of leaving class early or entering other classes a few minutes late. (SOUF ¶37, 45, 47-48, 51-52, 54, 56-63, 66, 68). PHS offered Darbi a safety plan where she could change her schedule to avoid seeing the boys, but that was rejected as well. Darbi testified, "I denied them changing my schedule." (SOUF ¶68). Once Darbi decided that she would remain at home at the end of her sophomore year, PHS offered to make arrangements for Darbi to return to school to take her final examinations in the afternoon. Again, this was rejected. (SOUF ¶70). There is no question that PSD was not deliberately indifferent to Darbi's claim of off-campus sexual harassment. To establish deliberate indifference, a plaintiff must show an official decision [by the school] not to remedy the violations. Gebster, 524 U.S. at 290. School administrators receive substantial deference in cases of alleged student-on-student harassment, and are "deemed Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 31 of 55 30 'deliberately indifferent' . . . only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648. Such is not the case with PSD and its response to Darbi's report of an unfounded rape. (b) July 2015 Text Message In July 2015, during summer break, N. sent Darbi a text message in response to Darbi providing his name to the police. There is absolutely nothing in the text message that refers to the alleged assault by H. or any other sexual conduct. The language used in the text message is simply the "name-calling among school children . . . even when these comments target differences in gender" as referenced in Davis. Inasmuch as the text message was sent to Darbi in July 2015, which was during the summer when Darbi was not in school and PHS was not in session, PHS had no control over N. or his conduct. (SOUF ¶94). Darbi testified that at the time she received the text message she was with her boyfriend who actually initiated the call to N. (SOUF ¶95). Further N. sent the text message to Darbi because he believed that Darbi reported him to the police for breaking into an abandoned house. N's text message states just that. This conduct did not constitute sexual harassment; and was not conduct that occurred on school grounds, that occurred during school hours, and/or that occurred under the school's control. (c) December 26, 2015 Text Message The third off-campus incident occurred on December 26, 2015 when reportedly C. texted Darbi over Christmas break, when school was not in session, and asked her to "hang out."8 On January 4, 2016, Darbi informed Henrysen about the text message. Darbi said she responded "no," to the message, but felt uncomfortable about the text. (SOUF ¶164). Henrysen informed Hegen that: (1) Darbi was now not comfortable with C. present in her lunch, and (2) that Darbi 8 This text message has not been produced in discovery. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 32 of 55 31 had not spoken to C. since he and B. threatened her over the summer. However, there is no evidence to support the claim that C. and B. threatened Darbi during the 2015 summer months. Nonetheless, Hegen immediately communicated with Laboski regarding Darbi's concerns and Laboski met with C. on the morning of January 5, 2016. Hegen also communicated with the high school team regarding Darbi's concerns and inquired whether Darbi informed the police that C. was in contact with her. (SOUF ¶164, 166, 168, 170). On January 5, 2016, Hegen contacted Darbi's mother and the high school team to advise that he instructed Laboski and the lunch room staff to continue to keep a watchful eye on the boys and Darbi during lunch time. C. met with and Laboski and the school contacted C.'s family. Darbi met with Henrysen to maintain supportive conversations and was again instructed that she could access the Guidance Office whenever she desired. (SOUF ¶168). During her deposition, Darbi acknowledged that she did not know whether C. sent the text message for any reason other than he simply wanted to hang out with her. The text message was not threatening, and did not refer to H., or any sexual activity or harassment. On January 5, 2016, Laboski confirmed that he met with C.; that C. deleted Darbi's number from his phone; and C. agreed not to have any contact with Darbi outside of school. In addition to contacting C.'s parents, Laboski contacted C.'s Probation Officer. While the text message was not sent during school hours, while school was in session, or on school property, the high school team responded aggressively to all concerns voiced by Darbi. (SOUF ¶169-170). None of the off-campus conduct identified in the Amended Complaint or in Darbi's Answers to Interrogatories constitute Title IX student-on-student sexual harassment. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 33 of 55 32 2. On-Campus Incidents (a) On November 19, 2015, Darbi Confronts H. by the Stairway On November 19, 2015, Darbi was walking in school hallway with K. talking about a story that involved H. when Darbi noticed H. present in the hallway by the stairway. Darbi initiated communication with H. and stated, "Wow, speak of the devil." According to Darbi, she kept walking and H. turned to his friends who asked H. a question and H. responded to his friends that "she's a fucking bitch." (SOUF ¶156). Notably, this is the first documented report of any conflict between H. and Darbi since she reported the alleged assault in March, 2015. The hallway incident occurred almost a year after the alleged December 27, 2014 assault. Darbi testified that she has absolutely no recollection of H. saying anything to her in school before November 19, 2015. (SOUF ¶160). Darbi also confirmed during her deposition that she first said, "Speak of the devil" to H. before he made a responding reactionary statement to his friends, not to Darbi. (SOUF ¶161). The hallway incident was fully investigated by PHS. All students who were present at the time of the incident were interviewed and all provided written statements. All four students agreed that Darbi initiated the incident. Principal DeBona concluded that H's statement was a "reactionary response" to Darbi initially addressing H. DeBona testified that before the incident, Darbi, H. and the other boys were instructed to stay away from one another. DeBona said, "We were very aggressive with these boys to stay away from her [Darbi]." (SOUF ¶162). Given that there are no other reports of conflict between Darbi and H. since the alleged assault, the event in the hallway was an "isolated or sporadic" incident that is not actionable. See, Williams v. Pennridge Sch. Dist., supra. DeBona stated that the November 19, 2015 incident "was the first time in the building [PHS] that she [Darbi] had written a statement up about H." (SOUF ¶163). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 34 of 55 33 The communication in the hallway by the stairway did not constitute sexual harassment and PSD was not deliberately indifferent to the incident. (b) April 6, 2016 Bump in the Hall On April 6, 2016, Darbi completed an Incident Report where she described an incident that occurred on April 5, 2015 in the hallway with C. Darbi stated that "we got shoulder to shoulder and he bumped into me." However, the Amended Complaint now identifies this event as a "shove." (SOUF ¶171-172). On April 5, 2016, Henrysen reported to Darbi's mother that he observed Darbi crying in the hallway with her boyfriend, D. Henrysen convinced Darbi and D. to go with him to the Guidance Office where Darbi explained that C. bumped into her. Henrysen brought Darbi and D. to review the security cameras, but the camera did not capture the bump. (SOUF ¶173). During her deposition, Darbi explained that the hallway was quite crowded and the video simply depicted she and C. walking into a crowd of people and exiting from a crowd of people. Admittedly, Darbi acknowledged that she was not knocked down by the bump. (SOUF ¶174-175). Darbi met with Senior Administrator, Troy Price, on April 6, 2016 and subsequently, PSD agreed that Darbi could be present in a meeting with Principal DeBona and C. Price communicated with Axe advising that he met with Title IX Coordinator McHale, Principal DeBona and Assistant Principal Hegen so all were aware of the school's efforts to instruct C. to stay away from Darbi. On April 11, 2016, a meeting was held with C., Darbi and Principal DeBona and C. was instructed to stay away from Darbi. (SOUF ¶176-177, 180-181). Following this incident with C., Darbi never reported any further conflict with C. Clearly, the bump in the hallway did not constitute sexual harassment and was not related in any way to Darbi's report of the alleged assault in March, 2015. Nevertheless, PSD was not Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 35 of 55 34 deliberately indifferent to the bump in the hallway as multiple high level high school personnel were involved in investigating the incident, meeting with Darbi and C. and resolving any perceived conflict that Darbi believed existed. 3. Incidents at Unknown Locations (a) May 20, 2015 Screenshot In her answers to discovery, Darbi stated that B. sent texts "to other classmates" stating that on or about May 20, 2015 Darbi was "getting jumped" and "needs to learn her place." Darbi said she does not know where the text was sent from, but believes it was sent from school grounds. Discovery has shown that B. sent one text message to his girlfriend, K2, that stated that Darbi was going to get jumped. K2 sent a screenshot of that message to Darbi. (SOUF ¶78, 80, 238). Discovery has also shown that B. sent the text message because Darbi reported B.'s name to the police for breaking into an abandoned house. Darbi's father, William Goodwin, testified that Darbi informed the police that she wanted to get H. and his friends in trouble and reported their names to the police. (SOUF ¶72). Axe's Timeline states that in April 2015, after Darbi met with the District Attorney, Darbi told the police that she knew H. was involved into breaking into an abandoned house, which resulted in "rumors made about her naming others which she did not do because she did not have knowledge of who else was there." The Timeline references no confrontations between Darbi and any of the boys until May 20, 2015 when "Darbi confronted B. at lunch about such rumors" of breaking into the house. Darbi testified that B. was alone when she confronted him in the lunch room. Thereafter, B. sent K2 the threatening text message. (SOUF ¶73, 75). Contrary to the allegations in the Amended Complaint, B.'s text message was not sent in retaliation for Darbi reporting a rape. Darbi completed an Incident Report on May 20, 2015 Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 36 of 55 35 where she stated that before she received this screenshot, she "confronted" B. in the school cafeteria concerning B.'s inquiry as to whether Darbi "snitched" on H., C. and J.2. In the Incident Report, Darbi identified the "cause" or the reason she received the screenshot was because of the break-in into the abandoned house. (SOUF ¶80). In a later email, Darbi authored on August 31, 2015, she specifically admitted that she informed the police that H. and other boys attempted to break into the house. Darbi's August 31, 2015 email to Jessie Davy states: . . . the boys started rumors around how I'm a snitch. I confronted one of these boys [B.] and told them (sic) that they didn't understand the situation and that I would appreciate him not saying anything else about it. Then he got very angry and sent a text to my friend saying that him (sic) and a boy (the same in the lunch today were going to jump me). (SOUF ¶82) Notes from several witnesses reflect that during meetings Darbi had with Principal DeBona, Counselor Henrysen and Director of Administration Troy Price, Darbi discussed reporting the boys names to the police and then she received a screen shot of a text message sent by B. in response to Darbi's report to the police. (SOUF ¶86, 98-100). PSD swiftly responded to B.'s text message. Laboski immediately met with B. where B. admitted to sending the threatening text message and stated that he did so in anger and frustration. Laboski contacted B.'s mother to inform her that B. would be suspended out-of- school for three days. School security escorted B. to Alternative Instruction Program for the remainder of the school day. Mrs. B. agreed with Laboski's recommendation to refer B. to VisionQuest for the remainder of the school year and into next year as well. On May 21, 2015, PSD contacted Pennridge Regional Police and reported B.'s threatening text message. The police reported to PHS and met with Laboski. (SOUF ¶87, 90). Clearly, B's action of sending the threatening text message was not related to Darbi's report of an alleged rape and was not related to, nor did it constitute sexual harassment. Moreover, PSD was not deliberately indifferent to Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 37 of 55 36 Darbi's reporting of receiving the screenshot. PSD acted quickly and appropriately by investigating the incident, contacting C.'s parent, contacting the police and imposing school suspension and other consequences on C. (b) Rumors Darbi's last claim that H.'s friends engaged in a campaign to spread a rumor that Darbi consented to have sex with multiple students on the night of the rape is unsupported by the record. First, Darbi was not raped. Second, there are absolutely no allegations that Darbi or anybody else reported such rumors to PSD. Axe's Timeline identifies "rumors spread that Darbi had sex with two people on the same night" and that the rumors occurred in December 2014, three months before Darbi reported the rape to PHS. The Timeline identifies "rumors" that allegedly occurred in February 2015 concerning "the relationship with K2", but there is no mention of rumors regarding Darbi's sexual activity. The only other rumors identified in Axe's Timeline concern the rumors regarding Darbi snitching on the boys. PSD did not have "actual knowledge" of alleged rumors concerning Darbi having sex with two people on the same night. (SOUF ¶41). While Plaintiff alleges that "nearly every day, she was subjected to verbal and physical harassment," she is not able to point to any other incident, other than what she has identified in the Answers to Interrogatories and Axe identified in the Timeline to support any plausible claim that she was subject to rumors at school; that PSD had actual knowledge of the rumor; that PSD witnessed the rumors and/or was deliberately indifferent to reports of rumors. Plaintiff cannot prevail on a Title IX claim against PSD. There is no allegation that the "daily harassment" was witnessed by any school administrator or reported to any school administrator and the record does not support a Title IX violation. Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 38 of 55 37 C. Plaintiff's Section 1983 Equal Protection Claims "Under the Fourteenth Amendment, no State shall 'deny to any person within its jurisdiction the equal protection of the laws.'" U.S. Const. Am. XIV, § 1. In order for a plaintiff to establish Section 1983 liability against the School District, she must prove that there was a constitutional harm by a School District policy, practice or custom. See, Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 691 (1978). "In order to establish liability against individual defendants, under Section 1983, plaintiff must show that the defendant, acting under color of state law, subjected the plaintiff to a deprivation of a right, privilege, or immunity secured by the Constitution or the laws of the United States." Rendav v. King, 347 F.3d 550, 557 (3d Cir. 2003). Here, the record lacks evidence sufficient to prove a violation under the Equal Protection Clause under Section 1983. 1. Section 1983 Hostile Environment Equal Protection Claim To state a claim for hostile educational environment in violation of the Equal Protection Clause, Plaintiff must allege the same elements required for Title IX liability, except she also "must show that the harassment was the result of municipal custom, policy or practice." Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009); Goodwin v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 (E.D. Pa. December 4, 2018). Further, for Plaintiff to state a claim under the Equal Protection Clause, Plaintiff must allege that Defendants personally treated Plaintiff differently than other similarly situated individuals or that they did so purposely. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) ("[t]o bring a successful claim under 42 U.S.C. § 1983 for denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. They must demonstrate that they received different treatment from that received by other individuals similarly situated." Here, the Amended Complaint neither identified such a similarly situated individual nor alleged purposeful discrimination. Moreover, Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 39 of 55 38 discovery has shown that the alleged harassment was not sexual in nature. Plaintiff was required to reference other individuals similarly situated. Plaintiff must establish intentional discrimination. See, Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 214 (3d Cir. 2017). Intentional discrimination may be actionable under the Equal Protection Clause by showing that a policymaker acted with "deliberate indifference" to harassment by a school actor or any third party under its control. See, Id. Here, the Amended Complaint alleges that "Defendants' unwillingness to respond to reports of sexual harassment amounted to deliberate indifference." (SOUF Ex. 2, ¶ 96). The Amended Complaint alleges that Defendants: (1) refused to investigate sexual harassment, "including sexual assault, that occurs off-campus" even if the assault contributes to an on- campus hostile environment; and (2) encourage "victims to leave PHS." These allegations are baseless. Neither the Amended Complaint nor the evidence of record identifies claims of sexual harassment or sexual assaults that occurred off-campus and contributed to an on-campus hostile environment. Darbi's claims that she was raped off-campus as alleged in the Amended Complaint and in the many documents produced in discovery are blatantly false. As detailed in Darbi and H.'s statements given to the police, Darbi and H. engaged in physical and sexual activity, but there was no rape as that crime is defined in the Commonwealth of Pennsylvania. (SOUF ¶35-38). Once PHS learned of Darbi's claim that she was raped,9 PHS met with Darbi and her mother and contacted the police to inquire about its knowledge and investigation of the alleged rape. Laboski met with H., questioned him about the incident, contacted H.'s parents, 9 The Defendants only learned that Darbi's claim of rape was false when their counsel received the police investigation of the alleged assault months after the Amended Complaint was filed on June 29, 2017. It was only after the production of the police records did Darbi's attorneys stop repeatedly and indignantly using the term "rape" to describe the incident and question defense witnesses, and finally refrained from calling H. a "rapist." (SOUF ¶40). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 40 of 55 39 and instructed H. to have no contact with Darbi. (SOUF ¶43-45, 51-52). PHS made every effort to work with Darbi to ensure her safety and make her feel as comfortable as possible in the school environment. PHS made appropriate inquiries, assessed the school environment, and implemented safety measures to ensure Darbi's safety and provide a conducive and supportive learning environment for Darbi's continued education at PHS. (SOUF ¶56-57, 59, 66). Moreover, neither the Amended Complaint nor the evidence of record supports the allegations that the Defendants encourage "victims" to leave PHS. Darbi was never encouraged to leave PHS. At the end of her sophomore year, Darbi voluntarily chose to perform certain school work at home rather than in a classroom. (SOUF ¶67, 69). Once Darbi re-enrolled at PHS during her junior year, the PHS team had several communications and meetings with Darbi and her mother to obtain information regarding Darbi's concerns and take measures to ensure Darbi's safety at school. PHS changed the schedules of other students to accommodate Darbi's schedule when it removed H. and B. from Darbi's Study Hall. H.'s counselor informed H. to stay away from Darbi. PHS created and executed safety plans to oversee Darbi's lunch. PHS permitted Darbi to seek comfort and counseling at the Guidance Office at any time of her choosing. (SOUF ¶101, 103, 108, 113-115). It was Darbi, herself, who chose to leave PHS in or around April 2016. Darbi dis-enrolled from PHS. (SOUF ¶186-188). Once Darbi's mother informed PHS that Darbi could not enroll in the cyberschool of her choice, PHS actually created a cyberschool specifically for Darbi to attend. Darbi chose to attend the PHS cyberschool and successfully completed the program at the end of her junior year. The claims that PHS encourage victims to leave the school are false. (SOUF ¶190-192, 197). Darbi returned to PHS her senior year. Her transcripts reflect that Darbi had a weighted GPA of 4.0 for her senior year. (SOUF ¶209). Darbi was permitted to enroll in Bucks County Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 41 of 55 40 Community College in order to take college courses while she was a senior. The Amended Complaint's allegations that during senior year Defendants "failed to separate her harassers" from Darbi are untrue. There is absolutely no evidence that Darbi observed or came in contact with H., B., N. or C. during her senior year of school. While the Amended Complaint alleges that Darbi was subjected to harassment "on a daily basis" (SOUF Ex. 2, ¶ 95), there is absolutely no evidence that Darbi or anyone else reported that Darbi was harassed on a daily basis. There is no evidence to even suggest that Defendants witnessed daily harassment of Darbi or had any knowledge of alleged daily harassment of Darbi. Darbi's equal protection and hostile environment claims are without merit. Neither the Amended Complaint nor the evidence of record supports any claim that Defendants established or approved a policy, custom or practice of refusing to investigate sexual harassment, encourage victims to leave PHS or turn a blind eye to student-on-student sexual harassment. 2. Section 1983 Failure to Train Claim To succeed in her failure to train claim, Plaintiff must establish that PSD had knowledge of and exhibited deliberate indifference in the face of a known threat or high likelihood of injury to Darbi under a policy or custom. Plaintiff must demonstrate that a PSD policymaker was aware of the constitutionally violative conduct at a time when PSD could have prevented Darbi's injuries. See, M.S. v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412 (2014) (citing Johnson v. Elk Sch. Dist., 283 F. 3d 138 (3d Cir. 2002). Thus, Darbi must show that PSD knew of the risk to her before her injuries occurred. Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001). Where the "policy in question concerns a failure to train or supervise municipal employees, liability under Section 1983 requires a showing that the failure amounts to 'deliberate Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 42 of 55 41 indifference' to the rights or persons with whom employees will come into contact." Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) (citing City of Canton, 49 U.S. at 388). Additionally, the "identified deficiency in a . . . training program must be closely related to the ultimate injury." In other words, it must have actually caused the constitutional violation. Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (quoting City of Canton, 49 U.S. at 391). "Ordinarily, a pattern of similar constitutional violations by untrained employees is necessary to demonstrate deliberate indifference for purposes of failure to train." Id. at 233 (internal citations omitted). The Supreme Court has held that there is a narrow range of circumstances in which a failure to train claim may be established without a pattern of violations. B.D. of Cnty. Comm's of Bran Cnty. v. Brown, 520 U.S. 397 (1997). This is only true where "in light of the duties assigned to the specific officers or employees the need for more or different training is so obvious . . . that the policymakers of the City can reasonably said to have been deliberately indifferent to the need." M.S. v. Susquehanna Twp. Sch. Dist., 42 F. Supp. 3d 412 (M.D. Pa. 2014) (citing City of Canton, 49 U.S. 378 (1989)). The hypothetical noted in Canton was a situation where City policymakers failed to train police officers on the constitutional limitations on deadly force even though they knew with "moral certainty" that the armed police officers will be required to arrest fleeing felons. The case at hand does not meet the criteria for a single incident failure to train claim and Plaintiff must establish a pattern of failure to train violations. To prevail on her "failure to train" theory, Darbi must demonstrate (1) a failure to train and (2) a deliberate indifference to her rights. As demonstrated below, the record does not establish a: deprivation of a constitutional right; the failure to train amounted to deliberate indifference; that there existed similar constitutional violations by untrained employees; that the Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 43 of 55 42 failure to train caused or was closely related to Plaintiff's harm; and/or that Plaintiff suffered a constitutional violation of equal access to educational resources or right to bodily integrity. The record is clear that PSD provided appropriate training to its employees and that Rattigan and DeBona were aware of and participated in the training. (SOUF ¶245-350). The Amended Complaint does not allege that a "single-violation" theory applies. Therefore, Plaintiff must show a pattern of constitutional violations by untrained PSD employees to prevail under this theory of liability. Thomas v. Cumberland County, 749 F.3d 217 (3d Cir. 214). The Amended Complaint criticizes Hegen and states he incorrectly informed Darbi and her mother "that PSD could not investigate the rape by H. because it occurred off-campus." First, Darbi was not raped. Secondly, "[r]epeatedly, Courts have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred." Williams v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 at *20-21 (internal citations omitted). Moreover, there was no nexus between the alleged assault and the actions of the alleged harassers as claimed by Darbi. Rather, they were isolated incidents that had no apparent connection to sex or sexual harassment. The text messages sent by B. and N. were sent in response to Darbi reporting those boys' names to the police. (SOUF ¶79, 94). C. did nothing more than ask Darbi to "hang out" and "bump" into her in the hallway. (SOUF ¶169, 171). H.'s comments in the hallway about Darbi were directed to his companions and were a brief, one-time reactionary response to Darbi who initiated the encounter by stating "speak of the devil." (SOUF ¶161-162). Further, the remarks by H. occurred after Darbi specifically identified H. and repeatedly informed PHS teachers and staff that H. raped her, which were false and outrageous statements. (SOUF ¶43, 45, 48, 156). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 44 of 55 43 The Amended Complaint claims that Darbi's mother had to "teach Title IX Coordinator McHale about Title IX's requirements." This is incorrect. Darbi's mother testified that she had absolutely no knowledge of McHale's background or training in Title IX. (SOUF ¶112). Moreover, McHale had been a Title IX Coordinator for many years and enjoyed an extensive training background in Title IX and harassment claims and investigations. (SOUF ¶291-300). The record is replete with examples and instances where Darbi complained about a student and PHS and PSD senior administrators appropriately and adequately responded to her complaints. There is no evidence that, with additional training, additional investigation would have taken place or the students about which Darbi complains would have received different or more substantial consequences in response to Darbi's reports about their behavior. Plaintiff has not provided sufficient evidence that a deficiency in training caused any constitutional violations and certainly has not proved deliberate indifference to training or to Darbi's rights. Documents produced in discovery and volumes of deposition testimony clearly establish that PSD provided harassment, bullying, cyberbullying and other training to Hegen, McHale, Rattigan, DeBona, Henrysen, Laboski, Price, Cortazzo and other PSD representatives. The record reflects PSD's training included:  During the 2013-2014 school year, Title IX Coordinator Ray Scarpantonio visited PHS and provided harassment training at faculty meetings during the beginning of the school year;  On August 27, 2014, an in-service day was held for PSD staff in which harassment and discrimination training was presented; Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 45 of 55 44  PSD administered harassment, discrimination, bullying and cyber-bullying training to its employees through various PowerPoint presentations;  Bullying/cyber-bullying prevention programs were held throughout the District during the 2014-2015 and the 2015-2016 school years;  Beginning with the 2015-2016 school year, PSD employees completed online training through the District provider, Global Compliance Network ("GCN") for topics that include bullying, cyber-bullying, sexual harassment, general harassment and other related topics;  PSD employees attended Act 26 mandated reporter training, that includes child abuse awareness training; cyber-bullying training; student-to-student hazing; harassment training and teen dating violence training;  PSD representatives receive general harassment training and sexual harassment training;  All PSD administrators attended a Peace Conference training on January 30, 2017 during which they were trained regarding bullying, harassment, discrimination, peer conflict and cyberbullying;  PSD held Summer Workshops for administrators to update them on education law issues and harassment training;  Hegen attended dozens of trainings at PHS for topics that include harassment, sexual harassment, child abuse awareness, hazing and teen dating violence;  Hegen received Title IX training;  DeBona received Title IX training and sexual harassment training during her tenure at PSD; Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 46 of 55 45  Rattigan received harassment training during her tenure at PSD;  McHale received extensive Title IX training and harassment training;  Prior to her present position as Title IX Coordinator, McHale was a Title IX Coordinator at Lake Lehman School District;  Price received training on harassment and sexual harassment;  Price regularly held administrative meetings during which PSD policies, including its sexual harassment policies, were reviewed and discussed. Hegen attended these meetings;  Laboski received Title IX training and harassment training;  Guidance Counselor Cortazzo received annual training from PSD regarding harassment. The training was provided by District employees and those outside PSD.  Cortazzo received Title IX training and training on PSD policies.  During in-service days, Cortazzo viewed PowerPoint presentations concerning harassment, which were provided by Ray Scarpantonio and Jackie McHale.  Counselors D'Angelo and Henrysen received training regarding student-on- student harassment, sexual harassment and bullying. (SOUF ¶ 245-251, 253- 255, 260, 268, 271, 276, 280-281, 284-285, 287, 291-293, 301, 303-304, 312, 316, 319, 327, 347). Discovery demonstrates that all PSD representatives who were informed of and responded to Darbi's claims were properly trained regarding Title IX claims, harassment incidents and how to respond to and investigate reports of harassment and sexual harassment. (SOUF ¶245-350). Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 47 of 55 46 Neither Rattigan nor DeBona had personal involvement, actual knowledge of, nor acquiesced in any alleged failure to train PSD employees, and PSD employees were trained for purposes of Plaintiff's Section 1983 failure to train claim. Accordingly, this claim fails. 3. Section 1983 Supervisory Liability Claims To assert a Section 1983 claim based on supervisory liability, Plaintiff must show more than respondeat superior or vicarious liability. See, City of Canton, 49 U.S. at 385. Plaintiff must show "some affirmative conduct by the supervisor." Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (citing Rizzo v. Goode, 423 U.S. 362, 377 (1976)). There are two theories of supervisory liability. The first theory is that supervisors can be liable if they "established and maintained a policy, practice or custom which directly caused the constitutional harm." Under the second theory, a supervisor can be liable if she "participated in violating plaintiff's rights, directed others to violate them or, as the person in charge, had knowledge of and acquiesced" in her subordinate's violations. Am. Ex. Rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). The Amended Complaint asserts that Rattigan and DeBona "maintained a policy, custom and practice of (i) refusing to respond to reports of sexual harassment that occurred in whole or in part off-campus and/or did not result in criminal convictions, and (ii) encouraging victims to leave PHS." (SOUF Ex. 2, ¶ 114). Both of these claims fail. There is no evidence in this record that PSD failed to appropriately respond to reports of sexual harassment that occurred in whole or in part off-campus and/or did not result in criminal convictions. Similarly, there is no evidence that PSD encouraged victims to leave PHS. As stated repeatedly, to the extent harassment took place off school grounds and/or outside of school hours, the conduct does not amount to circumstances where the District exercised substantial control over either the harasser Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 48 of 55 47 or the context in which the harassment occurred. Williams v. Pennridge Sch. Dist., 2018 U.S. Dist. LEXIS 205957 (E.D. Pa. 2018). However, discovery has demonstrated that PHS, when faced with complaints of harassment and/or sexual harassment, properly responded to, investigated such claims, implemented consequences (suspension; alternative instruction placements; meetings with School Psychologist Ross Owens; community service) and contacted students' parents, police and others as necessary. (SOUF ¶346). Further, PSD appropriately responded to Darbi's complaints about her alleged harassers. PHS identifies "founded" complaints and/or incidents of harassment and sexual harassment in its electronic PowerSchool system, which incidents also qualify as "reportable offenses" pursuant to the Pennsylvania Department of Education – Pennsylvania Information Management System ("PIMS Manual"). Information relating to the reportable incidents is entered into PowerSchool by PHS Assistant Principals, such as Hegen and Laboski. (SOUF ¶341). In accordance with the PIMS Manual, PHS also identifies reportable offenses, including harassment and sexual harassment, in its Safe Schools Reports. At the end of each school year, Troy Price reviews the PHS PowerSchool and Safe Schools Report data and ensures that Principal DeBona meets with Pennridge Regional Police Department, and DeBona and the police review the data together. At the end of each school year, a representative of the Police Department meets and confers with Principal DeBona and agrees on the coding and classifications of the reportable offenses identified in the Safe Schools Reports. (SOUF ¶343- 345). Defendants Statement of Undisputed Facts at pages 92-96 demonstrate that PSD responded to and investigated incidents that were classified as harassment in PowerSchool Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 49 of 55 48 during the 2013-2017 time period. (SOUF ¶346). Once notified of a confrontation, physical contact, text message, threat or other conduct, PHS representatives interviewed witnesses, obtained statements, contacted parents and police as each situation warranted. Students were separated; safety plans were instituted and implemented; appropriate discipline was levied; and students who violated polices were subjected to appropriate consequences. (SOUF ¶346). There was no established policy, practice or custom to refuse to respond to reports of sexual harassment and/or harassment that did not result in criminal convictions. Plaintiff has not provided sufficient evidence of affirmative conduct of a supervisor or conduct where a supervisor acquiesced to the conduct of a subordinate. The various incidents complained about and reported by Darbi were not related to sexual harassment or sexual discrimination. Plaintiff and her mother complained of isolated incidents that had no relationship to sexual harassment. Plaintiff has failed to develop evidence during discovery that PHS encouraged "victims" to leave PHS. As stated previously, it was Darbi's decision to seek homebound instruction at the end of her sophomore year and to participate in a cyber program at the end of her junior year after she voluntarily dis-enrolled from PSH. There is no evidence that Rattigan and DeBona acted with deliberate indifference to consequences of sex-based harassment and established a policy, practice or custom that caused Darbi constitutional harm. The Amended Complaint alleges that Rattigan and DeBona's responses to their subordinates behavior were so inadequate to show deliberate indifference to the subordinate's mistreatment of Darbi. However, Darbi was never mistreated. Hegen aggressively and compassionately responded to Darbi's complaints and did not mishandle Darbi's reports of conflict with students. There is no evidence that Rattigan informed Darbi's mother Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 50 of 55 49 that Hegen was likely to mishandle reports of harassment. There is no evidence that Rattigan was dissatisfied with DeBona or Price's reaction or response to Darbi's concerns. Similarly, DeBona was satisfied with Hegen's reaction and response to Darbi's concerns. (SOUF ¶22). DeBona appropriately responded to Axe's inquiries regarding Darbi's intention to withdraw from PHS. (SOUF ¶187). DeBona participated in an April 2016 meeting with Henrysen, C. and Darbi. The meeting was not held in response to sexual harassment, but was a meeting to address Darbi and C.'s bump in the hallway and C.'s interaction with Darbi going- forward. (SOUF ¶181). DeBona testified that Laboski was authorized to allow H. to enter the building during Darbi's senior year, but thereafter a policy was put in place that prohibited H. from entering the building during school hours. (SOUF ¶220). There is no evidence that H. was ever banned from entering PHS before this incident. Nonetheless, claims regarding H. and B. entering PHS on one brief occasion during Darbi's senior year is a red herring because Darbi was not in school on both occasions when these young men briefly entered the building. (SOUF ¶222). There is no evidence that either H. or B. ever returned to PHS. Neither PSD, Rattigan nor DeBona mishandled the safety plan that was implemented and executed for Darbi's senior prom. Contrary to the allegations in the Amended Complaint, PHS did not "fail to ensure" that Darbi attend the prom safely. On the contrary, Henrysen voluntarily attended the prom to provide support for and periodic evaluations of Darbi. There were numerous chaperones present as well as the PHS Principal and Assistant Principals – along with the Allentown police. (SOUF ¶232-233). Although B. never attended the prom, safety measures were in place requiring communications between the school and Axe and an escort was available Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 51 of 55 50 to Darbi. (SOUF ¶234). Further it was not inappropriate for DeBona and/or Rattigan to refer communications from Darbi's attorneys to the PSD solicitor, the District's attorney. The Third Circuit has noted that there exists "uncertainty as to the viability and scope of supervisory liability" after the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, which arguably narrowed or abrogated the ability to find a supervisor liable for conduct of which he was merely aware, but did not direct. Santiago v. Warminster Twp., 629 F.3d 121, 130 n. 8 (3d Cir. 2010). The Third Circuit has also repeatedly held that "[i]t is uncontested that a government official is liable only for his or her own conduct and accordingly must have had some sort of personal involvement in the alleged unconstitutional conduct." Argueta v. U.S. Immigration & Custom Enf't, 643 F.3d 60, 71 (3d Cir. 2011). Such personal involvement may be established by alleging that the supervisor "participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge had knowledge of and acquiesced in his subordinates violations." A.M..v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Finally, Darbi cannot prevail in her supervisory liability claims because neither Rattigan nor DeBona had personal involvement in causing Darbi constitutional harm. Supervisory officials cannot be liable under a Section 1983 claim merely for their "failure to act" when "the responsible authorities had played no affirmative part in depriving [Plaintiffs] of any constitutional rights." Rizzo v. Goode, 423 U.S. 362, 376 (1976); Chinchello v. Fenton, 805 F.2d 126 (3d Cir. 1986). Supervisory officials cannot be liable under Section 1983 merely for their failure to act in the face of a statistical pattern of unconstitutional misconduct when authorities played no part in depriving Plaintiff of any constitutional right. Rizzo, 423 U.S. at 375-376. Supervisors who maintain generalized knowledge of a situation cannot be liable for the Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 52 of 55 51 conduct of subordinates. Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010) (affirming grant of summary judgment for supervisor who was kept abreast of an investigation, but did not direct his subordinate to take or not take any particular action). While supervising public officials may not authorize, encourage or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct. Chinchello, 805 F.2d at 133. For these reasons, Darbi's supervisory liability claims against Rattigan and DeBona are deficient and there is no issue of material fact to be considered by a fact finder. D. "Official Capacity" Claims Against Rattigan and DeBona Fail as a Matter of Law "Official capacity" suits generally represent only another way of pleading an action against an entity of which an officer is an agent. Monell, 436 at 691, n. 55. It is appropriate to dismiss the claims against these Defendants in their official capacity and retain them against the real party in interest. See, Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988) (citing Kentucky v. Graham, 473 U.S. 159 (1985)) (reasoning that claims raised against local officials in their official capacities are only a duplication of the counts against the Township itself). Accordingly, the official capacities claims should be dismissed as a matter of law. E. Defendants Rattigan and DeBona are Entitled to Qualified Immunity Rattigan and DeBona are protected from liability pursuant to the doctrine of qualified immunity. When properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (citations omitted). In deciding whether qualified immunity applies, a Court must decide whether the facts the plaintiff has shown make out a constitutional violation. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633 (3d Cir. 2015). The Court must also determine whether the right at issue was Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 53 of 55 52 clearly established at the time of defendant's alleged misconduct. Spady, 800 F.3d at 637. Courts may begin their decision with either prong. Pearson v. Callahan, 555 U.S. 223 (2009). As set forth throughout this Memorandum of Law, there is no statute or case law that imposes an obligation on the School District to investigate an alleged rape (that did not occur) that took place during Christmas break inside a privately owned motor vehicle that was located in a restaurant off-campus and was never reported to the school until three months later. Several of the peer conflicts Darbi complained about occurred in response to Darbi's reporting male students to the police, not in response to reporting that H. raped her. Other conduct constituted either garden variety bullying or ordinary peer conflict. The individual Defendants had no notice that any constitutional rights were violated, and the Court must apply the doctrine of qualified immunity. III.CONCLUSION For the foregoing reasons, Defendants, Pennridge School District, Jacqueline A. Rattigan and Gina DeBona, respectfully request that this Honorable Court grant their Motion for Summary Judgment and dismiss Plaintiff's claims against Defendants with prejudice pursuant to Federal Rule of Civil Procedure 56. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 1/14/2019 Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 54 of 55 CERTIFICATE OF SERVICE I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of the foregoing Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona's Motion for Summary Judgment and Memorandum of Law in Support was electronically filed with the Court this date and is available for viewing and downloading from the ECF System. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: /s/ Joseph J. Santarone, Esquire JOSEPH J. SANTARONE, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona DATE: 1/14/2019 Case 2:17-cv-02431-TR Document 94 Filed 01/14/19 Page 55 of 55