JANE DOE v. PENNRIDGE SCHOOL DISTRICT et alRESPONSE in Opposition re MOTION for Summary JudgmentE.D. Pa.February 4, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JANE DOE, Plaintiff, v. PENNRIDGE SCHOOL DISTRICT, et al., Defendants. | | | | | | | | | Civil Action No.: 17-cv-3570-TR PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 1 of 59 i TABLE OF CONTENTS INTRODUCTION .............................................................................................................1 STATEMENT OF FACTS ................................ ................................................................5 ARGUMENT ....................................................................................................................... 17 I. PHYSICAL, VERBAL, AND EMOTIONAL ABUSE STEMMING FROM A FORMER DATING RELATIONSHIP IS A FORM OF SEXUAL HARASSMENT ........................... 18 A. Physical Abuse Can Constitute Severe, Pervasive, and Objectively Offensive Sexual Harassment ....................................................................................................... 19 B. Campaigns of Verbal and Emotional Abuse by Former Dating Partners Constitute Sexual Harassment under Title IX ..................................................................... 21 II. A REASONABLE JUROR COULD CONCLUDE DOE HAS MET ALL OF THE ELEMENTS OF HER TITLE IX CLAIM ................... ................................................ 23 A. The Physical, Verbal, and Emotional Abuse that Doe Suffered Constitutes Severe, Pervasive, or Objectively Offensive Harassment that Deprived Her of Equal Access to Educational Opportunities and Benefits. .................................................................. 23 1. Severe, Pervasive, or Objectively Offensive Harassment .............................................. 23 2. Deprivation of Equal Access to Educational Opportunities and Benefits ....................... 24 B. PSD Had Actual Knowledge of the Hostile Educational Environment and Had Substantial Control over the Harasser and the Context in which the Harassment Occurred ................................................................................................................. 26 1. PSD Had Actual Knowledge ............................................................................. 27 2. PSD Had Substantial Control over the Harassers and the Context in which the Harassment Occurred ....................................................................................... 27 C. Evidence Exists that PSD Was Deliberately Indifferent to the Known Acts of Harassment that Doe Suffered .......................................................................... 29 1. PSD Failed to Investigate .................................................................................. 30 2. PSD Failed to Implement an Adequate Safety Plan........ ........................................... 34 3. PSD Failed to Discipline N................................................................................. 36 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 2 of 59 ii 4. PSD Effectively Forced Doe to Transfer to an Inferior Alternative School ................... 36 D. Defendants Fail to Even Mention Dr. Howe’s Opinions ............................................... 37 III. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE §1983 FAILURE TO TRAIN CLAIM .................................................................................. 38 IV. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE § 1983 SUPERVISORY LIABILITY CLAIMS .......................... 40 V. DEFENDANT PSD IS NOT ENTITLED TO SUMMARY JUDGMENT ON DOE’S RETALIATION CLAIM ............................................................................................ 42 VI. THIS COURT SHOULD NOT DISMISS DOE’S OFFICIAL-CAPACITY CLAIMS AGAINST DEFENDANTS DEBONA AND RATTIGAN ............................................ 45 VII. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY ............................................................................................................ 45 VIII. DEFENDANTS ASK THIS COURT TO MAKE FACTUAL AND CREDIBILITY DETERMINATIONS AT THE SUMMARY JUDGMENT STAGE AND TO CONSIDER WHOLLY IRRELEVANT EVIDENCE ............................................... 48 CONCLUSION ........................................ ....................................................................... 50 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 3 of 59 iii TABLE OF AUTHORITIES CASES Page(s) A.M. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572 (3d Cir. 2004) ........................................................................................ 41 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................................................... 18 Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990) ................................................................................. 20, 22 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................... 41 Barkes v. First Correctional Medical, 766 F.3d 307 (3d Cir. 2014) ........................................................................................ 42 Bialko v. Quaker Oats Co., 434 F. App'x 139 (3d Cir. 2011) ....................................................................................... 17 BPS v. Bd. of Trustees for Colorado Sch. for the Deaf & Blind, 2015 WL 5444311 (D. Colo. Sept. 16, 2015) .................................................................... 34 Bruning ex rel. Bruning v. Carroll Cmty. Sch. Dist., 486 F. Supp. 2d 892 (N.D. Iowa 2007) ........................................................................ 30, 31 Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ..................................................................................................... 43 C.S. v. S. Columbia Area Sch. Dist., 2012 U.S. Dist. LEXIS 188133 (M.D. Pa. 2012) .............................................................. 22 C.S. v. S. Columbia Area Sch. Dist., 2013 WL 2371413 (M.D. Pa. May 21, 2013) ......................................................... 28, 36 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 4 of 59 iv Castleberry v. STI Grp., 863 F.3d 259 (3d Cir. 2017) ........................................................................................ 20 Chavarriaga v. New Jersey Dept. of Corr., 806 F.3d 210 (3d Cir. 2015) ........................................................................................ 42 Crossley v. Iroquois Foundry Co., 1992 WL 26028 (E.D. Pa. Feb. 6, 1992) .................................................................... 18 Curinga v. City of Clairton, 357 F.3d 305 (3d Cir. 2004) ........................................................................................ 43 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) ............................................................................................. passim Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d. Cir. 2018) ................................................................................. 20, 23 Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226 (D. Conn. Apr. 23, 2009) ....... ..................................................... 25 Doe v. East Haven Bd. of Educ., 200 F. Appx. 46 (2d Cir. 2006) ......................................................................................... 22 Doe v. Forest Hills Sch. Dist., 2015 WL 9906260 (W.D. Mich. Mar. 31, 2015) ......................................................... 31, 32, 33 Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248 (11th Cir. 2010) ................................................................................... 32 Doe v. Sch. Admin. Dist. No. 19 66 F.Supp.2d 57 (D. Me 1999) .................................................................................. 31 Does v. Se. Delco Sch. Dist., 272 F. Supp. 3d 656 (E.D. Pa. 2017) .......................................................................... 27 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 5 of 59 v E.g., Feminist Majority Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018) ....................................................................................... 28 Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398 (5th Cir. 2015) ....................................................................................... 24 Flores v. Morgan Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ..................................................................................... 36 Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225 (1st Cir.2007) ........................................................................................ 21 Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274 (1998) ................................................................................................... 27 Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367 (E.D. Pa. 2018) ................................................................. 5, 20, 31 Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006) ........................................................................................ 43 Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015) ................................................................................ 46, 48 In re Wettach, 811 F.3d 99 (3d Cir. 2016) .......................................................................................... 47 J.M. ex rel. Morris v. Hilldale Indep. Sch. Dist. No. 1-29, 397 F. App’x 445 (10th Cir. 2010) ............................................................................... 31 Jennings v. Univ. of N. Carolina, 482 F.3d 686 (4th Cir. 2007) ....................................................................................... 21 Jones v. Indiana Area School Dist., 397 F. Supp. 2d 628 (W.D. Pa. 2005) ........................................................... 21, 23, 30, 36 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 6 of 59 vi K.E. v. Dover Area Sch. Dist., 2017 WL 4347393 (M.D. Pa. 2017) ............................................................................ 27 Karchnak v. Swatara Twp., 2009 WL 2139280 (M.D. Pa. July 10, 2009) ............................................................... 48 Kentucky v. Graham, 473 U.S 159, 167 n.14 (1985) ........................................................................................... 45 Krebs v. New Kensington-Arnold Sch. Dist., 2016 WL 6820402 (W.D. Pa. Nov. 17, 2016) ....................................................... 20, 21, 24 Laborers’ Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375 (3d Cir. 1994) .......................................................................................... 47 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007) ........................................................................................ 43 M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412 (M.D. Pa. 2014) ................ ........................................................... 24 Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006) ........................................................................................ 46 Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999) ................................................................................... 30 Pearson v. Callahan, 555 U.S. 223 (2009) .............................................................................................. 45, 47 Price ex rel. O.P. v. Scranton Sch. Dist., 2012 WL 37090 (M.D. Pa. Jan. 6, 2012) ........................................................................... 24 Rodriguez v. Municipality of San Juan, 659 F.3d 168 (1st Cir. 2011) ....................................................................................... 48 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 7 of 59 vii S.K v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786 (W.D. Pa. 2016) ................................................................... 36, 44 Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010) ........................................................................................ 42 Sauers v. Borough of Nesquehoning, 905 F.3d 711 (3d Cir. 2018) ........................................................................................ 45 United States v. Joseph, 730 F.3d 336 (3d Cir. 2013) ........................................................................................ 47 Vance v. Spencer Cnty. Public Sch. Dist., 231 F.3d 253 (6th Cir. 2000) ................................................................................ Passim Watson v. Rozum, 834 F.3d 417 (3d Cir. 2016) ........................................................................................ 43 Wharton v. Danberg, 854 F.3d 234 (3d Cir. 2017) ........................................................................................ 42 Williams v. Pennridge Sch. Dist., 2018 WL 6413314 (E.D. Pa. Dec. 6, 2018) ................................................................ 29 Willmore v. Willmore, 1996 WL 36914 (E.D. Pa. Jan. 30, 1996) ................................................................... 17 Wilson v. Layne, 526 U.S. 603 (1999) ................................................................................................... 47 Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206 (1st Cir. 2016) .................................................................................. 21, 23 Yan Yan v. Penn State Univ., 529 F. App'x 167 (3d Cir. 2013) ....................................................................................... 42 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 8 of 59 viii RULES F.R.C.P. 56 ....................................... ....................................................................... 17, 18 OTHER AUTHORITIES ED OCR, Dear Colleague Letter: Harassment and Bullying 6-7 (Oct. 26, 2010) .................. 22, 33 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 9 of 59 1 INTRODUCTION Jane Doe has filed a civil rights lawsuit against the Defendants—Pennridge School District (PSD), PSD Superintendent Jacqueline Rattig n, and Pennridge High School (PHS) Principal Gina DeBona—because they permitted her former boyfriend N. and his friends (all fellow PHS students) to create a hostile environment that deprived her of equal access to educational opportunities and benefits. Through the course of discovery, Doe has developed extensive evidence of the sexual harassment she suffered and Defendants’ inadequate response to the harassment, including, but not limited to: • In June 2015, Doe reported that N., with whom she had recently ended a dating relationship, physically and verbally abused her when the two were dating. SODF ⁋22. • In June 2015, her Assistant Principal, Scott Hegen, was notified of the abuse, and in violation of written policies (but consistent with actual practices), failed to investigate, discipline, or remediate because he was busy. ⁋51. • When Doe returned to school in September 2015 (the next academic year), she and her father (“K.F.”) met with Hegen to inform him that N. was “saying stuff about” her, including calling her a “whore” and a “slut” and threatening to “kill himself” after their breakup. ⁋51. Hegen did not ask her questions about her concerns because he “tr[ies] to stay out of teenage relationships.” ⁋319. • Throughout fall 2015, N.’s friends also called Doe sexual slurs, like “bitch, slut, whore” and cunt.1 ⁋23. In addition, they would contact Doe using Snapch t accounts to claim that she would be responsible in the event N. killed himself. ⁋314, 315. • In November 2015, Doe reported that N. “continu[ou]sly show[ed] up wherever [she] [was]”; that she was suffering “anxiety, pre-PTSD, and … d[id] not feel safe”; and that she was “personally tired of complaining over and over about this just for nothing to be done.” Hegen did not investiga e because he believed N. should be “free to roam” the school and that N.’s “being in the vicinity of [Doe] [was] not necessarily wrong.” ⁋51, 80. • In December 2015 in a hallway at PHS, N. screamed profanities at Doe and raised his fists in her direction. PSD conducted only a cursory investigation before 1 In his deposition, Doe’s father explained that the boys referred to Doe as “the C-word.” ⁋23 Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 10 of 59 2 concluding that it could not determine what occurred. Hegen emailed N.’s parents to tell them he was not in trouble. ⁋51, 102. • Hegen acknowledged that Doe continued to report repeated harassment by N. and his friends after the December 2015 incident in the hallway at PHS and admitted that he did not investigate any of these reports. ⁋104. • There is no evidence that Defendants prepared a written safety plan for Doe. ⁋51; Graves Decl. ISO Pl.’s Summ. J. Mot., ECF No. 81-2 (hereinafter, “Graves Decl.”) ⁋8. • Two medical providers independently reported to PSD that Doe’s repeated encounters with her abusive ex-boyfriend were making it impossible for her to function at PHS. Both providers recommended that Doe be placed at “the Intermediate Unit,” an alternative school capable of pr viding her with both a safe environment and necessary mental health accommodations. ⁋140. • Hegen disregarded the clinical recommendations of the mental health professionals, writing on October 2, 2015, “Recommending her to the [Intermediate Unit] is nice and all . . . . but . . . NO.” ⁋325 (ellipses in original). • Despite the two independent medical recommendations, PSD failed to timely assess Doe for an Individualized Education Program (“IEP”), a prerequisite to placing her at the intermediate unit her medical providers recommended. ⁋140. • When PSD finally administered the IEP assessment, Hegen signaled to the person administering the assessment that it would be perfunctory in nature: “Talking with [DeBona] . . . we need to do a [IEP assessment] for [D e] . . . to go through the process.” ⁋ 140 (ellipses in original). • PSD failed to properly assess Doe for an IEP. ⁋80. • Faced with a hostile environment at PHS and PSD’s refusal to place her at the clinically recommended alternative school, Doe felt she had no choice but to enroll in Twilight Academy—an objectively inferior c edit recovery program that PSD operates. ⁋139, 309, 333. • Jacqueline McHale, PSD’s Title IX coordinator is, by policy, required to be notified of all allegations of sexual harassment but was never notified by PSD employees of Doe’s reports (or any other PSD students’ reports of sexual harassment). ⁋180; Graves Decl. ⁋9. Dr. William A. Howe is a former Title IX Coordinator for the State of Connecticut, who has over 40 years of experience as an educator (with 24 years as a Title IX coordinator, including 17 years as a State Title IX coordinator) and has advised almost 200 school districts, conducted Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 11 of 59 3 almost 100 workshops, trained more than 4,000 people, and handled approximately 7,000 calls on Title IX compliance. ⁋307. After reviewing these facts, Dr. Howe concluded: “I would use Pennridge School District’s actions in [Doe’s and Goodwin’s] cases as case studies on what not to do in order to comply with the requirements of Title IX.” ⁋307. Against this backdrop, Defendants claim that insufficient facts exist for a reasonable jury to find in Doe’s favor on her Title IX claim and that they are therefore entitled to summary judgment. Their conclusion is predicated on a misunderstanding of the relevant facts and the law. Defendants appear to believe that Doe must first prove she was the victim of sexual assault before she can establish that she was the victim of sexual harassment. They also appear to believe that non-physical harassment cannot constitute sexual harassment, repeatedly pointing out that N. “never touched” Doe again after their breakup. Defs.’ Mot. at 22, 26, 44, 48. Such requirements simply does not exist under Title IX. Doe has never claimed that N. sexually assaulted her. Nor does she allege that he assaulted her again after their breakup. Instead, she has alleged—and developed substantial evidence showing—that her ex-boyfriend, N., engaged in sexual harassment against her by: (i) during their relationship, physically, verbally, and emotionally abusing her both in and outside of school, and (ii) after their breakup, calling her sexual slurs, threatening suicide, stalking her, and threatening to hit her—all on school grounds; and that Defendants failed to adequately respond to the hostile educational environment that she faced as a result of the harassment. Defendants have also moved for summary judgment on Doe’s § 1983 claims. With respect to the failure-to-train claim, Defendants focus on the number of trainings and the titles of those trainings. There is a reason they choose to focus on quantity not quality: none of the training materials they produced substantively address how to identify and respond to student- Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 12 of 59 4 on-student sexual harassment. Defendants’ motion shuld be denied for all the reasons that Doe’s motion for summary judgment on the failure-to-train claim should be granted. (Doe’s Summ. J. Mot., ECF No. 81 ¶ 10-19). Similarly, substantial evidence exists in support of Doe’s supervisory liability and retaliation claims and Rattigan and DeBona are not entitled to qualified immunity. In sum, substantial evidence exists from which a reasonable jury could find that (i) Doe was harassed by PSD students both in and outside of sch ol, (ii) Defendants failed to adequately address the harassment and hostile educational environment Doe faced, which denied her equal access to educational opportunities and benefits, (ii ) PSD retaliated against Doe for exercising her right to complain about the harassment she was experiencing, (iv) Defendants maintained district-wide practices of failing to address student-on-student sexual harassment, and (v) Defendants failed to train its employees with respect to protecting students’ constitutional rights. Defendants employ several tactics in an effort to deal with this plethora of evidence, including inviting the Court to resolve factual disputes, make credibility determinations, and reach conclusions about motive and intent. Such determinations must be made by the jury and have no place in summary judgment proceedings. Defendants also ask the Court to consider wholly irrelevant evidence, such as Doe’s alleged conflicts with other students, her employment history, and employee trainings that occurred after Doe left PHS. Finally, Defendants simply ignore key evidence that refutes their claims and creates disputed questions of fact. For instance, they never once mention Dr. Howe, who concluded in his expert report that there were blatant deficiencies from a Title IX perspective with Defenda ts’ response to Doe’s complaints, and they further fail to acknowledge that Doe’s father testified that he did not recall making a statement regarding Doe’s motivations for leaving PHS that a PHS employee tried to impute to Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 13 of 59 5 him and upon which they now rely in seeking summary judgment. (Defs.’ Summ. J. Mot., ECF No. 78 p. 5; ⁋40); Infra. pp. 26-27. When all of the evidence is viewed, there is little doubt that ample evidence exists in support of Doe’s Title IX and § 1983 retaliation claims and that no basis exists for resolving those claims on summary judgment. The evidence also makes clear that it is Doe, not Defendants, who is entitled to summary judgment on the § 1983 failure-to-train, municipal liability, and supervisory liability claims.2 STATEMENT OF FACTS Doe began attending schools within PSD in kindergarten. ⁋304. A member of PHS’s class 2017, Doe was a 10th grade student at PHS during the 2014-2015 school year. ⁋304; (Defs.’ Answer to Doe’s Compl., ECF No. 9 (hereinafter, “Defs.’ Answer”) ¶ 15). She graduated from PHS in June 2017. ⁋304 . N. Physically and Verbally Abused Doe When the TwoDated Doe and N. met when they both joined the law enforcement tech program. ⁋11. Doe and N. dated from November 2014 until March or April 2015. Defs.’ SOUF ISO Summ. J. Mot., ECF No. 79 (hereinafter “Defs.’ SOUF”) ¶ 41. N. was an 11th grade male student at PHS during the 2014-2015 school year and a member of PHS’s clas of 2016. ⁋51. During the course of their relationship, N. was often angry and jealous, and, s a powerlifter, was much larger than Doe. ⁋49. He was also physically and verbally abusive to Doe, both in school and outside of school. N.’s physical abuse included slamming Doe against the school lockers at PHS, shoving her, and, at times, physically restraining her. ⁋43; 45, 49. N.’s verbal abuse included calling Doe, “ugly,” a 2 In light of the Court’s ruling in Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367 (E.D. Pa. 2018), Doe voluntarily consents to the dismissal of her Intentional Infliction of Emotional Distress claim. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 14 of 59 6 “bitch,” and a “whore,” and telling her that she “deserve[d] to get hit.” ⁋313, 314. Doe grew afraid of N. ⁋49. The abuse culminated in a particularly violent assault that took place inside Doe’s home in March or April 2015. See, e.g., ⁋43, 51. N. shoved Doe down, bit her. and restrained her wrists to prevent her from resisting while he was yelling at her. ⁋43. The assault was substantial enough to leave a bruise the size of a fist on her shoulder and teeth marks on her skin.3 ⁋45. Shortly after the March/April 2015 assault, Doe end d her relationship with N. ⁋43. Despite Doe ending the relationship, N. continued to call her a “whore,” “slut,” and “bitch,” and this verbally abusive behavior occurred both in andoutside of school. ⁋51, 314. And N. threatened to kill himself if the two did not resume their relationship. ⁋316. PSD Failed to Investigate Doe’s June 15, 2015 Report of Physical and Verbal Abuse On June 15, 2015, Doe and her father met with her guidance counselor, Lori D’Angelo, to report that N. had been physically and verbally busive during their relationship both in school and outside of school. Doe further reported to D’Angelo that she felt unsafe at PHS and wanted to transfer to a different school. ⁋22. That same day, D’Angelo emailed Hegen and David Laboski, N.’s Assistant Principal, and copied DeBona to inform them of the report. She wrote, in part, that Doe had “reported that her ex-boyfriend [N.] (11th) harasses her, has pushed her in school and was abusive during the relationship.” ⁋51. Despite Doe’s report, PSD administrators took little o no action. Hegen saw no need to investigate Doe’s June 15, 2015 report that N. had physical abused her both in school and outside of school. ⁋51. In fact, although PHS was still in session at the time, Hegen did not even meet with Doe “in any capacity during that time” in response to D’Angelo’s email because it was a 3 Doe photographed the bruise, but the image was lost when the phone on which the image was captured broke before the instant suit commenced. ⁋57. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 15 of 59 7 “busy time of year” and he was “not thinking a hundred percent about individual kids during the summer.” ⁋51. In an email from June 2015, Laboski indicated that he would direct N. to have “no contact” with Doe, but there is no contemporaneous documentation of what specifically was communicated to N. or even that Laboski ever actually instructed N. to have “no contact” with Doe. Defs.’ SOUF ⁋55. N.’s Disciplinary Records Reflect a History of Harassment N.’s disciplinary records reflect that prior to the June 2015 report, PSD was already aware that N. had sexually harassed at least two other s udents. The first of these records reflect that in October 2013, when N. was in 10th grade, a school bus driver informed PHS that N. was sending sexually explicit text messages to a 13-year old girl. ⁋305. The second report, dated April 2014, occurred when a teacher at Upper Bucks County Technical School informed PHS that “there have been a number of incidences when others have reported [N.] making sexual comments. . . . N. was one of the main players who instigated [a student’s] request to leave the [class]” because, in [the student-victim’s] words, “[N.] crosses the line and just doesn’t know when to stop.” ⁋306. There is no evidence that PSD considered this history of sexual harassment in assessing Doe’s June 2015 complaint or any of her subsequent complaints. In September 2015, Doe Reported Again that N. Physically and Verbally Abused Her, PSD, Again, Failed to Investigate When Doe entered her junior year, she was assigned a w guidance counselor, Erik Henrysen. When her former guidance counselor, D’Angelo transitioned Doe to Henrysen, she informed him of Doe’s June 15, 2015 report and explained that Doe “hate[d] it here and want[ed] to transfer her school” because “N. [had] hit her.” ⁋317. In addition, on September 4, 2015, Doe and her father went to Hegen’s office to report her ongoing fears about N. She told Hegen that N. was “saying stuff about” her, including calling her a “whore” and a “slut” and threatening to “kill Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 16 of 59 8 himself” after their breakup. Hegen also noted to himself that Doe had “concerns” about “being at PHS” and “want[e]d an IEP [Individualized Education Program] to go to Alt[ernative] School.” ⁋51. After meeting with Doe and her father, Hegen emailed Laboski, Henrysen, D’Angelo, and other PSD employees. He wrote, in part: “[Doe] is a young lady who is full of anxiety about coming to school as she feels that she is often bullied/harassed. She only gave one name, [N.]— Grade 12 who is her ex-boyfriend. He was verbally and physically abusive when they dated last year. They have been apart for some time, but she is still upset about this and is worried that it may continue. . . . [Doe] does not want to attend PHS anymore. She is asking to be sent to an Alt. School or to Tech all day.” ⁋318. Accordingly, by September 4, 2015, two PHS Assistant Principals and two guidance counselors were aware that Doe and her father had reported that she did not feel safe at PHS because she had been physically and verbally assaulted by another, current PHS student with whom she previously had an abusive dating relationship. At some point, Doe showed Hegen, Henrysen, and a school nurse a photo of the bruise N. gave her. ⁋57. Despite this knowledge, no one at PSD commenced an investigation. Hegen explained that he did not ask Doe any questions about N.’s abuse at the September 4, 2015 meeting because he “tr[ies] to stay out of teenage relationships.” ⁋319. Moreover, none of the Assistant Principals, guidance counselors, or other PSD employees with knowledge of Doe’s June 2015 and/or September 2015 reports informed PSD’s Title IX Coordinator, McHale. ⁋180, 328; Graves Decl. ¶ 9. There was also no written safety plan prepared for Doe. ⁋51; Graves Decl. ¶ 8-9. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 17 of 59 9 The Harassment Persisted from N. and His Friends for Another Four to Six Months After PSD failed to investigate the harassment, N. and his friends continued to subject Doe to persistent harassment. For the first four-to-six months of her junior year, N. and other students (whom she believed to be his friends) contacted Doe via Snapchat, a social media platform that allows users to send messages that are automatically deleted after they are read. The messages threatened that N. would kill himself if Doe did not resume dating him and that it would be her fault if he did so. ⁋51. Doe repeatedly reported the harassment to Hegen, stopping by his office once or twice a week, every week, during the first six to eight weeks of the school year. ⁋51; 320. However, when she asked for additional safety measures to keep N. from showing up outside her classrooms, Hegen refused, calling her “crazy” and a “drama queen.” ⁋71. At some point in fall 2015, DeBona found Doe sobbing i PHS’s main office. Doe told DeBona that she did not want to attend PHS anymore. ⁋321. Hegen later reminded DeBona that N. had physically abused Doe while they were dating a d she no longer wanted to attend PHS. ⁋322. Although DeBona is, according to PSD’s written board policies, responsible for investigating all complaints of harassment at PHS, she did not investigate this report of N.’s abuse; nor did she supervise or otherwise direct another PSD employee to investigate. She simply assumed that Hegen would do so, but took no steps to confirm that he actually did conduct an investigation. ⁋323, 324. Medical Professionals Recommended Alternative Placement for Doe Hegen knew that Doe was “struggling being at school every day because of her level of anxiety surrounding [N.]” and that she no longer wanted to attend PHS. ⁋311, 327. He was also aware that two mental health professionals had independently sent letters documenting her Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 18 of 59 10 struggles at PHS. ⁋140. On October 1, 2015, a nurse practitioner at Doe’s medical provider, Tri- County Pediatrics, wrote to PSD, recommending that Doe be transferred to the “Intermediate Unit” due to “anxiety, trauma,” and “the problems occurring at school.” ⁋51. Doe delivered the letter to Henrysen, who, in turn, provided the letter o DeBona, Hegen, and Ross Owens, who is identified as PHS’s “Psychologist,” even though he is not a doctor.4 On October 2, 2015, Hegen replied in an email: “Recommending her to the IU is nice and all. . . .but . . . NO.” ⁋325 (ellipses in original). On November 13, 2015, a Licensed Clinical Social Worker with Penn Foundation Behavioral Health Services drafted a to-whom-it-may-concern letter explaining that Doe’s “mental health symptoms are currently triggered to a critical level due to the presence of her ex- boyfriend, who was abusive to her,” which was making it “impossible for her to function at her present school.” ⁋143. In contemporaneous notes, the medical provider also noted that Doe was having “daily ‘break downs’ at school” due to “a constant fear of . . . repeated abuse at [N.’s] hands.” ⁋326. This mental health professional recommended “that she be moved to another learning environment as soon as possible.” ⁋143. This letter was shared with at least Hegen, yet no PSD employee took any action in response to this letter. ⁋140. Doe Reported in November 2015 that N. Continued to Harass Her and PSD, Yet Again, Failed to Investigate On November 24, 2015, Doe formally submitted yet another report to PHS about harassment she was experiencing. The incident report stated: “[N.] continu[ou]sly shows up to wherever I am. He is not supposed to be anywhere near m and I am not supposed to even be in this school because of him. Hegen refuses both doctor and therapist orders or treatment plans 4 Owens has a B.A. in Psychology; a Master’s in Education; and an Educational Specialist Degree (which Owens identified as a “Plus 30 certification.). Owens does not hold any professional licenses. ⁋36. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 19 of 59 11 which states for me not to be here because of my anxiety, pre-PTSD, and because I do not feel safe. I am personally tired of complaining over andover about this just for nothing to be done. I followed the steps given to get help and H[e]gen refus s everything. [N.] mentally, physically, and emotionally abused me.” ⁋51. In the report, Doe further wrote that “[N.] likes to torment me and ruin my life. . . . [T]he school hasn’t done anything to help. . . . Hegen doesn’t see this as a huge concern.” ⁋51. Hegen and other school administrators were aware of this report. ⁋51. Hegen again failed to investigate Doe’s report or to discipline N., claiming N. was “free to roam” the school and that N.’s “being in the vicinity of [Doe] [was] not necessarily wrong.” ⁋51, 80. And, again, no PSD employee informed PSD’s Title IX Coordinator, McHale, of Doe’s report. ⁋180, 328; Graves Decl. ¶ 9. Doe Reported in December 2015 that N. Physically Threatened Her on Campus and PSD, Again, Failed to Adequately Investigate or Remediate On December 22, 2015, Doe filed an incident report with PHS. She wrote, in part: “I was walking with [S.S.] and [J.] and [N.] mumbled something under his breath about me. So I went up and said, ‘I’m listening say it to my face I am right here.’ [N.] lifted his hands to me like he was going to hit me and I flipped out then walked away.” She also wrote in the incident report, “He continuously harasses me” and “abused me in the past and raised his hands to me again.” ⁋51. Doe testified in her deposition that when N. raised his fists toward her, he stepped toward her and she stepped backwards. She told him to lower his fists. He grabbed his backpack on his shoulders and screamed at her, “fuck off, fuck you.” ⁋51. Doe reported the incident to Hegen, who took statements from Doe, N., and two other indiv duals (one a friend of Doe and the other a friend of N). Doe’s friend corroborated that N. “raised his hands in fists” and used profanity, and N. admitted he told Doe to “get the fuck away from me.” ⁋329. Hegen could not find any surveillance footage of the incident. As a result, he concluded that there were no additional Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 20 of 59 12 investigatory steps he could take and that, under these circumstances, finding a student responsible in the absence of video evidence would be akin to “start[ing] . . . a witch hunt.” ⁋330. Hegen not only refused to discipline N. for the threat, but he also failed to discipline N. for violating the supposed “no contact” instruction PSD gave or for using profanity, which according to the Pennridge Student Handbook, is a violation that requires the student to attend 1 or 2 detentions. ⁋331. N. and His Friends Continued to Harass Doe After the December 2015 Incident Doe repeatedly reported continued harassment by N. and his friends after the December 22, 2015 “hallway incident.” ⁋103; 104. Hegen did not investigate any of Doe’s repo ts after December 22, 2015. Defendants produced no records establishing that any other PSD employee investigated these reports. ⁋104; see Graves Decl. ¶¶ 6-8. In his deposition, Hegen testifi d that he did not investigate any of Doe’s reports after Dcember 22, 2015 because he knew, without even investigating these reports, hat “[a] lot of things that she reported were inco clusive or unfounded from the standpoint of she would say, he made a comment to me in the hallway, or somebody made a comment in the classroom[.]” ⁋332. He also testified that he knew, again without the benefit of investigation, that Doe was, t times, lying or exaggerating: “there was times where she would come, and she was trying to go f r that wow factor. So she would kind of embellish a little bit.” ⁋332. But when Hegen was asked in his deposition to identify “any instance involving another student in which [Doe] emb llished or exaggerated or lied,” he was unable to do so. ⁋332. After Waiting Months to Commence an Individualized Education Program Evaluation, PSD Administered a Flawed IEP Assessment Nearly two months after a medical professional recommended Doe be placed at the Intermediate Unit, Hegen sent an email to Henrysen and Owens, stating, “Talking with [DeBona] Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 21 of 59 13 . . . we need to do a [IEP] for Doe . . . to go through the process.” ⁋140. Despite the fact that Owens was the designated PSD employee “to go throug the [IEP] process,” no PSD employee told him that Doe had filed multiple harassment repo ts with PSD in connection with her interactions with N. ⁋140. Owens was aware, however, that PSD had received two letters from Doe’s medical providers explaining that PHS was not a safe learning environment for her. ⁋140. Owens was provided only one of those letters, and abandoned all efforts to obtain a copy of the second letter after his initial requests to PSD administrators for a copy went unanswered. ⁋140. Owens failed to contact either provider to discuss their respective concerns and recommendations because he believed the letter he was able to review “adequately expressed” the opinion of the provider who wrote it. ⁋140. On March 14, 2016, Owens completed his evaluation of Doe for a disability by conducting an IEP assessment. ⁋140. This was more than six months after she first requested an evaluation for special education services on September 4, 2015 ⁋140; more than five months after Tri-County Pediatrics recommended that PSD transfer Doe to the Intermediate Unit, which required an IEP evaluation ⁋140; and more than four months after the Penn Foundation diagnosed Doe with generalized anxiety disorder and recommended that PSD transfer Doe to the Intermediate Unit. ⁋140. Owens’ report reflected the opinion of a medical provider that Doe suffered from Generalized Anxiety Disorder, and the results of testing from her parents, which indicated that Doe had clinically significant levels of “emotional disturbance” ⁋140. The letter from Doe’s medical provider that Owens cited in his report explains that “Doe’s mental health symptoms [were] currently triggered to a critical level due to the presence of her ex-boyfriend who was abusive to her.” ⁋140. Nevertheless, Owens concluded that Doe did not qualify for an IEP Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 22 of 59 14 because of how he scored the results of a test for em tional disturbance that he administered to ⁋140. The testing results reflected elevated levels of emotional disturbance in a variety of areas falling just outside of clinically significant levels, including one area in which Doe missed a clinically significant level by a single point. ⁋140. On April 7, 2016, Rattigan read Owens’ evaluation and signed a document notifying Doe of Owens’ determination that she did not need an IEP.⁋140. Doe was subsequently informed that she did not qualify for the Intermediate Unit based on her IEP evaluation. ⁋140. Dr. Julia Weinberg, JD, PhD, is a Licensed Psychologist with decades of experience, who reviewed, among other records, documentation surrounding the IEP assessment and Owens’ deposition. Dr. Weinberg concluded that, in her expert opinion, the “procedures used by Pennridge [in administering the IEP evaluation] were p oblematic.” ⁋140. She noted, among other deficiencies, that Owens: • Gave undue weight to portions of the assessment resul s and teacher ratings without sufficient justification; ⁋140; • Lacked an understanding “of the assessment devices he u ed, their appropriate use, and appropriate interpretation;” ⁋140; • Neither contacted any of the mental health professionals nor spoke with Doe about her abuse and trauma history ⁋140; and • Did not explore the possibility that “actual learning was negatively influenced by [Doe’s] psychological distress.” ⁋140. She further opined that throughout the IEP process, PSD failed to pursue any comprehensive process for determining whether [Doe] required a different educational placement (besides a special education placement), despite ample evidence that she was experiencing emotional distress due to her school environment, including anxiety over her safety at PHS. ⁋140. While Owens’ approach was flawed, it did allow PSD, as Hegen said on November 25, 2015, to create a record that PSD administrators had gone “through the process.” ⁋140. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 23 of 59 15 After PSD Failed to Provide Doe with Any Relief from the Hostile Environment, Doe Was Forced to Take the only Alternative Option that PSD Offered After Doe did not qualify for an IEP, PSD made clear that the ”Twilight program was [the] only option.” ⁋159-64. With no prospect for either attending the alt rnative school recommended by her medical providers or having conditi s improve at PHS, Doe believed she had no choice but to enroll in Twilight. ⁋159-64. Doe began attending Twilight on April 12, 2016. ⁋159-64. At Twilight, students must attend at least four of the six hours offered each week. During these hours, five-to-twelve students of multiple grade levels were “confined to a single classroom.” ⁋159-64. Twilight students merely completed packets at their desks; they did not receive lectures or other forms of traditional classroom instruction. ⁋159-64. When Doe initially discussed attending Twilight with PHS staff, Doe agreed to go to Twilight because she was “under the impression it was going to be an equivalent learning [environment].” ⁋159-64. Once at Twilight, however, Doe began receiving packets for work she had already completed while at PHS. Doe contacted Henrysen and Hegen to discuss the issue, writing, “I didn’t think I would have to redo these topics again as I already passed them.” ⁋159- 64. The response she received was, “you need to complete all of the Twilight assignments in order to earn credit. I am sorry if some of the materi l is repetitive.” ⁋159-64. On May 12, 2016, just one month after she began Twilight, Doe completed the Twilight program’s junior and senior year requirements for high school graduation. ⁋334. PSD did not arrange for Doe to continue pursuing her educational interests at Bucks County Community College, an option for which she was eligible and which PSD had provided for other students. Instead, PSD placed her in a year-long “internship” at a Starbucks, but she participated in the program for only a short time before sustaining a wrist injury at work that required her to take a medical leave of absence. ⁋335. Although there were six more months left in the school year, Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 24 of 59 16 PSD officials were instructed to tell her to “check in with [PSD] in May [2017] to get specific information [about graduation].” ⁋336. Dr. Howe, an Expert in Title IX Compliance, Has Identified Numerous Deficiencies with Defendants’ Title IX Program, Generally, and Their Response to Doe’s Reports Specifically Based on his decades of experience with implementing T tle IX requirements, Dr. Howe reaches a number of conclusions about PSD’s actions with respect to Doe. First, Dr. Howe opines that PSD “could and should have done more to protect Doe from her abuser[,]” including: (1) offering safety accommodations and not putting he onus on Doe to identify solutions; (2) issuing a “unilateral no-contact order requiring Doe’s abuser to not come within 36 feet of her, not to use the same hallways or staircases she used between classes, not to use the parking lot at the same time, and/or to leave class a few minutes early or late to avoid contact with her in the hallways;” and (3) developing an effective plan to separate students, which should have been achievable in a school of PHS’s size and density (2,400 students in a 600,000 square foot building). ⁋310. Second, Dr. Howe determines that Defendants did not offer reasonable accommodations to address the mental health issues Doe faced as a result of the dating violence and the subsequent sexual harassment: “[w]hile PSD told Doeto seek out-of-school mental health services . . . , it repeatedly refused to provide her with in-school accommodations at PSD, including an IEP or 504 plan.” ⁋311. With respect to the IEP process that PSD administered, Dr. Howe comments that Owens’ evaluation “was inconsistent with Mr. Hegen’s own admission that Doe ‘was struggling being at school every day because of her level of anxiety surrounding [her abuser]’” and with “PSD’s recommendations for her to join an ‘anxiety group’ and receive out- of-school counseling and therapy.” ⁋311. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 25 of 59 17 Third, Dr. Howe concludes that Twilight “was a poor option for Doe, who, as a survivor of dating violence, needed emotional and social support, not social and academic isolation. Moreover, Twilight did not allow her to pursue her interest in the technical school.” ⁋309. He also notes that Defendants failed to even consider helping Doe transfer to a high school in another district, a charter school, a magnet school, a Catholic school, or other private school. ⁋311. Finally, Dr. Howe identifies institutional and structural failures at PSD, noting the Defendants “failed to employ a suitable Title IX coordinator; failed to recognize or respond to . . . Doe’s reports as sexual harassment; failed to provide the [her] with appropriate accommodations; failed to conduct prompt and equitable investigations of [her] complaints; and failed to provide adequate training on sexual harassment to employees and students.” ⁋308. Dr. Howe concludes, ultimately, that Defendants “failed to take appropriate action at every stage of the process.” ⁋308. And explains that he “would use Pennridge School District’s actions in [Doe’s and Goodwin’s] cases as case studies on what not to do in order to comply with the requirements of Title IX.” ⁋307 (emphasis added). ARGUMENT Defendants are not entitled to summary judgment on D e’s Title IX and § 1983 claims. Under Federal Rule of Civil Procedure 56, the court “shall grant summary judgment if the movant shows that there is no genuine dispute as tony material fact and the movant is entitled to judgment as a matter of law.” F.R.C.P. 56(a). Summary judgment is proper only “when ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.’” Bialko v. Quaker Oats Co., 434 F. App'x 139, 141 (3d Cir. 2011) quoting F.R.C.P. 56(c)(2). An issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonm ving party.” Willmore v. Willmore, No. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 26 of 59 18 CIV. A. 95-0803, 1996 WL 36914, at *1 (E.D. Pa. Jan. 30, 1996) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of showing the court the absence of a genuine issue of material fact, and when reviewing a motion for summary judgment all reasonable doubts and inferences are resolved in favor of the nonmoving party. See Crossley v. Iroquois Foundry Co., No. CIV. A. 91-1657, 1992 WL 26028, at *2 (E.D. Pa. Feb. 6, 1992). Section I explains that it is well established that physical, verbal, and emotional abuse stemming from a dating relationship, like the abuse that occurred against Doe, is a form of sexual harassment. Section II documents that there is ample evidence that could lead a reasonable jury to conclude that Doe has met each element of her Titl IX claim. Sections III and IV explain why the arguments in Doe’s affirmative summary judgment mo ion demonstrate that it is Doe, not Defendants, who is entitled to summary judgment on her § 1983 failure-to-train and supervisory liability claims. Section V explains that Defendants are not entitled to summary judgment on Doe’s retaliation claim. Section VI explains that the official capacity claims against Rattigan and DeBona need not be dismissed. Section VII explains that Defendants’ challenges to Doe’s § 1983 claims are based on a mistaken understanding of the doctrine of qualified immunity. Finally, Section VIII explains that Defendants repeatedly request the Court to usurp the role of the jury by making credibility determinations and to consider irrelevant facts. I. PHYSICAL, VERBAL, AND EMOTIONAL ABUSE STEMMING FROM A FORMER DATING RELATIONSHIP IS A FORM OF SEXUAL HARA SSMENT The gravamen of Defendants’ challenge to Doe’s Title IX claim is that she could not have been sexually harassed under Title IX because she was not sexually ssaulted, and because she was not physically assaulted after ending their relationship. (See Defs.’ Mot. pp. 1, 17-18, 24, 25, 34, 40, 48). In fact, Defendants spend multiple pages documenting Doe’s “admission” that N. never sexually assaulted her, and that he “never touched” her after their breakup. (See Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 27 of 59 19 Defs.’ Mot. pp. 1, 17-18, 22, 24, 25, 26, 30, 40, 44, 8). As an initial matter, this approach is curious because Doe has never alleged N. sexually assaulted her, and it is not clear why Defendants devote so much effort to documenting a fact that was never in dispute. More fundamentally, though, Defendants’ apparent belief that sexual assault and/or physical assault are necessary predicates of a Title IX claim fundamentally misunderstands Title IX and the concept of sexual harassment. First, courts within this Circuit have held that, under Title IX, acts of physical abuse can constitute severe, pervasive, and objectively offensive harassment that effectively deprives the victim of equal access to educational opportunities and benefits. Second, campaigns of verbal and emotional (as well as physical) abuse by former dating partners and their friends can certainly constitute sexual harassment under Title IX, regardless of whether that abuse is accompanied by sexual or physical assault. Because Defendants’ misunderstanding of Title IX law is so fundamental to their argument, we clarify the relevant legal authority before turning to the merits of Doe’s claims. A. Physical Abuse Can Constitute Severe, Pervasive, and Objectively Offensive Sexual Harassment A school district is liable for damages for student-o -student sexual harassment where (1) sexual harassment is “so severe, pervasive, or objectively offensive” that the student is “effectively denied equal access to [the school’s] re ources and opportunities”; (2) the district has actual knowledge of harassment and the school district had substantial control over the harasser and the context in which the harassment occurred; and (3) the district’s response to the harassment is deliberately indifferent (i.e., “clear y unreasonable in light of the known Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 28 of 59 20 circumstances”).5 Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 n.99 (3d Cir. 2018) appealed on other grounds; Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646-48, 650 (1999). Courts recognize that physical abuse constitutes severe, pervasive, and objectively offensive sexual harassment that creates a hostile educational environment within the meaning of Title IX—more than sufficient to meet the “severe, p rvasive, or objectively offensive” standard required by the Third Circuit. For example, in Krebs v. New Kensington-Arnold Sch. Dist., No. 16-610, 2016 WL 6820402, at *2 (W.D. Pa. Nov. 17, 2016), the court found that severe, pervasive, and objectively offensive harassment had occurred in part because a student fractured the nose and bruised and cut the eye of the harassment victim. See also Andrews v. City of Phila., 895 F.2d 1469, 1474 (3d Cir. 1990) (holding that the most egregious instance of harassment was when plaintiff was burned by a chemical substance her harassers had put on her belongings). Title IX liability can also be triggered by “physically threatening” sexual harassment, even where 5 In March 2018, in a related matter against the same Defendants, this Court outlined six elements – which the three elements outlined in this brief encompass – that must be proven in a Title IX claim alleging sexual harassment: “(1) PSD received federal funds; (2) [plaintiff] was sexually harassed; (3) PSD had ‘substantial control’ over both the harasser(s) and the context of the harassment; (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 deprived [plaintiff] of access to educational opportunities or benefits (emphasis added).” Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367, 375 (E.D. Pa. 2018). Defendants do not dispute that PSD is a recipient of federal funds, and so Doe does not address the issue here. Defs.’ Answer ¶ 52. Four months after this Court issued its decision in Goodwin, in July 2018, the Third Circuit held that a Title IX plaintiff alleging sexual harassment need only show that the harassment was so “severe, pervasive, or objectively offensive.” Boyertown, 897 F.3d at 533. In its opinion, the Third Circuit observed that it had “not always been consistent” in applying the correct test, and that even “the Supreme Court has used both the conjunctive and the disjunctive to describe the plaintiff’s burden.” Id. at 533 n.99 (citing Castleberry v. STI Grp., 863 F.3d 259, 263-64 (3d Cir. 2017)). Nonetheless, the Third Circuit acknowledged that in 2017, it had also concluded that “the correct standard is severe or pervasive,” and so it “proceed[ed] with the disjunctive inquiry.” Id. (emphasis in original). Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 29 of 59 21 no physical violence occurs. See, e.g., Jennings v. Univ. of N. Carolina, 482 F.3d 686, 697-698 (4th Cir. 2007) (citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650-51 (1999)). Further, depending on the circumstances, a single icident of physical sexual harassment can create a hostile educational environment claim. See, e.g., Vance v. Spencer Cnty. Public Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000) (noting that while the plaintiff reported multiple incidents, “one incident can satisfy a claim”). B. Campaigns of Verbal and Emotional Abuse by Former Dating Partners Constitute Sexual Harassment under Title IX Courts have recognized that verbal and emotional abuse —in addition to physical abuse— by a former dating partner or by a person who has unsuccessfully attempted to form a dating relationship constitutes severe and pervasive sexual harassment under Title IX. Where “harassment is motivated by a failed attempt to establish a romantic relationship, the victim’s sex is inextricably linked to the harasser’s decision t harass.” See e.g., Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 217 (1st Cir. 2016) quoting Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225, 229 (1st Cir.2007). For example, when a male student shows up “everywhere” near his female classmate’s classes and locker, asks her to be his girlfriend “every day,” and eventually threatens to “beat her up” when she rejects him, the female classmate has been subjected to severe, pervasive, and objectively offensive sexual harassment that is more than sufficient to survive a motion for summary judgment. Jones v. Indiana Area School Dist., 397 F. Supp. 2d 628, 634-37, 644-46 (W.D. Pa. 2005). Similarly, a female student who is “repeatedly harassed” by a former dating partner and is subsequently targe ed by other classmates with “names like ‘bitch’, ‘whore’ and ‘slut,’” experiences actionable sexual harassment. Krebs, 2016 WL 6820402 at *3. In fact, this behavior is so commonly recognized as sexual harassment that the Department of Education’s guidance on harassment lists as an ex mple of harassment a female student being Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 30 of 59 22 “routinely call[ed] . . . sexually charged names” after she ends a relationship with a male classmate. U.S. Dep’t of Education, Office for Civil R ghts, Dear Colleague Letter: Harassment and Bullying 6-7 (Oct. 26, 2010) [hereinafter 2010 OCR Guidance]. Defendants are flatly wrong when they suggest that,as a matter of law, the use of sexually charged epithets is not actionable under Title IX. Indeed, one of the cases upon which they rely to support the proposition actually holds the exact opposite. Defendants cite C.S. v. S. Columbia Area Sch. Dist., 2012 U.S. Dist. LEXIS 188133 (M.D. Pa. 2012), for the proposition that “name-calling which implicates a student’s sexdoes not itself permit an inference of sex- based discrimination.” (Defs.’ Mot. at p. 21). The entire sentence from which this snippet was taken, though, actually reads: “‘Although we recognize that name-calling in school which implicates a student's sex does not itself permit an nference of sex-based discrimination, . . . we cannot exclude the possibility that such name-calling in the context of a reported rape constitutes sexual harassment.’” S. Columbia Area Sch. Dist., 2012 U.S. Dist. LEXIS 188133 at *21 (ellipses in original) (quoting Doe v. East Haven Bd. of Educ., 200 F. Appx. 46, 48 (2d Cir. 2006)). Indeed, the court in South Columbia Area School District found that allegations that the harassers had made rude comments and threats to the plaintiff were relevant to establishing that she had been subject to sexual harassment under Title IX. Id. at *24. And the Third Circuit, in the Title VII context, has made clear that the pervasi e use of derogatory and insulting terms relating to women can serve as evidence of a hostile environment. See Andrews, 895 F.2d at 1485. In sum, there is absolutely no basis in the law to suggest that a sexual assault is a necessary predicate to Doe’s Title IX claim or to claim that N.’s physical, verbal, and emotional abuse during the relationship are irrelevant. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 31 of 59 23 II. A REASONABLE JUROR COULD CONCLUDE DOE HAS MET ALL O F THE ELEMENTS OF HER TITLE IX CLAIM Turning to the facts of the instant case, it is clear that a reasonable jury could conclude that Doe suffered: (1) sexual harassment “so severe, p vasive, or objectively offensive” that she was “effectively denied equal access to [the school’s] resources and opportunities”; (2) PSD had actual knowledge of harassment and the school district had substantial control over the harasser and the context in which the harassment occurred; and (3) PSD’s response to the harassment was deliberately indifferent (i.e., “clearly unreasonable in light of the known circumstances”). Boyertown Area Sch. Dist., 897 F.3d at 533 n.99; Davis, 526 U.S. at 646-48. A. The Physical, Verbal, and Emotional Abuse that Doe Suffered Constitutes Severe, Pervasive, or Objectively Offensive Harassment that Deprived Her of Equal Access to Educational Opportunities and Benefits. 1. Severe, Pervasive, or Objectively Offensive Harassment Doe has presented sufficient evidence such that a reasonable jury could find that she was subjected to severe, pervasive, and objectively offensive sexual harassment.6 Each of N.’s physical attacks were sufficient on their own to establish severity and pervasiveness because he regularly physically abused her throughout their year-long relationship, slammed her against the school lockers on one occasion and left a large bruise the size of a fist on her shoulder after one particularly violent incident. ⁋45, 51; Vance, 231 F.3d at 259 (holding that one physical incident was sufficient for establishing a hostile educational environment claim). N.’s harassment of Doe after she ended the relationsh p was “inextricably linked” to her sex. Xiaoyan Tang, 821 F.3d at 217. Like the harasser in Jo es, who followed his victim 6 While the standard recently established by the Third Ci cuit is that the harassment must be “severe, pervasive, or objectively offensive,” Doe has put forth sufficient evidence such that a reasonable juror could find that she was subjected to harassment that was “severe, pervasive, and objectively offensive” under the higher standard used before Boyertown. 897 F.3d at 533 n.99. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 32 of 59 24 “everywhere” and threatened to “beat her up” when she rejected his dating advances, N. “continu[ou]sly show[ed] up wherever” Doe had classes, made threats directly and through his friends to kill himself unless she agreed to date him again, and raised his fists toward her on school grounds. ⁋51; 397 F. Supp. 2d at 634-37, 644-46. Like the plaintiff in Krebs, Doe was “repeatedly harassed” by her former dating partner a d targeted by his friends with names like cunt, “‘bitch’, ‘whore’ and ‘slut.’” ⁋51, 314, 315; Krebs, 2016 WL 6820402 at *3. The “sexually charged names” directed toward Doe after ending her relationship with N. were textbook examples of sexual harassment, as the Department of Education made clear in its 2010 Title IX Guidance. This campaign of harassment was so severe, pervasive, and objectively offensive that during the first six to eight weeks of fall 2015, Doe visited Hegen once or twice a week, every week, to report new incidents, and after the December 2015 hallway incident, she continued regularly visiting Hegen to update him of their harassing comments. ⁋51; 103; 104. 2. Deprivation of Equal Access to Educational Opportunities and Benefits Sexual harassment creates a hostile environment that deprives a student of equal access to educational opportunities and benefits when the harassment detrimentally affects the victim’s mental health and ability to attend a regular day school, among other factors. For example, when sexual harassment causes a student to “leave class . . . and decide to leave the School District altogether,” a reasonable jury can conclude that the harassment deprived the student of equal educational access, in violation of Title IX. Price ex rel. O.P. v. Scranton Sch. Dist., No. CIV.A. 11-0095, 2012 WL 37090, at *6 (M.D. Pa. Jan. 6, 2012) (citing Davis, 526 U.S. at 653-54); see also Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 410 (5th Cir. 2015) (citing “anxiety” leading to alternative study arrangements and “withdraw[al]” from the school district as evidence of deprivation); M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412, 429 (M.D. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 33 of 59 25 Pa. 2014) (holding that allegations that harassment was so severe that plaintiff had to transfer to another school district was sufficient to state a claim) Here, Doe has put forth evidence that she experienced a hostile educational environment that caused her to withdraw from PHS and enroll in an inferior alternative school that offered limited access to educators, minimal contact with fellow students, and rote and repetitive curriculum. See ⁋139 (showing that at Twilight, students attended only four to six hours of class, and there were only five to twelve students of differ ng grade levels “confined” to one classroom). A reasonable jury could certainly conclude that a sixteen-year-old student would not leave her traditional high school unless she felt unsafe at school (as she repeatedly informed PSD administrators), and believed the alternative school was her “only option” (as PSD advised her). Moreover, it was not just Doe’s opinion that she was facing a hostile educational environment at PHS. Two medical professionals independently came to this conclusion in fall 2015. One provider noted that Doe had Doe had “anxiety” and “trauma” because of “the problems occurring at school.” ⁋51. The second provider informed PSD that Doe had “anxiety, trauma,” and “generalized anxiety disorder” due to “the presence” of her “abusive” ex-boyfriend, which was making it “impossible for her to function at her present school.” ⁋51, 143. She also noted that Doe was having “daily ‘break downs’ at school” due to “a constant fear of . . . repeated abuse at [N.’s] hands.” ⁋326. Both providers independently urged PSD to transfer Doe to a specialized Intermediate Unit since she was being r peatedly triggered by N. at PHS. What happened to Doe at PHS is quite similar to what the plaintiff in Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226 (D. Conn. Apr. 23, 2009) experienced. In Coventry Bd., the plaintiff was assaulted by another student off school grounds. Afterwards, the assailant and his friends (fellow students) began harassing her, including by calling her various gender- Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 34 of 59 26 based derogatory terms such as “slut,” “whore,” and “bitch.” Id. at 232-33. She was forced to leave her regular day school to avoid the harassment and enroll in an inferior night program, where her socialization was limited to students who ere in disciplinary “trouble” at school. Id. at 231, 234. Like the Coventry Board plaintiff, as a result of the hostile environment at school created by her assailant and his friends that PSD failed to address, Doe was forced to leave her “regular day school” at PHS and enroll in a “night program” where her socialization was limited to students who were “in trouble,” e.g., who were at risk of dropping out and/or who needed a credit recovery mechanism. ¶333. Defendants attempt to argue that a hostile environment did not exist and that Doe’s reports of harassment were part of an elaborate ruse to obtain a transfer to her then-boyfriend’s high school. As an initial matter, this argument makes no sense. Doe’s then-boyfriend was not attending Twilight. He attended school in another school district. ⁋40. Transferring to Twilight did not allow Doe to spend additional time with her then-boyfriend; however, it did allow her to escape N. and the others at PHS who were harassing her. Finally, it is procedurally inappropriate for Defendants to ask the Court to sift through the evidence at this juncture and to make determinations, as a matter of law, about why Doe wished to leave PHS. It bears noting that Defendants base their argument about Doe’s intent on notes made by D’Angelo of a meeting with Doe and her father. (Def. Mot. P. 5). Defendants do not disclose, though, that at his deposition, Doe’s father did not recall ever making such a statement. ⁋40. His denial, of course, creates a genuine dispute of material fact on this issue. B. PSD Had Actual Knowledge of the Hostile Educational Environment and Had Substantial Control over the Harasser and the Context in which the Harassment Occurred The Supreme Court and the Third Circuit require plaintiffs seeking damages in student- on-student harassment cases to prove that a school employee had actual knowledge of the Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 35 of 59 27 harassment, and that the school district had substantial control over the harasser(s) and the context in which the harassment occurred.7 Davis, 526 U.S. at 646-47. 1. PSD Had Actual Knowledge Ample evidence exists that numerous PSD officials, ncluding DeBona and Assistant Principals Hegen and Laboski—who were authorized to address discrimination and institute corrective measures regarding sexual harassment—and guidance counselors D’Angelo and Henrysen, had actual knowledge of the harassment Doe suffered. ⁋51. Evidence of these individuals’ knowledge includes, but is not limited to: • June 15, 2015: D’Angelo, Hegen, Laboski, and DeBona learned Doe reported harassment. Supra. p. 6. • September 4, 2015: Doe Laboski, Henrysen, and Hegen l ar ed that Doe reported continued harassment. Supra. pp. 7-8. • November 24, 2015: Hegen and DeBona learned of another report of harassment. Supra. pp. 10-11. • December 22, 2015: Hegen learned of another report of harassment. Supra. p. 11. Against this backdrop, no reasonable juror could fin that PSD lacked notice. 2. PSD Had Substantial Control over the Harassers and the Context in which the Harassment Occurred A school district is liable for sexual harassment if it has “substantial control” over both (1) the “harasser” and (2) the “context” in which the harassment occurs. Davis, 629 U.S. at 645. 7 The Supreme Court has required actual knowledge by an “appropriate person” only in cases of employee-on-student harassment, not student-on-student harassment. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290. Even if Doe were required to meet the “appropriate person” standard, however, Doe has set forth facts such that a reasonable juror could find that she satisfies that standard. Courts have held that notice to school officials, including principals and assistant principals, constitutes actual knowledge of harassment by an “appropriate person” in employee-on-student Title IX cases. E.g., Does v. Se. Delco Sch. Dist., 272 F. Supp. 3d 656, 688 (E.D. Pa. 2017) (superintendents and principals); K.E. v. Dover Area Sch. Dist., No. 1:15-CV- 1634, 2017 WL 4347393, at *7 n.6, *10 (M.D. Pa. 2017) (superintendents, principals, and assistant principals). Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 36 of 59 28 The first prong is met if the harasser is “under th school's disciplinary authority.” Id. at 630. If a school can discipline students for other types of out-of-school misconduct, then it also has disciplinary authority over its students for out-of-school sexual harassment. E.g., Feminist Majority Found. v. Hurley, 911 F.3d 674, 688 (4th Cir. 2018). The second prong regarding “context” is met if the harassment occurs on school grounds and during school hours. Davis, 629 U.S. at 630. But even if the harassment occurs outside of school, a school can still exercise substantial control over the context of the harassment if it is able to control the resulting hostile environment in school. Feminist Majority, 911 F.3d at 688 (university had substantial control over “context” of online harassment because it could correct resulting hostile environment through school-wide trainings or assemblies). For example, in a case cited by Defendants, see Defs.’ Mot. at 21, the court explained that school districts are responsible for the hostile educational environment that ensues in the wake of an off-campus assault: “Applying these principles [from Davis on substantial control], the School District cannot be liable for the assault that occurred during the summer and off of school property. But [the plaintiff] does not seek to hold the School District liable for that assault. Rather, she seeks to hold the School District liable on the basis that it subjected her to a sexually hostile environment because she was forced to attend the same school as her attackers and to encounter them on a regular basis and because they and their friends verbally harassed her (emphasis added)” C.S. v. S. Columbia Area Sch. Dist., No. 4:12-cv-1013, 2013 WL 2371413, at *9 (M.D. Pa. May 21, 2013). Here, Defendants are wrong that PSD lacked substantial control. First, N. and his friends were undeniably under PSD’s disciplinary authority. As assistant principal for the 11th grade during the 2015-2016 school year, Laboski had the authority to discipline any of them for misconduct: PSD’s written board policies state thatits disciplinary authority extends to all acts of bullying that occur “outside a school setting.” Defs.’ Mot. at 23; ⁋337. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 37 of 59 29 Second, PSD had substantial control over the context of each incident of harassment that Miss Doe suffered because it controlled her education l environment. Defendants argue that PSD could not have “prevented” N.’s physical abuse in spring 2015 “because it occurred in Doe’s bedroom” and because she “did not report [it] until … June 15, 2015.” Defs.’ Mot. at 23. This argument is a strawman. Doe does not seek to hold PSD liable for failing to “prevent[]” the out- of-school physical and verbal abuse she suffered p ior to her June 2015 report. Rather, like the South Columbia plaintiff, she seeks to hold PSD liable on the grounds that it subjected her to a hostile environment because after her report: PSD failed to in any way to effectively address the fact that she was attending the same school as her abuser and encountering him on a regular basis. Furthermore, unlike the plaintiff in Williams v. Pennridge Sch. Dist., Doe offers copious evidence of continuous in-school harassment by N. and his friends that created an untenably hostile educational environment and, according to the independent evaluations of two medical providers, made it impossible for her to function at PHS. See Defs.’ Mot. at 23 (citing No. CV 15-4163, 2018 WL 6413314, at *11-*13 (E.D. Pa. Dec. 6, 2018)). A reasonable jury could easily conclude that PSD did in fact exercise substantial control both over N. and his friends and over the context in which their harassment of Doe occurred. Supra. pp. 5-6, 8-12. C. Evidence Exists that PSD Was Deliberately Indifferent to the Known Acts of Harassment that Doe Suffered Doe has offered evidence that could lead a reasonable juror to conclude that PSD was deliberately indifferent to the known acts of harassment which Doe suffered. A school district is deliberately indifferent when its “response . . . or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. Doe can establish PSD’s deliberate indifference in, at least, four different ways: (1)PSD repeatedly failed to investigate or failed to Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 38 of 59 30 adequately investigate her reports because of their failed understanding of Title IX; (2) PSD repeatedly failed to create a safety plan to keep N. away from her; (3) PSD repeatedly failed to discipline N. for harassing her; and (4) PSD pushed her into an inferior night school for students at risk of dropping out, rather than ensuring that she had equal access to educational opportunities at PHS. Ample evidence exists for each of these transgressions, as described below, even though Doe need not establish that evidence exists for each transgression to create a material dispute regarding deliberate indifference. 1. PSD Failed to Investigate Failure to investigate a report of sexual harassment is, on its own, sufficient to constitute deliberate indifference in violation of Title IX. See, e.g., Vance, 233 F.3d at 262 (finding that failure to investigate “three incidents alone reflect . . . deliberate indifference”); Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1248 (10th Cir. 1999) (“complete refusal to investigate … amounts to deliberate indifference”); see also Davis, 526 U.S. at 654 (noting that defendants “made no effort whatsoever either to investigate or to put an end to the harassment”). Similarly, if a district does not “avail itself” of “the designated investigator for student-to-student harassment”—“[i]ndeed, [if] [the Title IX coordinator] has never been involved in any investigation of peer-on-peer sexual harassment”—the district has acted with deliberate indifference. Bruning ex rel. Bruning v. Carroll Cmty. Sch. Dist., 486 F. Supp. 2d 892, 916 (N.D. Iowa 2007). Courts have rejected the suggestion that “as long as [a school district] ‘does something in response to harassment, it has [shown it was not deliberately indifferent]” Jones, 397 F. Supp. 2d at 644 (quoting Vance, 233 F.3d at 260). Therefore, even where a district conducts a “limited investigation” into an “initial report” of abuse, such an investigation can still constitute deliberat Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 39 of 59 31 indifference as a matter of law. Doe v. Forest Hills Sch. Dist., 2015 WL 9906260, at *10 (W.D. Mich. Mar. 31, 2015); Doe v. Sch. Admin. Dist. No. 19, 66 F.Supp.2d 57, 64 (D. Me 1999). (holding that a jury could find it unreasonable that an investigation contained no interviews with students). Similarly, a school district does not satisfy its duty to investigate simply by searching in vain for “a signed confession or video tape” and then refusing to investigate further when no tape or confession is found—as happened here. Forest Hills, 2015 WL 9906260, at *11. Nor may school districts use clearly unreasonable methods t dismiss a student’s report of harassment. For example, a school may not “summarily dismiss[]” a student’s report based on a “perceived lack of credibility.” J.M. ex rel. Morris v. Hilldale Indep. Sch. Dist. No. 1-29, 397 F. App’x 445, 454 (10th Cir. 2010). Such a “snap conclusion . . . [does] not . . . obviate the need for an investigation.” Id. Finally, a school’s response is clearly unreasonable if its “response to [a] plaintiff[’s] complaints of harassment [i]s based only on what [respondent] admitted and not on what actually occurred.” Bruning, 486 F. Supp. 2d at 916. These authorities show that a reasonable jury could readily conclude that PSD was clearly unreasonable in failing to investigate Doe’s harassment complaints, in violatin of Title IX. Here, Doe has set forth evidence that PSD: (i) violated district policy by failing to notify the Title IX coordinator, McHale, of any of Doe’s reports of harassment, ⁋180;8 (ii) with one exception failed to investigate, in any fashion, any of Doe’s numerous reports of harassment; ⁋332; and (iii) conducted a woefully inadequate investigation of the only report that was “investigated,” concluding that because there was no videotape and witnesses had inconsistent accounts of what occurred, the investigation was necessarily “inconclusive” and that holding N. 8 Indeed, in August 2015, Hegen did not even know the identity of PSD’s Title IX Coordinator and had to obtain her name from Defendant DeBona. This Court has previously explained that a jury could plausibly infer that such ignorance by someone in Mr. Hegen’s position is “clearly unreasonable.” ¶ 338; Goodwin, 309 F. Supp. 3d at 376-77. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 40 of 59 32 responsible would be akin to “starting … a witch hunt⁋330. Defendants simply fail to appreciate that if any party were to be entitled to summary judgment on these facts, it would be Doe. Forest Hills, 2015 WL 9906260, at *11. This failure to investigate is particularly disturbing in light of the fact that PSD already knew before Doe’s first report of N.’s abusive behavior that N. had a history of sexual harassment. PSD knew that N. had, as a sophomore, sent sexually explicit text messages to a 13- year-old girl and had caused another student to withdraw from a class the two had together because the student was uncomfortable with N.’s repeated sexual comments, and because N. “just d[id]n’t know when to stop.” ⁋305, 306. See Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1261 (11th Cir. 2010) (citing Vance, 231 F.3d at 261) (holding that a district’s “failure to institute any corrective measures” “in light of the known circumstance that a prior female student had also accused [the same respondent] of sexual harassment” can constitute deliberate indifference); see also Davis, 526 U.S. at 649 (holding that a plaintiff could establish deliberate indifference by showing the district failed to respond to “complaints of [respondent’s] in-school misconduct from [plaintiff] and other female students”) (emphasis added). Defendants make a number of arguments in defense of their failure to investigate, each of which can be quickly debunked. First, Defendants claim that they did not have a duty to treat Doe’s reports as sexual harassment because Doe did not explicitly describe them in legal terms— i.e., she did not say, “N. is sexually harassing me” under Title IX. Defs.’ Mot. P. 27 (claiming that Doe completed an incident report indicating that N. showed up wherever she was, but did not report that N. sexually harassed her). It strains credulity to assert that Doe did not explicitly identify conduct that constitutes sexual harassment in her reports, including explicitly using the word “harass.” Doe wrote of her former dating partne : Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 41 of 59 33 • “[N.] continu[ou]sly shows up to wherever I am. He is not supposed to be anywhere near me”; • “[N.] likes to torment me and ruin my life”; and • “He continuously harasses me.” ⁋51. As a legal matter, the argument fails to recognize that it is the district’s responsibility, not the student’s, to recognize reported conduct as harassing. Indeed, as the Department of Education has explained to school districts, “The label used to escribe an incident (e.g., bullying, hazing, teasing) does not determine how a school is obligated to respond.” 2010 OCR Guidance at 3; see Forest Hills, 2015 WL 9906260 at *11 (stating that to consider whether an allegation of harassment is “known” to the school, courts consider not whether acts of harassment were substantiated and established but whether the school was on notice of a potential issue). Second, Defendants try to dismiss each of Doe’s reports as discrete incidents, failing to recognize that in each of these reports, Doe reports a pattern of persistent, ongoing harassment: • In June 2015, Doe reported abuse that persisted over the course of their relationship. ⁋51. • In September 2015, Doe and her father reported a continuing pattern of conduct by N. ⁋51. • For the first six to eight weeks of fall 2015, Doe repeatedly reported harassment by N. and his friends to Hegen. ⁋51. • On November 24, Doe reported that N. “continu[ou]sly” howed up wherever she was. ⁋51. She also reported that she was tired of complaining “over and over” about the harassment to no avail. ⁋51. • On December 22, 2015, Doe filed another incident report with PSD in which she reported, among other things, that N. “continuously harasse[d]” her. ⁋51. Ample evidence exists in this record that Doe reported a pattern of sexual harassment that commenced when she and N. began dating and continued up through the time that Defendants effectively forced Doe to withdraw from PHS and enroll in Twilight. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 42 of 59 34 2. PSD Failed to Implement an Adequate Safety Plan As the Supreme Court has recognized, a school is deiberately indifferent if its actions make a student more “vulnerable” to harassment or “subject” the student to further acts of harassment. Davis, 526 U.S. at 644-45. Therefore, courts have found deliberate indifference where schools fail to take precautions to develop safety plans. See BPS v. Bd. of Trustees for Colorado Sch. for the Deaf & Blind, 2015 WL 5444311, at *15 (D. Colo. Sept. 16, 2015) (holding that a school not developing a safety plan could help a reasonable jury find that a school acted with deliberate indifference). Moreover, a school is deliberately indifferent if it fails to undertake new safety measures when existing measures hav failed, including when a student continues to harass another student in violation of the school’s order to stay away from her. See Vance, 231 F.3d at 261 (noting that talking to the offend rs did not work, but the school officials continued to employ the same ineffective methods). Here, PSD failed to develop any type of written safety plan for Doe. At best, the evidence reflects that PSD orally directed N. at some point after Doe’s June 2015 report not to have contact with Doe, but gave no specific instruction about what avoiding contact meant and did not memorialize the instruction in writing. ⁋51, 80. It should have come as no surprise to Defendants that this amorphous, informal directive had no apparent impact on N. Moreover, PSD refused to undertake new safety measures when it learned that existing measures were not working. For example, when Doe asked Hegen for additional safety m asures to stop N. from showing up outside her classrooms, Hegen refused, calling her “crazy” and a “drama queen.” ⁋71. The record is chockful of examples between when the oral instruction was purportedly given and when Doe ultimately withdrew from PHS that N. (and his friends) continued to verbally abuse, stalk, and threaten Doe. ⁋51, 314, 315. A reasonable juror could conclude that the cavalier avoid- Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 43 of 59 35 contact instruction and the failure to implement more serious controls once the harassment persisted supports a finding of deliberate indifference. Finally, it bears noting that an obvious potential s fety plan was placing Doe in the Intermediate Unit recommended by the medical professionals who were treating her. Hegen wrote in response to this placement recommendation, “[r]ecommending her to the [Intermediate Unit] is nice and all . . . but . . . NO.” ¶325 (ellipses in original). PSD claimed it could not consider the request because Doe lacked the requisite IEP. Yet, PSD demonstrated no urgency in trying to determine whether Doe could qualify for an IEP. Although Doe’s mental health provider recommended a transfer to the Intermediate Unit in the beginning of the first semester of her junior year, PSD did not even begin the IEP process until the second semester. Owens ⁋140, 143. When PSD commenced the assessment, Hegen informed the PSD employee who would be conducting the assessment that they needed “to go through the process.” ⁋140 (ellipses in original). After receiving this email, the PSD employee proceeded to administer what Dr. Weinberg, an expert forensic and clinical psychologist who reviewed the evidence, has opined was a “problematic” assessment—failing to speak with any of Doe’s medical providers and generally discounting any evidence that supported th need for an IEP. A reasonable juror could conclude—based on Hegen’s antagonistic initial reaction, the delay in conducting the assessment, the fact that wen PSD finally decided to conduct the assessment that Hegen said they were doing it, “to go through the process,” and the fact that PSD failed to conduct an adequate assessment—that PSD was not merely deliberately indifferent to a potential safety plan that had been recommended by Doe’s medical providers, but also that they took active steps to withhold this safety plan from Doe. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 44 of 59 36 3. PSD Failed to Discipline N. It is undisputed that PSD failed to discipline N. despite repeated reports by Doe of his harassment. Failure to discipline a harasser is evidence of deliberate indifference. Davis, 526 U.S. at 635 (noting that “at no point … was [responde t] disciplined for harassment”); Flores v. Morgan Unified Sch. Dist., 324 F.3d 1130, 1135 (9th Cir. 2003) (holding a plaintiff had alleged sufficient evidence based on the fact that defendant “took no action to … discipline the harassing students”). A school’s disciplinary response can be clearly unreasonable if it “consist[s] entirely of ‘talking to’ [the harasser], changing his homeroom and moving his locker, even though these responses d[o] not accomplish anything.” Jones, 397 F. Supp. 2d at 645; see also Vance, 231 F.3d at 262 (“With the exception of talking to [harasser], there was no evidence … [defendant] took any other action whatsoever.”). 4. PSD Effectively Forced Doe to Transfer to an Inferior Alternative School A school’s attempts to induce a harassment victim to attend an objectively inferior alternative school is evidence of deliberate indifference in violation of Title IX. See, e.g., S.K v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786, 809-10 (W.D. Pa. 2016). Here, as is described above, there is ample evidence that could lead a reasonable juror to conclude that Twilight was an objectively inferior option, and that Doe “chose” to attend Twilight only after her pleas for PSD to provide her relief from the hostile environment went unanswered for almost an entire calendar year and after PSD presented Twilight as her “only option.” See, supra, p. 15; see also S. Columbia Sch. Dist., 2013 WL 2371413, at *6 (holding that a harassment victim who “ultimately enroll[s] in cyber school after [her school] refused to support her efforts to transfer to another local high school” states a valid Title IX claim). Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 45 of 59 37 D. Defendants Fail to Even Mention Dr. Howe’s Opinions Aside from the many fact witnesses whom Defendants fail to acknowledge, Defendants never once mention Dr. Howe, Doe’s Title IX expert witness. Dr. Howe was a Title IX coordinator for 24 years, 17 of which were spent serving as Title IX Coordinator for the State of Connecticut. Given the abundance of factual disputes, Doe need not rely upon Dr. Howe’s expert opinions to defeat Defendants’ summary judgment motion. Doe does note, however, that standing alone, his opinions create issues of genuin dispute. Dr. Howe concludes in his expert opinion that there were blatant deficiencies from a Title IX perspective with Defendants’ response to Doe’s complaints. He explains that based on his experience, which includes seeing how other schools comply with their Title IX obligations, that PSD: could and should have done more to protect Doe fromher abuser . . . Instead of putting the burden on Doe to ask for safety accommodati ns, PSD should have offered them. PSD should have issued a unilateral no-contact order requiring Doe’s abuser not to come within 36 feet of her, not to use the same hallways or staircases she used between classes, not to use the parking lot at the same time, and/or to leave class a few minutes early or late to avoid contact with her in the hallways. PHS has 2,400 students in a large 600,000 square foot building and could have developed an effective plan to separate students in this size and/or density of a building. After learning of Doe’s mental health, PSD should have developed a comprehensive safety plan with the input of parents, social workers, therapists, school resource officers, and other professionals. ⁋310. He also opines that PSD could have done more to h lp Doe transfer to a suitable alternative school. ⁋311. Opinions this strong, from an expert with Dr. Howe’s xtensive Title IX background, further demonstrate why summary judgment is inapproriate on Doe’s Title IX claim. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 46 of 59 38 III. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE §1983 FAILURE TO TRAIN CLAIM Defendants claim that PSD officials received numerous trainings on “harassment, bullying, [and] cyberbullying,” and they go on to list the various trainings held for PSD employees. (Def. Mot. Pp. 37-38). After listing the rainings that PSD employees attended, Defendants state in a conclusory fashion that PSD staff “were properly trained regarding Title IX claims, harassment incidents and how to respond to and investigate reports of harassment and sexual harassment.” (Defs.’ Mot. Pp. 39-40). However, Defendants do not address the substance of these trainings. Doe has presented evidence that these trainings were deficient, and not only should Defendants’ motion be denied, but Doe’s motion should also be granted, as to these claims. The evidence that Defendants put forward purporting to relate to the trainings that PSD employees attended is confusing, duplicative, and often irrelevant. It can essentially be broken down into three categories: (1) repeated references to the deficient PowerPoint and online Global Compliance Network (“GCN”) trainings discussed in Doe’s motion for summary judgment, (2) irrelevant trainings and policies, and (3) alleged informal trainings for which Defendants produced no contemporaneous evidence. The only written training materials that PSD produced in discovery were the deficient PowerPoint trainings and the online GCN trainings, which replaced the PowerPoint trainings, discussed in Doe’s Motion for summary judgment. (Pl’s Summ. J. Mot., ECF No. 81 (hereinafter “Pl.’s Mot.”) p. 11).9 Although Defendants discuss annual trainings, PowerPoint 9 The undisputed facts show that the trainings PSD employees attended had identified deficiencies, including the lack of information regarding 1) the identity of PSD’s Title IX Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 47 of 59 39 presentations, and other formal trainings, the onlydocumented evidence of their trainings are the deficient training materials. Defendants reference these deficient trainings often. Indeed, out of the 99 paragraphs of Defendants’ SOUF, 46 paragraphs document the existence of these deficient trainings and the various PSD employees who attended these deficient trainings. Establishing the existence of deficient trainings and the fact that PSD employees attended these deficient trainings does nothing to support Defendants’ motion for summary judgment. Nearly all of the remaining paragraphs are simply irrelevant: • A number of paragraphs10 discuss meetings and trainings that touch on issues other than sexual harassment; for example, the Peace Center Training discussed bullying, peer conflict, and harassment trends and was offered more than nine months after Doe left PHS;11 Defendants also cite to various meetings where school policies were discussed or reviewed, without representing that sexual harassment was actually discussed at those meetings. • A number of paragraphs12 generally represent that PSD employees were aware of the existence of certain PSD policies, which is a far cry from establishing that the employees were trained on them or actually understood them; and • Paragraphs13 which relate to wholly irrelevant trainings that eith r occurred 1) when an employee was not employed by PSD or 2) after Do left PHS.14 The remaining nine paragraphs15 of Defendants’ SOUF relate to informal trainings for which defendants have produced no materials, presentatio s, notes, or takeaways. As an initial Coordinator, 2) employees’ duties under Title IX and PSD policies to notify the Title IX Coordinator regarding student on student sexual harassment, 3) employees’ duties to investigate all reports of harassment including those that takeplace outside of school, 4) how to conduct investigations, and 5) how to create effective safety plans. (Doe Memo. Mot. Summ. J. p. 11). 10 Def. SOUF ¶ 189,193, 194, 195, 197, 199, 208, 216,20 223, 227, 245, 246, 254, 255, 262. 11 Paragraphs 194-195 establish that the Peace Center program was focused on bullying and not sexual harassment specifically; however at paragraph 254, Defendants inaccurately suggest the Peace Center program related to sexual harassment. D f. SOUF ¶ 194-95, 254 (“Laboski attended the Peace Center training concerning harassment and sexual harassment.”). 12 Def. SOUF ¶ 206, 207, 212, 218, 219, 235, 247, 2518, 264, 266, 273. 13 Def. SOUF ¶ 196, 200, 229, 234, 259, 271, 272. 14 As an example, paragraph 196 discusses summer workshops held at PSD but the cited document is from August 2017, after Doe graduated. 15 Def. SOUF ¶ 186, 191, 205, 211, 226, 243, 244, 24856. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 48 of 59 40 matter, there are serious credibility and weight questions about supposed informal trainings for which no contemporaneous documentation exist. Doe recognizes, though, that those credibility and weight questions cannot be resolved at summary judgment. Accordingly, even if the Court assumes for purposes of summary judgment that sexual harassment had been discussed at these informal trainings, those informal trainings do not es ablish that Defendants are entitled to summary judgment. In fact, they do not even create an issue of material fact that establishes that Doe’s summary judgment motion should be denied. Given the blatant deficiencies with their formal training presentations, no reasonable juror could conclude that Defendants cured those deficiencies through a handful of informal trainings where no written training materials were distributed to attendees and not even one attendee took a single note of what they learned. In her motion for summary judgment, Doe has documented the evidence a reasonable juror could use to conclude that Defendants’ failure to train amounted to deliberate indifference to the rights of PSD students and that their failure to train its employees was closely related to the violation of her constitutional rights. But for the lack of training of PSD employees, Doe’s injuries could have been avoided. (Pl.’s Mot. pp. 12-18). It is Doe, not Defendants, who is entitled to summary judgment on the failure to train claim. IV. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THE § 1983 SUPERVISORY LIABILIT Y CLAIMS Defendants argue that Rattigan and DeBona “fail[ed] to act” yet “played no affirmative part in depriving [Doe] of [her] constitutional rights,” and should therefore escape supervisor liability. Defs.’ Mot. at 44. But Doe does not seek to hold Rattigan and DeBona liable for mere passivity in the face of “generalized knowledge” of their subordinates’ misconduct. Id. Rather, Defendants are liable for their own actions under both theories of supervisory liability acknowledged in Defendants’ brief: (1) establishing a d maintaining policies and/or customs that Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 49 of 59 41 directly caused the constitutional harm; and (2) directly participating in violating Doe’s rights. See Defs.’ Mot. at 41, 43 (quoting A.M. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004); see also Pl.’s Mot. at 26. Under the first theory, as final policymakers, Rattigan and DeBona ctively established municipal policies and/or actively acquiesced to municipal customs enumerated above. Pl.’s Mot. at 21-28. Specifically, they approved policies and/or customs among PSD employees of: (a) failing to notify the Title IX coordinator of harassment complaints; (b) failing to conduct investigations or discipline students for harassment that occurs outside of school; and (c) failing to create and submit written reports of harassment investigations to the Title IX coordinator. Pl.’s Mot. at 21-24. While the policies and customs followed by PSD employees involved “failure[s] to act,” Rattigan and DeBona acted affirmatively in approving of, or acquiescing to, said policies and customs. Id. Nothing about Defendants’ actions was passive. Defendant DeBona is also liable under the second theory of supervisory liability because she had “personal involvement” when she “participated in violating [Doe’s] rights.” See Defs.’ Mot. at 41, 43 (quoting Luzerne Cty., 372 F.3d at 586). As a PSD principal, she was requi d under PSD’s written policies to write and submit reports of harassment investigations to McHale, the compliance officer and Title IX coordinator. Pl’s Mot. at 23, 26-28. However, she did not submit a single report to McHale between Doe’s first report of harassment in June 2015 and her departure from PHS in April 2016. Id. at 23. DeBona cannot escape liability for her own personal involvement in Doe’s constitutional injuries.16 Defendants also attempt to avoid supervisory liability by citing a 2010 Third Circuit case that suggested Ashcroft v. Iqbal, 556 U.S. 662 (2009), had created “uncertainty” as to whether 16 Because DeBona was a final policymaker, her decision also constituted official municipal policy under the first theory of supervisory liability. Pl.’s Mot. at 23. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 50 of 59 42 individual defendants can be held liable for approving policies and customs. Defs.’ Mot. at 43 (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010)). Yet Defendants neglect to mention that the Third Circuit has repeatedly recognized this very theory of supervisory liability in subsequent cases alleging Eighth Amendment violations. E.g., Wharton v. Danberg, 854 F.3d 234, 243 (3d Cir. 2017); Chavarriaga v. New Jersey Dept. of Corr., 806 F.3d 210, 223 (3d Cir. 2015); Barkes v. First Correctional Medical, 766 F.3d 307, 320 (3d Cir. 2014), rev’d on other grounds, 135 S. Ct. 2042 (2015). The Third Circuit has neither addressed nor narrowed the scope of supervisory liability for violations of other constitutional provisions, such as the Fourteenth Amendment. See Barkes, 766 F.3d at 320. Accordingly, Doe is not restricted from pursuing her supervisory liability claims against Rattigan and DeBona for violating her equal protection rights through their policies and customs. For all of the reasons articulated in Doe’s summary judgment motion, the court should not only deny Defendant’s motion for summary judgment on Doe’s supervisory liability claims, but also grant Doe’s summary judgment motion on those claims. V. DEFENDANT PSD IS NOT ENTITLED TO SUMMARY JUDGMENT O N DOE’S RETALIATION CLAIM Doe has set forth sufficient facts from which a reasonable jury could conclude that Defendant PSD retaliated against her for reporting sexual harassment and protesting their inadequate responses to her reports. Defendants concede that the Title IX retaliation framework is applicable here, given the nature of Doe’s claims. Defs.’ Mot. at 31 (citing Yan Yan v. Penn State Univ., 529 F. App'x 167, 171 (3d Cir. 2013)). Under that fr mework, to establish a prima facie case of retaliation, Doe must “demonstrate that she complained of sexual harassment, that [PSD] knew she had complained of such, and that [it] took adverse action because of her Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 51 of 59 43 complaints.” Id. Defendants do not contest that Doe reported the events which constitute sexual harassment and that they had knowledge of the reports. An adverse action is simply an action that “produces injury or harm.” Id. (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006)). In Defendants’ view, Doe c uld not have been “harmed” by being forced into Twilight because she did not enjoy attending PHS. That is a myopic view of harm or injury that finds no support in the law. A reasonable jury certainly could conclude that a sixteen-year old is harmed when given little choice but to leave her traditional high school to attend another school that, by comparison, offers inferior educational opportunities and limited opportunities for social interactions with peers. For instance, unlike at PHS, Twilight students attended four to six hours of class each week; were “confined to a single classroom” with five-to-twelv students of multiple grade levels; merely completed packets at their desks; and did not receiv l ctures or other forms of traditional classroom instruction. Certainly such a learning enviro ment could harm a teenager in numerous respects—socially, psychologically, intellectually. Injury or harm, in these circumstances, is a quintessential question of fact. Causation depends, in part, on whether there was a retaliatory motive, which the Third Circuit has described as “a question of fact.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citing Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004)). Causation “is almost never subject to proof by direct evidence,” thereby requiring plaintiffs to “rely on circumstantial evidence to prove a retaliatory motive.” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). Doe can make such a showing with evidence showing “(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 52 of 59 44 v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); see also N. Allegheny, 168 F. Supp. 3d at 806 (requiring causal link between conduct and “retaliaory animus”). Here, evidence would allow a jury to infer causation under both temporal proximity and a pattern of antagonism or animus. Doe complained to PSD about harassment on September 4, 2015. Shortly after, on October 1, 2015, Doe’s medical provider sent a letter to PSD recommended that she be referred to an alternative school. The very next day, Mr. Hegen sent an antagonistic letter that was inexplicably dismissive of Doe’s requests and concerns to other PHS administrators, “Recommending her to the [alternative school] is nice and all . . . . but . . . NO.” ⁋325 (ellipses in original). This pattern of antagonism continued in the ensuing months. When Doe requested additional safety measures because N. continued to appear outside her classrooms, Hegen denied her request, accusing her of being “crazy” and a “dr ma queen.” ⁋71. Doe filed two additional incident reports on November 24, and December 22, 2015, the former of which was ignored outright, and the latter of which was dismissed as “inconclusive” after a cursory investigation. ⁋51. A reasonable jury could conclude that in the four months that followed, PSD ensured that Doe received a flawed IEP to confirm its preordained conclusion that she could not attend her clinically recommended alternative; was given only one option to learn in a safe environment (Twilight); and then began attending Twilight because she had no other options. ⁋139. Based on these facts, a reasonable jury could readily conclude that PSD retaliated against Doe because she had exercised her right to complain of sexual harassment and to protest its inadequate responses to her complaints. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 53 of 59 45 VI. THIS COURT SHOULD NOT DISMISS DOE’S OFFICIAL-CAPACI TY CLAIMS AGAINST DEFENDANTS DEBONA AND RATTIGAN Defendants cite Gregory v. Chehi to argue that the official capacity claims against Rattigan and DeBona should be dismissed. Defs.’ Mot. at p. 40 (citing 843 F.2d 111, 120 (3d Cir. 1988)). Yet, Defendants’ reliance on Gregory is misplaced, as the case deals exclusively with issue and claim preclusion. In Gregory the plaintiff attempted to bring a § 1983 claim in federal court against Township officials. The Court dismissed these claims on the basis of claim preclusion, reasoning that because the Plaintiff had named the Township as a defendant in a prior adjudicated state action, the Township officials named in their official capacity in the federal suit met the “identity of parties” standard of claim preclusion. 843 F.2d at 119-120.17 Here, Doe is not bringing a successive claim, and therefore her claim need not be barred. VII. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY Genuine disputes of material fact preclude this Court from concluding that DeBona and Rattigan are entitled to qualified immunity as a matter of law. There are two prongs of the qualified immunity analysis: (i) whether the defenda t’s conduct violated a statutory or constitutional right, and (ii) whether that right was clearly established when the underlying conduct occurred. See, e.g., Sauers v. Borough of Nesquehoning, 905 F.3d 711, 716 (3d Cir. 2018) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Defendants tellingly address only the first prong of this standard, dedicating a single page of their brief to arguing that they did not, 17 Gregory cites to Kentucky v. Graham, 473 U.S 159, 167 n.14 (1985), for the proposition hat the Township officials have the same identity as the Township for claim preclusion purposes. However, Graham did not mandate dismissal of an official-capacity laim merely because it is also asserted claims against the official’s governme t entity. Rather, the Supreme Court simply observed that there was “no longer a need to bring official-capacity actions against local government officials” if the plaintiff has already sued the local government unit directly. 473 U.S at 167 n.14. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 54 of 59 46 in fact, knowingly violate Doe’s constitutional rights. See Defs’ Mot. at 47-48. A jury must make that determination, however, not this Court. It is well settled that “when qualified immunity depends on disputed issues of fact, those issues must be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006). Accepting DeBona and Rattigan’s qualified immunity argument would require this Court to resolve disputed questions of fact. For instance, they conclusorily argue that “none of the [Doe’s] constitutional rights have been violated”; that the “evidence demonstrates that neither Rattigan nor DeBona knowingly violated” Doe’s rights; hat Doe “was not harmed”; and that “nothing” “should have put Rattigan or DeBona on notice of a constitutional violation.” See Defs’ Mot. at 47-48. Doe has presented ample evidence to this Court refuting each of these fact- bound contentions. At a minimum, a reasonable jury could disagree with Defendants’ conclusions about what “the evidence demonstrates,” as explained above. Id. For that reason, this Court cannot resolve DeBona and Rattigan’s purported entitlement to qualified immunity at the summary judgment stage. Hill v. Cundiff, 797 F.3d 948, 978 (11th Cir. 2015) (“With regard to the first prong of qualified immunity analysis, there is a genuine dispute of material fact as to whether [the school principal] violated [plaintiff’s] constitutional right to equal protection” because “a jury could find his actions after [respondent’s] rape of [plaintiff] amounted to deliberate indifference.”). Defendants do not—and could not—argue that, under the second prong of the qualified immunity analysis, Doe lacks clearly established equal protection rights as a matter of law. See, e.g., Hill v. Cundiff, 797 F.3d 948, 979 (11th Cir. 2015) (observing the “cl arly established principle that deliberate indifference to sexual harassment is an equal protection violation”). Instead, they assert only that Doe “has not shown that a clearly established right existed” because Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 55 of 59 47 the “evidence” does not demonstrate that Doe’s rights were violated or that Defendants were subjectively aware that they were violating her rights. See Defs’ Mot. at 47-48. This circular argument is simply a reiteration of the first prong of the qualified immunity analysis—infused with a subjective awareness requirement that finds no upport in the law. The question is not whether a defendant was actually on notice that the def ndant’s conduct would violate the plaintiff’s constitutional rights; that is irrelevant for qualified immunity purposes. Rather, “the inquiry turns on the ‘objective legal reasonableness of the action,” so it does not matter at the first step whether the defendant’s conduct was subjectively unreasonable. Pearson v. Callahan, 555 U.S. 223, 244 (2009) (emphasis added) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). And at the second step, the defendant’s conduct must be “assessed in light of the legal rules that were clearly established at the time [that action] was taken.’” Id. The second prong of the qualified immunity is concerned solely with whether the plaintiff’s rights were clearly established as a matter of law at the time of the defendant’s conduct. Defendants do not even address this requirement in their brief; nor do they argue (or cite any legal authorities establishing) that Doe’s equal protection rights were not clearly established as a matter of law. Defendants have therefore waived and forfeited any argument that they are entitled to qualified immunity under the second prong of the lega standard. Raising a broader legal issue (here, qualified immunity) is not sufficient to raise and preserve “all arguments bearing on that issue.” See, e.g., United States v. Joseph, 730 F.3d 336, 341 (3d Cir. 2013). And even where a party mentions an argument in passing, without supporting authorities, such cursory treatment of an argument is insufficient to avoid a waiver or forfeiture. See, e.g., Laborers’ Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994); In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to develop either argument in their opening Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 56 of 59 48 brief, the Court holds that the Wettachs have forfeited these claims.”); Karchnak v. Swatara Twp., No. 07-CV-1405, 2009 WL 2139280, at *21 (M.D. Pa. July 10, 2009) (“A party waives an issue if it fails to brief it in its opening brief; the same is true for a party who merely makes a passing reference to an issue without elaboration.”); see also Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (“It should go without saying that we deem waived claims not made or claims adverted to in a cursory fashion, unaccompanied by developed argument. . . . Judges are not mind-readers, so parties must spell out their issues clearly, highlighting the relevant facts and analyzing on-point authority.”). Defendants cannot obtain summary judgment under the second prong of the qualified immunity analysis and instead must proceed solely on the first prong of that analysis—i.e., whether DeBona and Rattigan actually violated Doe’s constitutional rights. Because answering that question would require this Court to resolve disputed questions of fact, Defendants’ entitlement to qualified immunity must be resolved by a jury. See, e.g., Karchnak, No. 07-CV-1405, 2009 WL 2139280, at *22 (denying motion for summary judgment on qualified immunity grounds because factual “create[] a genuine issue of material fact for trial on that issue as well as whether Defendants are entitled to qualified immunity”); Hill , 797 F.3d at 978 (holding there was a genuine dispute of material fact as to whether a principal violated plaintiff’s right to equal protection). VIII. DEFENDANTS ASK THIS COURT TO MAKE FACTUAL AND CREDI BILITY DETERMINATIONS AT THE SUMMARY JUDGMENT STAGE AND TO CONSIDER WHOLLY IRRELEVANT EVIDENCE Separate and apart from their flawed legal analysis of the relevant claims, it bears noting that throughout their summary judgment motion, Defendants repeatedly ask this Court to make credibility determinations, a request that is wholly inappropriate at the summary judgment stage of the case. By way of example, Doe and her friend both reported in separate written statements Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 57 of 59 49 and Doe testified in a deposition that on December 22, 2015, N. made a gesture towards her with his fists that she perceived to be a physical threa reminiscent of his previous physical abuse. ⁋51, 329. Both Doe’s written statement and her deposition transcript, as well as her friend’s written statement, are, of course, evidence that N. made a physically threatening gesture with his fists. Nevertheless, Defendants ask the Court to conclude bas d on Doe’s reenactment of the gesture at a deposition that Doe’s written statement, her friend’s written statement, and her deposition testimony are, as a matter of law, not credible and cannot create a dispute of fact on this issue. (Defs.’ Motion p. 9). Such credibility determinations are wholly inappropriate in summary judgment proceedings. Yet Defendants repeatedly implicitly and explicitly ask this Court to make such determinations. Similarly, Defendants argue that Doe’s sworn testimony contradicts her claim that N. followed her around school and his friend send her harassing messages. Def. Mot. P. 20. As an initial matter, Doe disputes thischaracterization of her deposition. More fundamentally, though, Defendants are implicitly asking the Court to use Doe’s testimony to discredit contemporaneous documents where Doe reported “continu[ou]sly show[ed] up” where she was. ⁋51, 320. Defendants also cite to a large amount of irrelevant information in both their summary judgment motion and their statement of undisputed facts that have nothing to do with Doe’s claims and seem to be nothing more than thinly-veiled attempts to cast aspersions on her character and her family. See, e.g., Defendants SOUF ¶¶ 114, 121, 122 (referring to Doe’s alleged conflicts with other female students); Defendants SOUF ¶¶ 166-173 (discussing Doe’s alleged difficulties in the workplace); Defendants SOUF ¶ 10 (discussing alleged familial difficulties). These issues are wholly irrelevant to whether material facts exist in support Doe’s Title IX and Section 1983 claims and the Court should disregard them all. Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 58 of 59 50 CONCLUSION For these reasons, Plaintiff Jane Doe respectfully s bmits that Defendants’ motion for summary judgment should be denied. Respectfully submitted, February 4, 2019 BY: /s/ Courtney G. Saleski Courtney G. Saleski (Bar No. 90207) Kristina Neff Burland Ben C. Fabens-Lassen DLA PIPER LLP (US) One Liberty Place 1650 Mark Street, Suite 4900 Philadelphia, PA 19103-7300 Telephone: 215.656.2431 E-mail: Courtney.Saleski@dlapiper.com Kristina.Burland@dlapiper.com Ben.Fabens-Lassen@dlapiper.com Matt Graves DLA PIPER LLP (US) 500 Eighth Street, NW Washington, D.C. 20004 Telephone: 202-799-4469 E-mail: Matthew.Graves@dlapiper.com Shiwali Patel Neena Chaudhry Elizabeth Tang NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, Suite 800 Washington, D.C. 20036 Telephone: 202-588-5180 Email: nchaudhry@nwlc.org spatel@nwlc.org etang@nwlc.org Case 2:17-cv-03570-TR Document 88 Filed 02/04/19 Page 59 of 59