JANE DOE v. PENNRIDGE SCHOOL DISTRICT et al

RESPONSE in Opposition re MOTION for Summary Judgment

E.D. Pa.February 19, 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 REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 1 of 40 i TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 I. DEFENDANTS’ OPPOSITION LARGELY CONSISTS OF INACCURATE AND IRRELEVANT RED HERRINGS. ..................................................................................... 2 II. DEFENDANTS’ WERE DELIBERATELY INDIFFERENT TO THE FACT THAT PSD’S TRAINING MATERIALS WERE FACIALLY DEFICIENT AND DOE WAS HARMED AS A RESULT OF THESE DEFICIENCIES ................................................... 6 III. DEFENDANTS MAINTAINED POLICIES AND CUSTOMS OF FAILING TO PROPERLY RESPOND TO STUDENT-ON-STUDENT SEXUAL HARASSMENT. .. 19 A. Doe Pleaded in her Complaint § 1983 claims against each Defendant, including Monell claims against PSD. ........................................................................................................ 19 B. No Material Dispute Exists that Defendants Maintained Policies and Customs of Not Reporting Sexual Harassment Allegations to the Title IX Coordinator, Not Investigating Reports of Sexual Harassment; and Not Issuing Written Reports of Investigation .......... 22 IV. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY ....................................................................................................................... 29 CONCLUSION ............................................................................................................................. 33 Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 2 of 40 ii TABLE OF AUTHORITIES CASES PAGE(S) Abshire v. Boudreaux, 2018 WL 5316934 (W.D. La. Oct. 26, 2018) ............................................................................ 10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986) ...................................................................................................................... 4 Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001) ....................................................................................................... 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................................................................................... 2 Bielevicz v. Dubinon, 915 F.2d 845 (3d Cir. 1990) ......................................................................................................... 5 Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358 (3d Cir. 1992) ....................................................................................................... 4 Camreta v. Greene, 563 U.S. 692 (2011) ................................................................................................................... 17 City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ..................................................................................................................... 5 Countryside Oil Co., Inc. v. Travelers Ins. Co. 928 F.Supp. 474 (D.N.J. 1995) .................................................................................................... 5 Daubert v. NRA Grp., LLC, 861 F.3d 382 (3d Cir. 2017) ....................................................................................................... 17 Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008) ........................................................................................ 18 Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 3 of 40 iii DiStiso v. Cook, 691 F.3d 226 (2d Cir. 2012) ................................................................................................ passim Doe v. Forest Hills Sch. Dist., 2015 WL 9906260 (W.D. Mich. March 31, 2015) .................................................. 10, 17, 18, 19 Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) ................................................................................................................... 30 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ........................................................................................ 31, 32, 33 Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015) .............................................................................................. 31, 32 Hope v. Pelzer, 536 U.S. 730 (2002) ................................................................................................................... 30 L.R. v. Sch. Dist. of Phila., 836 F.3d 235 (3d Cir. 2016) ....................................................................................................... 31 Lamb v. Richards Snow & Ice Removal, 2017 WL 6352401 (W.D. Pa. Dec. 11, 2017) .............................................................................. 2 Matsushita Electric Industrial Co., v. Zenith Radio Corp., 475 U.S. 574 (1986) ..................................................................................................................... 3 Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978) ................................................................................................................... 19 Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999) ...................................................................................... 31, 32, 33 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ............................................................................................ 31, 32, 33 Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 4 of 40 iv Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) ................................................................................................................... 20 Phillips v. Cty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) ......................................................................................................... 2 Robinson v. Marsh, 2015 WL 11017976 (M.D. Pa. Feb. 2, 2015) .............................................................................. 5 S. County Sand & Gravel Co. v. S. Kingstown, 160 F.3d 834 (1st Cir. 1998) ...................................................................................................... 21 Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x. 348 (6th Cir. 2014)........................................................................................ 31, 32 Thomas v. Cumberland Cnty., 749 F.3d 217 (3d Cir. 2014) ................................................................................................... 5, 10 United States v. Lanier, 520 U.S. 259 (1997) ................................................................................................................... 30 Watson v. Abington Twp., 478 F.3d 144 (3d Cir. 2007) ......................................................................................................... 5 Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995) .................................................................................................... 21 Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 5 of 40 1 INTRODUCTION Defendants Pennridge School District (PSD), PSD Superintendent Jacqueline Rattigan, and Pennridge High School (PHS) Principal Gina DeBona’s opposition in response to Plaintiff Jane Doe’s summary judgment motion misunderstands key legal and factual matters that are core to this summary judgment motion. When Doe attended PHS, she repeatedly reported that: (i) her ex-boyfriend N. had been physically and verbally abusive when the two dated; and (ii) N. and his friends harassed her both on and off school grounds as a result of her decision to end the abusive relationship. Doe filed suit against Defendants because they repeatedly failed to investigate her reports of sexual harassment, to implement a plan to ensure that she could continue to learn free of fear of N., and to discipline N. to address the hostile educational environment she faced. Doe moved for summary judgment on those claims as to which no material dispute of fact exists: (i) Defendants’ training materials are, on their face, constitutionally deficient because they fail to train PSD employees on how to recognize or respond to student-on-student sexual harassment; and (ii) Defendants maintained—and continue to maintain—District-wide practices that violate the law, as well as PSD’s own board policies addressing student-on-student sexual harassment. In response to Doe’s targeted summary judgment motion that focuses on just two of the claims that she has brought against Defendants, Defendants have filed a sprawling opposition that touches on issues wholly irrelevant to Doe’s summary judgment motion. When it does address relevant issues, the opposition fails to understand the factual record or relevant authority. The written training materials were facially deficient; Defendants were on notice that sexual harassment was inevitable at PSD; and Doe suffered documented mental health issues and ultimately left PHS because PSD employees did not properly address her reports of sexual harassment due to their lack of training. Defendants also maintained policies and customs of not notifying the Title IX Coordinator of reports of sexual harassment; not investigating reports of Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 6 of 40 2 sexual harassment, particularly if they occurred off campus; and not preparing written reports of harassment investigations. Finally, DeBona and Rattigan are not entitled to qualified immunity. Nothing in Defendants’ response undermines that that there is no dispute of material fact on the narrow issues on which Doe has moved for summary judgment and that Doe is entitled to judgment as a matter of law. I. DEFENDANTS’ OPPOSITION LARGELY CONSISTS OF INACCURATE AND IRRELEVANT RED HERRINGS. First, Defendants, at various points in their Opposition, address the supposed differences between Doe’s Complaint and facts developed through discovery.1 Defs.’ Summ. J. Opp. at 2-5, ECF. No. 87 (hereinafter, “Defs.’ Opp.”). These are red herrings that make no difference to the motion at bar. Putting aside that there are not material disparities between Doe’s Complaint and the evidence developed through the discovery, the purpose of a complaint is to give the Defendant fair notice of a claim, and simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). In fact, it is expected that the allegations set forth before discovery will be altered by the evidence uncovered during discovery. Lamb v. Richards Snow & Ice Removal, No. 3:17-CV-28, 2017 WL 6352401, at *1 (W.D. Pa. Dec. 11, 2017) (stressing that the overall scheme of the federal rules calls for relatively skeletal pleadings and places the burden of unearthing factual details on the discovery process). The fact that certain dates were clarified and additional facts were developed is a natural part of the discovery process 1 Defendants wrongly claim that there are “lies” and “misrepresentations” in Doe’s Complaint. Defendants made similar baseless allegations in their motion for summary judgment, Def.s’ Mot. Summ. J. at 1, ECF No. 78 (hereinafter “Defs.’ S. J. Mot.”) Undersigned counsel and Doe have not attempted to mislead the Court about any factual or legal issue. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 7 of 40 3 and entirely unremarkable. At this stage, the question is whether material disputes exist as to the elements of the claims alleged, not on how the factual record maps to the allegations in the complaint. The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial,” Matsushita Electric Industrial Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), not to rehash the factual allegations in the complaint. In any event, some of the purported differences identified by Defendants are not differences at all, but instead reflect Defendants’ misunderstanding of what constitutes sexually harassing conduct. For example, Defendants claim, as an example of the supposed “misrepresentations” in Doe’s Complaint, that it was false to allege that N. and his friends sexually harassed Doe because she was never sexually assaulted by N. and because N.’s friends never threatened physical harm against her. See Defs.’ Opp. at 2-3. Defendants do not identify a factual discrepancy, as Doe never alleged that N. sexually assaulted her or that his friends physically threatened her. Doe Complaint at ¶¶ 17-20, ECF No. 1 (hereinafter “Doe Compl.”). Instead, Defendants have framed as a factual discrepancy a legal dispute over whether this conduct constitutes sexual harassment—which of course it does. Additionally, and as explained in great detail in Doe’s Opposition to Defendants’ motion for summary judgment, a sexual assault is not a necessary predicate of a Title IX claim and a physical assault in this context of a current or prior dating relationship is sexual harassment. See Doe Summ. J. Opposition at 23-37, ECF No. 88 (hereinafter “Doe Opp.”). In addition, Defendants focus on immaterial differences between the allegations in the complaint and the facts developed through discovery. For example, Defendants make much of the fact that the Complaint alleged that a particular incident where N. threatened physical Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 8 of 40 4 violence against Doe occurred in February 2016 when records produced in discovery reveal that the incident actually happened two months earlier in December 2015. Ex. 16, Doe-PSD0227-28. The timing of the incident is wholly immaterial to Doe’s claims. Finally, Defendants often repeat their unfounded and improper belief that Doe is a “pathological liar.” Defs.’ Opp. at 2. Their incorrect position that Doe is a liar is so critical to their argument that Defendants address it on the very first page of their Opposition, citing the report of Dr. Barbara Ziv, their damages expert who has never examined or even met Doe.2 Dr. Ziv must be central to this exercise, because for all of their claims that Doe is a liar, there is not a single documented incident in the record of PSD employees investigating a matter and developing evidence that she lied. Instead, the “evidence” that Defendants set forth purportedly showing that Doe lied while she was at PHS, consists of emails among PSD staff where they express their opinions, without citing any facts to support these views, that Doe is a liar. Defs.’ Opp. at 5 (offering emails where PSD employees allege that Doe has made “empty accusations” or will “tell you anything you want to hear” without substantiation, as evidence that PSD employees “took steps to verify” that Doe actually made false statements). Tellingly, at his deposition, Scott Hegen — Doe’s grade-level Assistant Principal and one of the primary 2 In a report that is nominally focused on damages, Dr. Ziv claims that she can diagnose Doe, on records alone, as a pathological liar. Ex. 94, Ziv Rep. at 34. Dr. Ziv spends much of her report documenting all of the times she believes Doe, whom she has never met, was lying. See e.g. Ex. 94, Ziv Rep. at 38 (concluding that Doe is not reliable). This aspect of her damages report is improper on a number of levels. We will be moving in limine at trial to exclude such testimony, and Dr. Ziv’s opinion that Doe is a pathological liar and her various credibility determinations should not be part of the summary judgment record. A party cannot create an issue of material fact by simply saying an opposing party’s witness is a liar or retaining an expert to call an opposing party’s witness a liar. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57(1986)) (holding that in a motion for summary judgment, “an opponent may not prevail merely by discrediting the credibility of the movant's evidence; it must produce some affirmative evidence”). Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 9 of 40 5 proponents of the notion that Doe was a liar — was unable to identify a single specific incident in which she allegedly lied. Doe Summ. J. SOUF ¶ 35, ECF No. 81 (hereinafter “Doe SOUF”). But this is, in any event, just another red herring, because the Court may only consider admissible evidence in determining whether there is a dispute of fact and these unfounded lay opinions are inadmissible and unreliable. Robinson v. Marsh, No. 3:11-CV-1376, 2015 WL 11017976, at *3 (M.D. Pa. Feb. 2, 2015), citing Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995) (holding “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.”) As another incorrect red herring, Defendants wrongly claim that Doe has conceded that her complaint is “replete with misrepresentations” with respect to the harassment she suffered. Defs.’ Opp. at 2. That is absolutely not true. And, in her Opposition to Defendants’ motion for summary judgment, Doe sets forth thirteen pages of facts that support the harassment she suffered and her Title IX claim. Doe. Opp. at 5-17. Many of these facts that go to the substance of the harassment—which will be submitted to the jury—are largely irrelevant to the narrower § 1983 claims on which Doe seeks judgment as a matter of law.3 In light of the fact that the underlying harassment is not core to Doe’s motion for summary judgment, Doe made the 3 Doe, recognizing that credibility and weight issues generally must be resolved at trial, did not seek summary judgment with respect to the Title IX claim in this matter. Doe’s § 1983 claims on which she seeks summary judgment do not turn on the specific facts of the harassment. Instead, they turn on whether Defendants adequately trained PSD employees to respond to reports of such harassment; whether they maintained unlawful policies or customs that caused PSD employees to respond improperly to Doe’s reports of harassment; and whether Doe suffered harm as a result of the deficiencies. See Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 391 (1989)) (discussing failure-to-train test for municipal liability) (internal quotation marks omitted). See also Watson v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir. 2007) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 849-50 (3d Cir. 1990)) (discussing the two ways to establish municipal liability – policy or custom) (internal quotation marks omitted). Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 10 of 40 6 unremarkable observation in her opening brief that “[t]his Court need not accept the veracity of Miss Doe’s allegations regarding N.’s conduct to grant summary judgment in her favor. Rather, Miss Doe is entitled to summary judgment on her § 1983 claims because, among other things, Defendants’ responses to Miss Doe’s complaints of sex-based harassment were inadequate as a matter of law.” Defendants are wrong to suggest that this statement was somehow a concession. It was not. II. DEFENDANTS’ WERE DELIBERATELY INDIFFERENT TO THE FACT THAT PSD’S TRAINING MATERIALS WERE FACIALLY DEFICIENT AND DOE WAS HARMED AS A RESULT OF THESE DEFICIENCIES Facially Deficient Training Materials As an initial matter, Defendants do not dispute that Doe identified in her motion for summary judgment all of the written training materials from the period during which she attended PHS. Employee training on sexual harassment focused almost entirely on the harassment of employees rather than the harassment of students; lacked information concerning PSD’s Title IX coordinator; and failed to explain how to investigate reports of sexual harassment and implement safety plans. Doe Mot. Summ. J. at 11, ECF No. 81 (hereinafter “Doe S. J. Mot.”). In their Opposition, Defendants attempt to argue that one of these contemporaneous training documents addresses issues related to student-on-student sexual harassment. Defs.’ Opp. at 43-44. Their opposition is silent as to the substance of the remaining training presentations. The reason their opposition is silent to these remaining presentations is that the remaining presentations are silent on the subject of student-on-student sexual harassment. Defendants are wrong that the one training they discuss, “Student-to-Student Hazing and Harassment,” addresses student-on-student sexual harassment in any substantive way. Ex. 28, Doe-PSD 1358. Defendants do not analyze the substance of this training or provide the Court Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 11 of 40 7 with quotes from the presentation where this issue of student-on-student sexual harassment is addressed. Instead, their primary argument is that the Global Compliance Network (GCN) training uses the word “harassment” forty times. Defs.’ Opp. at 43-44. To be clear, Doe’s criticism is not that the training fails to place the word “sexual” before the word “harassment.” The deficiency is that the training materials fail to deal with student-on- student sexual harassment as a separate, but related, construct to bullying which has its own unique challenges and issues with reporting, investigating, and remediating. Defendants clearly agree that sexual harassment is not synonymous with harassment and that not all harassment is sexual harassment. In their opposition, Defendants note the distinction between Doe’s counsel asking DeBona about “harassment,” as opposed to “sexual harassment.” Defs.’ Opp. at 31. Doe refers the Court to Ex 26, Doe-PSD 2606-2631; Ex. 27, Doe-PSD 1458-1518; Ex. 28, Doe-PSD 1346-1380; and Ex. 29, CTRL0000539-541, which represents all of Defendants’ written training materials. With respect to the one training presentation Defendants argue is sufficient, the document offers no explanations of harassment of a sexual nature beyond naming it and suggesting that educators should have an understanding of it. Ex. 28, Doe-PSD 1358-66. As to harassment in general, the training defines it as “the creation of a hostile educational environment, most commonly interfering with the psychological well-being of the student.” Ex. 28, Doe-PSD 1359. There is nothing in this abstract definition that would help a PSD employee differentiate sexual harassment from general harassment or even peer conflict. Ex. 28, Doe-PSD 1358-66. Indeed, as with all of their other training materials, there is nothing in this presentation that: Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 12 of 40 8  Identifies PSD’s Title IX coordinator;  Informs PSD employees of their duty under both Title IX and PSD’s board policies to notify the Title IX coordinator of all student-on-student sexual harassment;  Informs PSD employees of their duty to investigate all reports of sexual harassment, including those that occur outside of school;  Instructs PSD employees on how to conduct adequate investigations of alleged sexual harassment;  Instructs PSD employees as to how to distinguish peer conflict from sexual harassment; or  Explains how to provide effective safety plans or even what a safety plan is. As in their affirmative motion for summary judgment, much of the evidence that Defendants cite in support of their argument is that PSD employees attended training presentations where the above-referenced deficient training materials were presented. Indeed, at times, the opposition repeatedly references the same training.4 It is simply not a material fact how many times PSD employees attended a deficient training program, other than it indicates that Defendants did not train PSD employees on how to properly address sexual harassment. Doe addressed many of the other arguments that Defendants make in support of their training program in her opposition to Defendant’s affirmative motion, including:  Training provided only after Doe left PHS is, by definition, irrelevant. Compare Defs.’ Opp. at 27 (discussing the attendance of PSD employees at the NOVA training 4 By way of example, on page 21 of the Opposition Defendants state: “Prior to GCN trainings, discussed below, PSD staff were presented with and trained via annual PowerPoint Presentations about harassment, sexual harassment, workplace harassment and student harassment. (Defs. SOUF, No. 204). PSD also conducts a summer two-day training seminar for administrators during which attorneys present and discuss different topics, including harassment and sexual harassment. (Defs. SOUP, No. 243).” Defs.’ Opp. at 21. On the very next page, Defendants write again “Prior to the GCN trainings, PSD staff were presented with and trained via annual Power Point Presentations about harassment, sexual harassment, workplace harassment and student harassment. (Defs. SOUF, No. 204). PSD also conducts a summer two-day training seminar for administrators during which attorneys present and discuss different topics, including harassment and sexual harassment, (Defs. SOUF, No. 243).” Defs.’ Opp. at 22. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 13 of 40 9 which occurred after Doe graduated from PSD) with Doe Opp. at 39 (discussing irrelevant trainings which occurred after Doe left PHS).  PSD employees’ knowledge that certain policies existed that in no way establishes they understood these policies. Compare Def.s’ Opp. at 24 (stating Debona is aware of the reporting processes in the School District’s Unlawful Harassment Policy) with Doe Opp. at 39 (discussing the many paragraphs of Defendants’ SOUF which state that PSD employees were aware of certain PSD policies).  Presentations or meetings where PSD policies were discussed that do not indicate that sexual harassment was addressed at those presentations or meetings. Compare Defs.’ Opp. at 23 (stating that Hegen attended Policy Review Meetings) with Doe Opp. at 39 (discussing the fact that Defendants cite to meetings where policies are discussed without representing that sexual harassment was actually discussed). Defendants also offer the opinions of certain PSD employees who believe they were properly trained on matters related to sexual harassment. See Defs.’ Opp. at 24 (citing DeBona’s deposition as evidence that she “received annual harassment training provided by the Compliance officer”). Their belief that they were properly trained does not create a material issue of fact. Indeed, immediately after testifying about this training, DeBona admitted she and her staff have never been trained on the difference between peer conflict and sexual harassment. Ex. 86, DeBona Depo. 528:18-529:7. Finally, in their opposition, Defendants expand upon an argument they briefly addressed in their affirmative motion for summary judgment: there was undocumented, oral training on sexual harassment either in conjunction with the above-referenced written training materials (even though there is no obvious call-out for what would surely be a tangent from the written training material) or during informal trainings or meetings. See Defs.’ Opp. at 43. As noted in Doe’s opposition, serious credibility and weight issues exist with Defendants’ claims that this oral training occurred, where Defendants have failed to produce a single speaker’s note, attendee’s note, slide, or handout, corroborating that such oral training occurred, let alone that these discussions were legally or factually adequate to ensure constitutional rights would be Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 14 of 40 10 protected. Doe Opp. at 39-40. Doe recognizes that such credibility determinations cannot be resolved at summary judgment. However, the core problem for Defendants is that it is per se deficient to offer no written training on student-on-student sexual harassment and to instead rely on oral trainings that are not in any way documented and at which employees were, apparently, not required to take notes. Cf. Abshire v. Boudreaux, No. CV 18-0205, 2018 WL 5316934, at *5–6 (W.D. La. Oct. 26, 2018) (explaining that an allegation that a municipality lacked written training material was sufficient to state a failure-to-train claim).5 Defendants Were Deliberately Indifferent Defendants argue that they were not deliberately indifferent because there was not a pattern of violations due to their failure to train employees. Defs.’ Opp. at 44-45. As an initial matter, Doe need not establish that there was a pattern of violations to prevail on her § 1983 failure-to-train claim. Instead, Doe can prevail under a single-incident theory of liability by showing that the need for training PSD employees on student-on-student sexual harassment was “so obvious” that Defendants’ failure to do so was sufficient alone to establish their deliberate indifference to the rights of all PSD students, including Doe’s. Doe S. J. Mot. at 12-14 (quoting Thomas, 749 F.3d at 223-25). Here, the need for training was patently obvious to DeBona and Rattigan. Doe S. J. Mot. at 12-14. First, student-on-student sexual harassment is an “inevitable” problem “in the public high school context.” Doe S. J. Mot. at 13 (citing Doe v. Forest Hills Sch. Dist., 2015 WL 9906260 (W.D. Mich. March 31, 2015) at *17). 5 Defendants’ criticism of Doe for not taking Scarpantonio’s deposition is meritless for the same reasons. Defendants confirmed that they had produced responsive answers to Plaintiffs’ multiple inquiries regarding training materials. Ex. 95, Heisner Letter July 6, 2018. As such, Scarpantonio’s testimony would be irrelevant because he could not cure Defendants’ facially deficient training. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 15 of 40 11 Second, DeBona and Rattigan both completed GCN’s nominal online “Student-to- Student Hazing and Harassment” presentation, which provided virtually no training on student- to-student sexual harassment. Doe SOUF ¶ 62. Although wholly inadequate, that presentation explicitly instructed “[s]chool leaders” to “train all staff . . . on the school’s policy and procedures regarding harassment” and on “Title IX.” Id. Defendants nonetheless failed to provide any such training. Doe SOUF ¶¶ 55-56. Having both completed that online training module, DeBona and Rattigan were both on notice of the obvious deficiency of their student-on- student sexual harassment “training” and their unfulfilled, obvious duty as “[s]chool leaders” to provide this training for their staff. Id. Moreover, DeBona was aware that one of her four Assistant Principals did not even know who PSD’s Title IX Coordinator was, Doe SOUF ¶ 59, and that none of their staff were classifying or treating any of either Doe’s or DarbiAnne Goodwin’s numerous reports as sexual harassment. Third, Defendants had knowledge that this “inevitable” problem manifested itself on a number of occasions at PHS. In addition to Doe’s and DarbiAnne Goodwin’s numerous reports of sexual harassment, Defendants produced over 600 pages of documents rife with reports of sexual harassment. Defendants also take issue with the fact that these over 600 pages of “peer conflict” documents substantiate the claim that there is a pattern of mischaracterizing sexual harassment as peer conflict, citing six examples from the records that they believe are clearly examples of peer conflict, not sexual harassment.6 Defs.’ Opp. at 45-46. As an initial matter, depending on context, these matters could be sexual harassment: it is difficult to tell from the records, though, 6 Defendants also chide Doe for not attaching all 600 plus pages of incident reports to her summary judgment motion, despite the fact that it would have been patently unreasonable for her to do so, especially where Defendants produced the documents out of order, with documents related to each incident separated throughout the 600-page production. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 16 of 40 12 because there is no evidence that PSD fully investigated these reports. Furthermore, Defendants ignore that many of the records, from a single year, facially raise sexual harassment concerns, such as unwanted touching, unwanted solicitation of sexual acts, threats to send sexually explicit photographs, and girls repeatedly being called, “bitch,” “slut,” and “whore” and were clearly misclassified as “peer conflict”:  In February 2016, a female student complained about harassment several male students were subjecting to her on the bus. A male student on the bus would frequently “sit next to me on the bus, and grab my legs, and play with my hair.” One of the boys confronted her in a school hallway. All of the boys posted harassing comments on her Instagram pictures. And they spread rumors about her to other boys, “saying like I’m pregnant and a ton of things that are not true.” (Ex. 76, Doe-PSD 3193-95, 3220.)  In March 2016, female students reported that male PHS students had been touching them inappropriately without their consent. Both of the girls filled out an incident report. The first report says the “consistent” harassment happens “every day,” “in class, in the halls or at tech.” In particular, she stated that “for the past few months . . . [the harasser] finds some way to hit or touch me and [another female student]. He slaps, grabs our backpacks, and pulls our back really hard, tries to trip me. Pushes us & hits [the other female student] with anything including candy or pencils. I’ve told him to stop hitting me and touching me in general but every day he still does it. [The other female student] had told me he slapped her butt and touched her places and I knew it was time to finally have something done before he gets even more physical with us or any other girl. He ripped my backpack today when he grabbed my backpack and pulled me toward him.” The second report explains that the male student “is always after me” and asks “for him to stay away from me. She detailed her complaint as follows: “Everyday I’m in class with [male student] and he would hit me or punch me or slap me with whatever he has in his hands. He would touch me in inappropriate places and when I would tell him to stop he would continue doing it. I’m sick and tired of him treating me like this. He won’t stop . . . . I just want him to stop, leave me alone and stay away from me. He has done this every day and I fear it will never stop because he is starting to scare me and I’m so tired of it. He leaves marks on my knuckles and wherever else he can put his hands on me.” (Ex. 77, Doe-PSD 3451-3455).  In April 2016, a female student filled out an incident report about inappropriate touching and other harassment a male student was subjecting her to on the bus and at school dances. She explained that at homecoming the male student “came up behind me and started dancing with us. He wrapped his arms around me so I was unable to get away and he started moving his hands down lower.” She grabbed his hands and told him to stop, and then left homecoming early. Again at prom, the harasser “came up behind me and gripped the sides of me.” Once again, the student called her friend and asked her friend to take her home early from prom. Finally, on the bus, the student “would forcefully pull” her “onto him”—one time “[h]e tried to go under my clothes and down my Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 17 of 40 13 pants.” She stopped him, but other inappropriate touching occurred, including forceful hugging. (Ex. 78, Doe-PSD-3406-07.)  In April 2016, female freshman student submitted an incident report to her guidance counselor about sexual harassment that a tenth grade male student was subjecting her to for about six weeks. The harassing student was “being disrespectful and trying to be very sexual,” including by offering the victim “money (large amounts) for me to give him sexual pleasures” and threatening to send inappropriate pictures of her to the whole school, to “spread rumors” about her, and “to ruin [her] life.” (Ex. 79, Doe-PSD 3302- 04.)  In May 2016, a female PHS student submitted an incident report, complaining that two male students were sexually harassing her on the bus, in the halls, and in class. The student explained that she “was walking in the hall and the two boys behind me would say that they want to grab my butt and they ask what color underwear I’m wearing. They try and dare each other to grab my butt.” (Ex. 80, Doe-PSD 3268-87.)  In December 2015, the mother of a female freshman student called PHS administrators to complain that a male student in her class “frequently calls her a whore”; “is always asking questions about her boyfriend and making sexual innuendo”; and “is generally a jerk to her,” including by asking her if she was pregnant in public hallways. The school simply told the harassing student that “he needs to be appropriate.” (Ex. 81, Doe-PSD 3232-35.)  In November 2015, a student’s mother called and was “very upset because her daughter is being bullied” by a “group of kids who call her names, make crude comments about her body, tell her she should die, etc.” The kids call her “bitch, slut, whore, and other horrible names.” And in the hallway the student was told by an 10th grade PHS student that “she should kill herself, prove it to him by showing the slit marks on her arms, and hopes she gets run over by a bus today.” The student spoke to her guidance counselor multiple times, and the student’s parents expressed that they were afraid for their daughter’s safety. (Ex. 82, Doe-PSD 3053 - 3061)  In October 2015, a freshman male student sent a long email to his guidance counsel complaining that three other male, freshman students in his tech class were bullying him, repeatedly calling him homophobic (and racist) slurs. The students frequently called the student “gay” and “a faggot” for the entire class to hear. The student’s email stated: “I have given all of them multiple warnings and told them to stop, but despite my efforts they are not stopping. I’m going through enough as it is in this point in my life, and I don’t need extra damage to my selfesteem or body. I would ask that you let my parents out of this because I don’t want drama at home, nor do I want any attention. These things they’re doing are starting to sadden me and hurt my feelings and I Won’t let that happen any longer. . . . These videos our wellness teacher is showing us about how bullying drove people to suicide are sad. Maybe that could be prevented if we worried about right and wrong instead of legal risk and how much money the school is going to have to pay.” Moreover, one of the student’s teachers read his email and admonished, “It is now time for the district to step up and enforce the policy it has spent so much time and effort promoting, advertising, and Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 18 of 40 14 embracing. This is a documented case of bullying written by a quality student that would have no reason to lie.” (Ex. 83, Doe-PSD 3237-3249; 3595-3606)  In October 2015 between PHS administrators—including Debona—exchanged emails about a PHS student being bullied and harassed during band practice. The student’s mother called PHS to complain about the harassment, including that her daughter was being called a “slut” during band practice. Two days after the initial complaint, Student 2’s mother called the guidance counselor to complain that “no one was addressing the bullying.” In response, the counselor explained that PHS has “2,400 students and people may make comments that she doesn’t like. Sometimes she has to just ignore people. If it happens consistently, then she needs to report it.” The Counselor later dismissed the mother's concerns, saying “She has too much time on her hands! She was fine, just wanted an update. We will be hearing from her a lot!” (Ex. 84, Doe-PSD 3022 – 3043, 3062-3065; 3196-3217)  In October 2015, a female freshman student (Student 1) complained that she was being harassed by another female student in the lunchroom and on the bus. The harasser repeatedly tried to start a fight on the bus and called Student 1 “all kinds of names such as slut, whore and a bitch.” (Ex. 85, 3017) At lunch, the harasser would kick Student 1 out of her seat, call her a whore to all her friends, threaten her, and make her find another seat in the cafeteria. Student 1 told the school safety officer that she felt unsafe riding the bus. The school safety officer completed an incident report, classifying the incident as a “student issue.” (Ex. 85, Doe-PSD 3017-3020, 3050-51, 3073-77.) Such reports clearly put Defendants on notice that student-on-student sexual harassment was inevitable at PSD. There is no better testament to the training failures at PSD than the fact that Defendants view these incident reports, which were erroneously classified as “peer conflict,” and maintain after nearly two years of litigation that none of these ten incidents represent a report of sexual harassment.7 7 Indeed, these incidents are so clearly reports of sexual harassment that they should have been produced in response to our original request seeking “[a]ll Complaints (written or verbal), grievances, allegations or charges, formal or informal and relating to discrimination, harassment, bullying, or cyberbullying . . . submitted to Pennridge High School, and all documents concerning any investigation conducted in response to such complaints.” Ex. 93, Defs.’ Answers to Doe’s RFPs. No. 2. Doe intends to separately move to re-open discovery between summary judgment proceedings and trial to determine whether Defendants also failed to produce responsive records from the 2016-2017 academic year and to re-depose witnesses whom we clearly should have been able to confront with these records. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 19 of 40 15 Finally, Defendants also erroneously claim that “Doe must show that PSD knew of the risk to her before her injuries occurred,” Defs.’ Opp. at 46 (emphasis added) (citing without a pincite to Beers-Capital v. Whetzel, 256 F.3d 120 (3d Cir. 2001)). But as Doe explained in her opening brief, the Third Circuit in Beers-Capital recognized that Doe need only prove that Defendants were on notice of the risk that PSD students generally would be injured—i.e., “the risk of constitutionally cognizable harm was ‘so great and so obvious that the risk and the failure of supervisory officials to respond [or train] w[ould] alone” amount to deliberate indifference. Doe S. J. Mot. at 26 (citing Beers-Capitol, 256 F.3d at 136–37). Doe Was Harmed The repercussions of Defendants’ deficient training is reflected in the testimony of PSD employees, including DeBona and Rattigan, who repeatedly identified the reports that Doe, Goodwin, and others identified as “peer conflict,” not sexual harassment. See, e.g., Ex. 86, DeBona Depo. 538:19-539:4 (stating that what happened to both Doe and Goodwin was not harassment); Ex. 96, Rattigan Depo. 288:19-289:19 (stating that an investigation under PSD’s unlawful harassment policy was not conducted for Goodwin because the conduct in the case was not severe or pervasive). Indeed, PSD did not classify a single incident reported by Doe (or Goodwin) as a report of sexual harassment. Doe Mot. to Compel Memo. at 3-4, ECF No. 62. After identifying Doe’s report as a “peer conflict” report, the only remedial action PSD took vis- à-vis N. was that an Assistant Principal allegedly instructed him to have “no contact” with Doe. Ex. 87, Doe-PSD 1796. It is undisputed that despite this alleged “no contact” instruction, Defendants did not discipline N. after Doe reported on November 24, 2015 that, “[N.] continu[ou]sly shows up to wherever I am.” Ex. 88, Doe-PSD 0073, 0075, 0077. Nor did they discipline him after Doe reported that, on December 22, 2015, he raised his fists at Doe in a PHS Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 20 of 40 16 hallway, Ex. 39, Doe Depo. 94:9-96:2, and, by his own admission, told her to “get the fuck away from me.” Ex. 89, Doe-PSD-0232. Defendants are wrong when they argue that Doe did not suffer harm as a result of their failure to train their employees. These undisputed, inadequate responses were the direct result of training that failed to explain how to properly respond to such situations. As Doe explained in her Opposition, this botched response caused her psychological harm, which was acknowledged by two separate medical professionals who noted that the issues at school were causing Doe to experience anxiety, trauma, and daily break downs. Doe Opp. at 25. In fact, Doe’s mental health had declined so drastically due to the school’s failure to address N.’s harassment that these medical professionals urged PSD to allow Doe to transfer to the Intermediate Unit, an alternative school that would provide her with necessary mental health accommodations. Doe Opp. at 25. Further, Doe was harmed when, feeling like she had no other options, she was effectively forced to transfer to the Twilight program. This program was an inferior alternative school that students attended for only four to six hours a week and in which five to twelve students of differing grade levels were “confined,” by Defendants’ own admission, to a single room. Doe SOUF ¶ 43. Additionally, the educational quality of Twilight was far inferior to traditional high school in that students merely filled out rote packets with no other classroom instruction. Doe. Opp. at 43. As a result of the failures of PSD employees to address N.’s harassment of Doe, which was a foreseeable result of PSD’s failure to train its employees, Doe suffered trauma and anxiety, ultimately resulting in her transfer to an inferior school so she could avoid her harasser and the PSD employees who did nothing to stop the harassment. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 21 of 40 17 The Forest Hills Case is Applicable Defendants also spend a substantial amount of time arguing the applicability of Forest Hills. Defs.’ Opp. at 34-38. All of these arguments lack merit.8 First, Defendants attempt to distinguish Forest Hills by arguing that Doe was not sexually assaulted. Forest Hills did not turn on the fact that the plaintiff was sexually assaulted, but rather on the fact that she suffered “student-on-student harassment,” of which sexual assault is only one type. 2015 WL 9906260, at *13 (emphasis added); Defs.’ Opp. at 36-37. Similarly, Defendants’ claim that Forest Hills is distinguishable because N. did not touch Doe again after April 2015, fails to recognize that sexual harassment includes many forms of non-physical conduct, including sexual slurs, stalking, and threats of physical violence. See Doe Opp. at 18- 22; Defs.’ Opp. at 37. Second, Defendants wrongly characterize PSD’s actions as superior to those of the Forest Hills defendants. Id. Their reliance on PSD’s response to a single incident in December 2015 obscures the reality that PSD employees did far less in response to Doe’s numerous reports of sexual harassment than the Forest Hills defendants did in response to their plaintiff’s single report. Doe S. J. Mot. at 18. In Forest Hills, even though there were no witnesses to the sexual assault, the district did not just speak to the respondent, but also interviewed three people who had been nearby during the assault. 2015 WL 9906260, at *2; Defs.’ Opp. at 37. Here, PSD failed to investigate all but one of Doe’s numerous reports, Doe Opp. at 6-8, 10-12, and when 8 In addition to their substantive arguments, Defendants note that Forest Hills was an unpublished district court decision from another circuit. The fact that it is not published is irrelevant: no district court decision—“whether published in a reporter or not”—is binding on any other district court decision, and therefore Forest Hills is no less persuasive here than any other district court decision, including those from within the Third Circuit. Daubert v. NRA Grp., LLC, 861 F.3d 382, 395 (3d Cir. 2017) (quoting Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)); Defs.’ Opp. at 34-35. Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 22 of 40 18 factual disputes existed among the witnesses for the report that was investigated, PSD failed to take any additional investigation steps, such as trying to interview witnesses who were nearby the incident (whom they could have identified from the surveillance footage near the incident), as the Forest Hills district did. Third, Defendants’ attempt to distinguish Forest Hills by arguing that N. never pleaded guilty in a related criminal case. Defs.’ Opp. at 37. It is remarkable that Defendants continue to argue a point that is belied by case law, Department of Education guidance, and their own policy: PSD’s duty to investigate harassment exists regardless of any police investigation. Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 369 (W.D. Pa. 2008) (school principals have “a duty to investigate independently of any police investigation, even if the alleged incident ‘might involve criminal conduct’”); see also U.S. Department of Education, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, and Third Parties 21 (Jan. 19, 2001) (“police investigations or reports … do not relieve the school of its duty to respond promptly and effectively”); Ex. 7, Doe-PSD 1089 (PSD Board Policy 248 on “Unlawful Harassment” stating: “The obligation to conduct this investigation shall not be negated by the fact that a criminal investigation of the incident is pending or has been concluded.”). Finally, Defendants erroneously claim that the Forest Hills defendants misstated the law and never argued that their training was adequate. Defs.’ Opp. at 34-35. But those missteps were merely the basis for the Forest Hills court’s denial of the defendants’ motion for summary judgment. 2015 WL 9906260, at *15-*16. In contrast, the court’s decision to grant the plaintiff’s motion for summary judgment was based on undisputed evidence affirmatively showing that the defendants’ training was deficient. Id. at *17. Likewise, Doe has established that Defendants’ Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 23 of 40 19 trainings were so woefully inadequate that they were deficient as a matter of law, and is therefore entitled to summary judgment on her failure-to-train claim. Doe S. J. Mot. at 10-12; Doe Opp. at 38-40. No basis exists for distinguishing Forest Hills. III. DEFENDANTS MAINTAINED POLICIES AND CUSTOMS OF FAILING TO PROPERLY RESPOND TO STUDENT-ON-STUDENT SEXUAL HARASSMENT. Defendants advance two arguments in opposition to Doe’s motion for summary judgment on her policy and custom claim: i) Doe has not brought such a claim; and ii) disputes exist as to whether Defendants maintained such policies and customs. Both challenges are without merit. A. Doe Pleaded in her Complaint § 1983 claims against each Defendant, including Monell claims against PSD. Doe pleaded § 1983 claims against each Defendant based on their involvement in maintaining policies, practices, and customs of inadequately addressing reports of student-on- student sexual harassment. Defendants are undoubtedly aware that this theory lies at the heart of Doe’s case, as well as the companion case brought by Goodwin. Defendants are further aware that Doe has developed a robust record substantiating that theory of liability under § 1983. But Defendants would prefer not to address these claims or that evidence at all. So, they argue that Doe did not plead such a claim in her Complaint. Defs.’ Opp. at 48. This argument is both factually inaccurate and legally irrelevant. It is well settled that “the touchstone of the § 1983 action against a government body,” such as PSD, “is an allegation that official policy, [practice, or custom] is responsible for a [constitutional] deprivation.” Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690-92 (1978). Even in the absence of a written policy, a single decision by a person with final policy- making authority, such a DeBona and Rattigan, can constitute a policy, practice, or custom under Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 24 of 40 20 § 1983. Id. at 694-95; Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (defining “policy making” as “a deliberate choice to follow a course of action . . . from among various alternatives”). Relying on these well-settled theories of constitutional tort liability, Doe has consistently alleged and argued that Defendants are liable under § 1983 for maintaining policies, practices, and customs relating to sexual harassment and that those policies caused violations of her constitutional right to equal protection under the law. Defendants have ignored numerous paragraphs that plainly allege that Defendants maintained unlawful policies, practices, or customs in violation of § 1983. See Doe Compl. In the very first paragraph of the pleading Doe alleged that each defendant (including PSD) “violated Miss Doe’s rights under the Equal Protection Clause of the Fourteenth Amendment.” See id. ¶¶ 1, 8. Doe further alleged that Rattigan and DeBona are “final policymaker[s]” and that “PSD policy grants” DeBona “unreviewable discretion” to “resolv[e] harassment complaints”— i.e., factual and legal predicates for pleading most policy or custom claims. Id. ¶¶ 13-14; see id. ¶ 37 (similar). Moreover, Doe alleged that Rattigan and DeBona both maintained a “policy custom, and practice of (i) refusing to respond to reports of sex-based harassment, and (ii) forcing or encouraging victims to leave PHS.” Id. ¶ 83 (emphasis added). Most significantly, Doe imputed these policies to PSD itself, alleging that PSD has a custom or practice of not investigating or disciplining reports of sex-based harassment, which includes relationship abuse, id. ¶ 22 (emphasis added); and that it had a “pattern and practice of pushing harassment victims out of school, id. ¶¶ 41, 49. Defendants are therefore flatly wrong in arguing that “[t]here are no allegations relating to an alleged policy or custom” in the complaint. And they are equally wrong that Doe never pled a § 1983 claim against Defendants for “maintaining polices and customs of Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 25 of 40 21 failing to address reports of student-on-student sex-based harassment.” Defs.’ Opp. at 48. She absolutely did so. In any event, form does not prevail over substance. Minor nuances in the pleading—such as the caption of a count or the precise articulation of the legal theory—are not dispositive of whether a § 1983 claim has properly been put before this Court. See, e,g., Welch v. Laney, 57 F.3d 1004, 1010-11 (11th Cir. 1995) (“Technical errors in the caption should not control over the substance of the complaint.”). Courts should not submit to “tyranny of labels” when assessing a complaint, but rather should assess whether the complaint put the defendant on notice of the nature of the claims at issue. S. County Sand & Gravel Co. v. S. Kingstown, 160 F.3d 834, 836 (1st Cir. 1998); see, e.g., Alvarez v. Hill, 518, F.3d 1152 (9th Cir. 2008) (“Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories.”). Doe’s complaint clearly put Defendants on notice that they were being sued because their maintenance of various policies, practices, and customs led to violations of her equal protection rights. That is all the federal pleadings standards require. Further, Defendants failed to contest the existence of this claim when Doe referenced it in a previous court filing. In October 2018, Doe filed a motion to compel (which this Court granted) asserting that the requested peer conflict records were relevant “because they go to the heart of Miss Doe’s claims that Defendants . . . had a pattern and practice of deliberate indifference.” Doe Mot. to Compel, ECF No. 62-1, at 7 (emphasis added). Doe further asserted that, “[c]onsistent with the claims she filed, [she] “initially served discovery seeking information related to . . . PSD’s policies, investigation practices, and enforcement procedures related to harassment.” Id. at 2 (emphasis). Defendants objected to producing these documents, but tellingly never once asserted that Doe never asserted a claim based on practices, patterns, and policies. It strains Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 26 of 40 22 credulity for Defendants to profess surprise at this Monell claim against all Defendants. In any event, Defendants would suffer no prejudice whatsoever were this Court to consider the claims— as it should—because Defendants briefed the merits of those claims in its opposition. Defs.’ Opp. at 49-53. In sum, Doe pleaded and consistently maintained that Defendants are liable under §1983 for maintaining policies and customs of failing to address student reports of sexual harassment. B. No Material Dispute Exists that Defendants Maintained Policies and Customs of Not Reporting Sexual Harassment Allegations to the Title IX Coordinator, Not Investigating Reports of Sexual Harassment; and Not Issuing Written Reports of Investigation Failing to Notify the Title IX Coordinator, Jacqueline McHale The crux of Defendants’ counter to the claim that it maintained policies and customs of not notifying its Title IX coordinator of reports of harassment is that if the school categorized an incident as peer conflict, the incident, by definition, was not a report of sexual harassment that required notice to the Title IX Coordinator. This approach ignores the substance of the incidents reported to Defendants and creates a tautology: incidents of sexual harassment were reported to the Title IX coordinator, so if it was not reported to the Title IX Coordinator, it was not sexual harassment. Discovery has proven this tautology to be false. Not only did PSD employees fail to report to McHale any of Doe’s or Goodwin’s reports of harassment, but, as described above, they failed to report to McHale any of the more than 600 pages of “peer conflict,” incidents, including the ten above-referenced incidents that involved unwanted touching, unwanted solicitation of sexual acts, threats to send sexually explicit photographs, and girls repeatedly being called, “bitch,” “slut,” and “whore.” Defendants—in reference to these 600 pages of records that neither contain a reference to McHale or a report of investigation—argue that “Doe improperly relies upon proclamations that Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 27 of 40 23 certain events never took place merely because Does’ [sic] counsel did not obtain discovery relating to them. For instance, Doe cites to Ms. McHale’s name not appearing in a set of discipline records produced in response to a Court Order compelling records pertaining to ‘peer conflict’ as probative that investigation of harassment did not take place.” Defs.’ Opp. at 31. Doe most certainly relies on the lack of written reports of investigation or references to McHale among these 600 pages to argue that no written reports were prepared of these investigations and these reports were not sent to McHale. This Court ordered Defendants on October 17, 2018 to produce “records containing reports, investigations, and/or discipline pertaining to peer conflict involving a sexual or gender-based derogatory term, gesture, or conduct.” Order Compelling Production, ECF No. 64. Either written reports and referrals to McHale do not exist with respect to these 600 pages of records or Defendants have failed to comply with the Court’s order. McHale’s testimony strongly suggests that the former is the case, not the latter. McHale recalled working with only one parent during her entire tenure as Title IX coordinator, Laurie Axe, Goodwin’s mother. This was initiated by Axe, not by PSD employees and not by McHale. Ex. 90, McHale Depo. 37:23-38:1. McHale has “never met with a student directly, either in person or over the phone.” Id. at 39:10-18. She has only, by her own admission, ever worked on two investigations involving students in Pennridge School District, which includes the Goodwin matter and one other matter regarding the booster club. Id. at 39:23 – 40:15. Tellingly, Defendants fail to offer any evidence that McHale was notified of more than the two investigations McHale identified. No credible argument exists that the Title IX coordinator was notified of reports of sexual harassment. Rather than dealing with this unequivocal evidence, Defendants attempt to manufacture an issue, arguing that McHale did not agree that PSD administrators had “sole” authority to Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 28 of 40 24 investigate sexual harassment claims without notifying her. McHale could not have testified more clearly that building-level administrators did not involve her in investigations into allegations of sexual harassment. When asked “In your experience as Title IX coordinator, at what point does administration or guidance reach out to you regarding student issues?,” McHale answered, “[t]hey have not at Pennridge.” Ex. 90, McHale Depo. 42:23-43:2. McHale could identify no instances where the PSD administrators felt that a report rose to her level in order to have the PSD administrators contact her: Q. So student sexual harassment is handled at the building level, correct? A. Yes. Q. In those instances you are not alerted to sexual harassment? A. Not unless they feel it rises to my level. Q. And when does it rise to your level? A. It hasn’t at Pennridge School District. Ex. 90, McHale 45:21-46:5. In fact, McHale acknowledged that it was an “unwritten policy” at PSD that PHS administrators “had the authority in their position as a high school administrator to investigate a student complaint”: Q: Where in this [sexual harassment] policy, Exhibit 15, is the administration given authority, sole authority, to investigate complaints of sexual harassment? A: I’m not aware of it. Q. So then the administration does not have the authority to solely investigate a complaint of sexual harassment, correct? A. Not in accordance with this board policy. Q. And is there any other policy that you’re aware of that gives administrators authority to investigate complaints of sexual harassment? A. I think it would be unwritten policy that they had the authority in their position as a high school administrator to investigate a student complaint… Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 29 of 40 25 Ex. 90, McHale 248:23-249:14 (emphasis added). McHale also acknowledged that her “understanding of the policy” is that “in order to ensure compliance … with Title IX, it’s important that sexual harassment complaints be reported” to her. Ex. 90, McHale 249:20-24. McHale’s testimony was unequivocal and no matter how much Defendants try to parse her or any other witness’s testimony, the facts bear out that PSD employees had a policy and custom of not notifying McHale of, or involving her in, claims of sexual harassment, despite PSD board policy requiring that she be notified of sexual harassment allegations: McHale has only ever been involved in two matters related to students, one of which was initiated by Goodwin’s mother in the related matter. Failing to Investigate First, Defendants wrongly claim that both N. and Doe were interviewed on June 15, 2015 after Doe initially reported the abusive relationship and the subsequent harassment. Hegen, Doe’s grade-level Assistant Principal, admitted he saw no need to investigate Doe’s June 15, 2015 report that N. had physically abused her both in school and outside of school. Ex. 45, Hegen Depo. 397:14-17. 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 June 15, 2015 email, Ex. 45, Hegen Depo. 420:8-10, 421:6-10, because it was a “busy time of year” and he was “not thinking a hundred percent about individual kids during the summer.” Ex. 45, Hegen Depo. 419:5-11. There is no evidence that N. was interviewed. At best, [Laboski] may have told N. that he needed to have no contact with Doe. Ex. 87, Doe-PSD 1796. Defendants, in their Opposition, ignore that the school failed to investigate Doe’s continued reports throughout the fall 2015 and spring 2016 semesters, including her visits to Hegen’s office once or twice a week, every week, during the first six to eight weeks of the school Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 30 of 40 26 year to report harassment; her report on September 4, 2015; her November 2015 report that N. and his friends continued to harass and stalk her while on campus, including calling her a “whore” and a “slut”; and her subsequent reports after the December 22, 2015 incident. Ex. 45, Hegen Depo. 431:5-14, 432:3-16. Ex. 10, Doe-PSD 0042; Ex. 11, Doe-PSD 0114; Ex. 45, Hegen Depo. 402:11-402:22; 425:7-16, 429:7-10; Ex. 39, Doe Depo. 52:25-53:3, 72:19-73:3, 85:24- 86:1, 193:14-25. Defendants also ignore the absence of any meaningful investigation of the December 22, 2015 incident Doe reported that N. had “raised his hands in fists” (Ex. 91, Doe-PSD-0229-30), and told Doe to “get the fuck away from me.” Ex. 89, Doe-PSD-0232. Hegen claimed that despite the fact that he interviewed four witnesses, he could not reach a conclusion as to what occurred because there were conflicts among the witnesses, and the surveillance footage near where the incident occurred did not capture the incident itself. Hegen believed that finding a student responsible in the absence of video evidence would be akin to “start[ing] . . . a witch hunt.” Ex. 92, Hegen Depo. 473:7-14. The most obvious way of breaking this supposed impasse would have been to speak with more witnesses. Yet, Hegen did not use the surveillance footage, which captured who was near the incident, to identify additional witnesses who could have helped resolve the witness disputes that supposedly vexed him. Finally, Defendants do not even address that PSD took no steps to investigate the continued concerns raised by Doe after December 22, 2015. Hegen testified that he did not investigate any of Doe’s reports after December 22, 2015 because he purportedly knew, without even investigating these reports, that “a lot of things that she reported were inconclusive 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[.]” Ex. 45, Hegen Depo. 402:11-22. Moreover, Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 31 of 40 27 there is substantial evidence that PHS failed to investigate a number of Doe’s claims and inadequately investigated the remaining claims. See Doe Opp. at 6-12. This failure to investigate was particularly pronounced when the alleged conduct occurred outside of school. With respect to off-campus harassment, Defendants erect a strawman, arguing that DeBona acknowledged that PSD, theoretically, had the ability to investigate incidents that occurred off campus. Defs,’s Opp. at 51. Regardless of what might be theoretically possible, DeBona acknowledged, in her deposition regarding the Goodwin case, that PHS does not investigate off campus incidents aside from, perhaps contacting the local police: Q. Okay. Do you know if Mr. Hegen took investigatory steps [with respect to the initial report of Goodwin’s sexual assault] outside of possibly calling the police? A. For the outside incident other than speaking to the students, probably not. Q. Okay. A. We put it in the hands of the police officers, incidents that happen outside of school, and we trust that they do their job. Q. Okay. You mentioned earlier, though, that Pennridge has a responsibility to investigate off-campus incidents? A. That may be contacting the local police. Ex. 86, DeBona Depo. 186:8-22. This policy was reinforced by Hegen, who testified regarding the Goodwin case that he would not investigate off-campus incidents unless the off-campus incident involved a school- related function: Q. Did you reach any conclusions as part of your investigation in this incident? A. I was not investigating the incident. I was making sure that the proper authorities had been notified, and I was assured that it was in the hands of the police… and it was off school grounds. I don’t investigate things that happen off Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 32 of 40 28 school grounds unless it’s involving something that is, say, an athletic event at another high school, and our students break a rule there. Q. So based on what you said, does that mean you don’t consider what you did in connection with this incident to be an investigation? A. It was not an investigation. Ex. 92, Hegen Depo. 321:8 – 322:8. Moreover, any outside investigation would be pointless, because, as DeBona explained, PSD would not take “any disciplinary action” if an event occurs off campus, “unless it is a school-sponsored event.” Ex. 86, DeBona Depo. 246: 10-19. There is simply no dispute that PSD failed to investigate sexual harassment claims, particularly claims of sexual harassment that occurred off campus. PSD Failed to Prepare Written Reports of Investigation Defendants misunderstand Doe’s argument, characterizing Doe as arguing the limited point that DeBona did not personally submit written reports of sexual harassment investigations to McHale. Defs’ Opp. at 33. In response to this argument that Doe never made, Defendants argue: “while it is true that DeBona did not personally submit a written report of a harassment complaint to McHale during the time period at issue in this case, assistant principals did so on her behalf.” Id. No evidence supports this argument. As an initial matter, Doe requested “[a]ll complaints (written or verbal), grievances, allegations or charges, formal or informal and relating to discrimination, harassment, bullying, or cyberbullying, including all completed ‘Report Form for Complaints of Harassment/Bullying/Cyber-Bullying,’ submitted to Pennridge High School, and all documents concerning any investigation conducted in response to such complaints.” Ex. 93, Plaintiff’s Request for Production of Documents, No. 2. Defendants have not produced a single report of investigation in response to this request, and they tellingly do not append a single investigation report to their opposition in support of their claim that the PHS assistant principals prepared these reports. In making this statement, Defendants merely cite to Exhibit 38, which is Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 33 of 40 29 Doe’s written report of the December 22, 2015 incident, not a written report by a PSD employee summarizing PSD’s investigation of Doe’s report of harassment. McHale candidly acknowledged that she did not receive any written report related to Goodwin’s matter, Ex. 90, McHale Depo. 52:1-53:14, and that it was a violation of PSD that she had not received reports regarding Goodwin. Ex. 90, McHale Depo. 221:7-12. No dispute exists that PSD employees failed to prepare written reports of investigation in response to sexual harassment reports. IV. DEFENDANTS DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY DeBona and Rattigan have offered conflicting and ever-shifting arguments in support of their purported entitlement to qualified immunity. In their affirmative summary judgment motion, they argued only that Doe’s constitutional rights were not violated. Recognizing that material factual disputes preclude this Court from granting summary judgment on this basis, Defendants now shift strategy and argue Doe’s equal protection rights are not clearly established. Defendants have waived their ability to assert such an argument in support of their affirmative summary judgment motion, and in any event, Defendants are wrong on the law. Doe has a clearly established right under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution to have PSD and its administrators, DeBona and Rattigan, address student-on- student sexual harassment. Defendants tellingly offer no legal authority to support their claim that despite a plethora of case law to the contrary, Doe’s equal protection right was not clearly established at the time of the events in this case. Defs.’ Opp. at 38-43. Their primary argument is the cases Doe cites involved “much more egregious” harassment. Id. at 38. As an initial matter, this is not even true. In DiStiso v. Cook, the Second Circuit held that the principal and teacher were not entitled to Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 34 of 40 30 qualified immunity as to the plaintiff’s reports of “racial name-calling”—separate and apart from reports of physical harassment, thus recognizing that a school district’s failure to address verbal harassment alone is a violation of a student’s clearly established equal protection right. DiStiso v. Cook, 691 F.3d 226, 250 (2d Cir. 2012); see also Defs.’ Opp. at 40-41. It strains credulity for Defendants to claim that Doe’s reports of N.’s physical abuse, stalking, threats of suicide, and sexual epithets were somehow much less egregious than the DiStiso plaintiff’s reports of racial epithets alone. Moreover, the Supreme Court has held that a constitutional right is “clearly established” if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right,” and that it is by no means necessary for “the very action in question [to] ha[ve] previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). The Court has “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.” Id. at 741 (citing United States v. Lanier, 520 U.S. 259 (1997)). In fact, a right can be clearly established even if there are “novel factual circumstances” or “notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Id. at 740. The right to be free from sexual harassment in school is clearly established under the Equal Protection Clause. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009). A decade ago the Supreme Court clarified that a student may pursue claims based on sexual harassment both under Title IX and § 1983. Id. The case law discussed throughout Doe’s briefs on the meaning of “deliberate indifference” in the school context—an essential element of claims Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 35 of 40 31 under each statute—has clearly established that Doe had a constitutional right to have PSD and its administrators address student-on-student sexual harassment while she was a student at PHS. Moreover, an abundance of precedent demonstrates that Doe’s constitutional rights were clearly established during the relevant time period of her case. For instance, Doe has cited six federal appellate court decisions recognizing an equal protection right to be protected from student-on-student harassment since as early as 1988. Hill v. Cundiff, 797 F.3d 948, 978-79 (11th Cir. 2015) (concluding that the constitutional right to be free from a school’s failure to address peer sexual harassment had been clearly established since at least 2010); Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x. 348, 356-58 (6th Cir. 2014) (concluding that the constitutional right to be free from a school’s failure to address peer religious and sex-based harassment had been clearly established since at least in 2007); DiStiso, 691 F.3d at 240-41 (concluding that the constitutional right to be free from a school’s failure to address peer racial harassment had been clearly established since at least 1999); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1132 (9th Cir. 2003) (concluding that the constitutional right to be free from a school’s failure to address peer sexual orientation harassment had been clearly established since at least 1991); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1250-51 (10th Cir. 1999) (concluding that the constitutional right to be free from a school’s failure to address peer sexual harassment had been clearly established “since at least 1992”); Nabozny v. Podlesny, 92 F.3d 446, 455-56 (7th Cir. 1996) (concluding that the constitutional right to be free from a school’s failure to address peer sexual orientation harassment had been clearly established since at least 1988). Moreover, since at least 2013, a clearly established constitutional right has existed within the Third Circuit for students to be protected from off-campus sexual harassment after being removed from school by a third party. L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 250 (3d Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 36 of 40 32 Cir. 2016). Against this backdrop, Defendants simply cannot show that Doe’s equal protection right to be free from Defendants’ deliberate indifference to student-on-student sexual harassment was not clearly established at all times relevant to this litigation. Doe also notes that Defendants make a number of errors in their legal analysis in each of the above circuit court decisions in their attempt to distinguish those cases. For example, they incorrectly state that the Eleventh Circuit in Hill “affirmed the grant of summary judgment to a school board and all individual defendants except for the school president,” when in actuality, the Circuit reversed the district court’s grant of summary judgment to the principal, an assistant principal, and a teacher’s aide. Hill, 797 F.3d at 978-80; Defs.’ Opp. at 39. Furthermore, in an attempt to distinguish Shively, Defendants appear to argue that “an entirely different legal standard is applicable” to Doe’s motion for summary judgment versus the Shively defendants’ motion to dismiss, even though the question of whether a right is clearly established is purely legal and does not vary materially based on the stage of the litigation in which the issue is raised. Defs.’ Opp. at 40. Finally, although material factual similarities are not necessary, Defendants’ own descriptions of the cases show that there are in fact many factual similarities between the aforementioned circuit cases and Doe's case. Like the Shively, DiStiso, and Nabozny plaintiffs, who reported “slurs” and physical violence, Doe reported being subjected to sexual slurs, physical abuse, and a threat of violence. Defs.’ Opp. at 39, 40. Like the Shively plaintiff, who reported being added to a “kill list,” Doe reported that N. was threatening to “kill himself” if she did not resume dating him. Id. at 40. And, like all of the plaintiffs in those cases, she eventually left her school due to the harassment. Hill, 797 F.3d at 965; Shively, 579 F. App’x at 352; Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 37 of 40 33 DiStiso, 691 F.3d at 229; Flores, 324 F.3d at 1133; Murrell, 186 F.3d at 1244; Nabozny, 92 F.3d at 452. Thus, Defendants DeBona and Rattigan have not met their burden of showing they are entitled to qualified immunity on Doe’s § 1983 claims against them in their individual capacities. CONCLUSION No material dispute exists that Defendants’ training regarding student-on-student sexual harassment was inadequate or that Defendants maintained policies and custom of not notifying the Title IX Coordinator of reports of sexual harassment; not investigating reports of sexual harassment, particularly where they involve off-campus conduct; and not issuing written reports of harassment investigations. Defendants were deliberately indifferent to the risk that PSD students would be harmed by their inadequate training and their deficient policies and customs, and Doe was in fact harmed as a result. Accordingly, she is entitled to summary judgment on the claims on which she has moved. Respectfully submitted, February 19, 2019 BY: /s/ Courtney G. Saleski Courtney G. Saleski (Bar No. 90207) Ben C. Fabens-Lassen DLA PIPER LLP (US) One Liberty Place 1650 Mark Street, Suite 4900 Philadelphia, PA 19103-7300 Telephone: 215.656.2431 E-mail: Courtney.Saleski@dlapiper.com Ben.Fabens-Lassen@dlapiper.com Matt Graves DLA PIPER LLP (US) 500 Eighth Street, NW Washington, D.C. 20004 Telephone: 202-799-4469 E-mail: Matthew.Graves@dlapiper.com Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 38 of 40 34 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 93 Filed 02/19/19 Page 39 of 40 CERTIFICATE OF SERVICE I hereby certify that on the 19th day of February, 2019, I caused the foregoing Plaintiff’s Memorandum in Reply to Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment to be filed with the Clerk of Court of the United States District Court for the Eastern District of Pennsylvania using the ECF system, it is available for viewing and downloading from the ECF system, and a true and correct copy was served via ECF to all counsel of record registered with the ECF system. BY: /s/ Courtney G. Saleski Case 2:17-cv-03570-TR Document 93 Filed 02/19/19 Page 40 of 40