JANE DOE v. PENNRIDGE SCHOOL DISTRICT et al

REPLY to Response to Motion re MOTION for Summary Judgment

E.D. Pa.Feb 19, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________________________________________________ JANE DOE : : Civil Action No: 17-cv-03570-TR v. : : PENNRIDGE SCHOOL DISTRICT, et al. : ______________________________________________________________________________ REPLY BRIEF OF DEFENDANTS, PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DEBONA, IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT I. Introduction. Plaintiff Jane Doe brought this litigation based upon specific allegations of wrongful conduct by Defendants, which were asserted in her Complaint. A litigant cannot rely upon bare allegations in her Complaint to defeat a motion for summary judgment, however, nor can she distance herself from her own allegations, once they have been proven false. See Celotex v. Catrett, 477 U.S. 317, 322 (1986). Here, Doe has failed to prove almost every element of her claims and, in tacit recognition of this, now seeks to assert new claims which were never plead and, yet, still suffer from the same lack of proof as her original allegations. The vast majority of the conduct complained of by Doe did not take place during school hours or on school grounds. As such, a central issue for determination in this case is the legal question of what steps a Pennsylvania school district must take when a purely non-school-related allegation of harassment is made to it by a student. "Repeatedly, Courts have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred." Williams v. Pennridge Sch. Dist., No. 15-4163, 2018 U.S. Dist. LEXIS 205957, at *20-21 (E.D. Pa. Dec. 4, 2018) (internal citations omitted). Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 1 of 25 2 The second issue raised by the parties' briefing pertains to Doe's allegations of on-campus harassment. Specifically, Doe's claims that N. was following her around school. The first step is to ascertain whether Doe was harassed to begin with. She "assumed" that N. had no reason to be near her math class, but curiously never sought to substantiate her assumption through discovery. Had she sought discovery on N.'s class schedule, she would have learned (unless she already knew) that this assumption was false. With regard to the alleged Snapchat messages, Doe has failed to put forth any evidence that they occurred during school hours, on school grounds, or that they were sent by PSD students. By Doe's own admission, her allegation that N. was sending text messages is based upon pure speculation. Doe never sought discovery to corroborate her claim that N. "could have" sent her the text messages, despite admitting, "I don't know" if N. sent the text messages to her. (Exhibit 1 to Defs. SOUF, p. 54:3-11). Nor did Doe ever establish that N.'s friends, whose identities remain unknown, were even residents or students of Pennridge School District. Even if Doe could establish that she was subjected to sexual harassment at Pennridge High School that was severe, pervasive and objectively offensive, her claims would still fail because (1) she has not established that Defendants were deliberately indifferent, (2) the conduct about which she alleges constituted deliberate indifference has no correlation to her alleged harm, and (3) her policy and custom allegations have been proven false, along with the other defenses addressed herein, in Defendants' moving papers, and in Defendants' Response to Doe's own Motion for Summary Judgment. II. Doe Fails to Connect her Alleged Harm with Defendants' Alleged Actions. The Supreme Court in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) and Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) held that a plaintiff can prove a Title IX Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 2 of 25 3 claim only when the school has actual knowledge of ongoing sexual harassment and makes an affirmative decision not to address the situation. Inappropriate behavior of a different nature than the eventual harassment cannot give rise to actual knowledge for Title IX purposes. See Gebser, supra, at 291. At issue is not just whether Defendants were deliberately indifferent to Doe's constitutional rights. Rather, Doe must establish that Defendants were deliberately indifferent in such a manner that caused a violation of her rights. The vast majority of the alleged acts by N. occurred while he was dating Doe and, according to Doe, had already ceased by the time that she first reported them to Pennridge School District ("PSD") on June 15, 2015. (Defs. SOUF, Nos. 22, 44, 56). Therefore, Doe's allegations must be viewed as two categories: (1) how PSD reacted to allegations of conduct that took place between January 2015 and April 20151, and (2) how PSD reacted to allegations of conduct that took place after Doe's first report in June 2015, during her junior year at Pennridge High School ("PHS"). A. Even if N. sexually harassed Doe while they were dating, she cannot satisfy the substantial control or actual knowledge elements of her constitutional claims. In the "Statement of Facts" portion of Doe's Response Brief, she outlines a history of allegedly abusive conduct by N. against her while she was dating. (Doe's Response Brief, pp. 5- 6). Specifically, she claims that N. was physically and verbally abusive from January 2015 until April 2015. (Id.); (Defs. SOUF, Nos. 53, 56, 95). Doe testified that she broke up with N. in April 2015 and that, once she broke up with N., there were absolutely no instances where N. touched her in or out of school. (Defs. SOUF, No. 56). She further testified that N.'s verbal abuse of her stopped once she broke-up with him in April 2015. (Defs. SOUF, No. 85). By the time PHS 1 Doe and N. dated from November 2014 until April 2015, when they broke up. Doe testified that the alleged harassment by N. stopped when they broke up, but then began again during her junior year of high school. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 3 of 25 4 learned of the alleged abuse of Doe on June 15, 2015, the conduct had already ended and there was no ongoing harassment.2 (Defs. SOUF, Nos. 53, 56, 95). There was a clear break between the alleged harassment during Doe's sophomore year, when she was dating N., and the alleged harassment that occurred during her junior year—or, at least, a clear break in what she has ever reported. The vast majority of the alleged abuse by N. during his relationship with Doe occurred away from school grounds, including the alleged bedroom incident that serves as the focal point of Doe's Complaint. More importantly, there is no evidence that Defendants were ever put on notice of the alleged relationship abuse until after it had already occurred and ended. Since a Title IX cause of action requires damages which flow from harassment that occurs as a result of a school's deliberate indifference, a plaintiff must show, and can only recover for, harassment that occurs after the school is put on notice. Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 361 (3d Cir. 2005). The Title IX funding recipient's deliberate indifference must subject the student to 2 Doe's characterization of witness testimony is frequently distorted as she re-characterizes it in her Statement of Disputed Facts and then, again, in her Memorandum of Law. For instance, Doe testified that N. harassed her during their relationship but that it stopped after they broke up in April 2015. Her brief now contradicts her testimony by suggesting that the harassment never stopped. Specifically, Doe states on page 6 of her Response that, "[d]espite Doe ending the relationship, N. continued to call her a 'whore,' 'slut,' and 'bitch,' and this verbally abusive behavior occurred both in and outside of school." This statement is missing key information, however, as to the timing of when Doe alleges that N. "continued" to call her these names. Doe cites to ¶¶ 51 and 314 of her Statement of Disputed Facts in support of the allegation. Paragraph 51 refers to Doe's September 4, 2015 report to Hegen that N. called her a "whore" and a "slut," but Doe's September 4, 2015 report to PSD was that N. called her a whore and a slut when they were dating. (Defs. SOUF, No. 51). Paragraph 314 of Doe's Statement of Undisputed Facts claims that N. called Doe a "whore," "slut," and "bitch" after Doe ended her relationship with him, but does not identify a time period. The citation to Doe's testimony, however, references a portion of her testimony where she alleges that N. called her a bitch during her junior year—i.e., not at the time of the June 2015 report during her sophomore year. (Exhibit 1 to Defs. SOUF, pp. 70:20-71:23). Doe acknowledges that N.'s alleged conduct was not taking place at the time of her June 2015 report and that she did not have any further issues with N. through the summer of 2015, following her June 2015 report. (Id., pp. 49:14-53:7). Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 4 of 25 5 further harassment; to wit, the indifference must "cause students to undergo harassment or make them liable or vulnerable to it." Davis, 526 U.S. at 644-645 (internal quotations omitted). The only pre-2015 evidence cited to by Doe are two documents contained in N.'s discipline records. The first incident report contains hearsay statements from other, unidentified students indicating that N., then in 10th grade, commented about text messages that he sent to another student. (Doe's SODF, No. 305; Defendants' Response to Doe's SODF, No. 305). The only other incident was from several months later, when N. was reported to have made sexual comments at the Tech School.3 (Doe's SODF, No. 306; Defendants' Response to Doe's SODF, No. 306). See also Williams, supra, at *30-31 (excluding from consideration in summary judgment motion hearsay allegations from non-parties as to statements made by alleged harasser). Neither of these incident reports reflect sexual harassment of another student by N.4 and, in both cases, remedial action was taken. (Id.) Specifically, N.'s mother was contacted to discuss the October 2013 bus incident and N.'s parents were contacted "frequently" to discuss the various issues regarding his performance and misbehavior in Tech School. (Id.) Neither of these incidents can reasonably be said to have put Defendants on notice that N. posed a risk to abuse 3 This incident did not occur under PSD's jurisdiction. Upper Bucks County Technical School, referred to by students and administrators of PSD as "Tech," is not a part of PSD and not under the jurisdiction of PSD. It serves as a vocational training school for multiple school districts and is a distinct entity from PSD. (Defs. Exhibit 149, attached hereto, https://www.ubtech.org/domain/104) ("UBCTS has proudly served the Pennridge, Quakertown and Palisades communities since 1964."); (Defs. Exhibit 154, attached hereto, Troy Price declaration). 4 There is no evidence that the alleged sexually explicit text messages were harassing or even unwanted. Doe provides no context for these text messages, such as whether the recipient was N.'s girlfriend at the time. Similarly, there is no evidence that the sexual comments made in Tech School were directed toward another student. Nancy Overton, the only witness questioned about the comments, specifically testified that she could not say that the comments were directed to other students. See Defs. Exhibit 148, attached to Response to Doe's Motion for Summary Judgment, p. 60:14-18. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 5 of 25 6 Doe during their relationship approximately a year later. Other than Doe's allegations, which were first relayed to PSD in June 2015, there is no evidence whatsoever to suggest that N. has ever exhibited violent or abusive tendencies. Inappropriate behavior of a different nature than the eventual harassment cannot satisfy the actual knowledge requirement. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998). It is simply not possible for Doe to establish that deliberate indifference by Defendants caused the alleged relationship abuse by N. Defendants must have first been placed on notice of harassment before they can be accused of being deliberately indifferent toward it. This is significant because, as explained below, none of the alleged acts by N. following the June 2015 meeting between Doe and PSD administrators constitute sexual harassment. Even if Doe could establish that Defendants had actual knowledge of pre-2015 harassment, she cannot establish that they had control over N. or the circumstances under which the allegedly abusive conduct occurred. "Repeatedly, Courts have found that harassment that takes place off of school grounds and/or outside of school hours does not occur under circumstances where the District exercised substantial control over either the harasser or the context in which the harassment occurred." Williams, supra, at *20-21. The sole instance of "in- school conduct" between N. and Doe reported to PSD was a vague report by Doe that N. "pushed her in school," as was relayed by guidance counselor Lori D'Angelo to Hegen, DeBona and Laboski.5 (Defs. Exhibit 17, Doe-PSD 0040). None of the other alleged conduct was reported by Doe to have occurred in school or at school events. As such, Defendants cannot be found to have 5 Doe now characterizes this push as N. "slamming Doe against the school lockers." See Doe's Memorandum of Law, p. 5. Regardless of whether this actually happened, Doe never reported to Defendants that she was slammed against lockers by N. In fact, Doe never even testified to this occurring at her deposition. Doe is relying upon inadmissible hearsay from her father's deposition testimony. See MJG, supra, at *26. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 6 of 25 7 had control over the circumstances in which the alleged abuse by N. occurred, and Doe cannot base a claim of deliberate indifference against Defendants upon the alleged relationship abuse during her sophomore year at PHS. B. Doe cannot establish that a constitutional violation occurred following her first report to PSD. 1. Alleged conduct by N. following the April 2015 break-up. Doe did not have any further issues with N. through the summer of 2015, following her June 15, 2015 report. (Exhibit 1 to Defs. SOUF, pp. 51:18-52:10). On September 4, 2015, she reported to Hegen the same conduct that had already been previously reported on June 15, 2015—i.e., the alleged relationship abuse. (Doe's SODF, No. 319; Defendants' Response to Doe's SODF, No. 319). With the exception of the December 2015 hallway incident between Doe and N., there is no evidence of any interaction between N. and Doe at all during her junior year. Doe now alleges that N. was sending her Snapchat messages in which he called her names and said that it would be her fault if he killed himself. Contrary to the claims made in her Response, however, Doe admitted during her deposition that she has no idea who sent the messages and never took screen shots of the messages to provide to PSD administrators. (Doe's SODF, No. 315; Defendants' Response to Doe's SODF, No. 315); (Exhibit 1 to Defs. SOUF, pp. 54:3-11, 71:24-73:23). Doe does not know who N.'s friends were at the time that the messages were sent, and there is no evidence that any of the messages were sent during school hours. (Id.) When pointedly asked whether any of these Snapchat messages were coming from N., Doe responded that "[t]hey could have been. I don't know." (Exhibit 1 to Defs. SOUF, p. 54:3-11). Doe also claimed that N. continuously showed up wherever she was at PHS. Although this is what she wrote in an incident report, it was nothing more than another embellishment by Doe. When questioned on what she meant by this statement, Doe responded that she would see Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 7 of 25 8 N. near PHS's main office when she was dropped off in the morning and that N. "would show up outside of my classrooms randomly when he didn't have classes near me, I would assume." (Id., pp. 70:20-71:5) (emphasis supplied). Specifically, Doe testified that he would show up outside of her math class, "on the second floor by the cafeteria." (Id., p. 74:10-16). She never identified any other areas where she would see him. The insinuation that N. was stalking Doe merely because she would occasionally see him on school grounds is completely unfounded. In fact, Doe's assumption is demonstrably false. N. had a math class in Room 220 during the third period class session, immediately before Doe's fourth/fifth period math class in Room 215. Room 220 is approximately 95 feet away from Room 215. N.'s lunch period in the cafeteria was during the sixth period immediately following Doe's math class. The cafeteria is approximately 125 feet from Room 215. (Defs. Exhibit 150, attached hereto, Affidavit of Scott Hegen). Doe acknowledged that her math class was located close to the cafeteria, and her assumption that N. was stalking her merely because she would occasionally see him in the vicinity of her math class is completely unfounded. Doe cannot support an allegation of ongoing harassment based upon N.'s mere presence at PHS. See Frazer v. Temple Univ., 25 F. Supp. 3d 598, 614 (E.D. Pa. 2014) (no Title IX liability where accused student remained on campus pending disciplinary hearing, even where he followed and stared at the plaintiff); O'Hara v. Colonial Sch. Dist., No. 99 CV 399, 2002 U.S. Dist. LEXIS 12153 (E.D. Pa. Mar. 25, 2002) ("We do not believe that John Doe's presence at the school by itself constitutes 'harassment that is so severe, pervasive, and objectively offensive that it effectively bars [Meghan's] access to an educational opportunity or benefit.'") (quoting Davis). Doe also alleges that N. would, under his breath, call Doe a "bitch" when she walked passed him in the halls. (Exhibit 1 to Defs. SOUF, p. 71:16-23). Hegen testified that "three times Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 8 of 25 9 over the course of a year," Doe reported to him that Nate said "something." (Exhibit 11 to Defs. SOUF, p. 412:5-7). There is no record of Doe ever informing PSD administrators that N. called her a "bitch" or other sexually derogatory terms during her junior year—only that he made such statements while they were dating. Doe alleges that the "bitch" comments culminated in the December 2015 incident, in which she confronted N. after it "sounded like he called me a bitch" as she walked past him. (Id., p. 97:12-17). At that point, Doe approached N. and said to him, "if you have shit to say, say it now while I'm here" and "I don't know what circle of hell you crawled out of, but you need to go back before I bring you with me." (Defs. SOUF. Nos. 92-95). Contrary to the characterization in Doe's Complaint and elsewhere, N. never attempted to hit her during this altercation. (Id.) N. reportedly said "fuck off, fuck you" to Doe during the incident. (Id.) Although Doe represents that N. engaged in harassment following the December 2015 incident, that is a complete mischaracterization of the record. Paragraph 104 of Doe's Statement of Undisputed Facts references the testimony of Hegen as purportedly acknowledging further harassment, but his testimony does no such thing.6 The testimony by Hegen relates entirely to Doe's peer conflicts with other students. (Exhibit 11 to Defs. SOUF, pp. 407:15-409:2) (correcting Plaintiff's counsel that post-December 2015 peer conflicts were "[n]ot [with] Nate. Other kids, girls, peers from her cosmetology class or any of the tech schools."); (see also id., pp. 406:22-407:8) (discussing peer conflict with a female student from another high school who also attended Tech7). To the extent Doe now claims that there were additional incidents with N. after 6 Nor does Plaintiff's Exhibit 16, which is also cited, support such a claim. Exhibit 16 is merely Doe's December 22, 2015 incident report from the aforementioned altercation—it does not serve as evidence of subsequent incidents. 7 Again, the Tech School is a distinct entity from PSD and enrolls students from several different school districts. (Defs. Exhibit 149); (Defs. Exhibit 154). Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 9 of 25 10 December 2015, they were never made known to PSD employees, nor did she testify to them when asked. 2. Alleged conduct by others. In addition to her allegations of conduct by N., Doe claims to have been sexually harassed by N.'s friends. She testified that, "[w]hen we initially broke up, they had messaged me and asked me why I broke up with him and what happened and this is when [N.] started becoming --- I guess you'd say, he was suicidal." (Exhibit 1 to Defs. SOUF, p. 52:11-20). Doe went on to testify that, "it wasn't as bad as when we entered junior year, but it was just like little things hinting towards it. I don't remember exactly what was said, but when junior year hit is when I started getting messages from [N.], saying he's going to kill himself." 8 (Id., pp. 52:21- 53:7). As reflected by Doe's testimony, she was not sexually harassed by N.'s friends during her sophomore year. Although these messages were never produced and Doe cannot recall what they said, her characterization of the messages that pre-dated her junior year at PHS reflects friends concerned about N.'s well-being—not sexual harassment. Beginning in her junior year, Doe claims that the messages she was receiving took a turn for the worse. At this time, Doe claims that the Snapchat messages stated that it would be her fault if N. killed himself and referred to Doe as a "bitch and whore." (Id., pp. 193:13-194:9). She claims that she received these messages until approximately the middle of her junior year. (Id., p. 86:6-7). The social media interactions that were reported to Hegen involved Tech students and were merely relayed to him for his information, as they were being handled by employees at the Tech School—an independent educational institution from PSD. (Exhibit 11 to Defs. SOUF, pp. 405:9-406:21); (Defs. Exhibit 149); (Defs. Exhibit 154). Doe did not have any in-person 8 As already addressed, Doe's comment that N. sent her these messages was pure speculation. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 10 of 25 11 confrontations with friends of N. at PHS or Tech, and does not know the identity of anybody who allegedly sent her the text messages. (Exhibit 1 to Defs. SOUF, pp. 53:19-54:7, 68:3-16, 100:11-14). Doe testified that the friends that N. would spend time with during Doe's junior year were not the same as N.'s friends from Doe's sophomore year. (Id., p. 73:17-23). In other words, Doe testified that N. had a different group of friends from the time that messages were sent shortly after their breakup during her sophomore and the time that she began receiving messages in her junior year. (Id.) Plaintiff has offered no evidence to demonstrate that these messages were pervasive9, no evidence that she ever placed PSD employees on notice that the Snapchat messages were being used to call her derogatory terms, no evidence that the messages were being sent during school hours, and no evidence that the individuals sending the messages were even PSD students.10 Doe cites to handwritten notes that Hegen drafting during his September 4, 2015 meeting with Doe as evidence that Hegen was put on notice of Doe being called a "whore" and a "slut." (Plaintiff's Exhibit 11). Although the notes from September 4, 2015 contain those terms, the notes attribute the use of those terms to N. and state, "[n]othing during school this year so far." (Id.) In other words, the notes attribute the use of "whore" and "slut" to N. during the time that he was dating Doe during her sophomore year—nothing during her junior year. 9 Doe cites to the Sixth Circuit decision of Vance v. Spencer Cnty. Public Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000) for the proposition that "one incident can satisfy a claim" of sexual harassment. Id. Yet, Doe continues to ignore the much more egregious factual scenarios at issue in the cases upon which she relies. The Vance court made that statement in reference to the student being stabbed and pinned down while students tore off her clothing. Id. It compared the scenario to the Supreme Court's Davis decision by noting that the Supreme Court found as it did "particularly given the offensive touching"—i.e., the fondling of the student's breasts. Doe admits that she was never touched and never threatened following her breakup with N. 10 Most of Doe's complaints related to other students at the Tech school, which is not a party to this action. Any alleged failure on the part of the Tech school to investigate incidents involving its students cannot establish Doe's claims against PSD. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 11 of 25 12 Even granting Doe the benefit of the doubt that the Snapchat messages were sent to her and that she is characterizing them truthfully, she has failed to put forth sufficient evidence to create a question of material fact as to whether they constitute sexual harassment. More importantly, she has failed to put forth evidence that Defendants had actual notice of the alleged messages. And even if she could meet both of those elements, she has not put forth evidence that PSD exercised any level of control over the senders because she has not put forth any evidence that the messages were sent on PSD grounds, during school hours, or even whether they were sent by PSD students. For the foregoing reasons, all of Doe's claims must fail. Defendants can only be held liable for their own actions or inactions—not those of Doe's peers. The alleged relationship abuse by N. occurred without Defendants' knowledge and had ceased by the time it was reported. There was no further harassment by N. What Doe characterizes as "sexual harassment" by N. were (1) his mere presence at PHS, (2) his reaction to being accosted by Doe in front of his friends at PHS, and (3) alleged utterances of the word "bitch" under his breath that were never brought to Defendants' attention. The nature of the alleged Snapchat messages were not brought to Defendants' attention and it is unknown if they were even sent by PSD students or during school hours. Furthermore, Defendants properly investigated the reports that were brought to their attention and were not deliberately indifferent to Doe's rights, for the reasons explained in Defendants' moving papers and Opposition to Doe's Motion for Summary Judgment, which is incorporated herein by reference. This Court does not need to go any further than Doe's failure to meet these basic elements of her claims in order to dismiss her Complaint in its entirety. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 12 of 25 13 III. Doe is Impermissibly Recasting her Failed Allegations. A. Doe cannot allege new causes of action for the first time at the summary judgment stage of this case. It is axiomatic that a plaintiff cannot be granted judgment in their favor, nor oppose a dispositive motion filed by the defendant, through reliance on a claim that she never brought. Aldinger v. Spectrum Control, Inc., 207 Fed. Appx. 177, 180 n.1, 181 (3d Cir. 2006) (affirming district court's dismissal of claim that was not pled in complaint and was first raised in summary judgment opposition brief); Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 233 (3d Cir. 2015) ("But even though appellant raised the First Amendment in her brief, she did not plead a First Amendment claim in her complaint. Therefore, there is not a First Amendment claim properly before us.") For instance, in MJG v. Sch. Dist. of Phila., 2017 U.S. Dist. LEXIS 80117, 2017 WL 2277276 (E.D. Pa. May 25, 2017), the plaintiff argued at oral argument on a dispositive motion that her § 1983 claim against a school district for alleged failure to have a policy addressing how to handle students after student-on-student sexual harassment occurs was "broader than alleged in the Complaint." Id., at *26. The Court rejected this argument, with the Honorable Mark A. Kearney explaining in his opinion that, "[t]his claim, however, is not specifically alleged in the Complaint, so we may not consider it at this time." Id. B. Doe's Complaint alleges that she was "pushed out" of PHS as a result of a custom or practice by PSD, not that the IEP process administered by PHS's psychologist was flawed. Doe's Complaint alleges that "PSD has a custom and practice of encouraging or forcing girls who report sex-based harassment out of PHS and into Twilight, or some other alternative and inferior form of schooling that is generally attended by students who drop out or have behavioral issues." (Exhibit 16 to Defs' SOUF, ¶41). Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 13 of 25 14 Now, Doe asserts an entirely different claim. After discovery showed that Defendants in no way "pushed" Doe out of PHS and, in fact, encouraged her to stay, she now recasts her claim to argue that that "Doe felt she had no choice but to enroll in Twilight Academy" because "PSD failed to properly assess Doe for an IEP." See Doe's Memorandum of Law, p. 2. In other words, her claim is no longer that she was pushed out of PHS but, instead, that an IEP process administered by PHS's psychologist, Ross Owens, to determine whether Doe qualified for special education services was flawed. Doe's testing did not qualify her for special education and, therefore, PHS was unable to acquiesce to her repeated demands to be placed into the Bucks County Intermediate Unit ("IU") for special needs students. (Defs. SOUF, No. 140). Doe's Complaint asserts a cause of action premised upon her allegation that she was forced out of PHS and into an alternative school. Doe now abandons that claim and argues, instead, that she was not allowed to go into the alternative school of her choosing—that is, the IU. As outlined in greater detail in Defendant's Memorandum of Law in Response to Doe's Motion for Summary Judgment, pages 19-21, which are incorporated herein by reference, Doe incessantly demanded that she be permitted to leave PHS and cited peer conflicts with numerous students as her reason for doing so. First, she demanded that she be permitted to attend Quakertown High School, but she was not a resident in that school district.11 Next, she demanded placement into the IU, but she was not a special needs student. Finally, she requested Twilight, and PSD made an exception to allow her to participate in it. At no point prior to the close of discovery in this matter did Doe challenge the IEP process itself—her claim has always been that 11 In fact, Goodwin testified that she and her mother inquired about a transfer to another school district and were told by two school districts that she would be required to pay tuition to attend, since she was not a resident. (See Defs. Exhibit 151, attached hereto, Goodwin deposition, p. 210:8-14). (See also 24 P.S. Education § 13-1302(a) (requiring sworn statement from parent or guardian that child is resident of school district in order to enroll)). Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 14 of 25 15 she was "forced" out of PHS and into Twilight. The fact that Doe has an expert opinion criticizing the IEP process as being flawed does not change the fact that this was never pled as a claim in this case in the first place. Through her Response, Doe tacitly admits that her allegation of being "pushed out" of PHS is false. What was once an allegation that she was forced into an alternative educational program as retaliation for reporting alleged sexual harassment is now an admission that she wanted to be placed into an alternative program, but just not the one for which she was qualified. The insinuations that PSD employees deliberately tampered with school psychologist Ross Owens' IEP process so that Doe would not qualify for the IU have no support in the record, were never pled as a claim12, and the recklessness with which Doe has made these and other baseless allegations in her filings goes well beyond the bounds of zealous advocacy. Moreover, Doe has not demonstrated a "custom and practice of encouraging or forcing girls who report sex-based harassment out of PHS and into Twilight, or some other alternative and inferior form of schooling," which is the basis for her actual claim. (Exhibit 16 to Defs. SOUF, ¶41). To support her allegation, Doe claimed in her Complaint that she learned of other students, dating back to 2005, who were forced into Twilight, but only identifies herself, 12 Not only was a challenge to the IEP process never pled as a claim—Doe is not even permitted to plead it as a claim because she has not exhausted her administrative remedies. See Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir. 1994). The process that is required to be exhausted before a student is permitted to file a lawsuit in federal court was explained in Annika T v. Unionville Chadds-Ford Sch. Dist., Civil Action No. 08-4944, 2009 U.S. Dist. LEXIS 25508, at *10-18 (E.D. Pa. Mar. 24, 2009). Referencing 20 U.S.C. § 1415, the Honorable Harvey Bartle, III explained that the process requires that the parents of the student must first present a complaint to the educational institution and, in response, the school must then convene a hearing with the parents and relevant members of the IEP team. After the meeting, an impartial due process hearing must be held before the State educational agency or the local educational agency. If the hearing is held before the local educational agency, then the parents must appeal to the State educational agency. Only after this process is followed may the parents or student appeal to a federal court. See id. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 15 of 25 16 DarbiAnne Goodwin, and Modupe Williams. (Id., ¶¶ 46-47). The Goodwin case is the subject of a pending motion for summary judgment before this Court, the Williams case was recently dismissed in its entirety, and Doe has not met her burden to put forth evidence of students being pushed into inferior educational programs. Even if the Goodwin case is not dismissed through a dispositive motion, a single other student who alleged sexual harassment and enrolled in an alternative program does not establish a "custom and practice." C. Doe attempts to prove her allegation that PSD offered "no training" on Title IX and sexual harassment by criticizing the quality of the training that it provided. At the outset of this case, Doe made bold allegations that PSD offered no training to its employees on Title IX and that, as a result, PSD employees did not know what Title IX was or how to investigate reports of sexual harassment. Defendants demonstrated through discovery that its employees trained early and often on these subjects. Defendants also demonstrated that Doe's allegation that no investigation was conducted in response to her reports or Goodwin's was similarly unfounded. Now, Doe recasts her allegation that her claims were never investigated by arguing that the investigations were inadequate because PSD's Title IX Coordinator never personally investigated her complaints, even though others did investigate them and her complaints did not concern on-campus sexual harassment. (Doe's Response Brief, p. 30). Doe recasts her allegation that no training was provided by arguing that the quality of the training was not as high as it should have been. (Id., pp. 38-40). In doing so, she recognizes that a multitude of trainings were provided on the relevant subjects, but argues that the trainings were defective based upon word counts by Doe's counsel.13 Doe has waived any right to argue that Mr. Scarpantonio's trainings 13 Doe's counsel requested the deposition of Raymond Scarpantonio, who was PSD's Title IX Coordinator for the years leading up to when the relevant events to this litigation took place. Mr. Scarpantonio provided harassment and Title IX training to PSD employees in conjunction Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 16 of 25 17 were deficient, since she did not seek discovery on them other than to obtain some of his Powerpoint presentations from Defendants. It is not Defendants' burden of proof to establish that the trainings and meetings were effective, particularly since the quality of the programs was not pled as the basis for her claim. Defendants have offered ample proof that PSD employees were trained on sexual harassment and Title IX, as outlined in their moving papers and Response to Doe's Motion for Summary Judgment, which is incorporated herein by reference. Defendants disagree that the trainings are deficient but, unlike Doe's initial allegations that PSD offered "no training" on Title IX or sexual harassment, an allegation that training could be more effective does not support a claim for deliberate indifference. A showing of "simple or even heightened negligence" is insufficient to show deliberate indifference. Bd. of Cnty. of Com'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997). See also MJG, supra, at *26. Moreover, failure to adequately screen or train municipal employees can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations. Turner v. City of Phila., 22 F.Supp. 2d 434, 437 (E.D. Pa. 1998) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)). If no pattern of violations exists, the plaintiff bears a high burden to establish deliberate indifference. She must demonstrate that the violations of federal rights was a highly predictable consequence of the municipality's failure to train its employees regarding how to handle recurring situations. Id. Doe's Complaint pleads the existence of a pattern of students who were subjected to improper investigations of sexual harassment, dating back to 2005, but only identifies herself, with the use of Powerpoint presentations, some of which were provided in discovery. After Defendants made him available for a deposition, Doe's counsel abandoned their request to depose him. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 17 of 25 18 DarbiAnne Goodwin, and Modupe Williams. 14 (Exhibit 16 to Defs. SOUF, ¶¶ 46-47). With discovery now complete, Doe has not put forth evidence of any such pattern. Just like her claim of students being "pushed out" of PHS, she has not identified any students other than Ms. Goodwin and Ms. Williams to support her claims. As such, any claims put forth in Doe's Complaint regarding a custom or policy must be dismissed because she has not met her burden to put forth evidence in support of her allegations regarding constitutional violations involving "other students, going as far back as 2005." (Id.) IV. Doe Cannot Create a Question of Fact Through her Expert's Opinions. Doe cites to her Title IX expert's report as creating a question of material fact, but Dr. Howe is not a source of evidence in this case. He was not involved in any of the incidents at issue in this case and his report merely offers commentary on the evidence that is addressed by Defendants in their motion. As such, Defendants did not "fail" to address his report. See Doe's Memorandum of Law, p. 37. Much of Dr. Howe's report comments on what PSD "could have" done differently, not the legal standards for deliberate indifference or other issues presented by this motion. (See also Defs. Exhibit 153, attached hereto, Dr. Hudacs rebuttal report). Just as Dr. Howe makes recommendations that go beyond what is legally required, Doe relies upon Title IX guidance letters which make recommendations that are broader than what is legally required by Title IX. See, e.g., Doe v. Bibb Cnty. Sch. Dist., 126 F. Supp. 3d 1366, 1377 n.13 (M.D. Ga. 2015) ("This letter is no doubt helpful to funding recipients trying to comply with Title IX, but it is obvious the guidance in this letter is broader than the scope of liability 14 In her Complaint, Doe acknowledges the similarities between her policy and custom arguments and those in the Modupe Williams v. Pennridge Sch. Dist. litigation. She cannot now disassociate herself from the claims in Williams merely because this Court dismissed Williams' claims that PSD failed to properly train its employees on Title IX and sexual harassment and that PSD had a policy or custom of forcing out students who reported sexual harassment. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 18 of 25 19 for private causes of action for money damages.") (emphasis supplied). Notably, Doe also ignores other guidance from the United States Department of Education, such as guidance issued in September 2017 which states that schools do not need to address off-campus incidents. (Defs. Exhibit 152, attached hereto, p. 1, n. 3). V. Doe's Proposed Safety Plan has no Correlation to her Alleged Harassment. Doe alleges that PSD failed to implement an adequate safety plan because its employees did not put a plan in writing or provide N. with "specific instruction" about what it meant for him to have no contact with Doe. Yet, Doe fails to offer evidence that PSD's instruction failed to work. The only reported incident in which N. had contact with Doe was when she initiated a confrontation in December 2015. Even Doe's allegations of N. making comments under his breath, according to her own characterization, occurred when she would approach him. There is no evidence that N. ever attempted to make contact with Doe. Doe argues in her Response that "an obvious safety plan was placing Doe in the Intermediate Unit recommended by the medical professionals who were treating her." See Doe's Memorandum of Law, p. 35. Setting aside the fact that Doe did not qualify to be placed in the IU, since she did not have a disability, being placed in IU would not have had any effect on her ability to receive Snapchat messages. The only way to ensure that Doe would no longer received such messages was for her to delete the application from her cell phone, which she declined to do. Doe's inability to identify additional measures that would have actually addressed her alleged harassment only further underscores that Defendants' actions were not unreasonable. VI. In Addition to the Aforementioned Reasons, Doe's Retaliation Claim Fails because She Cannot Show a Retaliatory Motive. For the same reasons that her Title IX and Section 1983 claims against Defendants fail, so too does her retaliation claim fail because she cannot establish that the conduct she actually Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 19 of 25 20 reported to PSD constituted sexual harassment that was under PSD's control. Moreover, Doe's retaliation claim is premised entirely upon the ridiculous and contradictory accusations that PSD (1) forced her to leave PHS and enroll in an alternative school and (2) sabotaged her evaluation process to be placed in the IU. The IU is intended for special needs students with learning disabilities. Doe did not qualify for this, but incessantly demanded it while PSD employees encouraged her to stay at PHS. Eventually, even though her grades were fine and it was apparent that she did not have a learning disability, PSD approved for her to undergo the IEP evaluation process. There is absolutely no evidence that they sabotaged this process, yet Doe is now simultaneously arguing that she was pushed into an alternative school and prevented from going to an alternative school by PSD. Doe also alleges that Hegen called her "crazy" and a "drama queen" at her September 4, 2015 meeting with him, citing this as probative of retaliation because it was in response to her reporting that N. was showing up outside of her class. (Exhibit 1 to Defs. SOUF, pp. 101:24- 102:17). As previously addressed, N. appearing near her math class was not stalking or any other form of sexual harassment—N.'s math class and lunch were in the same general area as Doe's math class. (Defs. Exhibit 150). Further, even if Doe's allegations of comments made by Hegen are presumed to be true for the purposes of Defendants' motion15, there is no legal requirement that school district employees "have a pleasant demeanor" when responding to allegations of 15 Hegen testified at his deposition that Doe "had a lot of other peer conflicts with other girls and drama at the tech school that was brought back to the high school from time to time. I think it was an ongoing thing, and [N.] was a part of it. Like we've discussed, there was him being in vicinity in November and then him saying something to her, her saying something to him in December, but then that was it for N." (Exhibit 11 to Defs. SOUF, pp, 490:19-491:6) (emphasis supplied). Other than Doe's characterization of the September 4, 2015 meeting, there is no evidence of Hegen actually referring to Doe as a "drama queen." He did, however, refer to her peer conflicts with other students at Tech as "drama." (See also Exhibit 18 to Defs. SOUF, Defendants' Answer, ¶ 31) ("At no time did Mr. Hegen make the statements as alleged in paragraph 31.") Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 20 of 25 21 peer harassment. See Williams v. Port Huron Sch. Dist., 455 F. App'x 612, 620 (6th Cir. 2012) ("Plaintiffs argue that Jones was 'openly hostile' to requests for action to address the problem. Just as the plaintiffs 'do not have a right to particular remedial demands,' the law does not require that Jones has to have a pleasant demeanor.") (internal citations omitted). The mere fact that Doe did not get what she wanted is not evidence of retaliation. "Retaliation is, by definition, an intentional act." S.K. v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786, 805 (W.D. Pa. 2016) (quoting Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S. Ct. 1497, 1504 (2005)). "It is plaintiff's burden to make a plausible showing that the identified action intentionally was implemented to cause harm or injury because complaints were made about sexual discrimination." Id., at 806. Doe has not put forth any evidence of intentional conduct on the part of Hegen or any other PSD employees to support her retaliation claim. In fact, even when dealing with a student who had a history of lying and embellishing, Hegen and other PSD employees took every reasonable action that they could to investigate her claims and make accommodations for her at PHS. See Defendants' Response Brief to Doe's Motion for Summary Judgment, pp. 6-19 (outlining all of the actions taken in response to Doe's reports). VII. As Previously Addressed in Defendants' Moving Papers and Response to Doe's Motion for Summary Judgment, DeBona and Rattigan are Entitled to Qualified Immunity. Doe's argument that Defendants did not address the second prong of the qualified immunity analysis is simply incorrect. In fact, not only was this prong addressed in Defendants' motion, but it was also addressed in their opposition to Doe's own motion, which is incorporated herein by reference. See Defendants' Response Brief to Doe's Motion for Summary Judgment, pp. 38-43. The reason for the lack of case law on this prong in Defendants' motion is because no case law exists in the Third Circuit that supports a claim such as the one Doe is asserting. In fact, Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 21 of 25 22 it does not appear as though any plaintiffs in the Third Circuit even attempted to bring equal protection claims based on a factual foundation as scant as that presented by Doe here. Tellingly, each and every one of the cases relied upon by Doe—even those from other circuits—involve facts that are much more egregious than those presented here. See id., pp. 38-43 (discussing cases from other circuit courts, relied upon by Doe). Doe seeks to support the second prong of the qualified immunity analysis by attacking a straw man—i.e., arguing that "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 Doe's Response Brief, p. 46. Defendants never claimed that Doe does not have any equal protection rights. The issue is that she does not have the rights that she is claiming here. For instance, she does not have a right to dictate that a student be punished by the school district for unproven allegations of off-campus behavior, she does not have the right to demand placement in another school district where she is not a resident, and she does not have the right to demand placement in a program for special needs students when she is not a special needs student. In this case, the two prongs of the qualified immunity analysis are intertwined because the nature of the alleged violation of a statutory or constitutional right has to be identified before a discussion of whether it was a clearly established right can be had, and Doe's allegations have been a moving target as they have been disproven, changed, and recast as new allegations. Further, Doe's reliance upon United States v. Joseph, 730 F.3d 336 (3d Cir. 2013) in support of a waiver argument is misplaced. The Third Circuit in Joseph addressed the standards for whether a suppression argument in a criminal case was preserved on appeal—it had nothing to do with the procedures for a motion for summary judgment at the District Court level. Id., at Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 22 of 25 23 338. Even in this context, however, the Third Circuit acknowledged that, "[p]arties are free, for example, to place greater emphasis and more fully explain an argument on appeal than they did in the District Court. They may even, within the bounds of reason, reframe their argument." Id., at 341. Doe confuses the brevity with which Defendants addressed this issue in their moving papers with the substance of Defendants' argument. The substance of Defendants' argument has always remained the same. Defendants were able to expand upon their argument in response to Doe's Motion for Summary Judgment, where she identified for the first time the cases from other jurisdictions that she claims support the second prong of this analysis. VIII. Doe's Official Capacity Claims against DeBona and Rattigan are Redundant. Doe argues that the Kentucky v. Graham, 473 U.S. 159 (1985) only stands for the proposition that the Supreme Court simply held that there was "no longer a need to bring official-capacity actions against local government officials" if the plaintiff has also sued the local government unit directly, as Doe has here. Doe ignores the litany of subsequent Third Circuit cases which have since held that, in such situations, it is appropriate to dismiss the claims against the individual in his official capacity and retain them against the real party in interest. See, e.g., Hall v. Raech, No. 08-5020, 2009 U.S. Dist. LEXIS 25406, at *8 (E.D. Pa. Mar. 25, 2009) (citing Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988)); Doe v. Allentown Sch. Dist., No. 06-cv-1926, 2009 U.S. Dist. LEXIS 19418, at *20 n.8 (E.D. Pa. Feb. 26, 2009) (citing Kentucky v. Graham, supra); Irene B. v. Phila. Acad. Charter Sch., No. 02-1716, 2003 U.S. Dist. LEXIS 3020, at *1 (E.D. Pa. Jan. 29, 2003); McCachren v. Blacklick Valley Sch. Dist., 217 F. Supp. 2d 594, 599 (W.D. Pa. 2002); Mitros v. Borough of Glenolden, 170 F. Supp. 2d 504, 506 (E.D. Pa. 2001). Here, it is appropriate for the Court to exercise its discretion to dismiss DeBona and Rattigan as defendants in this action. Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 23 of 25 Even if Doe could establish a constitutional violation, DeBona and Rattigan would not be responsible under a theory of supervisory liability. Supervisors who maintain generalized knowledge of a situation cannot be liable for the conduct of subordinates. F.3d 197 (3d Cir. 2010) (affirming grant of summary judgment for supervisor who was kept abreast of an investigation, but did not direct his subordinate to take or not take any particular action). While supervising public officials may not authorize, encourage or approve constitutional torts, they have no affirmative constitutional duty to trai so as to prevent such conduct. Chinchello v. Fenton demonstrated any manner in which DeBona or Rattigan were deliberately indifferent to Doe's rights. For the reasons set forth in this Re Response to Doe's own Motion for Partial Summary Judgment, Doe's claims should be dismissed in their entirety and judgment should be entered in favor of Defendants. DATE: 2/19/19 24 Reedy v. Evanson n, supervise or discipline , 805 F.2d 126 (3d Cir. 1986). Doe has not ply, in Defendants' moving papers, and in Defendants' Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona , 615 Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 24 of 25 CERTIFICATE OF SERVICE I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of the foregoing Reply Brief in Support of Defendants, Pennridge School District, Jacqueline A. Rattigan and Gina DeBona's Motion for Summary Judgment was electronically filed with the Court on this date and is available for viewing and downloading from the ECF System. DATE: 2/19/2019 Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: JOSEPH J. SANTARONE, ESQUIRE JANE E. KANE, ESQUIRE KYLE M. HEISNER, ESQUIRE Attorney for Defendants Pennridge School District, Jacqueline A. Rattigan and Gina DeBona Case 2:17-cv-03570-TR Document 95 Filed 02/19/19 Page 25 of 25