JANE DOE v. PENNRIDGE SCHOOL DISTRICT et al

REPLY to Response to Motion re MOTION for Summary Judgment re: Statement of Disputed Facts

E.D. Pa.February 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. : ______________________________________________________________________________ DEFENDANTS PENNRIDGE SCHOOL DISTRICT, JACQUELINE A. RATTIGAN AND GINA DEBONA'S RESPONSE TO PLAINTIFF'S "ADDITIONAL FACTS" IN STATEMENT OF DISPUTED FACTS In response to the "Additional Facts" set forth in Plaintiff, Jane Doe's Statement of Disputed Facts, Defendants respond as follows: 304. Admitted. 305. Denied as stated. It was reported by the school bus driver that N. was "talking" about such text messages. A conference was held with N. and his mother based upon this reported incident. See Plaintiff's Exhibit 17. 306. Denied as stated, insofar as the ellipses inserted by Doe suggests that the reports of sexual comments and a student leaving the class were interrelated, when these records do not suggest any such connection. In fact, Doe omits the deposition testimony of Nancy Overton, who specifically testified that she did not know whether N. directed any of the sexual comments to other students. See Defs. Exhibit 148, attached to Response to Doe's Motion for Summary Judgment, p. 60:14-18. 307. Denied. Plaintiff's expert is not a source of evidence and his opinions are not material facts. Rather, this paragraph contains legal argument which is denied. The opinions of Plaintiff's expert are denied and rebutted by Defendants' own expert, Dr. Martin J. Hudacs. See Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 1 of 14 2 Defs. Exhibit 153, attached hereto, Rebuttal Report by Dr. Hudacs. See also Defs. Exhibit 115 (Dr. Hudacs expert report). 308. Denied. Plaintiff's expert is not a source of evidence and his opinions are not material facts. Rather, this paragraph contains legal argument which is denied. The opinions of Plaintiff's expert are denied and rebutted by Defendants' own expert, Dr. Martin J. Hudacs. See Defs. Exhibit 153, attached hereto, Rebuttal Report by Dr. Hudacs. See also Defs. Exhibit 115 (Dr. Hudacs expert report). 309. Denied. Plaintiff's expert is not a source of evidence and his opinions are not material facts. Rather, this paragraph contains legal argument which is denied. The opinions of Plaintiff's expert are denied and rebutted by Defendants' own expert, Dr. Martin J. Hudacs. See Defs. Exhibit 153, attached hereto, Rebuttal Report by Dr. Hudacs. See also Defs. Exhibit 115 (Dr. Hudacs expert report). By way of further response, Doe continued with the Tech school program even after enrolling in Twilight. 310. Denied. Plaintiff's expert is not a source of evidence and his opinions are not material facts. Rather, this paragraph contains legal argument which is denied. The opinions of Plaintiff's expert are denied and rebutted by Defendants' own expert, Dr. Martin J. Hudacs. See Defs. Exhibit 153, attached hereto, Rebuttal Report by Dr. Hudacs. See also Defs. Exhibit 115 (Dr. Hudacs expert report). 311. Denied. Plaintiff's expert is not a source of evidence and his opinions are not material facts. Rather, this paragraph contains legal argument which is denied. The opinions of Plaintiff's expert are denied and rebutted by Defendants' own expert, Dr. Martin J. Hudacs. See Defs. Exhibit 153, attached hereto, Rebuttal Report by Dr. Hudacs. See also Defs. Exhibit 115 (Dr. Hudacs expert report). Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 2 of 14 3 312. Admitted that Doe testified that N. called her "ugly," "bitch," and "whore" when they were dating. Defendants do not have personal knowledge as to what occurred during N. and Doe's relationship, however. It is denied that Doe ever testified that this occurred "often," which is an embellishment of her actual testimony. 313. Denied, as inadmissible hearsay. Doe did not testify that these events occurred, and testimony from Doe's father that Doe told him that N. said something to her is inadmissible hearsay under F.R.C.P. 801 and 802. As such, this alleged statement from N. to Doe, as testified to only by Doe's father, cannot be considered as evidence. See Williams v. Pennridge Sch. Dist., No. 15-4163, 2018 U.S. Dist. LEXIS 205957, at *30-31 (E.D. Pa. Dec. 4, 2018) (excluding from consideration in summary judgment motion hearsay allegations from non-parties as to statements made by alleged harasser). 314. Denied. Doe alleges that N. called her a "whore," "slut," and "bitch" after Doe ended her relationship with him, but does not identify a time period. Doe testified 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). Doe's September 4, 2015 report to Hegen was that N. called her a "whore" and a "slut" when they were dating. (See Defs. SOUF, No. 51). Hegen's notes from this meeting also state, "[n]othing during school this year so far." (Id.) As such, it is misleading to represent that N. "continued" to call her names after they broke up when, in fact, Doe testified that he stopped for several months and then began again during her junior year. Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 3 of 14 4 315. Denied. Doe claims to have been sexually harassed by N.'s friends, but 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). The messages Doe described receiving during her sophomore year do not reflect harassment. Doe testified that it was not until her junior year that the Snapchat messages began to state 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). Yet, Doe has no idea who sent these messages and does not even know who N.'s friends were at the time that they were sent, nor whether they were even PSD students. (Id., pp. 53:19-54:7, 68:3-16, 73:17-23, 100:11-14). 316. Denied. Doe's testimony was that the unidentified individuals who she speculates were N.'s friends said that N. was going to kill himself if Doe did not get back together with him. Doe's attribution of this alleged statement to N. is inadmissible hearsay and cannot be considered. See Williams, supra, at *30-31. Doe did not take screen shots of any of the Snapchat messages and, therefore, Defendants do not have any personal knowledge as to what was allegedly said in such messages. 317. Admitted that D'Angelo spoke with Henrysen and reported that Doe hates Pennridge High School ("PHS") and that Doe alleged that N. hit her. Defendants do not have any personal knowledge as the allegation that N. hit Doe while they were together in Doe's bedroom. 318. Admitted. By way of further response, the ellipses in Doe's quotation omits, "Please keep your ears open to any issues," and the message also goes on to state, "she was trying to convince her dad that [she] needs an assessment to get an IEP… Erik [Henrysen] will be adding her to the girls anxiety group, along with ongoing monitoring. This will be our first step." (Plaintiff's Exhibit 10) (ellipses in original). Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 4 of 14 5 319. Denied. This is a mischaracterization of Mr. Hegen's testimony. Mr. Hegen testified that he did ask Doe questions about the report, but when he was questioned as to whether he asked Doe about the breakup with N. itself, he testified that he did not (i.e., he did not delve into the nature of their relationship beyond the issues pertaining to alleged abuse). 320. Admitted that Hegen testified that Doe repeatedly would appear at his office to complain that she does not like PHS and that he told Doe that she should be visiting guidance counselor Henrysen because "he's the one that's going to counsel you through some of the things that you're asking about." (Exhibit 11 to Defs. SOUF, p. 431:5-14). By way of further response, Hegen and Henrysen met to discuss Doe's requests to be sent to the IU because Doe was lying to Henrysen by saying that Hegen approved for him to start the paperwork for the transfer, as well as lying about other related issues. (Id., pp. 434:3-435:3). Hegen explained to Doe that her grades and disciplinary history did not reflect that she needed to enter the IU program, which was intended for students with emotional disturbances. (Id., p. 435:4-13). After telling Doe this, she began to start coming late to her classes and engaging in other disciplinary issues and PSD had a meeting about evaluating Doe for a learning disability or emotional disability. (Id., pp. 435:20- 436:12). 321. Admitted. By way of further response, DeBona tried talking to Doe but she would not tell her why she was crying other than that she did not want to be at PHS and wanted to speak with Hegen. (Exhibit 9 to Defs. SOUF, p. 163:1-12). 322. Admitted that this was DeBona's testimony. By way of further response, DeBona was also notified on June 15, 2015 by D'Angelo that Doe reported that N. was abusive during their relationship and was also copied on the e-mail response from Laboski, which stated that he would meet with N. and direct him not to have contact with Doe. (Defs. Exhibit 17). Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 5 of 14 6 323. Denied as stated, insofar as Plaintiff references written Board policies which speak for themselves. By way of further response, the Board policies cited by Plaintiff require that the complaints constitute harassment before the procedures cited are triggered. Additionally, DeBona was not solely responsible for assigning student discipline, as this could be and often was delegated to assistant principals. 324. Admitted that Ms. DeBona did not separately investigate the alleged abuse by N., which Doe reported took place in her bedroom. It is denied that DeBona did not confirm that another PSD employee was investigating, however. See Exhibit 9 to Defs. SOUF, p. 172:2-17. See also Defs. SOUF, No. 80 (referencing actions taken by Hegen). 325. Denied. Doe references a written document from Penn Foundation which speaks for itself. Doe's characterization of Hegen's e-mail is inaccurate, as she changed "IU" to "alternative school." Hegen rejected the recommendation to transfer Doe to the IU because, inter alia, Doe's grades were "fine" and she was "just fixated on not being [at PHS]." DeBona agreed that Doe was not eligible to attend the IU because "she was not a Special Ed. student nor was it an appropriate placement for her under least restricted environment." DeBona agreed that Doe's grades were "fine;" she did not have disciplinary issues in her background; and she was a successful student through her junior year to date. (Exhibit 33 to Defs. SOUF; Exhibit 9 to Defs. SOUF, pp. 196-197). Additionally, Doe also has a documented history of lying to the social workers at Penn Foundation in an effort to manipulate them into giving her what she wants. See, e.g., Defs. Exhibit 139, Ziv Report, p. 29 (discussing how Doe's therapy was terminated on multiple occasions because she would attempt to use them to have Children and Youth Services called on mother and stepfather). Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 6 of 14 7 326. Admitted that the social worker wrote such a report. By way of further response, the reports of abuse in the cited records are first attributed to Doe's mom and stepfather and also state that Doe reported that she was chased with a knife by one of her friends, none of which are the basis of her claims in this case. See also Defs. Exhibit 139, p. 29 (discussing Doe's reports of mental, emotional and physical abuse by her mother and stepfather). 327. It is denied that Hegen testified that he "knew" Doe's mental condition. Rather, Hegen testified that Doe was permitted to attend Twilight based upon her reports of anxiety and saying on a regular basis that she did not want to be at PHS. (Exhibit 11 to Defs. SOUF, p. 480:9-18). 328. It is denied that "N. was continuously violating PSD's instruction for him to stay away from [Doe] at school." Doe's November 24, 2015 report was based upon an "assumption" by Doe that N. did not have classes near her math class. (Exhibit 1 to Defs. SOUF, pp. 70:20- 71:5, 74:10-16). 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. In fact, Doe has not identified a single instance of N. approaching her at PHS—only instances where she instigated contact with N. 329. Admitted that N. acknowledged saying "get the fuck away from me" after Doe approached N. and said to him, "if you have shit to say, say it now while I'm here" and "I don't Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 7 of 14 8 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 Doe's characterization, however, N. never attempted to hit her during this altercation. (Id.) As Doe was moving towards N., he shifted his hands from his side to his chest while making a fist. As soon as Doe told N. not to raise his hands, N. grabbed the straps of his backpack with both hands said "fuck off, fuck you" and Doe walked away. N. did not pull his arms back or raise his hands over his head in any type of striking motion. (Exhibit 1 to Defs. SOUF, pp. 93-96). 330. Admitted that Hegen investigated the December 22, 2015 incident by interviewing witnesses and reviewing security footage. Doe's characterization that Hegen "threw his hands up" is denied. Hegen could not determine who was telling the truth about the incident, because Doe and her friend were contradicted by N. and his friend. Based upon similarities in their respective accounts of the alleged incident, however, it seemed to Mr. Hegen that there was equal fault. (Exhibit 11 to Defs. SOUF, pp. 469:17 to 470:4). Mr. Hegen also met with both families. (Id., p. 471:3-7). By way of further response, Doe omits Hegen's prior testimony, in which he explained scenarios where he is able to make a determination even without video evidence. (Exhibit 11 to Defs. SOUF, pp. 391:14 to 393:5). Hegen does not simply "throw his hands up" whenever there is not video evidence of an incident, nor does he only impose discipline when there is video evidence. 331. Denied as stated. The Student Handbook states that, "[a]dministrative discretion may be used depending upon the severity of the incident and/or the student's disciplinary record." As such, it is denied that the Student Handbook "requires" certain discipline to be assessed. It is admitted only that the Student Handbook recommends two Saturday morning detentions for abusive/obscene language directed at student(s). Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 8 of 14 9 332. Denied. Doe never reported incidents with N. or any of his friends after December 22, 2015. Doe references the testimony of Hegen as purportedly acknowledging further harassment, but his testimony does no such thing. 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 Tech1). To the extent Doe now claims that there were additional incidents with N. after December 2015, they were never made known to PSD employees, nor did she testify to them when asked. 333. Admitted that Hegen told Doe that she could consider Twilight or the IU, if she had an IEP. By way of further response, however, Hegen also testified that he told Doe that he felt that PHS was the best place for her and that they would try to get her through the rest of her junior year, knowing that N. would be graduating and not present at all during her senior year. (Exhibit 11 to Defs. SOUF, pp. 477:19-478:16). Admitted that Mr. Hegen testified as to the nature of the Twilight Program as of Spring 2016. (But see Exhibit 8, p. 479:16-23) ("It's changed, it's evolved over the eight years I've been at Pennridge. Now we use the online learning tool. And if a kid that is in their senior year is struggling towards getting towards graduation, so we build this in as a support for them to get to graduation with their class.") (See also Exhibit 11 to Defs. SOUF, p. 480:13-18) (Hegen explaining why Twilight was an option for Doe); (Exhibit 9 to Defs. SOUF, pp. 506-13) 1 Further, the Tech School is a distinct entity from PSD, enrolls students from several different school districts, and has its own personnel tasked with addressing student discipline. (Defs. Exhibit 149). Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 9 of 14 10 (DeBona explaining that an "exception" was made for Doe, because she had a lot of credits from being a Tech student, but could not be placed into IU because she did not qualify for special education, could not be placed at Quakertown High School, and the cyber program had not yet been developed). 334. Admitted. By way of further response, Henrysen wrote in this e-mail that, for her senior year, Doe could "enroll in Career Internship and/or Tech as long as academic requirements are completed this year." (Plaintiff's Exhibit 70). 335. Denied. There is no record that Doe's educational interest was to attend Bucks County Community College. She specifically requested that PSD allow her to participate in the Tech school's Career Internship Program, and PSD approved Doe's request. (Exhibit 12 to Defs. SOUF, Doe-PSD 0098-0099); Defs. SOUF, Nos. 166-73 (outlining Doe's participation in Career Internship Program). Doe said she suffered a wrist injury, but did not know whether it occurred from slipping on ice or taking out trash. (Exhibit 1 to Defs. SOUF, p. 147:10:14). According to the Starbucks manager, Doe called out for three of her five last scheduled times; there were concerns with Doe's time on task and attendance; Doe may not be a match for the fast-paced environment; and there was no trust from Doe's team members due to her [poor] performance. (Exhibit 14 to Defs. SOUF, Doe-PSD 0109). 336. Admitted. By way of further response, however, there were significant discussions as to what Doe should do during her senior year before this e-mail was sent. PSD employees were in the midst of discussing how they could place Doe with another internship when they learned that Doe had the police called on her Starbucks manager over a paycheck. The full context is set forth below: Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 10 of 14 11 On September 20, 2016, Marilyn Reese, School to Work Coordinator at UB Tech, informed Tech personnel that Doe lost her Career Internship Placement. Doe had several employment opportunities, but had difficulty maintaining employment. Reese inquired whether there was another avenue for Doe to obtain credit. Henrysen responded that Doe is required to be an active student and that he would investigate the matter. (Exhibit 14 to Defs. SOUF, Doe-PSD 0157); (Defs. SOUF, No. 169). On October 26, 2016, Doe emailed Hegen to inquire whether she could pick up more packets to finish what would amount to tech credits so she could discontinue the Career Internship Program. Hegen responded that PHS no longer offered packets for Tech classes, but that if Doe was interested in rejoining Twilight two nights a week, Henrysen could make those arrangements. Henrysen informed Hegen that Doe did not need any additional credits to graduate. (Exhibit 91 to Defs. SOUF, Doe-PSD 0101-0106); (Defs. SOUF, No. 170). On November 11, 2016, Doe informed Marilyn Reese that she went to the high school and learned she has all 24 credits needed to graduate. Reese forwarded the email to McCoskey, Henrysen and others asking for confirmation of the accuracy of Doe's statement. Reese inquired whether Doe was enrolled in the Career Internship Program. On November 14, 2016, Henrysen responded that Doe obtained all 24 credits needed for graduation. Since PHS did not offer early graduation, Henrysen said that Doe should be enrolled in the Career Internship Program to continue as a high school student. (Exhibit 92 to Defs. SOUF, Doe-PSD 0184-0187); (Defs. SOUF, No. 171). On November 16, 2016, Reese emailed McCoskey, Henrysen and others advising that she met that day with Doe regarding Career Internship Program. Doe said she suffered a wrist injury related to work and took a leave of absence from work. Thereafter, Reese spoke with the Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 11 of 14 12 Starbucks manager who confirmed Doe's leave of absence. However, the manager advised that Doe called out for three of her five last scheduled times; there were concerns with Doe's time on task and attendance; Doe may not be a match for the fast-paced environment; and there was no trust from Doe's team members due to her [poor] performance. Reese contacted Doe's father and updated him and said that she would follow up with the Starbucks manager. Henrysen responded that Doe came to see him with no complaints about an injury. Doe simply wanted to check her credit total in order to drop Career Internship. (Exhibit 14 to Defs. SOUF, Doe-PSD 0109); (Defs. SOUF, No. 172). On December 1, 2016, Henrysen contacted Hegen to advise that Henrysen spoke with Dr. Hill from the Tech school and learned that Doe was on leave from Starbucks. Henrysen reported that Doe went to Starbucks to pick-up her check and the manager was swamped and asked Doe to come back a little later. Henrysen said that Doe called the police to report that Starbucks was not paying her. Henrysen said Doe had all of her credits for graduation and asked Hegen for his thoughts. Hegen stated that Doe should move forward with her life. He said that graduation is June 8th and Doe should check in with PHS in May to get additional graduation information. (Exhibit 14 to Defs. SOUF, Doe-PSD 0167); (Defs. SOUF, No. 173). 337. Doe does not identify who she is referencing as "any of them" in this paragraph, and Defendants are therefore unable to respond to this vague statement. By way of further response, however, the document referenced by Doe pertains to bullying and cyberbullying by PSD students, which either occurs in a school setting or, if outside of a school setting, has one of the three listed connections to school operations. Doe's characterization that disciplinary authority extends to "all acts of bullying that occur 'outside a school setting'" is denied, as the Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 12 of 14 Policy states no such thing. Moreover, this case does not involve allegations of bullying by PSD students against Doe and, therefore, this policy is irrelevant. 338. Admitted that Hegen August 18, 2015, regarding Goodwin's rape allegation from several months prior. It is also admitted that, on August 18, 2015, Hegen asked DeBona for the name of PSD's Title IX coordinator. By way of further response, however, it has previously been explained that Hegen did so because, although he knew who McHale was and what she did, he referred to her as the "Compliance Officer" and not the Title IX Coordinator. (Exhibit 11 to Defs. SOUF, p. 258:3 (DeBona explaining that everybody at PHS knew the Title IX coordinator as the "compliance officer"). Dated: 2/19/19 13 met received a phone call from Goodwin's mother on 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 -6) Case 2:17-cv-03570-TR Document 96 Filed 02/19/19 Page 13 of 14 CERTIFICATE OF SERVICE I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of the foregoing Response to Plaintiff's Statement of Disputed Facts in Opposition to Defendants' Motion for Summary Judgment was electronically filed with the Court this date and is available for viewing and downloading from the ECF System. Dated: 2/19/19 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 96 Filed 02/19/19 Page 14 of 14