GREGORY M. SLEET, Chief District Judge.
On September 15, 2010, the plaintiffs, P.K.
On September 29, 2011, following completion of discovery, the defendants filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). (D.I. 24.) In response, the plaintiffs filed an Answering Brief opposing the motion on October 17, 2011 (D.I. 31) and, on October 27, 2011, the defendants filed their Reply (D.I. 33). Presently before the court is the defendants' Motion for Summary Judgment. (D.I. 24.) For the reasons stated below, the court will grant the motion.
The following facts are taken from the plaintiffs' Complaint. (D.I. 1.) In August 2009, P.K. entered the High School as a ninth-grade student. (Id. at ¶ 13.) The High School is a public school located in the District in the State of Delaware. (Id. at ¶ 2.) The Board is responsible for overseeing the affairs of the District and of the High School. (Id. at ¶¶ 3-4.) As noted, the High School, District, and the Board are each named defendants in this action.
During the 2008-2009 school year, P.K. attended eighth-grade at Fred Fifer III Middle School, where she was a member of the National Junior Honor Society of Secondary Schools
Over the winter academic break, Hassinger noticed a bruise on P.K.'s arm but, when she asked P.K. the cause of the injury, P.K. indicated that she "got [her] arm caught in the door." (Id. at ¶ 15.) On Friday, January 22, 2010, Hassinger learned that G.R. was physically abusing P.K. when P.K. disclosed that G.R. punched her in the back of the head that day. (Id. at ¶ 16.) P.K. also told Hassinger that she was no longer dating G.R.
In February 2010, G.R. and his father sent numerous harassing text messages to P.K. and G.R.'s father called P.K. and left her a "frightening message." (Id. at ¶ 20.) G.R. and his father were subsequently arrested by the Dover Police and charged with criminal harassment.
Also that month, on April 29, 2010, G.R., in the first incident to occur on school grounds, pushed P.K. against a locker and slapped her.
On May 19, 2010, G.R. pled guilty to harassment charges and, immediately thereafter, P.K. "became the target of a campaign of retaliation in the form of verbal harassment and bullying by G.R.'s friends." (Id. at ¶ 33.) Specifically, on May 20, 2010,
On Tuesday, June 1, 2010,
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "material fact" is one that "could affect the outcome" of the proceeding. See Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 568 n.10 (1986). The district court, when determining whether a genuine issue of material fact exists, must view the evidence in the light most favorable to the nonmoving party and draw inferences in that party's favor. See Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Ifthe moving party is able to demonstrate an absence of disputed material facts, the nonmoving party then "must come forward with specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); see also Matsushita Elec. Indus., 475 U.S. at 587 (quoting FED. R. Civ. P. 56(e)).
Importantly, the mere existence of some evidence in support of the nonmoving party will not prove sufficient for denial of a summary judgment motion. See Anderson, 477 U.S. at 249. Rather, the nonmoving party must present enough evidence to enable a jury to reasonably find for it on that issue. Id. Specifically, the party opposing summary judgment "must present more than just `bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue." Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Thus, a nonmoving party asserting that a material fact is in dispute must support this assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, ... admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by the opposing party] do not establish the absence ... of a genuine dispute...." See FED. R. Civ. P. 56(c)(1). If the nonmoving party fails to make a sufficient showing on an essential element of its case for which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 322.
As noted, the plaintiffs contend that the defendants violated Title IX and Delaware laws by failing to remedy and/or protect P.K. from student-on-student harassment. In response, the defendants assert in their Motion for Summary Judgment, that the plaintiffs' suit should be dismissed pursuant to Federal Rule of Civil Procedure 56(c) because: (1) the plaintiffs have failed to establish a Title IX action as they have not shown that the defendants were "deliberately indifferent" to the harassment and/or acted "in a clearly unreasonable manner" (D.I. 25 at 7-13); (2) plaintiff Hassinger must be dismissed from the action in her own right as she has not suffered a cognizable injury
The defendants first contend that the court should grant their Motion for Summary Judgment with respect to the plaintiffs' Title IX claim because the plaintiffs have failed to establish the elements required for this cause of action. (Id. at 7-13.) Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program activity receiving Federal financial assistance[.]" 20 U.S.C. § 1681(a). The Supreme Court has established a private right of action for student-on-student sexual harassment against schools under Title IX. See Davis v. Monroe County Bd of Educ., 526 U.S. 629, 633 (1999). The private right of action only lies, however, where the school is deliberately indifferent to known acts of sexual harassment "that [are] so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to the educational opportunities or benefits provided by the school." Id. at 650. The district's action or inaction "must, at a minimum, `cause [students] to undergo' harassment or `make them liable or vulnerable' to it." Id. at 645 (citation omitted).
Deliberate indifference to acts of peer sexual harassment arises where the district's response or lack of response to the harassment is clearly unreasonable in light of known circumstances. Id. at 648. A Title IX plaintiff can establish liability by "showing that a single school administrator with authority to take corrective action responded to harassment with deliberate indifference." Fitzgeraldv. Barnstable Sch. Comm., 555 U.S. 246,246 (2009) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). To establish deliberate indifference, a plaintiff must show that the school "made an official decision not to remedy" the sexual harassment. See Gebser, 524 U.S. at 290. This showing, which is a burden placed on the plaintiff, is purposely high "to eliminate any `risk that [a recipient of federal funds] would be liable in damages not for its own official decision but instead for its employees' independent actions." Davis, 526 U.S. at 643.
To this end, a district is not liable for acts of harassment about which it has no knowledge or for harassment that occurs off school grounds. Id. at 644 (concluding that a school district "cannot be directly liable for its indifference where it lacks the authority to take remedial action"). Moreover, where a district is aware of harassment, it is not required to "remedy peer harassment" or to "ensure that ... students conform their conduct to' certain rules." Id. at 648-49 (citation omitted). Rather, a district "must merely respond to known peer harassment in a manner that is not clearly unreasonable" in light of the known circumstances. Id. at 648. This standard is "not a mere `reasonableness' standard," however, such that "[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not `clearly unreasonable' as a matter of law." Id. at 649.
Here, the plaintiffs' Complaint and the parties' submissions in connection with the instant motion depict a notably similar version of the events at issue. In fact, the plaintiffs note in their Answering Brief that "[t]he facts stated by the defendants are not disputed," though they condition this statement on the assertion that the defendants' recitation of the facts "do[es] not tell the entire story." (D.I. 31 at 2.) Despite the latter assertion, however, several facts detailing the defendants' actions are not in dispute and are directly relevant to the resolution of this motion. Specifically, and as pled in the plaintiffs' Complaint, Hassinger first contacted some of P.K.'s teachers and a guidance counselor at the High School at the beginning of the 2009-2010 school year to let them know that P.K.'s grades were likely declining due to the "verbal and emotional abuse" she was suffering as a result of her relationship with G.R. (D.I. 1 at ¶ 14.) At that point, no specific incidents of harassment or abuse were known to have occurred on or off school grounds and Hassinger did not alert the defendants of any such incidents.
Hassinger next contacted the High School on January 25, 2010 after she learned that G.R., in an event that occurred off school grounds, punched P.K. in the back of the head. (Id. at ¶¶ 16-17.) The High School transferred Hassinger to its school resource officer, Palese, who spoke with P.K. that day. (Id. at ¶ 18.) P.K. disclosed to Palese that she had been suffering physical and emotional abuse in her relationship with G.R. and Palese responded by reassigning P.K.'s locker so she would not share a locker with G.R. and their interaction would be limited. (Id. at ¶ 19.) The plaintiffs next contacted Palese in February 2010, when G.R. and his father sent P.K. harassing text messages. (Id. at ¶ 20.) Because these text messages were not sent at the High School or during school hours, Palese suggested that Hassinger contact the Dover Police Department. (D.I. 25 at 2-3.) Hassinger informed the Dover Police of the text messages and G.R. and his father were arrested for harassment. (D.I. 1 at ¶¶ 20-23.)
On April 29, 2010, in the first event to occur on school grounds, G.R. pushed P.K. against a locker and slapped her. (Id. at ¶ 28; D.I. 25 at 3.) Fisher, upon learning of the incident from the teacher that P.K. reported it to, said that G.R.'s conduct was "unacceptable" and directed P.K. to Palese to file a police report. (D.I. 1 at ¶¶ 27-29; D.I. 25 at 3.) In response to this incident, G.R. was arrested, suspended, and removed from the High School's baseball team. (Id. at 3; D.I. 1 at ¶ 28.) In addition, P.K. was allowed to leave her classes early and to be accompanied by her friends in the hallways to avoid contact with G.R. (D.I. 25 at 3.)
Finally, on May 21, 2010, in the last reported incident to occur at the school, G.R. attempted to push P.K. down a flight of stairs. (D.I. 1 at ¶ 34.) Hassinger and P.K. met with a counselor in the High School wellness center on May 26, 2010 as well as with Fisher to discuss the incident and P.K.'s desire to not return to school. (Id. at ¶¶ 34-36.) Fisher excused P.K. from in-school attendance on Wednesday, May 26 through Friday, May 28, 2010 and indicated that he would speak with Knight about allowing P.K. to miss the remainder of the school year. (Id. at ¶ 36.) While Knight's initial decision was that P.K. should complete the academic year at the High School, upon speaking with Hassinger on June 1, 2010 and considering the situation, Knight agreed that P.K. could finish the year from home without academic penalty. (Id. at ¶¶ 38-42.)
As noted, and as the defendants correctly assert, the parties do not dispute the facts outlined in this section. (D.I. 1; D.I. 25; D.I. 31.) The plaintiffs, however, contend that these facts do not "tell the entire story" and that there are additional disputed facts relevant to their Title IX action. (D.I. 31 at 2.) Specifically, the plaintiffs state in their Answering Briefthat: (1) P.K.'s homeroom teacher knew "she was having problems with G.R." before P.K. reported that G.R. slapped her, "but did nothing about it because he was waiting for [P.K.] to say something" (id. at 2); (2) P.K. informed one of her teachers, Jennifer Scholl ("Scholl"), about "the harassment in school and the physical abuse outside of school" and Scholl indicated "she was aware of how G.R. had been treating her and had witnessed it" (id. at 3); (3) P.K. told Fisher that G.R. "was still not leaving her alone" after his suspension and that Fisher told P.K. that "she is a strong girl and could handle it" (id.); (4) after P.K. told Palese that G.R. tried to push her down the stairs, Palese said he would suspend G.R. but did not do so because "he did not want to get G.R. in any further trouble with the law" (id.); and (5) the defendants did not respond to G.R.'s friends calling P.K. a "whore" and a "slut" in school (id. at 1).
After reviewing these allegations, however, the court concludes that they do not raise a genuine issue of material fact with respect to the plaintiffs' Title IX action. Specifically, and with regard to the plaintiffs' first assertion that P.K.'s homeroom teacher knew she was having problems with G.R. before the first incident at the High School and did nothing, the plaintiffs did not include this allegation in their Complaint and, further, have offered no evidence in support of this fact.
In particular, the plaintiffs' Complaint alleges that Scholl discovered G.R.'s abuse of P.K. prior to the April 2010 slapping incident and states that she informed Palese, who indicated that he was aware of the situation and was taking action. (D.I. 1 at ¶ 26.) In the sequence of events alleged, Scholl contacted Palese before the first incident occurred at the High School, and Palese had separated G.R. and P.K.'s lockers by that point in time to limit their interaction. (Id. at ¶ 19.) Additionally, the plaintiffs' Complaint does not allege that Scholl witnessed or knew of any actual incidents of physical or emotional harassment, other than to say that she "became aware of it," and the plaintiffs have not provided any evidence to support their allegation.
In view of the foregoing, the court concludes that the plaintiffs have failed to present evidence sufficient to show a genuine issue of material fact for trial. Consequently, the court agrees with the defendants that the facts relevant in deciding this matter are not in dispute. See Anderson, 477 U.S. at 249 (directing that the nonmoving party must present enough evidence to enable a jury to reasonably find for it on the issue in question).
Having determined that there are no genuine issues of material fact relevant to the Title IX claim, the court next evaluates whether the defendants are entitled to judgment as a matter of law on this count. In consideration of the defendants' motion, the parties' submissions in connection with it, and the relevant law, the court concludes, for the reasons outlined below, that the defendants are entitled to this judgment.
As noted, a plaintiff alleging a Title IX student-on-student harassment claim is required to show that a district: (1) was "deliberately indifferent" to known acts of sexual harassment that were "so severe, pervasive, and objectively offensive" that they deprived the victim of "access to educational opportunities or benefits"
First, and with respect to the "deliberate indifference" showing requirement, the facts make clear that the defendants responded to the two incidents that occurred on school grounds as well as to Hassinger's reports that G.R. punched P.K. in the back of the head and sent her harassing text messages off campus. Specifically, in response to the incidents that occurred at the High School, the defendants arrested and suspended G.R. for pushing P.K. into a locker and slapping her, allowed her to leave class early to avoid encountering G.R. in the hallways, and ultimately permitted her to complete the remainder of the school year from home after G.R. attempted to push her down a flight of stairs.
The defendants' actions in response to these incidents fail to amount to a showing that "an official decision" was made "not to remedy the violation." See Gebser, 524 U.S. at 290; Doe v. Allegheny Sch. Dist., C.A. No. 2:08cv1383, 2011 WL 3667279, at *7-*9 (W.D. Pa. Aug. 22, 2011) (concluding that where a district learned of student-on-student harassment and took action to address it, the plaintiff failed to demonstrate deliberate indifference); Vaird v. Sch. Dist. of Philadelphia, No. CIV. A. 99-2727, 2000 WL 576441 (E.D. Pa May 12, 2000) (concluding that where a student was sexually harassed and punched and then kicked one month later, the district was not deliberately indifferent in suspending the harasser for two days). To the contrary, the undisputed facts here clearly illustrate that the defendants responded to each incident as it was reported and irrespective of whether it occurred on or off school grounds. Thus, deliberate indifference has not been shown. See, e.g., Allegheny Sch. Dist., 2011 WL 3667279, at *9 (concluding that summary judgment is appropriate where there is no evidence of "a decision not to remedy the sexual harassment"); Vaird, 2000 WL 576441, at *2-*3 (finding that where a district suspended a student for two days in response to harassment and worked to change the students' schedules to limit interaction, a "reasonable jury could not conclude that Defendants were deliberately indifferent").
In reaching this conclusion, the court notes that the plaintiffs' assertion that the defendants demonstrated deliberate indifference by failing to stop or protect P.K. from G.R.'s friends' harassing comments, does not change this analysis. First, and as explained above, the plaintiffs' Complaint does not allege that P.K. or Hassinger informed the defendants of these incidents. (D.I. 1.) Second, even assuming, consistent with P.K.'s deposition testimony, that she informed Fisher of these incidents on June 1, 2010 or soon thereafter, the court does not agree that the facts set forth can establish that the defendants were indifferent to these comments. (D.I. 31 at 2-3.) Rather, P.K.'s recollection that she told Fisher of the May 20, 2010 incident on or around June 1, 2010 means that her reporting of the harassing comments would have coincided with her report that G.R. attempted to push her down a flight of stairs on May 21, 2010. Consequently, because the defendants would have learned of both incidents at approximately the same time and responded by excusing P.K. from attending school for three days and, subsequently, for the remainder of the school year, the court finds that the plaintiffs have not shown that the defendants were deliberately indifferent to P.K.'s plight.
Likewise, the plaintiffs' allegations (1) that Fisher told P.K. she is a "strong girl and could handle and overcome this" (D.I. 31 at 3), (2) that Palese voiced irritation that P.K. would involve one of her teachers in the situation of responding to G.R.'s harassment (D .I. 1 at ¶¶ 29-30), and (3) that the District's superintendent did not return Hassinger's calls and instead instructed Knight to handle the situation (id. at ¶¶ 44-45), similarly fail to establish deliberate indifference. Specifically, and with regard to the first two assertions, the plaintiffs' claims that Fisher and Palese made comments demonstrating deliberate indifference is directly rebutted by the actions each took in response to G.R.'s harassment. In particular, even assuming that Fisher and Palese made the alleged statements,
In light of the foregoing, the court concludes that the plaintiffs have failed to show that the defendants were deliberately indifferent to the student-on-student sexual harassment alleged in this case.
The plaintiffs also fail to demonstrate that the defendants' response to the student-on-student harassment was "clearly unreasonable." Instead, relevant case law instructs that the defendants' actions in response to G.R.'s conduct were not clearly unreasonable and the plaintiffs refrain from attempting to distinguish such precedent.
Here, the defendants employed nearly all of these methods-arresting and suspending G.R., talking to G.R. about his behavior through the issuing of a strong warning, and removing G.R. from the High School's baseball team as a result of his suspension. Additionally, the defendants changed P.K.'s locker, permitted her to leave class five minutes early to avoid G.R. in the hallways, and ultimately granting her permission to complete the school year from home without academic penalty. Although the defendants did not, as Hassinger requested, expel G.R. from the High School, such action was not necessary for the defendants' actions to meet the "not clearly unreasonable" standard required for Title IX compliance. See Davis, 526 U.S. at 648 (stating that "victims of peer harassment [do not] have a Title IX right to make particular remedial demands"); Rost, 511 F.3d at 1123 (concluding that "schools need not expel every student accused of sexual harassment to protect themselves from liability" (citing Davis, 526 U.S. at 648)).
Moreover, the plaintiffs' argument that G.R.'s continued harassment of P.K. demonstrates that the defendants' actions were unreasonable, is unfounded. It is well-established that schools are not required to "remedy" harassment or to conform their students' behavior to a certain manner of conduct. Instead, as the Supreme Court has made clear, the effectiveness of a district's methods is not a factor considered in the Title IX analysis and ineffectiveness is not dispositive of Title IX liability. See Davis, 526 U.S. at 648-49 (stating that districts are not required to "remedy" the harassment or "purg[e] their schools of actionable peer harassment" to avoid Title IX liability). In view ofthis precedent, the plaintiffs' assertions that (1) Palese "knew or should have known" that his efforts to deal with the harassment were "minor step[s]" that "would be ineffective or unreasonable under the circumstances" (D.I. 1 at ¶ 19), (2) the High School's response of arresting and suspending G.R. after he pushed P.K. into a locker and slapped her "did not deter [him]" (id. at ¶ 28), and (3) G.R.'s friends' verbal harassment of P.K. and his attempt to push her down a flight of stairs shows that the defendants' measures proved ineffective (id. at ¶¶ 33-34), do not negate or undermine this court's finding that the plaintiffs have failed to show the defendants' actions were clearly unreasonable.
Consequently, because the court concludes that the plaintiffs have not, as required to establish a Title IX claim, shown that the defendants were "deliberately indifferent" to the student-on-student sexual harassment P.K. experienced or that their actions were "clearly unreasonable," the court will grant the defendants' Motion for Summary Judgment.
As noted above, the plaintiffs also assert state law claims with respect to Delaware's school bullying prevention and teen dating violence statutes, in addition to a gross or wanton negligence claim. (D.I. 1.) In determining whether to retain the plaintiffs' state law claims, the court considers the statutory circumstances set forth in 28 U.S.C. § 1367(c), under which a district court may decline to exercise supplemental jurisdiction. Specifically, district courts may decline to exercise such jurisdiction where: "(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003); see also 28 U.S.C. § 1367(c)(1)-(4). Here, because the court has granted the defendants' Motion for Summary Judgment and, in so doing, dismissed the Title IX claim over which it had original jurisdiction, the court declines to exercise supplemental jurisdiction over the plaintiffs' state law claims.
For the foregoing reasons, the court will grant the defendants' Motion for Summary Judgment and will decline to exercise supplemental jurisdiction over the plaintiffs' state law claims.
For the reasons stated in the court's Memorandum of this same date, IT IS HEREBY ORDERED that:
As noted, Palese is no longer a party to this action as he was dismissed by party stipulation in October 2011. (D.I. 32.)
(P.K. Deposition, at 26:21-24; 27:1-15.)
The court also notes that, as with the other allegations raised in the plaintiffs' Answering Brief, the plaintiffs have failed to offer or cite to any evidentiary support for their allegations. (D.I. 31.)
