Doe v. N. Penn Sch. Dist.

Adele P. Kimmel, Alexandra Z. Brodsky, Mollie Berkowitz, Public Justice, Washington, DC, Laura Laughlin, Messa & Associates, P.C., Philadelphia, PA, for Plaintiff.

Maureen A. Jordan, Hendrzak & Lloyd, Center Valley, PA, for Defendant.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge

This case arises from the alleged failure of Defendant North Penn School District (the "District") to protect Plaintiff, a minor student ("Jane"), from repeated sexual assaults by a classmate during school hours over the course of several years. Plaintiff brings three counts: (1) Deliberate indifference to report of sexual harassment in violation of Title IX, 20 U.S.C. § 1681 (resulting in a hostile educational environment) (the "post-assault claim"); (2) Deliberate indifference to prior sexual harassment in violation of Title IX, 20 U.S.C. § 1681 (resulting in further sexual harassment); (the "pre-assault claim"); and (3) Failure to provide essential Title IX and sexual harassment training to administrators, staff, students, and families in violation of 42 U.S.C. § 1983.

Plaintiff moves for partial summary judgment on two elements of her post-report claim (Count I) and one element of her pre-assault claim (Count II). See Pl.'s Mot. for Part. Summ. J., ECF No. 47. Because Defendant does not contest the motion for partial summary judgment as to Plaintiff's post-report claim, the motion will be granted as to those claims. However, the motion will be denied as to Plaintiff's pre-assault claim.

Defendant also moves for summary judgment on all Plaintiff's claims. See Def's Mot. for Summ. J., ECF No. 49. As set forth below, the motion will be denied as to all claims.

I. BACKGROUND¹

A. Elementary School

Plaintiff began attending school in the North Penn School District as a kindergartener in 2008.² See Jane Doe's Student Reg. Form, ECF No. 47 Ex. 1. In 2014, Jane was a sixth-grade student in a language arts class co-taught by Holly Andrew³ and Ruth Divver at Gwynedd Square Elementary School. See Deposition of Jane Doe (Nov. 2, 2021) ("Doe Dep."), ECF No. 47 Ex. 3 at 30:4-31:7. On November 17, 2014, Jane was partnered with a male student, MP, to work on a project in language arts class when MP reached underneath Jane's shirt and touched her chest. Id. at 32:3-34:22.

Although Ms. Divver had briefly stepped out of the classroom, Ms. Andrew witnessed MP reach up the front of Jane's shirt. See Deposition of Holly Garrett (July 28, 2021) ("Andrew Dep."), ECF No. 47 Ex. 4 at 37:1-5, 41:20-24. She called both students into the hallway, and assuming

the touching was consensual, Ms. Andrew told them that "if they promise[d] not to do it again" they would not have to go to the principal's office.⁴ Id. at 37:6-12; June 3, 2015 Ltr. to Andrew from Human Resources Dir. Cheryl McCue ("June 3, 2015 Ltr. to Andrew"), ECF No. 47 Ex. 5 at NPSD 1005. MP continued to sexually assault Jane regularly during class and in the hallways between classes over the following months. See Doe Dep., ECF No. 47 Ex. 3 at 39:14-40:22, 46:4-13.

On April 10, 2015, a Gwynedd Square teacher reported to District guidance counselor Kristen Vaszily that MP had sexually assaulted one of Jane's classmates, "Sara." See June 3, 2015 Ltr. to Andrew, ECF No. 47 Ex. 5 at NPSD 1005; Notes of Gwynedd Square Principal Bill Bowen ("Bowen Notes"), ECF No. 47 Ex. 7 at NPSD 1016. In an initial interview with Ms. Vaszily, Sara reported that MP touched her inappropriately under her shirt during class on April 1 and April 9, 2015. See Bowen Notes, ECF No. 47 Ex. 7 at NPSD 1016; Notes of Director of Elementary Education Betty Santoro ("Santoro Notes"), ECF No. 47 Ex. 8 at NPSD 1019; Notes of Guidance Counselor Kristen Vaszily ("Vaszily Notes"), ECF No. 47 Ex. 9 at NPSD 1024. Ms. Vaszily shared this information with Ms. Divver, who informed Ms. Vaszily that there had been a similar incident with MP and Jane earlier in the school year (the November 17, 2014 incident). See Bowen Notes, ECF No. 47 Ex. 7 at NPSD 1016. Ms. Vaszily then informed Gwynedd Square Principal Bill Bowen about both incidents. Id.

Principal Bowen investigated the incidents involving Jane and Sara. See id. at 16-18. Principal Bowen interviewed MP and asked specifically about Sara's allegation, and MP admitted that he touched Sara inappropriately. Id. at 1016. The same day, Principal Bowen called Jane's mother and told her about the allegations against MP, including that Ms. Andrew had seen MP's hands under Jane's shirt during class around six months prior. Id. Later that same afternoon, Principal Bowen and Dr. Santoro, the District's Director of Elementary Education, suspended MP effective the same day. See Santoro Notes, ECF No. 47 Ex. 8 at NPSD 1019.

On April 14, 2015, Jane's mother told Jane about Sara's allegations against MP and asked whether MP had also touched Jane inappropriately, which Jane confirmed. See Doe Dep., ECF No. 47 Ex. 3 at 46:15-22, 54:1-10.⁵ The next morning, April 15, 2015, Jane's mother called Dr. Santoro and informed her that Jane said MP sexually assaulted her in November, including putting his hands under her clothes, up her shirt, and down her pants ("the sixth-grade sexual assault"). See Santoro Notes, ECF No. 47 Ex. 8 at NPSD 1021-22. Jane's mother also told Dr. Santoro that Jane had witnessed MP touching other girls inappropriately starting in fourth grade, and named two other girls, besides Sara.⁶ Id. at 1021; Deposition of

Todd Bauer (Aug. 26, 2021) ("Bauer Dep."); ECF No. 47 Ex. 10 at 311:1-10.

Meanwhile, the District brought disciplinary action against Ms. Andrew for the failure to respond appropriately to the November 2014 incident where she saw MP put his hand up Jane's shirt in class. The District's Director of Human Resources, Cheryl McCue, sent a letter to Ms. Andrew explaining that Andrew had demonstrated "poor judgment" in responding to the touching she saw, including by "fail[ing] to report harassment of a sexual nature to someone in authority," questioning Jane and MP about the incident together, and assuming consensual behavior. See June 3, 2015 Ltr. to Andrew, ECF No. 47 Ex. 5 at NPSD 1005-06. The District suspended Ms. Andrew for two days and placed her on a performance improvement plan, which Ms. Andrew then appealed. See id. at 1006; Agreement Regarding Holly Andrew-Garrett, ECF No. 47 Ex. 12 at NPSD 1001; June 10, 2015 Ltr. to Andrew from Superintendent Dietrich ("June 10, 2015 Ltr. to Andrew"), ECF No. 47 Ex. 13 at NPSD 997.

Superintendent Dietrich denied the appeal, underscoring the seriousness of MP's actions, explaining that "behavior of a male student reaching his hand underneath a female student's shirt in the area of her chest during . . . a sixth grade lesson should be very significant cause for concern," and that "when student behavior such as the behavior in this case is not appropriately addressed, the behavior is very likely to be repeated with victims continuing to suffer." Id.

B. Middle School

The next school year, 2015, Jane's parents requested that she attend a different middle school in the District from MP. See Application for Transfer of School Attendance, ECF No. 47 Ex. 14 at NPSD 689; May 5, 2015 Email from Director Santoro to Deborah McKay and Assistant Superintendent Holben, ECF No. 47 Ex. 11 at NPSD 690; Deposition of Bill Bowen (July 26, 2021) ("Bowen Dep."), ECF No. 47 Ex. 11 at 136:14-137:6. The District granted the request. See Application for Transfer of School Attendance, ECF No. 47 Ex. 14 at NPSD 689.

While MP was in middle school, the District received a report that he sexually harassed two additional female students. See Bauer Dep., ECF No. 47 Ex. 10 at 295:2-15; Jan. 6, 2016 Suspension Ltr., ECF No. 47 Ex. 16. Jason Bashaw, an assistant principal at the District middle school that MP was attending, disciplined MP with a three-day out-of-school suspension and requested that his parent/guardian "reinforce [the District's] view of the seriousness of this problem." See Jan. 6, 2016 Suspension Ltr., ECF No. 47 Ex. 16.

C. Ninth Grade and High School

In 2017 while she was entering ninth grade, Jane wanted to attend North Montco Technical Career Center's ("North Montco") automotive program part-time, while taking the remainder of her classes at her middle school. See Doe Dep., ECF No. 47 Ex. 3 at 73:5-23. She was admitted to North Montco, but unbeknownst to Jane, MP was also admitted. Id. at 73:9-10, 75:3-76:13.

When Jane arrived at North Montco in the fall, she saw MP in the hallway at school and went the school's administrative office to explain that she had seen MP in the hallway, that he had previously sexually assaulted her, and that the two students were not supposed to be near each other for this reason.⁷ See Deposition of Dawn LeBlanc (Aug. 24, 2021) ("LeBlanc Dep."),

ECF No. 47 Ex. 17 at 10:16-12:9. North Montco Principal LeBlanc then put a safety plan in place for Jane that included arranging Jane and MP's schedules so they would not see each other at North Montco. Id. at 27:16-20; Safety Plan, ECF No. 47 Ex. 18 at NPSD 484.

The following year, 2018, as Jane prepared to start high school in tenth grade, she enrolled part-time at North Montco and part-time at North Penn High School, the main high school in the district. See August 2018 Meeting Notes, ECF No. 47 Ex. 20 at NPSD 1; Deposition of Kira O'Brien (Aug. 23, 2021) ("O'Brien Dep."), ECF No. 47 Ex. 21 at 30:18-20. Before the start of the school year, Jane's mother requested a meeting with North Penn High School officials to discuss Jane's transition to the school and explained that Jane and MP should not be in the same classes. Id.; Bauer Dep., ECF No. 47 Ex. 10 at 224:19-225:3, 256:3-17; Notes of Kate Small (Aug. 22, 2018) ("Small Notes"), ECF No....