Hankey v. Town of Concord-Carlisle

136 F.Supp.3d 52

Isabella Hankey, Plaintiff,

v.Town of Concord-Carlisle, Concord-Carlisle School District, Diana Rigby, in her official and individual capacities, Peter Badalament, in his official and individual capacities, Alan Weinstein, in his official and individual capacities, Defendants.

Civil Action No. 13-cv-11870-IT

United States District Court, D. Massachusetts.

Signed September 30, 2015

Timothy M. Burke, Jared S. Burke, Law Offices of Timothy M. Burke, Needham, MA, for Plaintiff.

Judy A. Levenson, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA, for Defendants.

MEMORANDUM

Indira Talwani United States District Judge

I. Introduction

Plaintiff Isabella Hankey ("Plaintiff") brings this suit alleging that Defendants failed to adequately respond to a pattern of bullying and threats she suffered at the hands of other students at Concord-Carlisle High School. Plaintiff asserts claims under Title IX of the Education Amendments of 1972, 42 U.S.C. § 1983, and certain Massachusetts provisions against the Town of Concord-Carlisle (the "Town"), the Concord-Carlisle School District (the "School District"), Superintendent Diana Rigby ("Superintendent Rigby"), Principal Peter Badalament ("Principal Badalament"), and Assistant Principal Alan Weinstein ("Assistant Principal Weinstein"). Presently before the court is Defendants' Motion for Summary Judgment [#34].

Upon reviewing the summary judgment record, the court concludes that Plaintiff has presented evidence that she was subject to serious and escalating incidents of bullying and threats during her time at Concord-Carlisle High School. From the summary judgment evidence, a jury could find that Defendants' response to these incidents was at times ineffective and unreasonable, and that Defendants should have done more to protect Plaintiff and take the incidents seriously. However, the strict and demanding legal requirements for the causes of action that Plaintiff has brought preclude liability in this case. For this reason and as described more fully below, there is no genuine dispute as to any material fact and Defendants are entitled to judgment as a matter of law.

II. Factual Background ¹

A. The School District's Bullying Prevention and Intervention Plan

When Plaintiff began her freshman year in September 2009, Concord-Carlisle High School had adopted a "Bullying Prevention and Intervention Plan." The Plan required that the school "fully investigat[e] ... allegations of bullying or retaliation," and before doing so, "the principal or designee will take steps to assess the need to restore a sense of safety to the alleged target and/or to protect the alleged target from possible further incidents." Pl.'s Statement of Undisputed Material Facts ¶ 119 [#55] [hereinafter Pl.'s Facts]. The Plan further required the school to "document any incident of bullying that is reported," "maintain a written record of the investigation," and "have a means for anonymous reporting." Pl.'s Facts ¶¶ 158, 210-11. As described below, this Plan was not followed in this case.

B. The Bullying and Threats

In September 2009, at the start of Plaintiff's freshman year, three girls posted a picture online giving Plaintiff the middle finger. Defs.' Statement Undisputed Material Facts ¶ 2 [#35] [hereinafter Defs.' Facts].

At the beginning of Plaintiff's sophomore year, a student left Plaintiff a voicemail message after a weekend party telling Plaintiff: "Don't you ever fucking come near anyone I know." Debra Hankey Dep. 47-49 in Pl.'s Ex. D [#40-3].

In the fall of Plaintiff's junior year, on October 6, 2011, lines were keyed on Plaintiff's car while the car was parked in the school parking lot. Defs.' Facts ¶ 6. Other students had also experienced incidents of vandalism to their cars in the school parking lot around this time. Defs.' Facts ¶ 8.

The majority of harassing incidents occurred during the spring of Plaintiff's junior year. On February 10, 2012, when Plaintiff returned to her car parked at the school parking lot, she found feces on the driver's side door of her car. Defs.' Facts ¶ 14. A month later, on March 8, 2012, Plaintiff and a friend went to the school parking lot and discovered the word "cunt" keyed on the rear bumper of Plaintiff's car. Defs.' Facts ¶ 19. On May 13, 2012, while Plaintiff's car was parked at Kimball Farm's Ice Cream, where Plaintiff worked, someone keyed "#pathetic" onto her car. Defs.' Facts ¶ 35. A friend of hers had also seen "#pathetic" posted online about Plaintiff. Defs.' Facts ¶ 37. On the morning of May 17, 2012, while in the school's parking lot, Plaintiff discovered the word "retard" keyed onto her car. Defs.' Facts ¶ 38; Pl.'s Facts ¶ 141. On May 30, 2012, Plaintiff's noticed "ha-ha" keyed on the driver's side door of her car while the car was parked at a restaurant. Defs.' Facts ¶¶ 43-44.

On Friday, June 1, 2012, Plaintiff returned to the school locker room during softball practice and discovered the words "Kill Belle" in a bathroom stall. Defs.' Facts ¶ 48. On June 7, 2012, Plaintiff was in the school bathroom with friends when she discovered the words "Belle's dead at 9:15" in a bathroom stall. Defs.' Facts ¶ 68. On June 8, 2012, a student discovered "Don't Belle" written on a bathroom stall at school. Defs.' Facts ¶ 80.

On August 19, 2012, during the summer before her senior year, Plaintiff discovered the word "Ready?" keyed by her gas tank and a key marking across her passenger door after having parked her car overnight at a friend's house. Defs.' Facts ¶ 90; Pl.'s Facts ¶ 170.

At the start of Plaintiff's senior year, on September 14, 2012, Plaintiff found "September 15" written on a bathroom stall at school. Defs.' Facts ¶ 98. Plaintiff looked in other stalls and saw her name elsewhere. Defs.' Facts ¶ 99. On September 19, 2012, a student discovered the name "Belle" with a slash through it in a school bathroom stall. Defs.' Facts ¶ 103.

C. Defendants Had Notice of the Incidents of Bullying and Threats

When Plaintiff started at Concord-Carlisle High School, the Individual Defendants were employed by the School District. Alan Weinstein was Assistant Principal, Peter Badalament was Principal, and Diana Rigby was Superintendent. Detective Scott Camilleri, who is not a named defendant, was the School Resource Officer and an employee of the Police Department.

The record reflects that Assistant Principal Weinstein and Principal Badalament were promptly advised of nearly all of the incidents directed at Plaintiff during her freshman through senior years. Defs.' Facts ¶¶ 2, 6-7, 21, 25, 41, 49-51, 70, 72, 80, 99, 102; Pl.'s Facts ¶¶ 121, 126-127, 162; Ex. 5 to Compl. in Pl.'s Ex. B; Ex. 25 to Compl. in Pl.'s Ex. B; Debra Hankey Dep. 72 in Pl.'s Ex. D; Weinstein Dep. 171-72 in Defs.' Ex. C.²

D. The School District and Police Department's Efforts to Protect Plaintiff's Car From Vandalism

The record documents efforts by the school and police to protect Plaintiff's car from vandalism. When lines were first keyed on Plaintiff's car on October 6, 2011, Assistant Principal Weinstein told Principal Badalament about the incident. Defs.' Facts ¶ 7. Both Assistant Principal Weinstein and Plaintiff spoke with Detective Camilleri about the incident. Defs.' Facts ¶ 9. Plaintiff told Detective Camilleri that she had no idea who may have keyed her car. Defs.' Facts ¶ 10. Detective Camilleri took pictures of the car and told Plaintiff that he would investigate further. Defs.' Facts ¶¶ 10-11. Assistant Principal Weinstein told Plaintiff that she could park her car in an alternative parking lot, which had previously assisted a student whose car had been vandalized. Defs.' Facts ¶ 13.

After feces was smeared on Plaintiff's car door and the word "cunt" was keyed onto Plaintiff's car in February and March of 2012, Principal Badalament again offered Plaintiff an alternative parking lot. Defs.' Facts ¶ 26. Detective Camilleri met with Plaintiff and took photographs of her car. Defs.' Facts ¶¶ 22-23. Principal Badalament emailed Assistant Principal Weinstein, Detective Camilleri, and Assistant Principal Truslow stating that he would look into getting cameras placed in the parking lot and that "I want all 3 of you to help out investigating." Defs.' Facts ¶ 29; Defs.' Ex. D (email attached to affidavit). Detective Camilleri responded to the email and stated that he had requested more patrol units to go through the parking lot, that he would spend more time in the lot in both marked and unmarked units, and that he would look into getting cameras installed. Defs.' Facts ¶ 30; Defs.' Ex. D. Assistant Principal Weinstein testified that following these incidents, the school sent two monitors to the school parking lot for large amounts of the day. Weinstein Dep. 100 in Defs.' Ex. C. Based on Plaintiff's testimony, it is unclear whether the two monitors had been assigned to the parking lot prior to these incidents. Pl.'s Dep. 24-25 in Defs.' Ex. A. Additionally, police officers, including Detective Camilleri, went to the school parking lot for certain amounts of the day. Defs.' Facts ¶ 28.

After Plaintiff found "Kill Belle" in a bathroom stall at school on June 1, 2012, the school assigned a monitor to watch Plaintiff's car during the day for the month of June. Defs.' Facts ¶ 54. Detective Camilleri also told Plaintiff's parents that he wanted Plaintiff to park in the alternative lot near the cafeteria because police had installed a camera there. Defs.' Facts ¶ 60; Camilleri Aff. ¶ 10.

During the summer of 2012, the school worked on obtaining bids and proposals to have permanent cameras installed at the school, including five exterior pole-mounted cameras in the parking lot. Defs.' Facts ¶ 87. By the week of September 11, 2012, the school's cameras had been installed. Defs.' Facts ¶ 97. The cameras became operational on or about September 19. Defs.' Facts ¶ 97.

E. The School District's Limited Efforts to Protect Plaintiff from Bullying Prior to the First Death Threat

Although the record...