S.K. v. N. Allegheny Sch. Dist.

168 F.Supp.3d 786

S.K., Plaintiff,

v.North Allegheny School District, Defendant.

2:14cv1156

United States District Court, W.D. Pennsylvania.

Signed March 2, 2016

Jaimie L. George, Edward A. Olds, Pittsburgh, PA, for Plaintiff.

Alfred C. Maiello, Gary H. Dadamo, Roger W. Foley, Jr., Michael L. Brungo, Maiello, Brungo & Maiello, P.C., Pittsburgh, PA, for Defendant.

OPINION

David Stewart Cercone, United States District Judge

Plaintiff commenced this civil rights action pursuant to Title IX and the Civil Rights Act seeking redress for defendant's alleged failure to remediate bullying and sexual harassment perpetrated by fellow students and its alleged retaliation against plaintiff for reporting the same. Presently before the court is defendant's motion to dismiss. For the reasons set forth below, defendant's motion will be granted in part and denied in part.

It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) ‘the court [is required] to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. ‘ Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). Under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is proper only where the averments of the complaint fail to raise plausibly, directly or inferentially, the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at 544, 127 S.Ct. 1955. In other words, the allegations of the complaint must be grounded in enough of a factual basis to move the claim from the realm of mere possibility to one that shows entitlement by presenting ‘a claim to relief that is plausible on its face.‘ Id. at 570, 127 S.Ct. 1955.

‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‘ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In contrast, pleading facts that are merely consistent with a defendant's liability is insufficient. Id. Similarly, tendering only ‘naked assertions‘ that are devoid of ‘further factual enhancement‘ falls short of presenting sufficient factual content to permit an inference that what has been presented is more than a mere possibility of misconduct. Id. at 1949–50. See alsoTwombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955 (factual averments must sufficiently raise a ‘ 'reasonably founded hope that the [discovery] process will reveal relevant evidence’ to support the claim.‘) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) & Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975) ).

This is not to be understood as imposing a probability standard at the pleading stage. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (‘The plausibility standard is not akin to a 'probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.‘); Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir.2008) (same). Instead, ‘[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating...a claim requires a complaint with enough factual matter (taken as true) to suggest the required element...[and that provides] enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.’ ‘ Phillips, 515 F.3d at 235 ; see alsoWilkerson v. New Media Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir.2008).

The facts read in the light most favorable to plaintiff are as follows. In the fall of 2009, S.K. (‘plaintiff‘) was a student entering the ninth grade at North Allegheny Intermediate School (‘NAI‘). NAI consists entirely of ninth and tenth grade students and is part of North Allegheny School District (‘defendant‘ or ‘the district‘).

A ritual of sophomore students hazing freshmen had developed at NAI and was well known to administrative officials and faculty. The evening before her first day, plaintiff received the first of what would become a barrage and then pattern of threats from the older students. The first threat came in the form of a text message from a tenth grade girl and stated: ‘You fucking bitch, I'm going to cut your fucking face.‘ Plaintiff showed the message to her older sister who sent a text message to the harasser asking why she had sent it. In response, plaintiff received a text from another female student saying: ‘You just dug your grave deeper.‘ These threats were followed by multiple harassing posts on plaintiff's Facebook page.

The next day, the first day of school, plaintiff and her parents reported the threatening messages to the principal of NAI, Brendan Hyland. Later that same day Hyland summoned plaintiff to his office over the school's loudspeaker. This announcement alerted the other students to the fact that plaintiff had reported the threats. During her visit to Hyland's office, plaintiff described the threatening Facebook posts and text messages and identified the student who was responsible, but declined to show Hyland her Facebook page. There is no evidence that Hyland or anyone else took any action to punish or otherwise discipline the students who were identified in this initial report.

Following these events, the students who sent the initial messages continued to threaten plaintiff, both via text message and verbally. One such verbal threat was made to plaintiff and a friend. The student said: ‘I'm going to slit your throats, that's a promise not a threat.‘ Plaintiff and the friend reported this communication to Hyland. Hyland's only response was to bring the student into his office to have a talk with her. The perpetrator was not punished and was not subjected to any disciplinary action.

As the school year progressed, the harassment spread from being initiated by female students to being initiated by male students as well and the conduct became overtly sexual in nature. Plaintiff endured verbal harassment and sexual insults by other students on a daily basis. She was called ‘slut‘ and ‘cunt‘ as she walked through the hallways and she was frequently taunted about engaging in a multitude of sexual activities. On one occasion a photograph of plaintiff was altered so that a banana could be placed in her mouth. The picture was then distributed throughout the hallways of the school. On two occasions thereafter football players threw bananas at her and loudly proclaimed that she had herpes. After each incident plaintiff reported the offensive conduct to Hyland, the guidance counselor, and teachers. Plaintiff and her parents were repeatedly assured that the superintendent was aware of the situation and the students would be disciplined.

Plaintiff physically was assaulted on multiple occasions. She was pushed, shoved, and inappropriately touched by male students in the hallways. On one occasion, a group of football players pinned her against the lockers and held her there while others grabbed at and groped her in a sexual manner. This particular assault was witnessed by a faculty member who did nothing to stop the conduct or discipline the perpetrators. The offenders were not disciplined for their conduct. None received detention, suspension from school, or suspension from participation in athletics. The student perpetrators, who were members of the football and wrestling teams, were not even confronted.

Plaintiff was subjected to escalating abuse during her lunch period. Initially she was taunted and harassed in the cafeteria.

Female students refused to sit with her after witnessing the harassment she was forced to endure. She became largely exiled from the student body and began spending her lunch period alone in the guidance counselor's office.

The harassment and bullying grew to the point where it began to permeate all aspects of plaintiff's life. Plaintiff was harassed when she attempted to attend afterschool events, like football games. In addition to the verbal harassment, male students would approach plaintiff from behind and grab or grope her as she attempted to watch the game. On at least one occasion a group of wrestlers approached her and tried to get her to go behind the bleachers and engage in sexual activities. Plaintiff received a threatening text message prior to a football game from a female student who stated that she planned to beat plaintiff with brass knuckles.

Plaintiff and her parents continued to report all of the incidents of harassment. Nevertheless, no significant measures were taken by the administration. At one point Hyland, who was also one of the school's football coaches, did suggest that if anyone bothered plaintiff at the football game(s) she should come out onto the field and get him.

Frustrated by what they perceived to be the lack of a satisfactory response from the school, plaintiff's parents filed a police report against a female student who had threatened plaintiff. The student denied sending a threatening message and claimed that her phone had been stolen and someone else had sent the message. This student later approached plaintiff in the school hallway and poured a drink on her head and physically assaulted her on multiple other occasions thereafter.

At parties outside of school, male students would attempt to isolate plaintiff and get her to engage in sexual activities. Female students spread rumors about plaintiff and attempted to instigate physical altercations with her. At one party a group of older girls convinced plaintiff to participate in a ‘rap battle.‘ They then recorded her performance without her knowledge.

Plaintiff received a copy of the video and then shared it with a male student who was a member of the wrestling team. Plaintiff attended a basketball...