A.J. v. MASTERY CHARTER HIGH SCHOOL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

A.J. :

: CIVIL ACTION

v. :

: NO. 19-1458

MASTERY CHARTER :

HIGH SCHOOL, ET AL. :

MEMORANDUM

SURRICK, J. SEPTEMBER 15, 2022

We previously denied Defendants’ Motion for Judgment on the Pleadings (ECF No. 23)

as to three of Plaintiff’s claims: violations of Title IX (Count I), intentional infliction of

emotional distress (Count III), and breach of fiduciary duty (Count IV). (ECF No. 29.)

Defendants now move for summary judgment on those same claims. (ECF No. 70.) Discovery

has revealed that the reasons for denying Defendants’ previous motion are not supported by the

undisputed facts. Defendants’ Motion for Summary Judgment will be granted.

I. BACKGROUND

This case arises out of an alleged sexual assault of Plaintiff A.J, then a 7th grade student,

by another student, R.H., in the auditorium of Pastorius Elementary School on May 27, 2016.

R.H. filmed the encounter without Plaintiff’s knowledge. (Pl’s. Written Stmt. from June 9, 2016,

ECF No. 71-17.; R.H.’s Written Stmt. from June 9, 2016, ECF No. 71-18.) Defendant Hillary

Meserve was the principal at the time of the incident, and Defendant Eric Langston was the

assistant principal. (Meserve Dep. at 14:7-17, ECF No. 71-1; Langston Dep. at 39:12-40:10,

ECF No. 71-11.)

Langston first learned of the video on June 9, 2016—nearly two weeks after the incident

occurred—when another student informed him that she had the video on her cell phone.

(Langston Invest. Notes at 2, ECF No. 71-8.) Prior to this date, Langston heard rumors of sexual

activity between two students on school property, but he was unable to ascertain who was

involved. (Id.; Langston Dep. at 132:11-133:16.) Langston had the video transferred to his

phone and deleted from the student’s phone. (Langston Invest. Notes at 2.) Langston took the

video to Principal Meserve, and he then contacted the students’ families and the police. (Id.;

Langston Dep. at 133:22-134:11.)

On the same day, Langston questioned Plaintiff and R.H. about the video. (Langston

Invest. Notes at 2.) Plaintiff admitted that she was involved in the video. (Id.; Pl.’s Dep. at

113:16-114:3, ECF No. 71-7.) At Langston’s request, Plaintiff wrote a statement while in a

room by herself. (Pl.’s Dep. at 114:16-115:12.) Plaintiff’s written statement reads:

I was in there about to pray when [R.H.] came in their and he said want to hit but I

said no then he just kept on so then I said I can’t I never did this before and he said

it’s ok so then he pulled my dress up and pulled my under wear down a little and I

was scared to do it but I did it anyway and he pulled his thing out and tryed to put

it in me and I said it hurt so he stopped and he left. We was in the auditorium.

[A]nd I did not know he was recording me. This happened three weeks ago on a

[F]riday. [Sic]

(Pl’s. Written Stmt. from June 9, 2016.)

Langston thought that Plaintiff’s written statement was inconsistent with what he

observed in the video. (Langston Dep. at 81:15-85:9.) After receiving written statements from

both students, Langston held a meeting at the school with Plaintiff, Plaintiff’s grandmother,

R.H., R.H.’s father, and two police officers. (Langston Invest. Notes at 2-3; Pl.’s Dep. at 117:17-

118:3.) At that meeting, Plaintiff stated that the incident “was her fault.” (Pl.’s Dep. at 118:4-

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14.) Plaintiff also stated that she initially told R.H. “no,” but then said “okay.” (Pl.’s Dep. at

118:23-119:3.) Plaintiff never stated to school officials that she was raped, and her grandmother

informed the police officers at the meeting that she did not want to press charges. (Pl.’s Dep. at

119:16-120:6.) Plaintiff now states that she made false statements during this meeting at the

school. (Pl.’s Dep. at 118:23-119:10.)

Later that same day, Plaintiff went to Children’s Hospital of Philadelphia. (Pl’s. Dep. at

123:22-124:11; CHOP Records from June 9, 2016, at 469, ECF No. 71-19.) The records from

CHOP note that Plaintiff recently had “consensual” intercourse and that there was “[n]o concern

for rape, no trauma.” (CHOP Records from June 9, 2016, at 469-70.) Plaintiff affirmed that the

encounter with R.H. was consensual in two subsequent trips to CHOP in June of 2016. (CHOP

Records from June 13, 2016, at 518; CHOP Records from June 27, 2016, at 531.) The

Philadelphia Police Department also concluded that the incident was consensual and that no

charges should be filed. (Request for Case Decision, ECF No. 71-20.) The U.S. Department of

Education’s Office for Civil Rights found that Plaintiff’s written statement was ambiguous as to

whether she consented to sex with R.H., and it found that “[T]he School conducted a prompt and

equitable investigation of the incident[.]” (U.S. Dep’t. of Ed. OCR Report at 7, 10, Defs.’ Ex. T,

ECF No. 71-3.)

Defendants suspended both students for the remainder of the school year. (Pl.’s Dep. at

120:7-22; Meserve Dep. at 109:2-7.) In addition, R.H. was not allowed to attend any 8th grade

activities, including graduation. (Meserve Dep. at 109:2-7.) Plaintiff could return to the school

the next year. (Pl.’s Dep. at 120:7-22.)

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Since 2013, Pastorius has been operated by Defendant Mastery, a charter network in the

region with a total enrollment of about 14,500 students. (Gordon Dep. at 33:11-34:15, ECF No.

71-9; Mgmt. Agreement, ECF No. 71-10.) Before that, Pastorius was part of the School District

of Philadelphia. (Pl’s. Dep. at 43:5-11.) When Mastery took over operations, it was not

provided historical discipline records for students who were no longer at the school. (Gordon

Dep. at 158: 13-163:15.) It was also not provided with details of incidents that occurred before it

operated the school. (Id.)

Mastery provided students, including Plaintiff, with a Student Handbook that prohibited

sexual harassment against students and employees. (Langston Dep. at 127:5-129:21; Student-

Parent Handbook 2015-2016 at 21-22, ECF No. 71-6.) The Student Handbook also stated that

all students are entitled to equal educational opportunities and that “students shall respect the

rights of other students to receive an education in an atmosphere that is conducive to learning

and free from discriminatory practices.” (Handbook at 13.) The Student Handbook provided

that both sexual harassment and sexual misconduct—whether consensual or non-consensual—

were subject to discipline by the school and potentially law enforcement. (Handbook at 21.)

There are no reported incidents of students engaging in sexual intercourse at Pastorius

from January 1, 2013 through May 27, 2016, the date of the incident between Plaintiff and R.H.

(Incident Reports, ECF No. 71.) One incident of allegedly non-consensual oral sex between

students occurred six days after the incident that is the subject of this lawsuit. (Id. at 16.)

II. LEGAL STANDARD

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

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R. Civ. P. 56(a). “A dispute is genuine if a reasonable trier-of-fact could find in favor of the

non-movant.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)). When the non-moving

party bears the burden of proof at trial, the moving party may identify an absence of a genuine

issue of material fact by showing the court that there is no evidence in the record supporting the

nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving

party carries this initial burden, the non-moving party must set forth specific facts showing that

there is a genuine issue for trial. See Fed. R. Civ. P. 56(c)(1). At summary judgment, courts

must view facts and inferences in the light most favorable to the nonmoving party. Anderson,

477 U.S. at 255.

III. DISCUSSION

The facts alleged in Plaintiff’s Complaint are serious and disturbing. The incident that

gave rise to this case should not occur at any school. Even though we are mindful of the severity

of the allegations throughout our analysis, we are also mindful that the question before us is not

whether the incident should have occurred. The issue is whether Plaintiff can support a claim

under the relevant laws based on what school leaders knew before the incident occurred and how

they responded when they learned of the incident. The law recognizes that school administrators

cannot prevent all bad things from happening. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.

629, 648, 651 (1999). It therefore limits recovery in private actions to situations in which

administrators knew that a harmful incident was likely to happen and responded in a deliberately

indifferent or outrageous manner. Id. at 646-47. This is not the case here.

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A. Title IX

To be liable in a private action under Title IX, Defendants must have been “deliberately

indifferent to known acts of student-on-student sexual harassment[.]” Id. at 646-47. They must

have had “actual knowledge” of the acts, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

290 (1998), and “the deliberate indifference must [have], at a minimum, cause[d] [Plaintiff] to

undergo harassment or ma[d]e [her] liable or vulnerable to it.” Davis, 526 U.S. at 644-45.

“[T]here is a high bar to establish liability for deliberate indifference under Title IX[.]” Hall v.

Millersville Univ., 22 F.4th 397, 407 (3d Cir. 2022). Though school administrators must

“respond to known peer harassment in a manner that is not clearly unreasonable,” they do not

need to “purg[e] their schools of actionable peer harassment or . . . engage in particular

disciplinary action” to avoid liability for private actions under Title IX. Davis, 526 U.S. at 648-

49.

In our prior decision denying Defendants’ Motion for Judgment on the Pleadings, we

credited the allegations in Plaintiff’s Complaint that Defendants were aware of a pattern of

student-on-student sexual misconduct that appeared in news reports in 2008, and that there was

an additional incident from 2016 that put Defendants on notice of the likelihood of this type of

misconduct. We also credited Plaintiff’s allegations that Defendants mishandled the

investigation into the incident with Plaintiff—particularly the allegation that Defendants waited

thirteen days to contact Plaintiff’s family about the incident—and that Defendants lacked any

Title IX policy. After the close of discovery, these allegations are not supported by the record,

and Defendants are entitled to summary judgment. See id. at 649 (“In an appropriate case, there

is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict,

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could not identify a response as not ‘clearly unreasonable’ as a matter of law.”).

1. Defendants did not have actual knowledge that an incident like this

was likely to happen on school property.

There were no incidents of students engaging in sexual intercourse on school grounds in

the three years Defendants operated Pastorius prior to this incident. Though Plaintiff cites other

incidents of student misbehavior, they do not rise to the level of the incident with Plaintiff. They

are a far cry from sexual intercourse on school property. In addition, we “must bear in mind that

schools are unlike the adult workplace and that children may regularly interact in a manner that

would be unacceptable among adults.” Davis, 526 U.S. at 651. Students of this age say and do

inappropriate things, sometimes of a sexual nature; it does not follow that students who engage

in the conduct described in these reports are likely to engage in the conduct Plaintiff alleges, or

that Defendants should have expected this far more serious conduct to occur on school grounds.

If these incidents of inappropriate comments, movement, and touching sufficed to establish

actual knowledge of a likelihood of student-on-student rape inside the school, then nearly every

middle school administrator in the country would have actual knowledge for Title IX purposes.

As another basis for actual knowledge, Plaintiff makes much of news reports from 2008

detailing sexual conduct at Pastorius. However, general news reports of sexual misconduct in

2008—five years before Defendants took over the school and eight years before the incident

involving Plaintiff—are too far removed to provide a basis for Defendants to have actual

knowledge of a pattern of student-on-student sexual misconduct inside the school in 2016. All

the more so when Defendants never received details of incidents or disciplinary records for

events that occurred at the school prior to taking over operations of Pastorius. In addition, the

students who were involved in the 2008 incidents had left the school by the time Plaintiff was in

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7th grade. The fact that some students in one school year engaged in certain egregious conduct

does not make it likely that different students will engage in the same egregious conduct eight

years later—especially when the school has undergone a change in management and there has

not been a single incident of this nature in the three years since the management change.

The only other incident that comes close to the nature of this incident—two students

engaged in possibly non-consensual oral sex in a classroom—happened after the incident in this

lawsuit. (See Incident Reports at 16, ECF No. 71.) It cannot support a finding that Defendants

had actual knowledge of the likelihood of a sexual assault at the time of the incident with

Plaintiff and were deliberately indifferent in a way that subjected Plaintiff or made Plaintiff

vulnerable to an assault.

2. Defendants’ response to the incident was not “clearly unreasonable.”

Nothing about Defendants’ response supports a finding of deliberate indifference. Far

from refusing to act, Defendants responded immediately once they learned of the video. They

consulted with appropriate officials and family members and investigated the incident. It is not

our place to second-guess Defendants’ disciplinary decisions following their investigation. See

Davis, 526 U.S. at 648 (“In fact, as we have previously noted, courts should refrain from second-

guessing the disciplinary decisions made by school administrators.”).

Though Plaintiff now concedes that Langston did not wait thirteen days to contact

Plaintiff’s family after learning of the video, she insists the fact that Langston “responded more

promptly to the issue than we believed at the outset” is “immaterial.” (Pl.’s Opp. to MSJ at 22,

ECF No. 72.) We did not view it as immaterial in our prior decision. (Op. at 12, 14, ECF No.

29.) The egregiousness of the alleged thirteen-day delay was one of the primary allegations that

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supported a finding that Defendants acted with deliberate indifference in their handling of the

investigation. We now know that Plaintiff’s allegation is not correct.

One of Plaintiff’s other arguments as to why Defendants’ response was deliberately

indifferent is that Defendants placed Plaintiff in the same room as R.H. and his father at the June

9th meeting. Aside from the Supreme Court’s clear instruction that we should not substitute our

hindsight judgment for that of school leaders in these situations, Davis, 526 U.S. at 648, the

record does not show that Defendants were clearly unreasonable in having all parties in the same

room for this meeting. Defendants acted reasonably based on the information available to them

at the time of their investigation. At the very least, the record is ambiguous on the issue of

consent, as the Department of Education also found. For example, Plaintiff told the school

administrators that the incident was her “fault.” However, Plaintiff’s written statement seems

conflicted as to whether the encounter was fully consensual. (See Pl’s. Written Stmt. from June

9, 2016) (“I said no then he just kept on so then I said I can’t I never did this before and he said

it’s ok so then he pulled my dress up and pulled my under wear down a little and I was scared to

do it but I did it anyway[.]”). While Plaintiff never stated that she was raped, there are complex

reasons why a victim of sexual assault might struggle to assert that she was in fact assaulted.

Nevertheless, the issue is not ultimately whether the encounter was consensual. The issue at

hand for purposes of potential Title IX liability is what Defendants knew at the time they

conducted their investigation and whether they responded in a way that was clearly

unreasonable. Nothing from the relevant timeframe shows that it was clearly unreasonable for

Defendants to conclude that the encounter was consensual and to have all parties together for the

meeting at the school. Indeed, the trained professionals at CHOP and the Philadelphia Police

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Department also accepted Plaintiff’s later statements—made outside the presence of R.H. and his

father—that the encounter was consensual.

Finally, a school’s failure to have a specific policy and grievance procedures is not

enough on its own to establish liability in a private action under Title IX. Gebser, 524 U.S. at

291-92. As Plaintiff cannot establish the essential elements of actual knowledge and deliberate

indifference, any deficiencies in Defendants’ policies have no bearing on Defendants’ potential

liability in this private action under Title IX.

Because no reasonable jury could find that Defendants had actual knowledge that an

incident like this was likely to happen at school and responded with deliberate indifference to the

likelihood of harm or to the incident itself, Defendants are entitled to summary judgment on

Plaintiff’s Title IX claim.

B. Intentional Infliction of Emotional Distress (IIED)

We found that Plaintiff’s claim for intentional infliction of emotional distress survived

Defendants’ challenge prior to discovery because Plaintiff sufficiently alleged that the individual

Defendants acted in an “extreme and outrageous” way. Hoy v. Angelone, 720 A.2d 745, 753 (Pa.

1988). A court “must make the initial determination of whether a defendant’s conduct was so

extreme and outrageous that recovery [for IIED] may be justified.” Gray v. Great Valley Sch.

Dist., 102 F. Supp. 3d 671, 683 (E.D. Pa. 2015) (quoting Small v. Juniata College, 682 A.2d 350,

355 (Pa. Super. Ct. 1996)). Outrageous conduct is conduct that is “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Kazatsky v. King David Mem’l

Park, 527 A.2d 988, 991 (Pa. 1987). As with Plaintiff’s Title IX claim, the information revealed

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during discovery now requires a different conclusion.

We previously found that the following allegations demonstrated extreme and outrageous

conduct: (1) that Defendants mishandled the investigation into the incident, particularly by

waiting thirteen days to contact Plaintiff’s legal guardian and concluding that the incident was

consensual; (2) that Defendants did not discipline R.H.; and (3) that the individual Defendants

intentionally mishandled the investigation to deflect blame from themselves. (Op. at 19-20, ECF

No. 29.) Given the near total overlap with the allegations discussed in connection with

Plaintiff’s Title IX claim, we will not repeat our findings on these allegations following the close

of discovery. For the same reasons that these allegations either are simply untrue or do not

support a finding of deliberate indifference, they also do not support a finding that the individual

Defendants behaved in an extreme and outrageous way. Furthermore, Plaintiff has not provided

any evidence from which to conclude that Defendants acted with bad intentions. Because we

find that no reasonable jury could find that Defendants’ conduct was extreme and outrageous, we

do not reach Defendants’ argument that they are entitled to immunity under Pennsylvania’s Tort

Claims Act, 42 Pa. C.S.A. § 8541, et seq.

C. Breach of Fiduciary Duty

Assuming Defendants owed a fiduciary duty to Plaintiff, no reasonable jury could

conclude that Defendants breached their duty. We previously found that Plaintiff’s allegations

on her fiduciary duty claim were sufficient because Defendants failed to comply with Title IX

and Defendants waited thirteen days to contact Plaintiff’s legal guardian about the video. As

explained at length above, those findings are inconsistent with the undisputed record and our

analysis at the current procedural posture of the case.

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Now, Plaintiff makes additional arguments on Defendants’ alleged breach that are all

premised on the idea that Defendants should have concluded immediately that Plaintiff was

raped. (Pl.’s Opp. to SJ at 29, ECF No. 72.) As explained above, this premise is not supported

by the information available to Defendants at the time of their investigation, and it is also

inconsistent with Plaintiff’s medical files and the Philadelphia Police Department’s conclusions

from the same time. In addition, there is nothing in the record to support the conclusion that

Defendants determined that the incident was consensual in bad faith for their own personal gain

or advantage, which is required to find that Defendants breached a fiduciary duty. In re Scott’s

Estate, 316 A.2d 883, 885 (Pa. 1974); Young v. Kaye, 279 A.2d 759, 763 (Pa. 1971); Dinger v.

Allfirst Fin., Inc., 82 F. App’x, 261, 265 (3d Cir. 2003); Manning v. Temple Univ., No. 03-4012,

2004 WL 3019230, at *10 (E.D. Pa. Dec. 30, 2004), aff’d, 157 F. App’x 509 (3d Cir. 2005). In

support, Plaintiff relies on the boilerplate proposition that humans prefer not to be investigated

and subjected to litigation, so therefore Defendants must have intentionally come to a knowingly

false conclusion that the encounter was consensual to “conceal[] wrongdoing.” (Pl’s. Opp. to SJ

at 29-30.) In addition to its logical flaws, this argument is inconsistent with the record that

shows that Langston invited police officers to the meeting. Defendants’ choice to promptly

notify law enforcement authorities is incompatible with a finding that they attempted to sweep

this incident under the rug for their own personal benefit. If law enforcement thought there was

something to prosecute here, it could have done so. Far from avoiding scrutiny for their own

personal benefit, Defendants conducted an open investigation and notified outside authorities.

Defendants also did not interfere with Plaintiff’s ability to press charges at the time of their

investigation, as Plaintiff’s grandmother discussed the possibility but ultimately declined to do so

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at the meeting.

As with Plaintiff’s IIED claim, we decline to reach the issue of immunity under

Pennsylvania’s Tort Claims Act because we find that no reasonable jury could conclude that

Defendants breached any fiduciary duty owed to Plaintiff.

D. Punitive Damages

Because we find that Defendants are entitled to summary judgment on Plaintiff’s

substantive claims, we need not address the parties’ arguments as to possible damages.

IV. CONCLUSION

For the foregoing reasons, we will grant Defendants’ Motion for Summary Judgment on

all claims.

BY THE COURT:

/s/ R. Barclay Surrick

R. BARCLAY SURRICK, J.

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