# S.M. v. Tamaqua Area School District

> District Court, M.D. Pennsylvania · March 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10412834

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412834

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

S.M., as father and natural
guardian of A.M., a minor, et al.,
CIVIL ACTION NO. 3:22-cv-00525
Plaintiffs,
(SAPORITO, M.J.)
v.

TAMAQUA AREA SCHOOL
DISTRICT, et al.,

Defendants.

MEMORANDUM
This federal civil rights action for damages commenced when the
plaintiffs, S.M. and S.K., as fathers and natural guardians of minors A.M.
and T.K., respectively, filed their complaint on April 11, 2022. (Doc.1.)
The complaint named as defendants the Tamaqua Area School District
(the “District”); the District’s employees: Raymond Kinder,
Superintendent, Steven Toth, Assistant Superintendent, and Thomas
McCabe, principal of the high school; and school board members: Larry
Wittig, president, Nicholas Boyle, vice-president, Melanie Dillman,
member, Thomas Bartasavage, member, Bryan Miller, member, Mark
Rother, member, Thomas Rottet, member, Daniel Schoener, member,
and Trina Schellhammer, member (collectively the “individual
defendants”).

This matter is before the court on the defendants’ motion to dismiss
the complaint for failure to state a claim upon which relief can be granted
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 23.)

The motion is fully briefed and ripe for decision. (Doc. 24; Doc. 30; Doc.
31.)
For the reasons set forth herein, we will deny the motion.

I. FACTUAL ALLEGATIONS1
This action arises out of the alleged sexual assaults of A.M. and
T.K., both of whom were enrolled in the District’s high school as freshmen

and were members of the football team. A.M. was also a member of the
wrestling team. The alleged sexual assaults took place in the Football
House, which is routinely left unsupervised, and which is a location

known to the District’s administrators, employees, and football coaches
as one where the football players have caused physical harm to each
other. Also, the plaintiffs allege that the football team maintains a

tradition of sexually assaulting certain freshman players by holding
them to the ground, beating them up, and attempting to penetrate their

1 The facts are taken from the plaintiffs’ complaint.
anus with an object. The tradition has been referred to as “school bus,”

“pineapple,” “Excalibur,” or “the Raider special.”
On November 4, 2021, A.M. and T.K. attended football practice and
the customary after-practice dinner, which was held in the high school

cafeteria.2 After dinner, the football staff directed freshmen football
players, including A.M., to carry Gatorade and other items into the
unsupervised Football House, where upperclassmen were waiting to

sexually assault them. After carrying the Gatorade into the Football
House, A.M. went to his locker on the lower level to retrieve his
belongings. As he sat on the bench in front of his locker, the lights went

out and he heard people running down the stairs. He was shoved off the
bench and held to the floor. Phone flashlights revealed that T.O., another
football player, held A.M. to the ground and attempted to turn A.M. over

onto his stomach while another football player, Z.M., approached him
holding a banana and attempting to force it into A.M.’s anus. Another
football player, P.C., was standing nearby holding a second banana.

While A.M. was able to turn over onto his back, T.O., Z.M., and L.K., a

2 Non-party, N.M., also attended practice and dinner that
evening. When N.M. was a freshman, he was sexually assaulted with a
broomstick as part of the football tradition.
third football player, punched A.M. repeatedly in the face. When the

lights were turned on, Z.M. shoved the banana in A.M.’s face, threw it at
him, and ran upstairs. A.M. left the Football House, got into his father’s
car, and reported the assault.

Having been aware of what traditionally happened in the Football
House, T.K. intentionally did not keep his belongings in his assigned
locker in the Football House. During the team dinner on November 4,

2021, football players stole T.K.’s bag from him and took it to the Football
House, to lure him there. After A.M. left the Football House, and
unaware of A.M.’s sexual assault, T.K. went to the Football House to

retrieve his bag. When he arrived there, the lights went out and several
football players rushed him. T.K. fell into the lockers and onto the bench
in front of the lockers. At that time, T.O. attempted to turn over T.K.

onto his stomach to insert an object into his anus. As T.K. resisted, the
lights turned on.
Plaintiff S.M. immediately contacted the District’s athletic director,

Mike Hromyak, and requested and received the cell phone number of
Coach Samuel Bonner. S.M. reported the assault to Coach Bonner. S.M.
then called defendant Boyle and informed him of the assault. Shortly
thereafter, defendant McCabe called S.M., who informed McCabe about

the assault. At 8:30 p.m., A.M. was interviewed by the Tamaqua Borough
Police Department in the presence of defendant Toth. One week later,
Toth contacted S.M. and asked if he and McCabe could obtain a written

statement from A.M. S.M. provided the written statement which A.M.
had given to the police.
On November 5, 2021, T.K. went to the principal’s office to speak

with defendant McCabe about the previous day’s sexual assault. After
being told that McCabe was too busy to speak with him, later that day
T.K. and his father, S.K., returned to McCabe’s office to talk about the

incident. McCabe showed them security footage from the cafeteria where
T.K.’s bag was taken from T.K., and T.K. and McCabe were able to
identify students from the security video. Upon McCabe’s request, T.K.

provided a written statement. T.K. was not offered counselling. The
defendants took no action to further investigate T.K.’s assault, to impose
discipline upon the appropriate parties, or to reach out to T.K. and S.K.

The complaint further alleges that A.M. was routinely bullied
during school about the sexual assault. S.M. promptly reported the
bullying to defendants Toth and McCabe, neither of whom took any
investigatory or disciplinary action following S.M.’s report. The bullying

continued and resulted in a second attempted sexual assault while A.M.
was a member of the wrestling team. In this instance, a senior on the
wrestling team pinned A.M. and yelled to another wrestler to get a

banana. A.M. evaded the attack. He eventually withdrew from the
District on January 27, 2022.
The complaint consists of fourteen counts. Counts One (violation of

Title IX), Three (retaliation under Title IX), Four (retaliation under Title
IX), Five (violation of Title IX – second attempted assault), Six (violation
of Title IX), Eight (Equal Protection under § 1983), Ten (Equal Protection

under § 1983), Twelve (negligence), and Thirteen (negligence – second
assault) relate to S.M. for A.M. Counts Two (violation of Title IX), Seven
(violation of Title IX), Nine (Equal Protection under § 1983), Eleven

(Equal Protection under § 1983), and Fourteen (negligence) relate to S.K.
for T.K.
II. LEGAL STANDARD

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a claim upon which
relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion
to dismiss may be granted only if, accepting all well-pleaded allegations

in the complaint as true and viewing them in the light most favorable to
the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”
Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although
the Court must accept the fact allegations in the complaint as true, it is
not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow
v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Under Rule12(b)(6), the

defendant has the burden of showing that no claim has been stated. Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);
Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v.

Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 495 (M.D. Pa.
2005). In deciding the motion, the court may consider the facts alleged
on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial
notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).
III. DISCUSSION
The plaintiffs brought this federal civil rights action under 42

U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 does not create substantive rights, but
instead provides remedies for rights established elsewhere. City of
Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim,
the plaintiff must establish that the defendant, acting under color of state
law, deprived the plaintiff of a right secured by the United States
Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995). To avoid dismissal for failure to state a claim, a civil rights
complaint must state the conduct, time, place, and persons responsible
for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005).
A. Equal Protection Claim

The defendants contend that Counts Eight through Eleven do not
set forth claims under 42 U.S.C. § 1983 for violations of the plaintiffs’
Equal Protection rights under the Fourteenth Amendment. “A plaintiff

stating a claim under the Equal Protection Clause must allege that he
has been treated differently because of his membership in a suspect class
or his exercise of a fundamental right, or that he has been treated

differently from similarly-situated others and that this differential
treatment was not rationally related to a legitimate state interest.”
Young v. Sewickley Twp., 160 Fed. App’x 263, 266 (3d Cir. 2005). The

defendants assert that the plaintiffs have failed to allege specific facts
that a female student was sexually assaulted by another student and that
the defendants responded in a reasonable manner. (Doc. 24, at 11.) Here,

the plaintiffs do not allege that they are members of a protected group or
class of citizens. Rather, the plaintiffs argue that their complaint alleges
claims for both intentional discrimination and hostile educational

environment equal protection. (Doc. 30, at 14.) In their reply brief, the
defendants argue that the complaint fails to allege identified policies,
customs, and practices, and that the sexual assaults were isolated
incidents “at most.” (Doc. 31, at 4.)

1. Intentional discrimination equal protection claim

“[F]or the purposes of an Equal Protection claim, showing
‘deliberate indifference’ to harassment by a school or ‘any third party
under its control’ is sufficient to demonstrate intentional discrimination.”
Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367, 378 (E.D. Pa. 2018)
([The plaintiff] “was not required to reference a similarly-situated male,

because she alleged the harassment was sexual in nature.”) As we
explain below in our discussion of the Title IX claim, where the plaintiffs
have sufficiently alleged deliberate indifference, the plaintiffs have

sufficiently alleged an intentional equal protection claim.
2. Hostile environment equal protection claim

To state a claim for hostile educational environment in violation of
the Equal Protection Clause, a plaintiff must allege the same elements
required for Title IX liability, except he also “must show that the
harassment was the result of municipal custom, policy, or practice.”

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257-58 (2009). Here,
as discussed below, the plaintiffs have pled the elements of a Title IX
claim and that the District maintained customs or policies of failing to
recognize, investigate, and respond to reports of male-on-male sexual

assault and harassment; failing to enforce its existing policies prohibiting
sexual assault; and failing to adequately train school administrators and
employees on how to recognize, investigate, address, and prevent further

sexual assault and harassment of its students. (Doc. 1 ¶¶ 173(a-c), 185(a-
c.)) We find that the plaintiffs have adequately pled a hostile educational
environment equal protection claim.

Accordingly, we will deny the District’s motion to dismiss the
Section 1983 claims against it.
B. Municipal Liability

The District asserts that Counts Ten and Eleven of the complaint
should be dismissed because the plaintiffs have failed to plead any
specific facts of any practice or policies and there is no underlying

violation of plaintiffs’ constitutional rights. (Doc. 24, at 10-11.)
The complaint asserts § 1983 claims against the District. “On its
face, § 1983 makes liable ‘every person’ who deprives another of civil

rights under color of state law.” Burns v. Reid, 500 U.S. 478, 497 (1991)
(Scalia, J., concurring in part and dissenting in part). In Monell v.
Department of Social Services, 436 U.S. 658 (1978), the Supreme Court
of the United States established that municipalities and other local

governmental units are included among those “persons” subject to
liability under § 1983. Id. at 690. A school district may be liable under
Monell. McGreevy v. Stroup, 413 F.3d 359, 367-69 (3d Cir. 2005).

But “[u]nder Monell, a municipality cannot be subjected to liability
solely because injuries were inflicted by its agents or employees.” Jiminez
v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).

Rather, a municipality can be liable under § 1983 only if the conduct
alleged to be unconstitutional either “implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers” or is “visited pursuant to
governmental ‘custom’ even though such a custom has not received
formal approval through the body’s official decision-making channels.”

Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.”
Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy,
attribute it to the [school district] itself, and show a causal link between
execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).
The complaint in this case identifies the District’s three
unconstitutional customs or policies as follows:

a. Failing to appropriately recognize, investigate
and respond to reports of male-on-male sexual
assault and harassment;

b. Failing to enforce any already existing policies
prohibiting sexual assault and harassment
when both the perpetrator and the victim are
male; and

c. Failing to adequately train school
administrators and employees on how to
recognize, investigate, address, and prevent
further sexual assault and harassment of its
students.

(Doc. 1 ¶¶ 173(a-c); 185(a-c).)
The District argues that the complaint fails to allege specific facts
of any practice or policies, and because there is no underlying violation of
the plaintiffs’ constitutional rights, the Section 1983 claims must be
dismissed. We find that the plaintiffs’ allegations recited above are
sufficient to state a municipal liability claim against the District.
Accordingly, we will deny the District’s motion to dismiss the
Section 1983 claims against it.
C. Individual Defendants

The defendants move to dismiss the claims against the individual
defendants set forth in Counts Eight and Nine of the complaint because
they contend that the plaintiffs failed to allege any personal involvement

whatsoever by the individual defendants. The plaintiffs argue that the
complaint extensively alleged personal involvement of each of the
individual defendants.

It is well established that “[c]ivil rights claims cannot be premised
on a theory of respondeat superior. Rather, each named defendant must
be shown . . . to have been personally involved in the events or

occurrences which underlie a claim.” Millbrook v. United States, 8 F.
Supp. 3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously
explained by the Third Circuit:

A defendant in a civil rights action must have personal
involvement in the alleged wrongs . . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made
with appropriate particularity.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Here, the complaint alleges that as Superintendent, Kinder told
S.M. and A.M. that they had no right to be present at the first disciplinary

hearing on November 16, 2021, before the school board, and they were
prohibited from knowing the outcome of the hearing. (Doc. 1 ¶¶ 6, 58-
61.) Kinder also excluded them from attending and participating in two

disciplinary hearings on November 18, 2021, and a special meeting of the
school board. (Id. ¶¶ 62-64, 66-68, 78-79.) Kinder also told A.M. that he
had no right to know the outcome of the hearings. (Id. ¶ 71.) Kinder

accused A.M. of lying. (Id. ¶ 83.)
Assistant Superintendent Toth and high school principal McCabe
received actual notice of the sexual assaults of A.M. and T.K. (Id. ¶¶ 46-

52, 98.) Despite having an obligation to contact the District’s Title IX
coordinator and Toth and McCabe having actual notice of the assaults,
neither A.M. nor T.K. were ever contacted by the Title IX coordinator.

(Id. ¶ 101.) The inaction of Toth and McCabe resulted in A.M.’s continued
bullying, which resulted in the second sexual assault upon him. (Id. ¶¶
93-94.)

Regarding the individual school board defendants, the complaint
alleges that “Kinder, Toth, and McCabe intentionally shared their power
to investigate and/or address the sexual assault of A.M. with” the
individual school board defendants. (Id. ¶ 155.) The complaint further

alleges that the school board defendants presided over three disciplinary
hearings and one special meeting. (Id. ¶¶ 58, 62, 66, 78.) During each
hearing and the special meeting, the school board individual defendants

physically excluded the plaintiffs from being present, while permitting
the alleged assaulters to be present (Id. ¶¶ 58-71, 78-79); provided the
alleged assaulters with an opportunity to speak on their own behalf and

denied that opportunity to the plaintiffs (Id. ¶¶ 65-66, 70-71); provided
the alleged assaulters with the opportunity to be represented by counsel
and denied that opportunity to the plaintiffs (Id. ¶ 74); and denied A.M.

his Title IX right to be informed of the outcome of the hearings, including
the sanctions imposed. (Id. ¶¶ 61, 65, 71.)
We find these allegations sufficient to defeat the motion to dismiss

at the pleadings stage. Thus, accepting the plaintiffs’ factual allegations
in the complaint as true, as we must, we find that the complaint
adequately alleges sufficient allegations of personal involvement by the

individual defendants.
Accordingly, the defendants’ motion to dismiss on the basis that the
complaint lacks sufficient factual allegations of personal involvement will
be denied.

D. Title IX Claims

The defendants argue that the plaintiffs failed to plead valid Title
IX claims. Title IX of the Education Act provides, with certain exceptions,
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 or activity receiving

federal financial assistance.” 20 U.S.C. § 1681(a). The plaintiffs set forth
claims for student-on-student sexual harassment and retaliation.
(1) The plaintiff has sufficiently pled a valid
claim for student-on-student sexual
harassment.

The defendants maintain that the plaintiffs failed to set forth a
valid Title IX claim for student-on-student sexual harassment.
It is settled that a funding recipient’s deliberate indifference to
sexual harassment of a student by another student can constitute sex
discrimination under Title IX. Davis v. Monroe Cty. Bd. of Educ., 526

U.S. 629, 643 (1999). For a school district to be held liable for a claim of
student-on-student sexual harassment under Title IX, a plaintiff must
establish that: (1) the defendant receives federal funds; (2) sexual
harassment occurred; (3) the harassment occurred under ‘circumstances

wherein the recipient exercise[d] substantial control over both the
harasser and the context in which the known harassment occur[red], (4)
the funding recipient had ‘actual knowledge’ of the harassment; (5) the

funding recipient was ‘deliberately indifferent’ to the harassment; and (6)
the harassment was ‘so severe, pervasive, and objectively offensive that
it [could] be said to [have] deprive[d] the victims of access to the

educational opportunities or benefits provided by the school.’ Davis, 526
U.S. at 645, 650.
Here, the District only contends that the complaint fails to allege

facts to constitute deliberate indifference. The District asserts that the
plaintiffs failed to set forth sufficient facts to establish that the District’s
response to the alleged harassment is clearly unreasonable considering

the known circumstances.
A finding of deliberate indifference depends on the adequacy of a
school district’s response to the harassment. Zeno v. Pine Plains Cent.

Sch. Dist., 702 F.3d 655, 666 (2d Cir. 2012); accord Doe v. Bellefonte Area
Sch. Dist., 106 Fed. App’x 798, 799 (3d Cir. 2004) (‘The relevant inquiry
for purposes of evaluating whether [a school district] was deliberately
indifferent to known circumstances of harassment is to review its

response to reported incidents of harassment.’). To constitute deliberate
indifference, the recipient’s response to the harassment must be ‘clearly
unreasonable in light of the known circumstances.’ Davis, 526 U.S. at

648.
A review of the complaint reveals that it adequately sets forth a
factual basis to support the deliberate indifference requirement. The

District’s response, or lack thereof, to the harassment reflects the
following: (1) the plaintiffs were not contacted by the District’s Title IX
coordinator (Doc. 1 ¶¶100, 109(a), 117(a)); (2) the plaintiffs were not

informed of their respective minor child’s rights under Title IX regarding:
supportive measures (Id. ¶¶ 109(b), 117(b); segregation from their
assaulters; the right to file a Title IX complaint against their assaulters;

protection from retaliation, including retaliatory harassment; an
equitable and transparent investigation and disciplinary process; all
corrective action necessary to stop further assault and harassment; and

the right to have advisors represent their interests during the
investigation and disciplinary process (Id. ¶ 101); (3) the defendants had
actual knowledge of the assaults of A.M. and T.K. (Id. ¶¶ 107, 115); (4)
the defendants never acknowledged that the assaults were sexual in

nature or investigated the assaults as attempted sexual assault (Id.
109(c), 117(c)); (5) no one from the District ever made a Childline report
under the Pennsylvania Child Protective Services Law, 23 Pa. Cons. Stat.

Ann. § 6319 (Id. 109(d), 117(d)); (6) the defendants characterized the
assaults as “horseplay” and “hazing” (Id. ¶¶ 109(e), 117(e)); (7) the
defendants created a hostile educational environment that tolerated

male-on-male sexual assault and harassment (Id. ¶¶ 109(f), 117(f)); (8)
the defendants refused to institute the necessary corrective action to
remedy the hostile educational environment and to ensure A.M.’s

continued enrollment and T.K.’s equal access to his education (Id. ¶¶
109(g), 117(g)); and (9) the defendants failed to provide adequate training
for the District’s employees and other school officials on sexual

harassment and assault, retaliation, and mandatory reporting (Id. ¶¶
109(h), 117(h). The plaintiff has set forth a plausible showing of
entitlement to relief for sexual harassment under Title IX. Thus, the

defendants’ motion to dismiss this claim will be denied.
(2) The plaintiff has set forth a viable claim
for retaliation under Title IX.

The defendants urge us to dismiss S.M.’s (for A.M.) retaliation
count because the complaint is devoid of facts sufficient to demonstrate
retaliation. Specifically, the defendants contend that there is no
actionable conduct attributed to any defendant from which liability

against the District could arise under Title IX, and there are no
allegations sufficient to establish the causation prong of the claim. We
disagree.

Although the statute does not specifically mention retaliation, it is
settled that retaliatory conduct is within the broad prohibition of
‘discrimination’ made unlawful by Title IX. Jackson v. Birmingham Bd.

of Educ., 544 U.S. 167, 174, (2005). To establish a prima facie case of
retaliation, a plaintiff must show (1) that he or she engaged in protected
activity; (2) defendant had knowledge of the protected activity; (3)

adverse school-related action was taken against plaintiff; and (4) a causal
connection between the protected activity and the adverse action. Yan v.
Penn State Univ., 529 Fed. App’x 167, 171 (3d Cir. 2013) (citing Papelino

v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir.
2011)).
Here, the plaintiffs alleged that the individual defendants had

sufficient involvement as we outlined above. For example, Kinder told
S.M. and A.M. that they had no right to be present at the first disciplinary
hearing and they were prohibited from knowing the outcome of the

hearing. (Doc. 1 ¶¶ 58-61.) Kinder also excluded them from attending
and participating in the second disciplinary hearing and a special
meeting of the school board. (Id. ¶¶ 62-64, 78-79.) Kinder accused A.M.

of lying. (Id. ¶ 83.).
To establish the requisite causal connection, a plaintiff must allege
facts to demonstrate either: “(1) an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory
action, or (2) a pattern of antagonism coupled with timing to establish a
causal link.” Frazer v. Temple Univ., 25 F. Supp. 3d 598, 615 (E.D. Pa.

2014) (citing Cooper v. Menges, 541 Fed. App’x 228, 232 (3d Cir.2013).
Here, the defendants argue that there are no allegations to establish that
A.M.’s conduct of reporting the alleged assault specifically caused the

District to act in a manner that caused harm to A.M. (Doc. 24, at 24.)
The complaint alleges that the defendants retaliated against A.M. by: (1)
attempting to discredit him by calling him a liar (Doc. 1 ¶ 122(a); (2)
refusing to properly investigate the assault (Id. ¶122(b); (3) refusing to

institute the necessary corrective action to remedy the hostile
educational environment A.M. faced and to ensure his continued
enrollment at school (Id. ¶122(c); and (4) making a condition of A.M.’s

education that he suffer a hostile educational environment in which the
first sexual assault was tolerated, thereby enabling the second attempted
sexual assault (Id. ¶122(d). All these acts of retaliation caused A.M. to

suffer damage, including being barred from accessing his education. (Id.
¶123.) Thus, we find that the causation element has been adequately
pled. These allegations are sufficient to defeat the defendants’ motion to

dismiss the retaliation claim.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss will be

denied and the action will be permitted to proceed. The defendants will
be directed to answer the complaint.
An appropriate order follows.

Dated: March 2, 2023 s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412834. Public record. Not legal advice.