Z. v. OIL CITY AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

G.Z., by and through his )

natural parent and guardian, )

Stacey Figueroa, )

)

Plaintiff, ) Case No. 1:18-cv-298

V. )

)

OIL CITY AREA SCHOOL )

DISTRICT, e¢ al, )

)

Defendants. )

MEMORANDUM OPINION

This civil rights action was brought by G.Z. (“G.Z.”), a minor, by and through his

mother, Stacey Figueroa (“Figueroa”), pursuant to 42 U.S.C. §1983. The Defendants in this

action include the Oil City Area School District (the “School District”) and three of its

employees, i.e.: Principal Tammy Newman (“Newman”) and teachers Kelly Zerbe (“Zerbe”)

and Jessica Rodriguez (“Rodriguez”). G.Z. asserts that, while he was enrolled as an elementary

school student within the School District, he suffered racial harassment by his fellow students.

G.Z. alleges that the Defendants’ actions in response to his complaints about the harassment

violated his rights under the Fourteenth Amendment.'

Pending before the Court is the Defendants’ motion to dismiss the Second Amended

Complaint for failure to state a claim upon which relief can be granted. For the reasons that

follow, the Defendants’ motion will be granted in part and denied in part.

' The Court has subject matter jurisdiction over this matter is pursuant to 28 U.S.C. §§1331 and

1343.

I BACKGROUND?

G.Z. is a nine-year-old child of Hispanic descent who resides with his mother, Figueroa,

in Oil City, Pennsylvania. Second Amended Compl. (“SAC”), ECF No. 16, 94-5, 11-12.

During the 2016-17 and 2017-18 school years, G.Z. was enrolled in the School District at

Smedley Elementary School. SAC §{] 16-17. The School District’s racial demographic is 96%

white, with Hispanics comprising only one percent of the population. Id. 13.

G.Z. claims that, during the School Years 2016-17 and 2017-18, he was racially harassed

by his peers. SAC §17. As an example, G.Z. alleges that five white children in his class

(identified as “L.W.,” “MLR,” “C.T.,” “T.” (last name unknown), and “C.S.,”) referred to him as

a “stinky African” or remarked that he “stunk because of the color of his skin.” SAC §18. One

of these same students pushed G.Z. down a flight of stairs and, on a separate occasion, hit G.Z. i

the head with a ball. Id. 419. Another student punctured G.Z.’s skin with a woodchip.

Defendant Zerbe allegedly knew of these incidents but took no action. SAC 420.

After each incident of harassment, G.Z.’s father informed the school of what had taken

place. SAC 23. This included emails to the superintendent, to Newman, and to G.Z.’s teacher

on numerous occasions. Id. §24. When complaints were made to Newman, she responded that

children were too young to understand the difference in race and color. Id. 425. When

complaints were lodged about G.Z. being assaulted, Newman variously responded, “[M]aybe it

was a mistake,” “[M]aybe the child had bad aim,” or “[MJaybe the child was initiating a game of

dodgeball.” Id. 426.

2 The following facts are derived from the Second Amended Complaint, G.Z.’s operative

pleading. See ECF No. 16. For present purposes, we accept G.Z.’s factual averments as true.

On another occasion, a child who had previously been reported for bullying G.Z. jumped

out of a bush and made intimidating faces at him. SAC 427. When the child realized that G.Z.

was being walked to school by his mother, the child then smiled as if embarrassed. Id. After

reporting this incident to Newman, G.Z.’s parents were told that “children sometimes make

faces,” and Figueroa “may have misunderstood.” Id. 428. Newman also informed G.Z.’s parent

that there was nothing the school could do about their complaints if they did not report the

alleged bullying on the day that it occurred. Id. 429.

Dissatisfied with Newman’s responses, G.Z.’s parents made complaints to the School

District’s superintendent, Patrick Gavin. SAC 930. Gavin emailed G.Z.’s parents and informed

them he would speak to Newman. Id. 931. After he did so, Newman called G.Z. to her office

and scolded him for having a bad attitude. Id.

In an effort to mitigate future problems, Gavin permitted G.Z.’s parents to select G.Z.’s

teacher for the following school year. SAC 932. G.Z.’s parents specifically instructed the

administration not to place G.Z. in the same classroom as L.W., the student primarily responsible

for instigating the harassment. Id. §33. Despite this instruction, Newman placed G.Z. in the

same classroom as L.W. Id. 934. Following this placement, L.W. continued to harass G.Z.. Id.

G.Z. claims that none of the administrators have addressed or disciplined the students

harassing him, nor have any reports been written or filed, despite the fact that teachers have been

aware of — or even witnessed -- the verbal and physical assaults.. SAC §{]36-37, 40. According

to G.Z., Defendant Rodriguez discouraged him from reporting the harassment that other students

inflicted on him, stating that it was “tattling.” Id. 41. G.Z. thereafter stopped reporting

instances of assaults to any teachers or administrators. Id. 443.

Meanwhile, G.Z. was disciplined for minor infractions such as getting out of his seat or

for alleged harassing conduct toward his white peers. Jd. [§38, 52. The disciplines have ranged

|| from loss of recess to in-school suspension. Id. 439. On at least one occasion when Zerbe

thought that G.Z. was behaving inappropriately, she made him face his desk towards the wall.

Id, 21. This segregation lasted for approximately one month and ended only after G.Z.’s

parents complained to Newman about it. Id. §921-22. Zerbe never explained to G.Z.’s parents

why she implemented this form of punishment. Id. 22.

As a result of these events, G.Z. has suffered trauma, which he continues to address

through therapy. Id. 945. This lawsuit followed.

Il. STANDARD OF REVIEW

Under federal pleading standards, a complaint need set forth “only ‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp.

vy. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation and internal quotation marks omitted). “A claim has facial plausibility when the plaintif

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id.; see also Sheridan v. NGK Metals Corp., 609 F.3d 239,

262 n. 27 (3d Cir.2010). The United States Court of Appeals for the Third Circuit has articulated

a three-step process for reviewing the sufficiency of a complaint: first, the court must take note

of the elements the plaintiff must plead in order to state a claim; second , the court should

identify and discount those allegations that are no more than legal conclusions or restatements of

the elements of a claim; third, the court should accept as true any well-pleaded factual allegations

and then determine whether those allegations plausibly give rise to an entitlement to relief.

Connelly v. Lane Constr, Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotation marks and

citations omitted).

I. DISCUSSION

Plaintiff's sole cause of action is brought under 42 U.S.C. § 1983,° which “is not itself a

source of substantive rights,” but provides “a method for vindicating federal rights elsewhere

conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). To prevail under § 1983, a

plaintiff must prove that a person acting under color of state law deprived him of a right that is

secured by the United States Constitution or by federal law. Mark v. Borough of Hatboro, 51

F.3d 1137, 1141 Gd Cir. 1995).

In this case, it is not disputed that the named Defendants were acting under color of state

law for purposes of §1983. Consequently, the Court need inquire only whether G.Z. has

3 The statute provides:

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, except that in any action brought

against a judicial officer for an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was

violated or declaratory relief was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

42 U.S.C. §1983.

plausibly alleged the violation of a federal right — specifically, his Fourteenth Amendment right

to receive equal protection under the law. U.S. Const. amend XIV, §1.

To prevail on his equal protection claim, G.Z. must demonstrate that he belonged to a

protected class and was treated differently from similarly situated individuals. See City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985); Oliveira v. Twp. of Irvington,

41 F. App’x 555, 559 (3d Cir. 2002); Tillman v. Lebanon County Corr. Facility, 221 F.3d 410,

423-24 (3d Cir. 2000). In addition, G.Z. must show that the discrimination was purposeful or

intentional rather than incidental. /d. Intentional discrimination can be shown when, among

other things, a facially neutral law or policy is applied differently on the basis of race. Doe ex

rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 532 (3d Cir. 2011) (citing Yick Wo v.

Hopkins, 118 U.S. 356 (1886)).; see also Dique v. New Jersey State Police, 603 F.3d 181, 184 n.

5 (3d Cir. 2010) (To state an equal protection claim based upon selective enforcement of the law,

a plaintiff must show: (1) that he was treated differently from other similarly situated

individuals, and (2) that this selective treatment was based on an unjustifiable standard, such as

race, or religion, or some other arbitrary factor ... or to prevent the exercise of a fundamental

right.)

A. Plaintiffs’ Claims Against the Individual Defendants

Defendants move to dismiss G.Z.’s claims against Newman, Zerbe, and Rodriguez on the

ground that G.Z. has failed to allege a plausible equal protection violation. In particular, they

contend that G.Z. has not alleged he was treated differently from other similarly situated

individuals or that the disparate treatment was based on membership in a protected class.

The Court does not agree. The underlying concern when analyzing the sufficiency of a

pleading is adequate notice: i.e., the complaint allegations must not be “so undeveloped that

[they do] not provide a defendant the type of notice of claim which is contemplated by Rule 8.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). To that end, “a complaint need

not establish a prima facie case in order to survive a motion to dismiss.” Connelly v. Lane Const.

Corp., 809 F.3d 780, 788 (3d Cir. 2016). Instead, “the post-Twombly pleading standard ‘simply

calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the

necessary element[s].’” Jd. (quoting Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at

556)) (alteration in the original).

Here, G.Z., who is Hispanic, has alleged that he was treated differently from the white

children at his school, in that he was disciplined for alleged acts of bullying or even minor

infractions, while white children who bullied or assaulted him were not disciplined at all. See

SAC 950 (“The School District has a policy to investigate and discipline allegations of

harassment and/or bullying.”); id. §51 (“Defendants failed to apply the policy when the

allegations were made by Plaintiff against his white peers.”); id. 52 (“Defendants applied the

policy and investigated allegations of bullying when the allegations were made by white peers

against Plaintiff. As a result, Plaintiff was disciplined.”). G.Z. has alleged that he was otherwise

similarly situated to his non-Hispanic peers. Jd. 54. Such an inference is reasonably supported

by the fact that the comparators in question are all school children within G.Z.’s class who attend

the same school and who interacted with the same student body, staff, and administrators. G.Z.

has thus met the requisite pleading standard by providing “a short and plain statement of [his]

claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Defendants object, however, that G.Z. has failed to allege specific instances where

disparate treatment occurred. They contend, for example, that G.Z. “fails to allege with any

specificity instances where other students outside [G.Z.’s] protected class were subject to

harassment or assault and where their harassers or assailants were disciplined or not for such

behavior.” ECF No. 19 at 5. Similarly, Defendants object that G.Z. not identified

“circumstances where he was in fact accused of bullying and harassment and what discipline he

was subjected to as a result.” Id.

In this Court’s view, Defendants’ objections overstate the relevant pleading standard.

Other courts within this circuit have persuasively concluded that a “plaintiff need not ‘identify in

a complaint actual instances where others have been treated differently.”” McLaughlin v. Forty

Fort Borough, 64 F. Supp. 3d 631, 647 (M.D. Pa. 2014) (quoting Phillips, 515 F. 3d at 244).

Rather, “[g]eneral allegations that a plaintiff was treated differently from others similarly

situated are sufficient.” Shkedi v. City of Scranton, No. 3-CV-14-2069, 2015 WL 1505660, at

*10 (M.D. Pa. Apr. 1, 2015). Here, G.Z. has alleged that the disparate treatment occurred in the

context of Defendants’ selective enforcement of an otherwise facially neutral discipline policy.

That is enough to satisfy the pleading standards set forth above.

Defendants also object that G.Z. has not pled facts establishing that G.Z. was treated

differently because of his membership in a protected class. They maintain that the SAC lacks

specific allegations of intentional discrimination on the part of the individual Defendants, such as

comments, writings, or actions they took “relative to Plaintiff's membership in a protected

class.” ECF no. 19 at 5.

As discussed, G.Z. need only plead enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary elements of his claim. As set forth in the SAC,

G.Z. is a child of Hispanic descent, whose race was presumably evident to the individual

Defendants. He has averred that the Defendants intentionally implemented the school’s

disciplinary policy in a manner that resulted in disparate treatment of him, as compared to

similarly situated white children. The SAC further states that Defendants “deliberately failed to

take effective measures to end the harassment and discrimination” to which G.Z. was subjected.

SAC 953. These allegations are enough to support an expectation that discovery will produce

evidence of purposeful discrimination. Of course, discovery may well exonerate the Defendants

of any wrongdoing, but, for present purposes, G.Z. has met his pleading burden. See Connelly,

809 F.3d at 789 (“[A]t this early stage of the proceedings, it is enough for Connelly to allege

sufficient facts to raise a reasonable expectation that discovery will uncover proof of her

claims.”).

Alternatively, Defendants argue that the SAC should be dismissed because Newman,

Zerbe, and Rodriguez are entitled to qualified immunity. “The doctrine of qualified immunity

protects government officials from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).

“Thus, so long as an official reasonably believes that his conduct complies with the law,

qualified immunity will shield that official from liability.” Sharp v. Johnson, 669 F.3d 144, 159

(3d Cir. 2012) (citing Pearson, 555 U.S. at 244). “Qualified immunity balances two important

interests—the need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson, 555 U.S. at 231. Properly applied, it “provides ample

protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). Importantly, however, “[q]ualified immunity will be upheld

on a 12(b)(6) motion only when the immunity is established on the face of the complaint.”

Leveto vy, Lapina, 258 F.3d 156, 161 (3d Cir. 2001) (citation and quotation omitted).

At this stage of the proceedings, the Court cannot say that the Defendants’ immunity is

self-evident from the allegations in the SAC. As discussed, the Court has determined that the

SAC adequately states a Fourteenth Amendment equal protection claim. Factual discovery has

not yet occurred, and a more developed record is required in order to fully inform the Court’s

qualified immunity analysis. Accordingly, the Court will deny Defendants’ motion to dismiss on

qualified immunity grounds. The denial, however, will be without prejudice to Defendants’ right

to reassert the defense at a later stage of the proceedings, as further discovery may warrant.

B. Plaintiff's Claim Against the School District

We next address the claims against the School District. Generally, a municipality or local

governing body cannot be held liable under §1983 for the constitutional torts of its employees

through the doctrine of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658,

694 (1978). “Instead, it 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.” Jd.

When a §1983 claim is asserted against a local municipal body, the complaint must allege

that the plaintiff's constitutional rights were violated by the execution of an official policy or

custom of the governing body. Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403

(1997). To state a facially plausible Monell claim, the plaintiff must allege: (1) a policy or

custom that deprived the plaintiff of a federally protected right, (2) that the municipality, by its

“deliberate conduct,” acted as the “moving force” behind the alleged deprivation, and (3) “a

direct causal link between the municipal action and the deprivation of federal rights.” Jd.

For Monell liability, a “custom” is defined as “an act ‘that has not been formally

approved by an appropriate decision-maker,’ but that is ‘so widespread as to have the force of

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law.’” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Brown,

520 US. at 404). A “policy” is defined as a “statement, ordinance, regulation, or decision

officially adopted and promulgated by [a local governing] body’s officers.” Simmons v. City of

Phila., 947 F.2d 1042, 1059 (3d Cir. 1991) (alteration in original) (quoting Monell, 436 U.S. at

690); see also Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. Jan. 29, 2019). A

policymaker is an official with “final unreviewable discretion to make a decision or take an

action.” Andrews v. City of Phila., 895 F.2d 1469, 1481 (3d Cir. 1990). A municipality “cannot

be deemed to have engaged in a constitutional violation by virtue of a policy [or] custom” in the

absence of a “conscious decision or deliberate indifference of some natural person.” Simmons,

947 F.2d at 1063. Accordingly, “to state a Monell claim upon which relief may be granted, a

complaint must include the identity of the municipality’s final policymaker and factual

allegations that ‘link the alleged offending policies or customs to’ that final policymaker.”

Verrecchia vy. City of Phila., Civil Action No. 16-0284, 2017 WL 264388, at *6 (E.D. Pa. Jan.

19, 2017) (quoting Rees v. Office of Children & Youth, 473 F. App'x. 139, 143 (3d Cir. 2012)).

With respect to the School District, Defendants assert that G.Z. has not pled an official

custom, policy or practice of the School District that served as the moving force behind the

alleged equal protection violation. The Court agrees. Even construed in the light most favorable

to G.Z., the SAC does not allege a custom of discrimination toward G.Z. (or toward racial

minorities in general) that was so widespread within the School District as to have the force of

school district law. Nor has G.Z. alleged the existence of an official School District policy that

served as the moving force behind his injuries. While the SAC alleges discriminatory conduct by

certain staff members, it does not identify the School District’s final policymaker on the matter,

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nor does it set forth factual allegations that ‘link the alleged offending policies or customs to’

that final policymaker.” Verrecchia, 2017 WL 264388, at *6.

IV. CONCLUSION

Based upon the foregoing reasons, the Defendants’ motion to dismiss the SAC will be

denied insofar as it relates to the claims against Newman, Rodriguez, and Zerbe. The motion

will be granted insofar as it relates to the claim against the Oil City Area School District.

Because the Court cannot say that further amendment of his claim against the School District

would be inequitable or futile, Plaintiff will be given leave to amend that claim. See Mullin v.

Balicki, 875 F.3d 140, 151 (Gd Cir. 2017) (When a civil rights complaint fails to state a claim, “a

district court must grant leave to amend the complaint unless amendment would be futile or

inequitable.”).

An appropriate order follows.

SUSAN PARADISE BAXTER

United States District Judge

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