“If a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self- harm, even suicide.”
How later courts described this case
- “If a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self- harm, even suicide.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SA’RAYA HARDEN, : CIV. NO. 3:23-CV-01631
:
Plaintiff, :
:
v. : (Magistrate Judge Schwab)
:
WEST SIDE CAREER AND :
TECHNOLOGY CENTER, et al., :
:
Defendants. :
MEMORANDUM OPINION
I. Introduction.
The plaintiff, Sa’Raya Harden (“Harden”), has filed a complaint based on
the treatment of her daughter, Adreya Harden (“Adreya”), prior to Adreya’s death
by suicide. Harden brings claims against Adreya’s school, school district,
principal, five of her teachers (collectively “the school defendants” or “the
movants”) and five of her classmates. Currently pending is the school defendants’
partial motion to dismiss. For the reasons that follow, we will grant in part and
deny in part the partial motion to dismiss.
II. Background and Procedural History.
Harden initiated this action by filing a complaint on October 2, 2023. Doc. 1.
Harden filed the complaint as Adreya’s mother, and the administrator of Adreya’s
estate. Doc. 1 ¶ 16. Harden names 13 defendants: (1) Wyoming Valley School
District (“the District”); (2) West Side Career and Technology Center (“Tech”);
(3) Richard Rava, the Principal of Tech (“Principal Rava”); (4) “Doe(s) 1–5[,]”
“students within Tech and/or the District” (“the unidentified student defendants”);
and (5) “Doe(s) 6–10[,]” “adult employees and/or agents of Tech and/or the
District” (“the unidentified employee defendants”). Id. ¶¶ 1, 21, 25, 28, 30, 32–35.
Harden brings the following claims: (1) Title IX claims against both the District
and Tech for deliberate indifference to student-on-student sex-based harassment
and intentional sex-based discrimination by a school administrator (contained in
counts one, two, three, and four) (id. ¶¶ 123–71); (2) § 1983 claims for failure to
train against the District, Tech, Principal Rava, and the unidentified employee
defendants (contained in counts five and six) (id. ¶¶ 172–215); (3) § 1983 claims
for sex-based discrimination in violation of the equal protection clause against the
District, Tech, Principal Rava, and the unidentified employee defendants
(contained in counts seven, eight, nine, and ten) (id. ¶¶ 216–59); (4) state law
claims for gross negligence and/or recklessness against the unidentified student
defendants (contained in count eleven) (id. ¶¶ 260–66); and (5) state law claims for
intentional infliction of emotional distress against the unidentified student
defendants (contained in count twelve) (id. ¶¶ 267–70).
The movants filed a partial motion to dismiss, which is now pending
(“pending motion to dismiss”). Doc. 8. After the pending motion to dismiss was
fully briefed (docs. 11, 13), the parties consented to Magistrate Judge jurisdiction
pursuant to 28 U.S.C. § 636 (c) (doc. 18). The case is currently governed by a case
management order, with fact discovery to conclude on or before October 30, 2024.
Doc. 21.
A. Events Depicted in the Complaint.1
The impetus of the present case is Adreya’s death by suicide, which
occurred on October 5, 2021, when Adreya was 15 years old. Doc. 1 ¶¶ 37, 41.
Although when she was born her parents named her Andrew, “[a]t Adreya’s
request, [her] family and friends began calling her ‘Adreya[.]’” Id. ¶¶ 42, 43.
Adreya was a “transgender female” (id. ¶ 1) and “came out publicly as
LGBTQIA+ in sixth . . . grade as a student in the District” (id. ¶ 44).
“After coming out, Adreya was not comfortable in a traditional school
setting” “due, in relevant part, to the harassment and bullying” Adreya experienced
at the hands of her classmates, including the unidentified student defendants. Id.
¶¶ 45, 46. “Instead of addressing the bullying and harassment . . . , the District
allowed Adreya to receive her education through private after-hours instruction by
1 The following facts are taken from the complaint.
a teacher at the local library” (“alternative instruction”). Id. ¶ 47. Thus, for the
remainder of the 2018–2019 school year, and for the entirety of the 2019–2020
school year, Adreya participated in this alternative instruction and completed the
sixth and seventh grades. Id. ¶ 47.
Because the alternative instruction was unavailable for the 2020–2021
school year due to COVID-19, for eighth grade Adreya attended school at the
District over Zoom. Id. ¶¶ 48, 49. Throughout the eighth grade, “Adreya
repeatedly asked her teachers, including [the unidentified employee defendants] to
call her ‘Adreya’ or, at the very least, refer to her by her last name[.]” Id. ¶ 50.
Adreya’s teachers, including the unidentified employee defendants, “refused her
request” and “continued to call her ‘Andrew’ in front of her classmates.” Id. ¶¶ 51,
52. “This treatment caused Adreya to feel humiliated, depressed, and isolated from
her peers.” Id. ¶ 54. As a result of her teachers’ “adverse treatment[,]” “Adreya’s
grades, participation in school, and mental health suffered tremendously.” Id. ¶ 56.
“Adreya stopped participating in her [eighth] grade classes to avoid being singled
out and mistreated by her teachers, [the unidentified employee defendants].” Id.
¶ 57. Moreover, the teachers’ treatment of Adreya “emboldened” Adreya’s
classmates, including the unidentified student defendants, “to bully and harass
Adreya[.]” Id. ¶ 55.
“The District failed to take any steps to address the bullying and harassment
[Adreya] suffered” (id. ¶ 59), despite the fact that Harden “notified the District
[that] Adreya experienced sex-based harassment by her classmates” (id. ¶ 139).
During her time as a student at the District, “Adreya was prohibited from attending
the programming of her choice; her grades and academic performance suffered;
and she suffered serious emotional and psychological harm, including depression,
self-cutting, and suicidal thoughts.” Id. ¶ 143. And, according to the complaint,
“the District, through [the unidentified employee defendants] . . . knew that Adreya
was experiencing serious mental health issues, including depression, suicidal
ideation, and self-harming behavior.” Id. ¶ 163.
“Eventually, Adreya’s mental health declined to such an extent that she
began missing class and was considered truant.” Id. ¶ 58. As a result, “Adreya was
brought before Magisterial District Judge Hagerty on truancy charges.” Id. ¶ 60.
After Magisterial District Judge Hagerty “heard about the harassment and
mistreatment that Adreya suffered[,]” however, “he refused to find Adreya truant.”
Id. ¶ 61. “Instead, [he] ordered that Adreya be allowed to enter the 2021–2022
school year in ninth . . . grade.” Id. ¶ 62. Adreya, who loved cosmetology, was
excited to enroll in Tech “for her ninth . . . grade year[.]” Id. ¶ 70, 71.
“At or about” the time of Magisterial District Judge Hagerty’s decision,
“Adreya had already begun transitioning from male to female” and “was preparing
to start hormone therapy.” Id. ¶ 63, 64. Adreya and Harden also “filed a Petition in
Luzerne County Court of Common Pleas to legally change Adreya’s name from
‘Andrew’ to ‘Adreya.’” Id. ¶ 65. Adreya referred to Andrew as her “dead name.”
Id. ¶ 76. “Due to COVID-19, the hearing on Adreya’s name change petition was
continued several times” but it “was finally scheduled for November 1, 2021.” Id.
¶ 66, 67. Accordingly, Adreya began the school year prior to her name being
legally changed. Cf. ¶ 68. In fact, Adreya’s name was legally changed
posthumously. Id. ¶ 69.
“After the school year started,” Harden brought Adreya’s then-pending
name change petition and the legal paperwork from Magisterial District Judge
Hagerty to a meeting between herself, Adreya, and Adreya’s counselor at Tech,
Mr. Ogurkis. Id. ¶ 72, 74. “Immediately upon meeting with Mr. Ogurkis, Adreya
and [Harden] felt unwelcome and uncomfortable.” Id. ¶ 73. Harden “explained to
Mr. Ogurkis that Adreya was transitioning and preferred to be referred to as
Adreya, not Andrew.” Id. ¶ 75. “Mr. Ogurkis was unwelcoming to Adreya and
told her that she might ‘have a hard time fitting in’ at Tech.” Id. ¶ 77. When
Harden “asked Mr. Ogurkis about how supporting Tech was of the LGBTQIA+
community[,]” (id. ¶ 82) “Ogurkis told [Harden] and Adreya that she would be the
only transgender student but there were classes where she ‘could go’ if she needed
a safe space” (id. ¶ 83). During this meeting, Harden and “Adreya also asked to
enroll Adreya in the cosmetology program at Tech.” Id. ¶ 78. “Mr. Ogurkis
refused” and instead enrolled Adreya in the Food Marketing and Distribution
program. Id. ¶¶ 79, 80. Harden “and Adreya left the meeting with Mr. Ogurkis
feeling even more uncomfortable and unsupported.” Id. ¶ 84. “After Adreya’s
death, [Harden] spoke with the director of Tech’s Cosmetology program[;] they
said that they were not informed that Adreya wanted to enroll in Cosmetology, but
had they known, they would have allowed Adreya in the program.” Id. ¶ 81.
“Adreya started at Tech on Monday, September 27, 2021, several weeks
after the school year had already started.” Id. ¶ 85. “Adreya told her mother that
some of the teachers, including [the unidentified employee defendants] called
Adreya by her ‘dead name[,]’ Andrew[,] in front of the whole class during roll
call.” Id. ¶ 86. “Adreya’s teachers, including [the unidentified employee
defendants] refused to call her ‘Adreya’ despite requests to do so.” Id. ¶ 87.
“Adreya’s classmates, including [the unidentified student defendants,] bullied and
harassed Adreya incessantly about her sex during the short amount of time that
Adreya attended Tech.” Id. ¶ 88. For example, the unidentified student defendants
asked Adreya “if she still had male genitalia and whether she was going to ‘chop
that [penis] off.’” Id. ¶ 89 (alteration in original). By way of further example, “[a]s
Adreya was leaving school one day, a car pulled up alongside her on the school
driveway and blew the horn loudly enough that it scared Adreya and caused her to
fall to the ground.” Id. ¶ 94.
“While Adreya was at Tech, one of her teachers, Tom Pieczynski emailed
[Principal] Rava approximately three . . . times, notifying Rava that Adreya was
being bullied and harassed about her sex.” Id. ¶ 90. Despite this notice, neither
Rava nor Tech took any “action in response to the bullying and harassment
suffered by Adreya.” Id. ¶¶ 91, 92. “Adreya was so traumatized and humiliated by
the treatment she received at Tech by [the unidentified student defendants] and [the
unidentified employee defendants] that she refused to go anymore” and “begged
[Harden] not to send her back to Tech.” Id. ¶¶ 94, 95.
“The last time [Harden] saw or spoke with Adreya was the night of Monday,
October 4, 2021.” Id. ¶ 96. “The morning of October 5, 2021, Adreya was found
unresponsive in her bed.” Id. ¶ 97. “Adreya passed away by suicide on October 5,
2021[,]” “due to an intentional overdose of her medication.” Id. ¶ 98, 99.
“Although Adreya did not leave a suicide note, prior to her death, Adreya had
changed her Instagram status to deceased.” Id. ¶ 100.
B. Tech’s and the School District’s Relevant Policies and Training
Practices.
While Adreya attended the school district, during the 2018–2019, 2019–
2020, and 2020–2021 school years, the District had a policy manual which
“included policies prohibiting harassment, bullying, and hazing by employees and
students” but did not include policies regarding suicide prevention or Title IX. Id.
¶¶ 113–15. The policies that addressed harassment, bullying, and hazing were the
District’s policy number 248 (“District Policy 248”), titled “Unlawful
Harassment[,]” and District’s policy number 249 (“District Policy 249”), titled
“Bullying/Cyberbullying[.]” Id. ¶ 116, 117. “According to District Polic[ies] 248
and . . . 249, there are specific requirements that District employees are required to
take when a student is a victim of bullying/cyberbullying, including but not limited
to reporting violations to the District’s principal or principal’s designee, and the
allegation must be investigated.” Id. ¶ 119 (quoting doc. 1-2).
The unidentified student defendants and the unidentified employee
defendants, according to the complaint, all “engaged in harassment,[2] bullying,[3]
2 District Policy 248 defines harassment as “verbal, written, graphic or
physical conduct relating to an individual’s race, color, national origin/ethnicity,
sex, age, disability, sexual orientation or religion when such conduct; A. Is
sufficiently severe, persistent or pervasive that it affects an individual’s ability to
participate in or benefit from an educational program or activity or creates an
intimidating, threatening or abusive educational environment; B. Has the purpose
of effect of substantially or unreasonably interfering with an individual’s academic
performance; C. Otherwise adversely affects an individual’s learning
opportunities.” Id. ¶ 116 (cleaned up) (quoting doc. 1-2).
3 District Policy 249 defines bullying as “a form of harassment in which
behavior is intended, or perceived to intend, to harm or cause distress to another.
The action occurs repeatedly over time and, in addition to causing harm or distress,
has the effect of insulting or demeaning a student or group of students in such a
way as to cause disruption of the orderly operation of the school. It may include,
and cyberbullying[4] in violation of the District’s policies.” Id. ¶¶ 120, 121
(cleaned up and footnotes added) (citing doc. 1-2). Moreover, “[t]he District failed
to follow its own policies as it relates to the incessant harassment and bullying of
Adreya.” Id. ¶ 122.
While Adreya attended Tech in the 2021–2022 academic year, “Tech’s policy
manual included policies prohibiting harassment, bullying, and hazing by employees
and students” but not a suicide prevention policy. Doc. 1 ¶¶ 101, 102. Specifically,
Tech’s policy number 249 (“Tech Policy 249”), “Bullying/Cyberbullying,” addressed
bullying and cyberbullying, and Tech’s policy number 103 (“Tech Policy 103”),
“Discrimination/ Title IX Sexual Harassment Affecting Students[,]” addressed
discrimination and sexual harassment. Doc. 1 ¶¶ 103, 106.
but is not limited to, actions such as verbal taunts, physical aggression, exclusion
from peer groups within the school, name calling, and derogatory statements,
including any discriminatory statement.” Id. ¶ 117 (cleaned up) (quoting doc. 1-2).
4 District Policy 249 defines cyberbullying as “the following misuses of
technology: harassing, teasing, intimidating, threatening, or terrorizing another
student or staff member by way of any technological tool, such as sending or
posing inappropriate or derogatory email messages, instant messages, text
messages, digital pictures or images, or web site postings (including blogs), which
has the effect of: A. physically, emotionally or mentally harming a student;
B. Placing a student in reasonable fear of physical, emotional or mental harm;
C. Placing a student in reasonable fear of damage to or loss of personal property;
D. Creating an intimidating or hostile environment that substantially interferes
with a student’s educational opportunities.” Id. ¶ 118 (cleaned up) (quoting doc. 1-
2).
Tech Policy 249 states:
Every report of alleged bullying that can be interpreted at the
outset to fall within the provisions of policies addressing
potential violations of laws against discrimination and
discriminatory harassment shall be handled as a joint,
concurrent investigation into all allegations and coordinated
with the full participation of the Compliance Officer and Title
IX coordinator. If, in the course of a bullying investigation,
potential issues of discrimination are identified, the Title IX
Coordinator shall be promptly notified, and the investigation
shall be conducted jointly and concurrently to address the issues
of alleged discrimination as well as the incidents of alleged
bullying.
Id. ¶ 105 (quoting doc. 1-2) (internal quotation marks omitted). “According to
Tech Policy 249, ‘verbal and written complaints of bullying shall be investigated
promptly, and appropriate corrective or preventative action shall be taken when
allegations are substantiated.’” Id. ¶ 104. “Tech Policy 103 directs any employee
who ‘suspects or is notified that a student has been subject to conduct that
constitutes a violation of this policy shall immediately report the incident to the
building administrator . . . the building administrator shall promptly notify the Title
IX Coordinator of all reports of discrimination, Title IX sexual harassment or
retaliation.” Id. ¶ 109 (quoting doc. 1-2).
The unidentified student defendants and the unidentified employee
defendants, according to the complaint, all “engaged in discrimination,[5]
5 Tech Policy 103 defines discrimination as “to treat individuals differently,
or to harass or victimize based on a protected classification including race, color,
harassment,[6] Title IX Sexual Harassment,[7] bullying,[8] and cyberbullying[9] in
violation of . . . Tech’s policies.” Id. ¶¶ 110, 111 (cleaned up and footnotes added).
age, creed, religion, sex, sexual orientation, ancestry, national origin, marital
status, pregnancy, or handicap/disability.” (id. ¶ 106) (quoting doc. 1-2) (internal
quotation marks).
6 Tech Policy 103 defines harassment as “a form of discrimination based on
the protected classifications listed in this policy consisting of unwelcome conduct
such as graphic, written, electronic, verbal or nonverbal acts, including offensive
jokes, slurs, epithets and name-calling, ridicule or mockery, insults or put-downs,
offensive objects or pictures, physical assaults or threats, intimidation, or other
conduct that may be harmful or humiliating or interfere with a person’s school or
school related performance when such conduct is: A. Sufficiently severe, persistent
or pervasive; and B. A reasonable person in the complainant’s position would find
that it creates an intimidating, threatening, or abusive educational environment
such that it deprives or adversely interferes with or limits an individual or group of
the ability to participate in or benefit from the services, activities, or opportunities
offered by [Tech].” (id. ¶ 107) (quoting doc. 1-2) (cleaned up).
7 Tech Policy 103 defines Title IX Sexual Harassment as “conduct on the
basis of sex that satisfies one or more of the following” including “unwelcome
conduct determined by a reasonable person to be so severe, pervasive and
objectively offensive that it effectively denies a person equal access to a [Tech]
education program or activity” (id. ¶ 108) (quoting doc. 1-2) (internal quotation
marks) (alteration in original).
8 Tech Policy 249 defines bullying as “intentional electronic, written, verbal
or physical act or series of acts directed at another student or students, which
occurs in a school setting that is severe, persistent or pervasive and has the effect
of doing any of the following: A. Substantially interfering with a student’s
education and/or B. Creating a threatening environment.” Id. ¶ 103 (cleaned up)
(quoting doc. 1-2).
9 The complaint does not include a definition of cyberbullying from a Tech
Policy. See doc. 1.
“Tech failed to follow its own policies as it relates to the incessant harassment and
bullying of Adreya.” Id. ¶ 112.
Furthermore, the District and Tech both “failed to provide such training to
its administrators, teachers, staff, students, and families, despite the patently
obvious need for training on, among other things, sex-based harassment of
students, including LGBTQIA+ harassment, and identifying, investigating,
reporting, stopping, and remedying the effects of discrimination and harassment
against LGBTQIA+ students.” Id. ¶ 181. The District and Tech failed to provide
this training despite the fact that “[n]umerous authorities, including federal courts,
made it clear and had given notice to Tech and other public school that school
employees will confront LGBTQIA+ harassment and discrimination with
regularity, given the high predictability, recurrence, prevalence, and injurious
nature of such harassment and discrimination in schools.” Id. ¶ 182. According to
the complaint, “it was foreseeable and inevitable that the District’s administrators
and employees would encounter recurring situations involving LGBTQIA+
harassment and discrimination implicating students’ Constitutional and federal
rights, and they did, in fact, encounter those recurring situations.” Id. ¶ 182.
III. Pleading and Motion-to-Dismiss Standards.
In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” When
reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual
allegations in the complaint as true, construe the complaint in the light favorable to
the plaintiff, and ultimately determine whether [the] plaintiff may be entitled to
relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605
F.3d 223, 229 (3d Cir. 2010).
In making that determination, “[g]enerally, ‘a district court ruling on a
motion to dismiss may not consider matters extraneous to the pleadings.’” Doe v.
Princeton Univ., 30 F.4th 335, 342 (3d Cir. 2022) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). In addition to
considering the allegations of a complaint, in connection with a 12(b)(6) motion,
the court may consider “‘exhibits attached to the complaint and matters of public
record.’” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993)). “Further, courts may consider exhibits attached to a defendant’s motion to
dismiss if it is ‘an undisputedly authentic document’ and ‘plaintiff’s claims are
based on the document.’” Grp. Against Smog & Pollution, Inc. v. Shenango Inc.,
810 F.3d 116, 127 (3d Cir. 2016) (quoting Pension Benefit Guar. Corp., 998 F.2d
at 1196). In other words, the court may consider “document[s] integral to or
explicitly relied upon in the complaint” in connection with a 12(b)(6) motion.
Schmidt, 770 F.3d at 249 (italics in original) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d at 1426).
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch.
Dist., 842 F. Supp. 2d 762, 769–70 (M.D. Pa. 2012). “Under Federal Rule of
Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S.
662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The statement required by
Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff’s
claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S.
89, 93 (2007). Detailed factual allegations are not required, but more is required
than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other
words, a complaint must do more than allege the plaintiff’s entitlement to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has
to ‘show’ such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief
can be granted, the court “‘must accept all facts alleged in the complaint as true
and construe the complaint in the light most favorable to the nonmoving party.’”
Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v.
Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a
complaint’s bald assertions or legal conclusions when deciding a motion to
dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A
court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff
has not alleged.” Associated Gen. Contractors of Cal. v. California State Council
of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more
than mere legal labels and conclusions. Rather, it must recite factual allegations
sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere
speculation. In practice, consideration of the legal sufficiency of a complaint
entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff
must plead to state a claim.” Second, the court should identify
allegations that, “because they are no more than conclusions,
are not entitled to the assumption of truth.” Finally, “where
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.”
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and
citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
In sum, “[w]e accept as true all factual matters [the plaintiff] alleges, but his
complaint cannot survive unless the facts it recites are enough to state plausible
grounds for relief.” Beasley v. Howard, 14 F.4th 226, 231 (3d Cir. 2021) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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.” Iqbal,
556 U.S. at 678. But “[a] claim that relies just on ‘conclusory statements,’ or on
‘threadbare recitals of the elements of a cause of action’ without supporting factual
allegations, does not establish plausible grounds for relief.” Id. (quoting Fischbein
v. Olson Rsch. Grp., Inc., 959 F.3d 559, 561 (3d Cir. 2020)).
IV. Discussion.
Although the complaint identifies 12 counts, only 10 of those counts contain
claims against the school defendants. See doc. 1. Count One, against Tech, and
Count Two, against the District, are both brought for deliberate indifference to
student-on-student sex-based harassment pursuant to Title IX. Id. ¶¶ 123–46.
Count Three, against Tech, and Count Four, against the District, are both brought
for intentional sex-based discrimination by school administrators pursuant to Title
IX. Id. ¶¶ 147–71. Count Five, against Tech and Principal Rava, and Count Six,
against the District and the unidentified employee defendants, are both brought for
failure to train pursuant to 42 U.S.C. § 1983. Id. ¶¶ 172–215. The final four counts
are brought for sex-based discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution pursuant to
§ 1983: count seven, against Tech; count eight, against the District; count nine,
against Principal Rava; and count ten, against the unidentified employee
defendants. Id. ¶¶ 216–59.
The pending motion to dismiss addresses only six of the ten counts listed
above. See doc. 11. The movants seek to dismiss:
(1) Count Two against the District for deliberate indifference to
student-on-student sex-based harassment pursuant to Title IX
(id. ¶¶ 135–46);
(2) Count Four against the District for intentional sex-based
discrimination by school administrators pursuant to Title IX (id.
¶¶ 160–71);
(3) Count Five against Tech and Principal Rava for failure to
train pursuant to § 1983 (id. ¶¶ 172–93);
(4) Count Six against the District and the unidentified employee
defendants for failure to train pursuant to § 1983 (id. ¶¶ 194–
215);
(5) Count Nine against Principal Rava for sex-based
discrimination in violation of the Equal Protection Clause
pursuant to § 1983 (id. ¶¶ 238–48); and
(6) Count Ten against the unidentified employee defendants for
sex-based discrimination in violation of the Equal Protection
Clause pursuant to § 1983 (id. ¶¶ 249–59).
Thus, regardless of our decision on the pending motion to dismiss, the Title IX
claims against Tech contained in counts one and three and the § 1983 claims
against Tech and the District contained in counts seven and eight will survive.
A. Title IX claims against the District.
As discussed above, Harden brings two Title IX claims against the District,
one for deliberate indifference to student-on-student sex-based harassment and the
second for intentional sex-based discrimination by school administrators. Doc. 1
¶¶ 135–46, 160–71.
Title IX provides that “[n]o person . . . 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 [f]ederal financial assistance.”
20 U.S.C. § 1681(a). Although “Title IX provides just one express enforcement
mechanism[,] action through federal agencies[,]” Doe v. Mercy Catholic Med. Ctr.,
850 F.3d 545, 559 (3d Cir. 2017) (citing 20 U.S.C. § 1682), the Supreme Court
held that it also implies a private right of action, Zavada v. East Stroudsburg
University, NO. 3;22-CV-01074, 2023 WL 5532809, *3 (M.D. Pa. Aug. 28, 2023)
(citing Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979)). To state such a
claim for student-on-student harassment, a plaintiff must prove the following
elements:
(1) the defendant receives federal funds; (2) sexual harassment
occurred; (3) the harassment was ‘so severe, pervasive, and
objectively offensive that it could be said to have deprived the
victims of access to the educational opportunities or benefits
provided by the school;’ (4) the harassment occurred under
‘circumstances wherein the recipient exercised substantial
control over both the harasser and the context in which the
known harassment occurred’; (5) the funding recipient ‘had
knowledge’ of the harassment; and (6) the funding recipient
was ‘deliberately indifferent’ to the harassment.
Zavada, 2023 WL 5532809 at *3 (cleaned up) (quoting A.T. v. Oley Valley Sch.
Dist., No. CV 17-4983, 2021 WL 5792695, at *18 (E.D. Pa. Dec. 7, 2021)) (itself
quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999)).
Title IX also “encompasses sexual harassment of a student by a teacher[.]”
Dipippa v. Union School Dist., 819 F.Supp.2d 435, 447 (W.D. Pa. 2011) (citing
Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75–76, 112 S.Ct. 1028, 117
L.Ed.2d 208 (1992)). “To succeed on a Title IX sexual harassment claim, a
student must show: (1) quid pro quo sexual harassment, or a sexually hostile
educational environment; (2) actual notice by an ‘appropriate person’ who has the
authority to take corrective measures; and (3) a response to the harassment that
amounts to deliberate indifference.” Id. (citing Bennett v. Pa. Hosp. Sch. of Nurse
Anesthesia, NO. Civ.A. 01-CV-4098, 2020 WL 32341792 at *3 (E.D. Pa. Oct. 29,
2002)) (itself citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118
S.Ct. 1989, 141 L.Ed.2d 277 (1998)).
The movants at this juncture dispute only that the District had “actual
knowledge” of the harassment Adreya experienced at the hands of the unidentified
student defendants or unidentified employee defendants. See doc. 11 at 9–10.
“For a school district to be liable under Title IX’s private right of action, an
appropriate person must have actual knowledge of sex-based harassment and must
respond with deliberate indifference.” M.S. by and through Hall v. Susquehanna
Township School District, 969 F.3d 120, 125 (3d Cir. 2020) (citing Gebser, 524
U.S. at 290). “An appropriate person is ‘an official who at a minimum has
authority to address the alleged discrimination and to institute corrective measures
on the recipient’s behalf.” Id. (citing Gebser, 524 U.S. at 290). “The actual
knowledge requirement forecloses damages liability based ‘solely on principles of
vicarious liability or constructive notice’ and avoids the ‘risk that the recipient
would be liable in damages not for its own official decision but instead for its
employees’ independent actions.’” Id. at 125–26 (quoting Gebser at 288, 290–91).
Moreover, “a perpetrator’s knowledge of his own Title IX discrimination does not
satisfy [the] actual-knowledge requirement even if the perpetrator would otherwise
be an appropriate person[.]” M.S. by and through Hall, at 127 (citing Gebser, 524
U.S. 274). “To the contrary, for a school district to have actual knowledge, a
report must be made to an appropriate person who is not the perpetrator.” Id.
The movants argue that “[t]he Complaint fails to identify that an appropriate
person at the School District had knowledge of the alleged harassment.” Doc. 11 at
10. They further argue that “[t]he actions of teachers, or notice of student-on-
student harassment to teachers, is insufficient to hold the School District liable for
damages under Title IX as the same do not amount to appropriate persons.” Id.
Harden counter-argues that “the District” had actual knowledge that Adreya was “a
transgender youth” and, accordingly, an “at-risk youth[.]” Doc. 13 at 18.
Specifically, Harden points to Harden “work[ing] with the District’s
representatives[,]” specifically “officials – not just mere teachers[,]” to coordinate
Adreya’s alternative instruction. Id. at 18, 19. Harden further argues that Adreya
“repeatedly asked the District to cease calling her by her ‘dead name[,]’” a request
that was refused by “the District’s employees[.]” Id. at 18–19. Harden specifically
opines that she has not yet participated in discovery and cannot ask Adreya
“specifically which other individuals she communicated with at the District”
because she is unfortunately deceased. Id. at 19. It follows, according to Harden,
that the Movants’ “motion is premature” and Harden “is entitled to discovery.” Id.
at 20.
While we are sympathetic with Harden’s difficulties in identifying the
individuals to whom Adreya reported her harassment, Harden would not have the
same difficulties identifying those individuals that she herself spoke to in order to
coordinate Adreya’s participation in the alternative instruction and report some of
Adreya’s experiences. Moreover, a conclusory assertion that she is “entitled to
discovery” will carry no weight. Instead, we look to what is required of Harden’s
allegations in the complaint.
Harden is required, as discussed above, to assert that an appropriate person
with the “authority to address the alleged discrimination and to institute corrective
measures on the recipient’s behalf[,]” M.S. by and through Hall, 969 F.3d at 125,
had actual knowledge of Adreya’s harassment. This she has not done. Instead,
throughout the complaint, she refers to actions taken by “the District[.]” See doc. 1.
This anthropomorphizing of the District is not sufficient to plead that an
appropriate person had knowledge of Adreya’s harassment. Cf Moss v.
Pennsylvania State University, No. 4:22-CV-00529, 2023 WL 1456773, *7 (“First,
although Boland’s title suggests he is an ‘appropriate person’ under Title IX, his
title alone is an insufficient allegation. . . . As noted above an ‘appropriate person’
must have the ‘authority to address the alleged discrimination and to institute
corrective measures on the [institution’s] behalf.’ Moss fails to allege any facts
regarding Boland’s authority to address Glon’s misconduct.”).
We will thus grant the school defendants’ pending motion to dismiss insofar
as it seeks dismissal of the Title IX claims against the District. We will, however,
grant Harden leave to amend her complaint as to these claims.
B. § 1983 claims for failure to train against Tech and the District.
Harden also brings claims against Tech and the District pursuant to 42
U.S.C. § 1983 for failure to train their employees. A school or school district’s
“failure to properly train its employees and officers can create an actionable
violation of a party’s constitutional rights under § 1983.” See Reitz v. County of
Bucks, 125 F.3d 139, 145 (3d Cir. 1997) (citing City of Canton v. Harris, 489 U.S.
378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989)); see also E.N. v.
Susquehanna Tp. School Dist., No. 1:09-CV-1727, 2011 WL 3608544, *6–*7
(M.D. Pa. July 5, 2011). But “[e]stablishing municipal liability on a failure to
train claim under § 1983 is difficult.” Reitz, 125 F.3d at 145.
To state a § 1983 claim for failure to train, the plaintiff must allege that the
“failure to train amounts to deliberate indifference to the rights of persons with
whom the [school employees] come into contact.” Id. (quoting City of Canton, 489
U.S. at 388) (internal quotations omitted). Further, a defendant can be held liable
for failure to train “[o]nly where a failure to train reflects a deliberate or conscious
choice[.]” Id. “A plaintiff pressing a §1983 claim must identify a failure to provide
specific training that has a causal nexus with their injuries and must demonstrate
that the absence of that specific training can reasonably be said to reflect a
deliberate indifference to whether the alleged constitutional deprivations
occurred.” Id. (citing Colburn v. Upper Darby Township, 946 F.2d 1017, 1030 (3d
Cir. 1991)). “When a plaintiff alleges that a municipality has not directly inflicted
an injury, but has caused an employee to do so, stringent standards of culpability
and causation must be applied to ensure that the municipality in a § 1983 suit is not
held liable solely for the conduct of its employee.” Id. (citing Board of
Commissioners of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1388–89,
137 L.Ed.2d 626 (1997)).
“Policymakers’ ‘continued adherence to an approach that they know or
should know has failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action—the ‘deliberate
indifference’—necessary to trigger municipal liability.’” Connick v. Thompson,
563 U.S. 51, 62 (2011) (quoting Brown, 520 U.S. at 409). “Without notice that a
course of training is deficient in a particular respect, decisionmakers can hardly be
said to have deliberately chosen a training program that will cause violations of
constitutional rights.” Id. Thus, “[g]enerally, a deficient training can only amount
to the requisite deliberate indifference ‘where the failure to train has caused a
pattern of violations.’” E.N., 2011 WL 3608544 at *7 (quoting Berg v. County of
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). But a failure to train claim may also
proceed where “(1) ‘a violation of federal rights may be a highly predictable
consequence of a failure to equip [school officials] with specific tools [or skills] to
handle recurrent situations,’ and (2) the likelihood of recurrence and predictability
of the violation of a citizen’s rights ‘could justify a finding that [the] policymakers’
decision not to train an officer reflected “deliberate indifference” to the obvious
consequence of the policymakers’ choice—n mely, a violation of a specific
constitutional or statutory right.’” Id. (quoting Kline ex rel. Arndt v. Mansfield, 255
Fed.Appx. 624, 629 (3d Cir. 2007)) (itself quoting Brown, 520 U.S. at 409).
The movants argue that the complaint “fails to identify notice to [Tech] and
[the] School District officials that its training is deficient[.]” Doc. 11 at 12.
Instead, according to the movants, the complaint “allege[es] that better training
would prevent the injur[y]” described. Id. The movants further argue that “the
[c]omplaint fails to establish causation[.]” Id. Accordingly, the movants conclude,
Harden has failed to allege that Tech and the School District were deliberately
indifferent. Id. at 13.
Harden counter-argues that “[a] reasonable jury could conclude, based on
the frequency of reports from [Harden] and Adreya, the open and obvious bullying
by her peers, and the fact that it is common knowledge that LGBTQIA+ and
specifically transgender youths are at high risk of bullying and related suicide, and
the likelihood that the situation will recur, demonstrates deliberate indifference on
Defendants’ parts.” Doc. 13 at 22. Harden points to the three separate reports of
bullying to Principal Rava, the reports made by Adreya and Harden to the School
District, and the comments by agents of Tech and the District that they are “not
equipped to deal with transgender students.” Id. at 22–23. Harden asserts that
Tech’s and the District’s policies were “woefully insufficient” and that what
protections were created by the policies were ignored. Id. at 23. Harden concludes
that such failure did in fact cause harm to Adreya “and ultimately, [her] death[.]”
Id. Further, according to Harden, the wide spread nature of “school-based bullying
and [the] suicide epidemic” creates an obvious need for relevant training. Id. at 22.
As described above, failure to train claims need not depend on a pattern of
violations and can instead rely on a theory that the need for training is “so obvious
that failure to do so could properly be characterized as deliberate indifference to
constitutional rights[.]” Brown, 489 U.S. at 390 n.10. In her complaint, Harden
alleges that the District was aware of a pattern of bullying against Adreya because
both Adreya and Harden frequently complained of her mistreatment, as well as the
District’s awareness of Adreya’s participation in alternate instruction and the
reasons for its necessity. Harden also alleges that Tech was aware of the incessant
bullying Adreya experienced at Tech based on the reports of Adreya’s teacher,
Tom Pieczynski, to Principal Rava. Moreover, Harden is proceeding on a theory
that the risk of a deprivation of students’ civil rights was obvious. Cf Tumminello
v. Father Ryan High School, Inc., 678 Fed.Appx. 281, 288 (6th Cir. 2017) (“If a
school is aware of a student being bullied but does nothing to prevent the bullying,
it is reasonably foreseeable that the victim of the bullying might resort to self-
harm, even suicide.”). As to causation, Harden alleges that the bullying Adreya
experienced while a student at the District and Tech severely impacted her mental
health which resulted in her death. And Harden alleges that the schools’ failure to
address this bullying not only allowed it to continue but made it more brazen. At
this early stage of the proceedings and viewing the complaint in a light most
favorable to Harden, we find she has adequately pled the District’s and Tech’s
deliberate indifference.
C. Claims against Principal Rava and the unidentified employee
defendants.
Harden brings two claims against Principal Rava and each unidentified
employee defendant: one for failure to train and the other for sex-based
discrimination in violation of the equal protection clause. Doc. 1 ¶¶ 172–215, 238–
59. Both claims are brought pursuant to 42 U.S.C. § 1983. Id. The movants argue
that Principal Rava and the unidentified employee defendants are entitled to
qualified immunity from these claims. Doc. 11 at 14–15. Specifically, the movants
argue that Principal Rava and the unidentified employee defendants “would not
believe their actions would violate a clearly established constitutional right.” Id. at
15.
Despite their participation in constitutionally impermissible conduct,
government officials “may nevertheless be shielded from liability for civil
damages if their actions did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Qualified immunity ensures that before officers are subjected to suit, they
have notice that their conduct is unlawful. Id. “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 v.
Callahan, 555 U.S. 223, 231 (2009). “If the law was clearly established, the
immunity defense ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct.” Harlow, 457 U.S. at 818–19.
The qualified immunity analysis has two prongs. Pearson, 555 U.S. at 232.
One prong of the analysis is whether the facts that the plaintiff has alleged or
shown make out a violation of a constitutional right. Id. The other prong of the
analysis is whether the right was clearly established. Saucier v. Katz, 533 U.S. 194,
201 (2001). The court is permitted to exercise its discretion in deciding which of
the two prongs of the qualified-immunity analysis should be addressed first
considering the circumstances of the particular case. Pearson, 555 U.S. at 236.
“To be clearly established, a legal principle must have a sufficiently clear
foundation in then-existing precedent.” D.C. v. Wesby, 138 S. Ct. 577, 589 (2018).
In other words, “[t]he rule must be ‘settled law,’ which means it is dictated by
‘controlling authority’ or ‘a robust consensus of persuasive authority.’” Id. at 589–
90 (internal citations omitted). “It is not enough that the rule is suggested by then-
existing precedent.” Id. at 590. Rather, “[t]he precedent must be clear enough that
every reasonable official would interpret it to establish the particular rule the
plaintiff seeks to apply.” Id.
Still, “the facts of the existing precedent need not perfectly match the
circumstances of the dispute in which the question arises.” Williams v. Sec’y
Pennsylvania Dep’t of Corr., 848 F.3d 549, 570 (3d Cir. 2017). “A public official
does not get the benefit of ‘one liability-free violation’ simply because the
circumstance of his case is not identical to that of a prior case.” Peroza-Benitez v.
Smith, 994 F.3d 157, 166 (3d Cir. 2021) (quoting Kopec v. Tate, 361 F.3d 772, 778
(3d Cir. 2004)).
But if the law did not put the defendant on notice that his conduct would be
clearly unlawful, qualified immunity is appropriate. Bayer v. Monroe County
Children & Youth Services, 577 F.3d 186, 193 (3d Cir. 2009). “In other words,
‘existing precedent must have placed the statutory or constitutional question
beyond debate.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011)). “This exacting standard ‘gives government
officials breathing room to make reasonable but mistaken judgments’ by
‘protect[ing] all but the plainly incompetent or those who knowingly violate the
law.’” City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015)
(quoting al-Kidd, 563 U.S. at 743).
“At the Rule 12(b)(6) stage, immunity must be ‘established on the face of
the complaint.’” Gatto v. Lackawanna Cnty., NO. 3:20-CV-1684, 2021 WL
4502261, at *9 (M.D. Pa. Sept. 30, 2021) (quoting Thomas v. Independence Twp.,
463 F.3d 285, 291 (3d Cir. 2006)). “Defendants asserting that they are entitled to
qualified immunity have the burden to prove that the doctrine applies.” Hewlette-
Bullard on behalf of J.H-B. v. Pocono Mouontain School District, 522 F.Supp.3d
78, 104–05 (M.D. Pa. 2021). Although qualified “immunity questions should be
resolved ‘at the earliest possible stage in litigation[,]” “our court of appeals has
cautioned that ‘it is generally unwise to venture into a qualified immunity analysis
at the pleading stage as it is necessary to develop the factual record in the vast
majority of cases.’” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) and
Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009)).
According to the movants, the complaint alleges that the unidentified
employee defendants referred to Adreya by her legal name, as reflected in
educational records. Doc. 11 at 15. The movants argue that “[b]ased on the same,
it is reasonable to conclude that [the unidentified employee defendants] would not
believe their actions would violate a clearly established constitutional right.” Id.
As to Principal Rava, the movants argue that “[a]lthough the [c]omplaint alleges
that he did nothing during” the seven days Adreya attended Tech, “it is reasonable
to conclude that [Principal] Rava would not believe that any alleged inaction
during that short timeframe would violate a clearly established constitutional
right.” Id.
Harden disagrees. Doc. 13 at 23–27. Harden cites a Tenth Circuit holding
“that a state-created danger claim arose where school officials sent a student home
after he was acting up in school, despite knowing that he was having suicidal
thoughts, he had access to firearms in his house, and his parents were not home.”
Id. at 25 (citing Armijo by and through Chavez v. Wagon Mound Pub. Schs., 159
F.3d 1253, 1264 (10th Cir. 1998)). Harden also points out that the movants’
summary of Principal Rava’s and the unidentified employee defendants’ actions
conveniently omits allegations against them in the complaint. Id. at 26–27. Harden
also reiterates her belief that she is entitled to discovery. Id.
The movants do not engage with the allegations against the unidentified
employee defendants in the complaint. Instead, the movants only address the
allegations that the unidentified employee defendants referred to Adreya by her
legal name. But, according to the complaint, the unidentified employee defendants
not only referred to Adreya by her legal name but did so despite repeat requests
not to. Further, the complaint alleges that Adreya was “singled out and mistreated
by her teachers, [the unidentified employee defendants]” (doc. 1 ¶ 57), and that
they harassed, bullied, cyberbullied, and discriminated against her in violation of
the District’s and Tech’s policies (id. ¶¶ 110–11, 120–21). The movants do not
address these allegations at all. Moreover, the defendants make no attempt to
address the two unique claims against the unidentified employee defendants.
Proving that they are entitled to qualified immunity is the movants’ burden. See
Hewlette-Bullard on behalf of J.H-B., 522 F.Supp.3d at 104–05. Accordingly, we
will deny the pending motion to dismiss in so far as it seeks qualified immunity for
the unidentified employee defendants.
As to Principal Rava, the movants appear to argue that the time between
September 27, 2021—when Adreya began at Tech—and October 5, 2021—when
Adreya died by suicide—is too short for any inaction to amount to a clearly
established constitutional violation. But the movants do no more than set forth this
conclusion. And neither party points to any case law that sets forth a bright line
rule of how long a school official can wait before taking action when faced with
such reports, or that seven days is reasonable. Further, although the Tenth Circuit
case Harden cites is distinguishable from this case for many reasons, it does stand
for the principle that immediate action is sometimes required of school officials.
See Armijo by and through Chavez, 159 F.3d at 1264. And other courts have
found that when state actors are “on notice about . . . harassment and knew or
should have known that their nonfeasance would allow the harassment to continue
or worsen . . . their desire that it can continue can be implied.” DiSalvio v. Lower
Merion High School Dist., 158 F.Supp.2d 553, 564 (E.D. Pa. 2001); see also John
G. v. Northeastern Educational Intermediate Unit 19, 490 F. Supp. 2d 565, 585–86
(M.D. Pa. 2007). And again, the movants fail to differentiate between each of the
two unique claims against Principal Rava. We thus conclude that Principal Rava is
not entitled to qualified immunity at this juncture.
V. Conclusion.
For the foregoing reasons, we will grant in part and deny in part the pending
motion to dismiss (doc. 8). We will grant the motion to dismiss insofar as it seeks
dismissal of the Title IX claims against the District, but we will grant Harden leave
to file an amended complaint on these claims on or before August 30, 2024.
Finally, we will dismiss the pending motion to dismiss (id.) in all other respects.
An appropriate order follows.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge