JH v. Munster School Town of et al
OPINION AND ORDER granting in part and denying in part Defendants' 73 Motion for Summary Judgment. All claims against the school officials Pfister, Tripendfeldas, Smith, and Pavlovich in their official capacities aredismissed. J.H.s discrim ination claims based on gender stereotyping and class year under Section 1983 and Title IX are also dismissed, as is his claim for retaliation. J.H. may proceed, however, on his claims of gender discrimination under the Equal Protection Clause of the Fourteenth Amendment (via Section 1983) and Title IX, along with his state law negligence claim. The Section 1983 claim will proceed against Munster and the school officials (Defendants Pfister, Tripendfeldas, Smith, and Pavlovich) in their individ ual capacities, and the Title IX claim will proceed only against Munster (that claim is dismissed against the individual school officials). Further, the Defendants Motion to Strike J.H.s Appendix I (DE 88) is DENIED. Signed by Chief Judge Philip P Simon on 2/3/2016. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SCHOOL TOWN OF MUNSTER, et al., )
Cause Number: 2:12-cv-69 PS
OPINION AND ORDER
It’s often been said that high school is the best four years of your life. But for one
young man, Plaintiff J.H., high school was anything but. J.H. was a student at Munster
High School and a member of the high school swim team during his Freshmen and
Sophomore years. J.H. soon discovered, however, that hazing was rampant on the team
and much of it was directed at him. After enduring this physical and emotional
mistreatment for two years, J.H. ultimately quit the team and left Munster High School
early. He brings this § 1983 action against both the school and various school officials in
their individual and official capacities, for the following claims: discrimination based on
gender under the Equal Protection Clause and Title IX; retaliation under the First
Amendment; and a negligence claim under Indiana state law. Defendants now seek
summary judgment on all claims. (DE 73.) For the reasons discussed in this Order,
that motion will be GRANTED-IN-PART and DENIED-IN-PART.
J.H.’s troubles on the Munster swim team started at least as early as February
2010. J.H. attended a pre-sectionals party as a Freshman where the team’s members
dyed and cut their hair and then wore it that way before they shaved their heads prior
to the sectional meet. (The head shaving was designed to improve their swimming
times because hair provides drag.) The trouble was that J.H. didn’t want his hair dyed
and cut. Despite his protests, J.H. states that he was physically dragged into the
bathroom and forced to have his hair cut and dyed.
According to J.H., things didn’t get much better after that. His teammates
engaged in various hazing activities against both J.H. and his teammates, most of which
he experienced first-hand on multiple occasions such as: applying Icy Hot to boys
without their consent to create an uncomfortable burning sensation; “five starring”
teammates whereby one boy hits another with an open palm, creating a red “star” on
their bare back; beating teammates with a plastic wiffle ball bat known as the “peace
maker;” forcing younger teammates to carry the lunch trays of older team members;
forcing younger team members to clean the locker room and bus; and forcibly moving
younger team members out of shower stalls when older members wanted to use them;
stealing each other’s swim equipment; and hitting each other with swim fins.
Eventually, all of this got to be too much and J.H. began telling his mother about
the incidents around January 2011. Specifically, he told her about the February 2010
hair-dyeing party. Understandably concerned, Ms. Hunt met with J.H.’s coach, Coach
Pavlovich, on January 21, 2011 to alert the coach to what was happening at those yearly
parties. According to Ms. Hunt, Coach Pavlovich brushed off the incident by saying
“[i]t’s probably best if we don’t do anything about it at this point. It happened a year
ago. A lot of those kids are gone.” (DE 83-1 at 29.) He also told Ms. Hunt that “there
were a lot of traditions already in place when [I] took over this team.” (Id. at 58.)
Not satisfied with this response, Ms. Hunt then met with Athletic Director Smith
on February 3, 2011. They discussed the hair-dyeing parties and Smith asked if J.H. was
planning on attending the next hair-dyeing party. Ms. Hunt responded that he was not.
According to Ms. Hunt, when she referred to what happened at the February 2010 party
as hazing, Smith said, the “boys don’t look at it as hazing. They look [at it] as
initiation.” (DE 83-1 at 45.) Ms. Hunt also asked Smith to get the word out to other
parents and swimmers about what happens at the pre-sectional parties. (Id. at 52.)
When J.H. failed to attend the 2011 hair-dyeing party, his teammates were not happy
and he was verbally threatened for not attending.
Still not feeling like she was getting any traction with school officials, Ms. Hunt
then emailed Coach Pavlovich and Athletic Director Smith with an article about the
dangers of hazing on February 9, 2011. (DE 79-11 at 3.) But just five days later, J.H. was
violently attacked in the boys locker room after practice. According to J.H., some boys
grabbed him, lifted him up, and carried him over to another boy who was holding
electric hair clippers. J.H. resisted and eventually the boys dropped him to the cement
floor, on his back. J.H. was able to run away from the boys before they attacked him
any further. There were no coaches in the locker room at the time of the incident, as
was typical at that time because coaches were rarely in the locker room after practice.
At first, J.H. didn’t tell his mother about the attack. In fact, he didn’t tell her
about it until late in May of 2011. So without knowing about this most recent incident,
Ms. Hunt called Principal Tripenfeldas to report what happened at the pre-sectional
hair-dyeing parties and to request that he made sure that Athletic Director Smith
investigated the February 2010 incident she reported. A couple of days later, Ms. Hunt
met with Superintendent Pfister about hazing in the boys swimming program. When
Ms. Hunt told Mr. Pfister about what happened to J.H. at the February 2010 hair-dyeing
party, his initial response was “[h]ey lady, your kid’s hair got cut” and that the school
would not be getting involved because the incident occurred off campus. (DE 83-1 at
90-91.) Pfister did concede to Ms. Hunt that J.H. may have a valid complaint against the
parents who hosted the party, but concluded that it wasn’t the school’s problem. (Id. at
91.) Pfister did, however, order an investigation, but considered the matter closed once
he learned it occurred off-campus. (DE 83-9 at 46-47.) Both he and Tripenfeldas later
admitted that some measure of discipline could have been taken. (DE 83-9 at 44; DE 838 at 26.)
Aside from the hair-dyeing incident, Tripenfeldas’ investigation didn’t reveal
anything that he considered to be hazing. What Tripenfeldas believes is hazing, and
what J.H. thinks it is, may not be one and the same. Tripenfeldas characterized what he
discovered in the investigation as incidents of “pranks and horse play.”(DE 83-20 at 10.)
And since the hair-dyeing parties occurred off-campus, he and Pfister both considered
the matter closed.
Ms. Hunt next contacted the school on April 18, 2011 to schedule another
meeting with Superintendent Pfister. She did not, however, hear back from the
superintendent until one month later, on May 18, 2011. On May 23, 2011, Ms. Hunt
submitted a formal written complaint regarding hazing in the boys swim team and met
with Superintendent Pfister. That same day, J.H. told his mom that he was being
verbally harassed and pushed around by some swim teammates. J.H.’s mom met with
the dean of students about the issue, and he then interviewed J.H. alone. Although the
dean at first seemed to think there wasn’t an issue to pursue, he later told Ms. Hunt that
the issue had been addressed. (DE 83-1 at 115-116.) That same day, J.H. concluded that
he could no longer attend Munster High School.
Communications between the school officials and Ms. Hunt really broke down
after that point. Once Ms. Hunt learned what had happened to her son in the locker
room in February 2011, she reported the incident to both the police and Principal
Tripenfeldas. She informed Tripenfeldas that she wanted to be present when he
interviewed J.H. Tripenfeldas told her “we don’t have to do that.”(DE 83-1 at 129.)
After she said she thought she had a right to be there and that she had been consulting
an attorney, Tripenfeldas gave her the school attorney’s contact information and ended
the discussion. (Id. at 130.) It doesn’t appear there was much communication between
Ms. Hunt and the school after that. In fact, when J.H. elected not to swim over the
summer, his email address was removed from the team mailing list. J.H. decided not to
return to swimming the following semester.
Athletic Director Smith investigated the February 2011 locker room attack, but
ultimately didn’t find any additional hazing in his interviews with the swimmers. (DE
83-7 at 43.) All he learned was that the pre-sectional parties had been happening for
years at a parent’s home, that swimmers were not required to attend, and that some
boys may have had their hair cut or dyed involuntarily. (Id. at 10-11.) In fact, one
student had later had his eyebrow shaved off involuntarily as retribution for not
attending one of the parties. (Id. at 12.) Ultimately, Smith, Tripenfeldas and Pavlovich
did want to ban the hair-dyeing parties, but decided not to do so after meeting with the
mother of a swimmer who indicated that she and the other swim team parents wanted
the parties to continue. (Id. at 17-18.) Smith did inform that parent that the school did
not approve of the parties and that they preferred the parties not occur. (Id.) The
parties, however, continued. (DE 83-8 at 17.)
All of this had a profound impact on J.H. According to J.H., the hazing he
endured forced him to quit the swim team and graduate early. (DE 83 at 137-38, 169.)
His grades also declined and he suffered psychological effects such as anxiety,
depression, and thoughts of suicide, all requiring treatment. (DE 83 at 139-40, 148, 169.)
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine dispute about a material fact exists only “if the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this
determination, I must construe all facts and draw all reasonable inferences from the
record in the light most favorable to the nonmoving party. Id. at 255. Failure to prove
an essential element of a plaintiff's case necessitates summary judgment in favor of the
defendant because “[i]n such a situation, there can be ‘no genuine issue as to any
material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
“Official Capacity” Claims
As noted above, J.H. has sued the school and the school officials in their official
capacities (in addition to their individual capacities). But a claim against a school official
in his official capacity “is not a suit against the official but rather is a suit against the
official’s office .... As such, it is no different from a suit against the State itself.” Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (citation omitted). Therefore the claims
against Pfister, Tripenfeldas, Smith, and Pavlovich in their official capacities are redundant
of the claims against Munster. I will therefore DISMISS all claims against Pfister,
Tripenfeldas, Smith, and Pavlovich in their official capacities.
Section 1983 Equal Protection Claim
J.H.’s argument on his Equal Protection claim boils down to essentially this: boys
who participate in swimming at Munster High School can expect an entirely different
experience than girls can. The boys program is one where hazing runs rampant; not so in
the girls swim program. To prove his equal protection claim, J.H. must offer evidence that
demonstrates that (1) Munster acted with a discriminatory intent or deliberate indifference
and (2) J.H. is a member of a protected class. Hayden v. Greensburg Community School Corp.,
743 F.3d 569, 577 (7th Cir. 2014); Doe v. Galster, 768 F.3d 611, 622 (2014). The second part
is easy – J.H. claims that he was discriminated against based on the fact that he is a male,
and gender is a protected class under the Equal Protection Clause. Hayden, 743 F.3d at 577.
But the first requirement – that Munster acted with a discriminatory intent or deliberate
indifference – requires more discussion.
Whether a defendant has acted with discriminatory purpose is generally a question
best left for a jury. Locke v. Haessig, 788 F.3d 662, 670-73 (7th Cir. 2015). At the outset, it
should be noted that a school corporation is not generally responsible under Section 1983
for constitutional deprivations inflicted by its employees or agents, as there is no respondeat
superior liability under Section 1983. Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 694 (1978). In other words, Munster generally speaking cannot be found liable for the
acts committed by its coaches, teachers, administrators, etc. But there are three well known
exceptions to this rule: Munster can be found liable under Section 1983 if J.H. can show: “(1)
an express policy that causes a constitutional deprivation when enforced; (2) a widespread
practice that is so permanent and well-settled that it constitutes a custom or practice; or (3)
an allegation that the constitutional injury was caused by a person with final policymaking
authority.” Teesdale v. City of Chicago, 690 F.3d 829, 834 (7th Cir. 2012); see also Antle v.
Portage Township Schools, No. 2:11-cv-60-PRC, 2013 WL 4048543, at *17 (Aug. 9, 2013)
(finding school corporation can be held liable under Section 1983 under this paradigm).
Here, only the latter two options – a widespread practice or constitutional injury caused
by a final policymaker – are at issue as there is no allegation that Munster had an express
(e.g. written) policy of ignoring hazing.
J.H.’s argument is essentially that the Defendants were willfully turning a blind eye
to all of the awful things going on in the male swimming program because “boys will be
boys.” Such a policy of non-response – that is, “a deliberate refusal to respond to
complaints of harassment” – is actionable under the Equal Protection Clause. Bohen v. City
of East Chicago, IN, 799 F.2d 1180, 1190 (7th Cir. 1986) (Posner, J. concurring, citing Hunter
v. Allis-Chambers Corp., 797 F.2d 1417, 1421-1422 (7th Cir. 1986)). In essence, it’s not
necessary to show that Munster had a policy of forcing the boys to do or not do something
that didn’t apply to the girls. Instead, indifference to the boys’ welfare is enough. Id. at
In pursuing this theory, J.H. must show a connection between Munster’s alleged
custom or practice and his injury. Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 670
(2012). So what all this boils down to is that J.H. must show that Munster engaged in a
widespread practice of ignoring complaints of hazing from the boys’ swimming program,
either intentionally or with deliberate indifference to the boys’ rights, simply because the
complaints were coming from boys and not girls. See e.g. Hayden, 743 F.3d at 583
(intentional discrimination can be shown by either deliberate indifference or a
discriminatory school policy). J.H. can show this based on evidence of his own treatment,
in addition to the treatment of others on his team. Bohen, 799 F.2d at 1187 (Maj. opinion).
This case bears a striking resemblance Hayden where a public high school had
various policies governing the appearance of its student athletes. 743 F.3d at 572.
Although a written policy proscribed various restrictions on both males and females
regarding how they could wear their hair, an unwritten (but enforced) policy set forth by
the boys’ basketball coach placed additional restrictions on his team members. Id. Namely,
his players could not wear long hair and the plaintiff, who wore his hair long, was not
allowed to play on the team until he cut his hair. Id. The court found that the policy led
to the disparate treatment of males versus females insofar as the males were “subject to a
burden that a girl in the same position is not” and that was enough to make out a prima
facie case of discrimination under the Equal Protection Clause. Id. at 580. As the court
The hair-length policy applies only to male athletes, and there is no facially
apparent reason why that should be so. Girls playing interscholastic
basketball have the same needs as boys do to keep their hair out of their eyes,
to subordinate individuality to team unity, and to project a positive image.
Why, then, must only members of the boys team wear their hair short?
Given the obvious disparity, the policy itself gives rise to an inference of
Which brings us back to J.H.’s situation. Here, I must determine whether J.H. has
presented sufficient evidence for the jury to infer that Munster had a policy of ignoring
hazing on the boy’s team such that it ended up with a boys team that was infested with
hazing and a girls team that apparently had none. Admittedly, the situation in J.H.’s case
is a little more nuanced than that of Hayden. Here, there is no express policy of allowing
hazing to occur in one program and not the other. But J.H. has presented evidence that
would allow a jury to infer such an unspoken policy exists. In support of his theory, J.H.
has presented a laundry list of ways that the officials at the school ignored hazing in the
Coaches saw and either ignored or minimized incidents of hazing on the pool deck
(See e.g. DE 83 at 36, 86, 187.)
Coaches were not present in the locker rooms either before or after practices, even
after J.H.’s mother notified school officials about her concerns regarding hazing in
the boys program, including notifying: (1) Coach Pavlovich on January 31, 2011 and
February 9, 2011; (2) Athletic Director Michael Smith on February 3 and 9, 2011 (in
fact, the attempt to shave J.H.’s head in the locker room occurred just a short time
after on February 16, 2011); (3) Principal Tripenfeldas on March 7 or 8, 2011; and (4)
Superintendent Pfister on March 9, 2011 and May 23, 2011 (her formal complaint).
In fact, coaches were not regularly in the locker room until the following school
year. (See e.g. DE 83-2 at 21-22.)
Coaches did not even mention any concerns regarding hazing to the swim team
members until June of 2011, nearly six months after J.H.’s mother first raised her
concerns and four-plus months after J.H. was attacked in the locker room. (See e.g.
DE 83-11 at 27; DE 83 at 183-84; DE 83-2 at 40-42.)
When school officials were informed about concerns of hazing, they minimized the
acts as “pranks and horse play” (DE 83-20 at 10), or even worse, “initiation” (DE 831 at 45) and “tradition” (Id. at 58).
When viewed in the light most favorable to J.H., the non-moving party, a reasonable jury
could conclude that Munster didn’t really care whether their male swimmers were being
Munster argues that there isn’t enough evidence to even infer such a policy exists
because there simply isn’t enough information about what’s going on in the girls team to
conclude there is any disparate treatment at play. But it is difficult to prove a negative. J.H.
relies on basically one theory to support his claim that there is no hazing in the girls
program: that because school officials were (and still are) unaware of any complaints of
hazing in the girl’s program, it must not be happening. In support, J.H. points to the
depositions of Superintendent Pfister, Principal Trippenfeldas, and Athletic Director Smith
all stating that they have received no complaints of hazing in the girls program. (DE 83-9
at 52; DE 83-8 at 23; DE 83-7 at 31.) Munster also represented in its response to J.H.’s
admission requests that “[i]nquiries were made which included whether there were any
complaints made by a student, parent or third party as to any ‘hazing’ with respect to a
member of the girls swim team” and that “the Defendants are unaware of whether any
members of the girls swim team were subjected to ‘hazing’ due to the lack of any complaint
from a student, parents or any other third party.” (DE 83-19 at 4.)
I think this is enough for the jury to at least infer that there was no hazing in the
girl’s program. At a minimum, this creates a material fact question that precludes my
granting summary judgment for the defendants. Although the evidence is admittedly far
from overwhelming, the evidence was similarly thin in Hayden regarding whether the
girl’s basketball team had a similar hair-length policy to the boys’ policy. There, the only
evidence regarding the girl’s team was that the parties had stipulated to the fact that both
teams were subject to grooming policies, but there were no details provided as to what
those policies were and whether they were comparable. Hayden, 743 F.3d at 580. All that
was known was that the girls team did not have a hair-length policy. Even so, the court
found that “absent any evidence as to the content of the grooming standards that are
applicable to female athletes, we are not prepared to simply assume that an otherwise
facially-discriminatory rule is justified.” Id. And I should note that because that dispute
was submitted to the court on stipulated facts for final judgment, the court actually found
that evidence was sufficient to render judgment in the plaintiff’s favor. Id. Certainly similar
evidence is sufficient to simply allow the question to get to the jury.
Further, requiring more definitive proof, as Defendants would have me do, would
misapprehend the level of proof required at this stage. At this point, J.H. doesn’t have to
prove definitively that there was no hazing in the girl’s program, just as the plaintiff in
Hayden didn’t have to show exactly which grooming policies applied to the girls program.
It was enough that it appeared that the hair-length policy didn’t apply to the girls and that
there was no evidence to the contrary. Hayden, 743 F.3d at 582. Here too, there is enough
evidence for a reasonable jury to infer that Munster maintained a hazing-infested swim
team for boys and not for girls because there was a widespread practice at Munster of
ignoring hazing on the boys team. Munster can, and I’m sure will, present evidence aimed
at rebutting that presumption at trial. And at that point, it’ll be up to the jury to decide
what to do with it.
Aside from the Monell claim against Munster, J.H. has also provided enough
evidence to allow a reasonable jury to conclude that the individual defendants named were
deliberately indifferent to the hazing on the boys team. Showing a conscious failure of the
defendants to protect J.H. from the abuse he endured is enough to establish deliberate
indifference for an equal protection claim. Bohen, 799 F.2d at 1187; see also id. at 1190 (J.
Posner concurring (“a deliberate refusal to respond to complaints of harassment” is
actionable under the Equal Protection Clause.). J.H. has set forth sufficient evidence to
support his claim. There’s no need to go through every bit of evidence at this point, and
much of this evidence is the same as that already discussed directly above, but it’s worth
laying out some of the more salient points as they specifically relate to each defendant
Coach Pavlovich: Lack of supervision on both the pool deck and in the locker
rooms despite his knowledge that he was expected to supervise those areas (see e.g.
DE 83-2 at 21-22; DE 83-10 at 23-24); failure to even raise the issue of hazing at all
with his swimmers until nearly six months after he was notified of the issue (see e.g.
DE 83-11 at 13; DE 83 at 183-84; DE 83-2 at 40-42.); knowledge of the head-shaving
parties prior to January 2011 and reference to them as “tradition” (DE-83-1 at 58);
knowledge that J.H.’s hair was dyed and shaved involuntarily (DE 83-10 at 15, 35);
brushing off the February 2010 head-shaving incident once he learned of it in
January 2011 by saying “[i]t’s probably best if we don’t do anything about it at this
point. It happened a year ago. A lot of those kids are gone.” (DE 83-1 at 29); failure
to discipline misuse of Icy Hot (DE 83 at 37); failure to investigate the February 2010
head-shaving incident and lack of knowledge as to whether Munster did so (DE 8310 at 18); accusing J.H. of being “irresponsible” when J.H. reported having his
equipment stolen, even though his equipment being stolen was a part of the hazing
he was enduring (DE 83 at 23-24); knowledge that he could discipline swimmers for
off-campus behavior (DE 83-10 at 43-44).
Athletic Director Smith: Referring to the hazing incidents reported to him as
“initiation” (DE 83-1 at 45); knowledge of the hair-dyeing parties by at least late
January or early February 2011 (DE 83-1 at 52) and of the fact that J.H.’s hair had
been dyed and cut against his will (DE 83-1 at 49); knowledge that someone had
their eyebrow shaved against his will by at least June 2011 (DE 83-7 at 12); failure
to prohibit hair-dyeing parties despite initial discussion about banning them after
learning that some kids have their hair dyed and cut against their will (DE 83-7 at
24-25); failure to uncover any additional hazing in his own investigation of the boys
swimmers after the report of the February 2011 locker room assault on J.H. (DE 83-7
at 43); belief that the February 2011 assault on J.H. was hazing (Id.); knowledge that
the school could discipline swimmers for certain off-campus behavior (DE 83-7 at
21); failure to discipline coaches for not supervising the locker room, despite that
Smith had the authority to do so (DE 83-10 at 23-24; DE 83-7 at 6-7).
Principal Tripenfeldas: Minimization of hazing activity as“pranks and horse play”
in the official report of his investigation into the allegations contained in J.H.’s
formal report (DE 83-20 at 10); failure to prohibit hair-dyeing parties despite his
desire to do so after learning what happened to J.H. at the February 2010 party (DE
83-8 at 17-19); knowledge that the school could discipline some off-campus activity
if it impacted the educational environment of the entire school (Id. at 26); belief that
the February 2011 locker room assault and the practice of swimmers carrying other
swimmer’s trays was hazing (Id. at 29); failure to discipline the swim coaches for not
appropriately supervising the locker room or pool deck (DE 83-10 at 53-54; DE 83-8
at 12, 27-28).
Superintendent Pfister: After learning what happened to J.H. at the February 2010
hair-dyeing party, he ordered an investigation, but considered the matter closed
once he learned it occurred off-campus, despite that some measure of discipline
could have been taken (DE 83-9 at 44, 46-47, DE 83-8 at 26); when Ms. Hunt told
Pfister about what happened to J.H. at the February 2010 hair-dyeing party, his
initial response wasn’t exactly sympathetic: “[h]ey lady, your kids’s hair got cut”
and that the school would not be getting involved because the incident occurred off
campus (DE 83-1 at 90-91); when Ms. Hunt contacted Pfister’s office about a month
later to discuss a “very serious matter” relating to J.H., Pfister delayed meeting with
her for a month (DE 83-1 at 98-99).
Of course most of what is above is disputed by Defendants. But that’s the point –
I can’t grant summary judgment to Defendants where there are questions as to material
facts like the ones above, because if these facts are as J.H. presents them, this is enough to
support his claims. What does not appear to be disputed, however, is that each of these
individuals had final policymaking authority. (See DE 77, 86.) Indeed, as outlined above
and in J.H.’s briefing, each of the defendants had the power to discipline the swimmers for
their behavior, to discipline those employees they supervised, and to set the rules for the
swim team. But even if defendants do dispute this point (although it’s not argued in the
briefing), that just creates another fact question and another reason to deny their summary
judgment motion. Whether their individual actions will be enough to past muster under
a theory of constitutional deprivation at the hands of a final policymaker will be something
for the jury to decide.
The individual school official defendants, however, argue that regardless of whether
the facts above are true, they should be shielded by qualified immunity which protects
government officials from liability for performing discretionary functions so long as “their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Nabozny v. Podlesny, 92 F.3d 446, 455 (7th Cir.
But the Seventh Circuit rejected the same argument under very similar
circumstances in Nabozny. There, a high school student brought a claim against school
officials in their individual capacities for a failure to protect him from harassment he
endured based on his sex. Id. In evaluating whether the officials could be protected by
qualified immunity, the court focused on two primary questions: (1) whether the law
clearly established that the Equal Protection Clause required school officials to give equal
protection to males and females; and (2) whether that law was clearly established in 1988
(when the plaintiff’s issues first started). Id. at 455-56. The court found the answer to both
questions was clearly yes, and therefore the officials’ claims of immunity failed. Id. at 456.
Here, too, the law was clearly established by 2009 or 2010, when J.H.’s issues started, that
school officials were required to provide equal protection to males and females. A failure
to comply with that law negates qualified immunity.
Gender Discrimination Under Title IX
The same material fact questions above also prevent me from granting summary
judgment to Defendants on J.H.’s Title IX claims. Section 901(a) of Title IX states 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). No one disputes
that Munster is subject to Title IX’s prohibition on sex discrimination. It is also undisputed
that individuals may bring private suits for equitable relief and damages when a school
violates Title IX. Hayden, 743 F.3d at 583.
While the standards for proving discrimination under Title IX and the Equal
Protection clause “may not be wholly congruent,” here the proof required overlaps
significantly. Levin v. Madigan, 692 F.3d 607, 614 (7th Cir. 2012) (finding that to prove
discrimination under Title IX, a plaintiff must show that a school administrator acted with
deliberate indifference, whereas an equal protection claim requires proving a custom or
practice was at play). In the typical Title IX discrimination case where students are
harassing each other or where a teacher harasses a student, a plaintiff must show (1)
discriminatory harassment of which the school has (2) actual knowledge and yet (3) treats
with deliberate indifference, and (4) the harassment must be severe and objectively
offensive enough that it deprives the plaintiff of access to educational opportunities. Doe
v. Galster, 768 F.3d 611, 614 (7th Cir. 2014). But in Hayden, the Seventh Circuit found that
paradigm doesn’t necessarily apply when the discrimination is, as here, a school policy.
Hayden, 743 F.3d at 583 (attributing an intent to discriminate under Title IX to the school
district where “[t]he discrimination at issue here takes the form of a school policy.”).
Instead, the policy alone suffices to establish an intent to discriminate. Id. The court did
not, however, address whether a plaintiff still needs to demonstrate that the harassment
is severe and pervasive enough to deprive the plaintiff of educational opportunities, or
whether the “intent” is enough to show actual knowledge and/or deliberate indifference.
Here, I think J.H. has also shown those elements, so his claim can proceed under either
Again, J.H.’s argument is that Munster engaged in a practice or custom of deliberate
indifference such that the school purposefully ignored complaints of hazing in the boys
program based on gender. Thus, the same evidence supporting that the custom or practice
exists, identified at length above, also supports deliberate indifference since the custom or
practice was deliberate indifference. And since the basis of the claim is the school’s own
policy, they obviously had actual knowledge of it (and in any event, as the evidence above
shows, they had actual knowledge of the specific acts of hazing by at least the winter and
spring of 2011).
So the only thing left not previously addressed is whether the actions were severe
and pervasive enough to deprive J.H. of educational opportunities. To prove this element,
J.H. must present evidence showing discrimination “so severe, pervasive, and objectively
offensive, and that so undermines and detracts from the victims’ educational experience,
that the victim-students are effectively denied access to an institution’s resources and
opportunities.” Davis, 526 U.S. at 651. Here, too, I find J.H. has presented enough
evidence. J.H. has presented evidence that because of Defendant’s inaction regarding
hazing on the boy’s swim team, he was forced to quit the swim team and graduate early,
and that his grades declined. (DE 83 at 137-38, 148, 169). He also suffered psychological
effects such as anxiety, depression, and suicidal thoughts, all requiring treatment. (DE 83
at 139-140.) Evidence of this nature is generally found to be enough for showing
sufficiently pervasive and severe discrimination. See Gabrielle v. Park Forest-Chicago Heights
Ill. School Dist., 315 F.3d 817, 823 (7th Cir. 2003) (examples of negative impact on education
includes dropping grades and absenteeism; J. Rovner in dissent finding psychological
impact alone can be enough); Zeno v. Pine Plains Central School, 702 F.3d 655, 667 (5th Cir.
2012) (finding leaving a school program early is sufficient evidence of negative impact).
One key difference between an equal protection and Title IX claim is that unlike an
equal protection claim brought under Section 1983, Title IX authorizes suits against
institutions and programs only and does not authorize suits against school officials,
teachers, or other individuals. Levin, 692 F.3d at 614. A plaintiff can, however, use
evidence that “a single school administrator with authority to take corrective action
responded to harassment with deliberate indifference” to establish liability under Title IX,
whereas such a showing would be insufficient under the Equal Protection Clause without
the additional showing of a widespread custom or practice. Fitzgerald v. Barnstable School
Committee, 555 U.S. 246, 257 (2009). So basically, J.H. can’t bring a Title IX claim against
the school administrators, but can use evidence of what those administrators did (or, in this
case, didn’t do) to support his claim against the school itself. Thus, I will DISMISS J.H.’s
Title IX claim against the individual school officials (Pfister, Tripenfeldas, Smith, and
Pavlovich). But his Title IX claim based on the inequality between the girl’s and boy’s
swimming programs will proceed against Defendant Munster.
Gender Stereotyping, “Sex-Plus,” and Class Year Claims
J.H. also argues that Defendants have discriminated against him based on gender
stereotypes and his class year under both the Equal Protection Clause and Title IX. The
same standards discussed at length above also apply here: for his Equal Protection Claim
against Munster, he must show a custom or practice of discrimination based on gender
stereotypes and/or class year; for the same claim against the school officials, he must show
that they discriminated against him based on those same classifications; and under Title
IX, he must show gender stereotyping-based discrimination that a school official has actual
notice of and fails to act on (note that age is not protected under Title IX). Teesdale, 690 F.3d
at 834; Hayden, 743 F.3d at 583.
J.H. argues that he was selected for hazing based on the following reasons: (1) he
didn’t conform to certain gender stereotypes (i.e. he wasn’t “manly” enough); (2) his class
year (i.e. freshmen were hazed; seniors were not); and/or (3) a combination of the two
known as “sex-plus” whereby gender and class year both contributed to why he was
selected. For his equal protection claims, all three fail because J.H. presents no evidence
that the school or its officials engaged in either a custom/practice or with deliberate
indifference towards him because he didn’t conform with certain gender stereotypes or his
class year. It may well be true that he was selected by his fellow students for hazing based
on these criteria (although, based on the very thin evidence present, I’m dubious), but to
prove his claim, he needs to show some action or inaction on the part of the school and/or
its officials based on these criteria. And although I have found that J.H. has presented
sufficient evidence that the school and its officials have discriminated against J.H. because
of the fact that he is a boy and not a girl, J.H. hasn’t presented any evidence that he was
discriminated against because he was less of a stereotypical boy or that he was young. At
bottom, the scant evidence he does present (e.g. being called a “cunt,” “a pussy,” or a
“bitch” in the hallways by other students or the fact that underclassmen had to do certain
things for upperclassmen) all goes to the actions of his fellow students, not school officials.
His Title IX claims based on these criteria fail for similar reasons. First, J.H. can’t
bring an age claim under Title IX as Title IX protects only gender-based discrimination. 20
U.S.C. § 1681(a).
Regarding his gender stereotyping claim, although peer-on-peer
harassment can suffice to support such a claim if J.H. can show that school officials had
actual knowledge of the harassments and yet acted deliberately indifferently (Hayden, 743
F.3d at 583), J.H. hasn’t presented enough evidence that he was selected for hazing because
he didn’t conform to the gender stereotypes of a boy. The only evidence J.H. cites in
support of his claim is that some fellow students called him a “cunt,” “pussy,” or “bitch”
in the hallways. Although this is far from acceptable behavior, this type of behavior
without more has been found insufficient to support a Title IX claim. Davis v. Monroe Cty.
Bd. of Ed., 526 U.S. 629. 651-51 (1999) (“in the school setting, students often engage in
insults, banter, teasing, shoving, pushing, and gender specific conduct that is upsetting to
the students subjected to it. Damages are not available for simple acts of teasing and namecalling among school children, however, even where these comments target differences in
gender”); Doe v. Galster, 768 F.3d 611 (7th Cir. 2014) (finding that although use of the terms
“bitch” and “whore” in the employment context can be sufficient to show gender-based
discrimination, “the issue is more subtle in the school context” because kids are still
learning how to interact appropriately with one another; but declining to decide whether
it was sufficient in that case because the claim failed for other reasons); Sanchez v.
Carrollton-Farmers Branch Independent School District, 647 F.3d 156, 166 (5th Cir. 2011)
(rejecting Title IX student-on-student harassment claim where alleged conduct was only
name calling). Without more, J.H.’s claim cannot proceed. I will therefore DISMISS J.H.’s
Equal Protection Clause and Title IX claims based on gender stereotyping and class year.
J.H. argues that Defendants have retaliated against him in contravention of both
Title IX and the First Amendment for his whistleblowing of the hazing in the boys
swimming program. To prove his claim under Title IX, J.H. must show Defendants
engaged in “[i]ntimidatory or retaliatory acts.” Jackson v. Birmingham Bd. of Ed., 544 U.S.
167, 173 (2005). Under the First Amendment, J.H. must show that Defendants’ actions
were sufficient to deter free speech. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.2012),
cert. denied,––– U.S. ––––, 133 S.Ct. 489, 184 L.Ed.2d 298 (2012). In other words, he must
show that “but for his protected speech, [Defendants] would not have taken the adverse
action.” Id. at 965. At the summary judgment stage, this translates into the following
paradigm: J.H. must first present evidence that his speech was at least a motivating factor
of Munster’s actions and then Munster must rebut the inference created by that evidence.
The only evidence J.H. brings forth is (1) his removal from the team email list after
he chose not to swim over the summer; (2) his selection for random drug testing; (3) the
refusal to protect him after reporting the hazing; and (4) Coach Pavlovich ignoring him in
the hallway once.1 To establish that any of these were motivated by his whistleblowing,
J.H. addresses a few more pieces of evidence in a footnote of his brief without much
elaboration, probably because they are not very strong. For example, J.H. states that the hair
cutting “ritual” on the swim team was listed as a “proud tradition” in the MHS year book, he
wasn’t selected as a scholar athlete on the tennis team, and Coach Pavlovich referenced the hair
cutting parties favorably in some remarks at the team banquet. These allegations are all pretty
vague – most of which don’t even identify who was allegedly at fault – and some don’t even
appear to pertain to the swim team at all. In any event, J.H. claims that all of these fall under the
“suspicious timing” camp, and I find that they do not constitute the rare situation under which
suspicious timing alone can carry the day.
J.H. can present either direct or circumstantial evidence. Kidwell, 679 F.3d at 965. The
evidence outlined above all appears to be circumstantial as the jury would have to make
an inference to get to the final result of retaliation. Id. “Circumstantial evidence may
include suspicious timing, ambiguous oral or written statements, or behavior towards or
comments directed at other employees in the protected group.” Id. at 966 (internal
quotation marks omitted). J.H. appears to rely primarily on (1) suspicious timing and (2)
behavior towards him.
J.H.’s claims regarding his removal from the email list and his selection for random
drug testing fall under the “suspicious timing” camp, which “will rarely be sufficient in
and of itself to create a triable issue.” Id. Here, I find it hasn’t. Defendants have rebutted
any inference of retaliation by showing that J.H. was removed from the email list because
he elected not to swim during the summer session. (DE 83 at 136; DE 79-9 at 7.) They have
also presented evidence that they have nothing to do with the drug-testing procedure and
who is selected for drug testing – that is all done by an independent company. (DE 79-24
Regarding his claims about the school’s failure to protect him after he reported the
hazing, it is a stretch. It may very well be that Defendants engaged in impermissible
discrimination or breached a duty to J.H. by failing to protect him, but I see no evidence
that this was actually done in retaliation of his reporting.
J.H.’s argument on his
discrimination and negligence claims is that the coaches failed to supervise the locker room
throughout 2009 and 2011, and in the absence of coaches being present, he was attacked.
It’s not as if the coaches used to police the locker rooms and then stepped out once J.H.
reported the swim team hazing. Instead, the coaches did whatever they had previously
done – for better or for worse. And as for Coach Pavlovich ignoring J.H. in the hallway on
one occasion, that hardly strikes me as enough to support a claim for very serious
misconduct on the part of a school official.
At bottom, I recognize that J.H.’s high school experience was an incredibly difficult
one due to what he faced on the swim team and I agree with him that he has presented
enough evidence to allow a reasonable jury to infer that he was unfairly discriminated
against and that Defendants failed in their duty to protect him. But to also find that
Defendants not only failed in these regards, but actually retaliated against J.H. due to his
reporting stretches the evidence beyond its breaking point. I will therefore DISMISS J.H.’s
Indiana State Law Negligence Claim
To prove his negligence claim under Indiana state law, J.H. must show that (1)
Defendants owed him a duty; (2) Defendants breached that duty; and (3) J.H. suffered
injury proximately caused by Defendants’ breach of that duty. M.S.D. of Martinsville v.
Jackson, 9 N.E.3d 230, 243 (Ind. Ct. App. 2014). Indiana courts further impose a “special
duty” on schools to “exercise the level of care an ordinary, prudent person would exercise
under the same or similar circumstances.” Id. A school has a “duty to protect its student
from criminal attack and breached that duty where the attacker had a propensity towards
violence, the school system or school personnel was aware of this propensity; and school
personnel’s failure to provide adequate supervision allowed the attacker the opportunity
to assault the student, proximately causing his injuries.” Id. These questions are generally
best resolved by a jury. Mangold v. Ind. Dept. of Nat. Res., 756 N.E.2d 970, 975 (Ind. 2001).
Here, J.H. has alleged his fellow students committed various acts against him on
school property that amount to an assault. He was routinely hit during practice (otherwise
known as “five-starring”) (DE 83 at 39); hit with a plastic wiffle ball bat (id. at 78-80); and
was once violently attacked in the locker room in an attempt to cut his hair without his
consent (id. at 104-106). According to the evidence J.H. presents, Defendants had notice of
these or similar acts prior to some of them occurring. The most salient example is the fact
that by January 2011, Defendants had notice that J.H. had been assaulted at an off-campus
pre-sectional swim team party in 2010 where his hair was cut against his will, and then just
one month after they received notice, in February 2011, he was assaulted in another attempt
to cut his hair prior to sectionals in the boys locker room. All of this occurred in the
absence of supervision. Under M.S.D. of Martinsville, that’s enough evidence for a jury to
decide whether Defendants were negligent.
Further, neither Munster nor the individual school officials are protected under the
Indiana Tort Claims Act. That statute requires that any claims against a governmental
employee personally must allege that the employee acted in a way that is “(1) criminal; (2)
clearly outside the scope of the employee’s employment; (3) malicious; (4) willful and
wanton; or (5) calculated to benefit the employee personally.” Indiana Code § 34-13-3-5(c).
J.H. has alleged that Defendants’ actions were “intentional and in reckless disregard of a
school’s obligation to its students.” (DE 15 at 7.) In other words, their actions were willful
and wanton. S.C. Nestel, Inc. v. Future Const., Inc., 836 N.E.2d 445, 451 (Ind. Ct. App. 2005).
And although the ITCA grants immunity to governmental entities for their “performance
of a discretionary function” (I.C. 34-13-3-3), Munster is not immune as the issues presented
here are “not the type of policy-making that [Indiana’s] supreme court has since
determined should be exempt from liability under the planning/operation test.” M.S.D.
of Martinsville, 9 N.E.3d at 242 (denying immunity to school district for negligence claims
brought by students regarding a school shooting). In other words, the ITCA isn’t geared
towards protecting policies and practices aimed at harming students.
Motions to Strike
Defendants request that I strike Appendix I of J.H.’s summary judgment response
brief for failure to comply with our local rules. I decline to do so. First, I have discretion
as to whether to enforce our local rules. Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011).
Second, I don’t really think J.H. flouted the local rules here. Although Munster claims that
Appendix I contains improper conclusory statements and arguments that are
undesignated, Appendix I is really just redundant of Appendices II and III, which both
include all proper citations. Appendix I was intended to be helpful, and in some ways, it
was. But make no mistake – I don’t rely on evidence without confirming its precise
designation in the record. Because I’m able to parse out what to rely on and what to ignore,
I don’t see any reason to strike J.H.’s filing. As the detailed citations in this order should
show, I have relied on the record itself and not the parties’ characterizations of the record
in making my decision. Defendants’ motion (DE 88) is therefore DENIED.
For the forgoing reasons, Defendants’ motion for summary judgment (DE 73) will
be GRANTED-IN-PART and DENIED-IN-PART. All claims against the school officials
(Defendants Pfister, Tripendfeldas, Smith, and Pavlovich) in their official capacities are
dismissed. J.H.’s discrimination claims based on gender stereotyping and class year under
Section 1983 and Title IX are also dismissed, as is his claim for retaliation. J.H. may
proceed, however, on his claims of gender discrimination under the Equal Protection
Clause of the Fourteenth Amendment (via Section 1983) and Title IX, along with his state
law negligence claim. The Section 1983 claim will proceed against Munster and the school
officials (Defendants Pfister, Tripendfeldas, Smith, and Pavlovich) in their individual
capacities, and the Title IX claim will proceed only against Munster (that claim is dismissed
against the individual school officials).
Further, the Defendants’ Motion to Strike J.H.’s Appendix I (DE 88) is DENIED.
ENTERED: February 3, 2016
s/Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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