D.V. et al v. PENNSAUKEN SCHOOL DISTRICT et al

Filing 214

OPINION FILED. Signed by Magistrate Judge Joel Schneider on 3/29/17. (js)

[Doc. No. 193]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

D.V., by and through his
Guardian B.V., et al.,
Plaintiffs,

Civil No. 12-7646 (JS)

V.
PENNSAUKEN SCHOOL DISTRICT, et
al.,
Defendants.
OPINION
This Opinion addresses whether plaintiffs present a viable
cause of action that they were retaliated against because of
their

educational

whether

D.V.’s

advocacy
claim

for

on

behalf

sexual

of

D.V.,

orientation

a

minor,

and

bullying

is

actionable. The answer to both these questions is no. Summary
judgment will therefore be entered in favor of defendants. 1
Background
The Court will start this Opinion by providing a summary of
the

background

plaintiffs

will

facts.

As

be

given

required
the

1

in

benefit

the
of

present
all

context,

reasonable

This matter is before the Court on the Motion for Summary
Judgment
filed
by
defendants
Pennsauken
School
District
(“District”) and Ms. Marty DeLape (“DeLape”) [Doc. No. 193]. The
Court received plaintiffs’ response [Doc. No. 199], the moving
defendants’ reply [Doc. No. 205], and recently held oral
argument.
1

inferences from the facts of record and the evidence will be
viewed in the light most favorable to plaintiffs.
Plaintiffs filed their complaint on December 13, 2012. On
August 7, 2013, the Honorable Joseph E. Irenas (S.U.S.D.J.),
granted

in

part

and

denied

in

part

defendants’

motion

to

dismiss. [Doc. Nos. 23, 24]. Plaintiffs’ amended complaint was
filed on September 21, 2013. [Doc. No. 33]. The named plaintiffs
in the complaint are D.V., by and through his Guardian, B.V.,
B.V. individually, and T.V. 2 D.V. is presently a 16 year old male
with a learning disability and autism. At the relevant time of
the events giving rise to this lawsuit D.V. was approximately 9
years old. D.V. lives with his paternal grandmother and legal
guardian, B.V., and his grandfather. T.V. is D.V.’s uncle and is
gay. At all relevant times T.V. acted as an educational advocate
for D.V. with the District. The claims in the case arise out of
plaintiffs’ educational advocacy and alleged sexual orientation
bullying of T.V.
At the relevant time giving rise to the claims in this
lawsuit D.V. lived within the boundary of the District. Also at
the relevant time defendant Ms. Marty DeLape (“DeLape”) was the
District’s Director of Special Education, defendant Chris Lavell
(“Lavell”) was D.V.’s case manager, and defendant Holly Taylor

2

On May 6, 2016 [Doc. No. 183], the Court granted plaintiffs’
counsel’s motion to withdraw as to T.V. and severed and stayed
T.V.’s claims from those of B.V. and D.V.
2

(“Taylor”) was a District social worker. Lavelle and Taylor were
members of D.V.’s child study team (“CST”). 3
Although D.V. attended District programs for all or part of
the 2010-11 and 2011-12 school years, B.V. and T.V. were not
satisfied

with

the

services

provided.

B.V.,

T.V.

and

D.V.’s

grandfather met with the District’s CST at what turned out to be
a key August 18, 2011 meeting. The purpose of the meeting was to
address D.V.’s Individualized Education Plan (“IEP”). C. Lavell
Dep.

at

32.

discussed

Apart

was

acknowledged

from

D.V.’s

that

D.V.’s

IEP,
and

hygiene

D.V.

did

however,
body

not

have

another

odor.

adequate

issue

Plaintiffs

self-grooming

habits and did not know if he was ungroomed, unclean, or had
body odor. However, B.V. and T.V. explained they tried to help
D.V. with his grooming habits without success. At the meeting
T.V. told the attendees he had gotten into the shower three
times

with

mentioned

D.V.
there

and

showed

was

an

him

how

incident

to

with

wash.
D.V.

It

was

where

he

also
was

approached by men in a truck who asked D.V. to ask people if
they wanted their lawns cut. 4
The
Lavelle

day

after

called

the

the

August

New

Jersey

18,

2011

Division

3

meeting
of

Youth

Taylor
and

and

Family

Lavelle and Taylor’s motion for summary judgment [Doc. Nos.
191, 194] are being addressed in a separate Order. Their motion
will be granted for the same reasons expressed herein.
4 The Court agrees with plaintiffs that the truck incident is
irrelevant to defendants’ motion.
3

Services

(“DYFS”).

Although

not

completely

clear

what

exact

words were used, it was mentioned during the call that T.V.
relayed at the IEP meeting that he went into the shower with
D.V.

Again,

giving

plaintiffs

the

benefit

of

all

reasonable

inferences from the evidence, Lavelle mentioned T.V. was gay.
(or words to this effect) and lived with his partner. J. Owen
Dep. 12:2-9; 19:1-15; 30:23-31:10; 36:2-8; C. Lavell Dep. 76:716; H. Taylor Dep. 93:4-22. After initially being told by the
DYFS

phone

screener

that

DYFS

would

take

no

further

action

because what was relayed did not constitute abuse, Taylor and
Lavelle called DYFS back and told DYFS the CST was unhappy with
the decision not to take further action. After the second phone
call DYFS changed its position and decided to investigate the
matter. 5

Thereafter,

whether

D.V.

was

DYFS’s

investigation

DYFS

subject

visited
to

D.V.’s

home

inappropriate

concluded

that

to

investigate

touching

nothing

by

T.V.

untoward

had

occurred.
Turning to the second main focus of plaintiffs’ claims, the
bullying directed to D.V., there is a fairly good “paper trail”
5

Taylor and Lavelle testified they did not make a second call to
DYFS. However, this is inconsistent with DYFS’s records. As
noted, all reasonable inferences from the evidence will be drawn
in plaintiffs’ favor and the evidence will be viewed in the
light most favorable to plaintiffs. Further, since Lavell wrote
to her union on September 6, 2012 that “three people
participated in the phone call to DYFS,” a fact question exists
as to whether DeLape was on the first and/or second call to
DYFS. See Plaintiffs’ Response to Defendants’ Statement of Facts
(“Plaintiffs’ Response”) at &19.
4

regarding

plaintiffs’

complaints

to

the

District

about

D.V’s

bullying and the District’s responses. The relevant events took
place from January to May, 2012. Starting on or about January
20, 2012, plaintiffs complained that D.V. was bullied at school.
T.V.

Dep.

Exh.

18.

The

same

day

D.V.’s

principal,

Dr.

Anne

Morris (“Morris”), wrote back to T.V. and indicated she would
investigate the complaint. Id. Exh. 19; T.V. Dep. 240:24. T.V.
wrote to Dr. Morris on January 27, 2012 to thank her for meeting
with T.V. so promptly about his letter. T.V. Dep. 242:16 to
242:22.

Thereafter,

bullying

was

plaintiffs’

additional

exchanged
counsel,

between

Amelia

correspondence
and

amongst

Carolla,

concerning

T.V.,

Esquire,

Morris,

and

T.V.’s

psychiatrist, Dr. Bruce Banford.
Plaintiffs made four general bullying complaints, only one
of which related to D.V.’s sexual orientation. 6 First, plaintiffs
complained D.V. was bullied by his classmate(s). The District’s
prompt investigation could not corroborate the claim and also
determined

that

T.V.

was

friends

with

at

least

one

of

the

alleged bullies (A.N.). In connection with this investigation
the District performed a timely Harassment/Intimidation/Bullying
(“HIB”) investigation and assessment that concluded there was no
indication
principal

of
or

HIB

behavior

students

from

interviewed.

6

D.V.’s
T.V.

teachers,
Exh.

23;

assistant
Defendants’

D.V. does not identify as being gay. Dep. of D.V. 41:20 to
42:1.
5

Exhs. G, H. 7 Plaintiffs’ Response at &40. Second, plaintiffs
complained about a balance due in the cafeteria. However, it
turned out there came to be a zero balance.

T.V. Dep. Exh. 26.

Further, even though D.V. testified that on occasion he gave
away

lunch

money,

D.V.

never

missed

a

school

lunch

when

he

wanted one. T.V. Dep. 247:22 to 248:4; D.V. Dep. 49:23 to 50:2.
Third, plaintiffs complained about D.V.’s seat placement in a
class.

Almost

plaintiffs

immediately

complained

D.V.

D.V.’s
was

seat

called

was

gay

changed.

in

class.

Four,
It

was

alleged that several students circled D.V. and called him “gay”
while the teacher was out of the room. T.V. Dep. 269:5 to 270:8. 8
The District’s HIB investigation did not corroborate that the
incident occurred.
In May 2012, plaintiffs pulled D.V. out of school because
they

did

not

feel

safe.

Thereafter,

the

District

met

with

plaintiffs on May 16 and 17, 2012, in an effort to get D.V. to
return

to

school.

additional

services

check-ins,

reports

During
such

the

to

the

as

meeting
a

three

family,

an

the

District

point

agreed

checklist,

agreement

that

to

daily
D.V.’s

therapist would become his counselor, and more support when D.V.

7

The HIB investigation is required under the New Jersey AntiBullying Law, N.J.S.A. 18A:37-15. Plaintiffs did not appeal the
District’s conclusions even though they had a right to do so
under the Anti-Bullying statute.
8 Plaintiffs also complained D.V. was tripped. T.V. Dep. Exh. 26.
6

was in gym. Plaintiffs’ Response at &51. Ultimately the District
agreed to place D.V. in another school.
Also at the May 16, 2012 meeting a school psychiatrist in
attendance

allegedly

made

some

comments

that

infuriated

plaintiffs. Viewing the evidence in the light most favorable to
plaintiffs, the psychiatrist stated in plaintiffs’ presence that
students commonly call each other gay, they act like typical 5th
and

6th

graders

when

they

use

this

language,

and

plaintiffs

should not be upset by the language used. B. Birnbaum Dep. 77:14
to 79:23, Dep. Exh. 8; T.V. Dep. Exh. 25. Thereafter the school
psychiatrist was asked to leave the meeting.
Also of note is the fact that on May 23, 2012, B.V. filed a
petition

with

the

New

Jersey

Office

of

Administrative

Law

requesting emergent relief for home services. In September 2012,
B.V.

and

question

the
of

District

D.V.’s

came

to

placement

at

an
a

agreement
private

to

resolve

special

the

education

school. The agreement was memorialized in a Settlement Agreement
wherein the petitioners waived their right to sue the District
except for a carve out for retaliation claims.
Plaintiffs’

complaint

generally

alleges

the

District

contacted DYFS in retaliation for their advocacy on behalf of
D.V. Plaintiffs also complain the District did not appropriately
respond to “sexual orientation” bullying directed to D.V.

7

Plaintiffs’ complaint consists of five Counts. As directed
to the District, B.V. and D.V. assert a retaliation claim under
Title II of the Americans with Disabilities Act, 42 U.S.C. '1213
(“ADA”), Section 504 of the Rehabilitation Act, 29 U.S.C. '794,
and 42 U.S.C. '1983 (First Amendment)(Count One). Also as to the
District, D.V. asserts a New Jersey Law Against Discrimination
(“NJLAD”),

N.J.S.A.

10:5-1

sex

discrimination

claim

(Count

Three), a NJLAD retaliation claim (Count Four), and a Title IX
of the Education Amendments of 1972, 20 U.S.C. '1681 (“Title IX”)
discrimination claim (Count Five). 9 As directed to DeLape, B.V.
and

D.V.

assert

a

retaliation

claim

under

the

ADA,

Rehabilitation Act and '1983 (Count One), and a NJLAD retaliation
claim (Count Four). As to DeLape, plaintiffs’ concede there is
no individual liability under the Rehabilitation Act and the
ADA. Brief at 1. However, they are still pursuing their '1983
retaliation claim against DeLape.
The District and DeLape contest all liability allegations.
The defenses of the District and DeLape essentially mirror each
other. They are: (1) “there is no evidence that the District or
any

Defendant

took

any

action

toward

B.V.

and

D.V.

and

[plaintiffs] certainly cannot demonstrate any ‘adverse action’
or that B.V. or D.V. suffered any negative impact” (Brief at 9);
(2) D.V. did not engage in any constitutionally protected act;
9

D.V.’S claims are asserted by his grandmother and guardian,
B.V., on his behalf.
8

(3)

the

District

is

entitled

to

qualified

immunity;

(4)

the

District is entitled to statutory “good faith” immunity; (5)
plaintiffs

cannot

establish

a

viable

hostile

educational

environment claim because D.V. is not a protected class, the
alleged bullying was not severe or pervasive, and the District
reasonably addressed the alleged bullying; (6) the District did
not act with deliberate indifference under Title IX; (7) the
Title IX claim was previously dismissed; (8) Title IX does not
extend to same sex harassment; and (9) plaintiffs waived all
claims

under

the

NJLAD

and

Title

IX.

In

their

reply

brief

defendants also argue DYFS’s records are inadmissible and should
not be considered by the Court.
In

response

to

defendants’

motion

plaintiffs

generally

argue: (1) there is a question of fact as to whether defendants
retaliated against them by making an unwarranted report to DYFS
about T.V.; (2) fact questions preclude qualified immunity; (3)
fact questions preclude defendants’ alleged “absolute immunity”
defense; and (4) fact questions exist as to whether the bullying
directed

to

D.V.

was

severe

or

pervasive

and

whether

the

District responded appropriately.
Discussion 10

10

The Court rejects defendants’ argument that DYFS’s records are
inadmissible hearsay that should not be considered. See
Defendants’ Reply Brief at 4, Doc. No. 206.
On February 21,
2013 [Doc. No. 15] the Court issued an Order to DYFS directing
DYFS to release to the Court for its in camera review DYFS’s
9

1.
A

Summary Judgment Standard
court

should

grant

summary

judgment

when

the

record

demonstrates “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 330 (1986).

A genuine issue of material fact exists

if the evidence is such that a reasonable jury could find for
the non-moving party on an issue affecting the outcome of the
litigation.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

To determine if a material fact exists a court must

view the evidence in the light most favorable to the non-moving
party.

“The evidence of the non-movant is to be believed, and

all justifiable inferences are to be drawn in his favor.”

Id.

at 255.
The moving party has the initial burden to demonstrate the
absence of a genuine issue of material fact.
U.S. at 323.

See Celotex, 477

The burden then shifts to the non-moving party to

records concerning D.V. On March 21, 2013, the Office of the
Attorney General, Department of Law and Public Safety, Division
of Law, produced its records to the Court. The Court reviewed
the records and on April 26, 2013 [Doc. No. 19] produced to
counsel the relevant records concerning the events at issue.
Given that the records were produced by DYFS in response to the
Court’s Order, the Court finds that plaintiffs satisfy the
hearsay exception and the records may be considered by the
Court. See Fed. R. Evid. 803(6), (8) and 807. Further, Jared
Owen, DYFS’s employee who investigated D.V.’s situation after
the District’s phone calls, authenticated at his deposition most
of the records relied upon by plaintiffs. See generally Dec. 15,
2015 Dep. of J. Owen.
10

identify
party.
comes

specific

facts

that

contradict

See Anderson, 477 U.S. at 256.
forward

with

“specific

facts

those

of

the

moving

If the non-moving party

showing

that

there

is

a

genuine issue for trial,” such that a jury may return a verdict
in his favor, summary judgment must be denied.
Indus.

Co.,

Ltd.

v.

Zenith

Radio

Corp.,

Matsushita Elec.

475

U.S.

574,

586

(1986). A mere “scintilla of evidence,” without more, does not
give rise to a genuine dispute for trial. Anderson, 477 U.S. at
252.
2.

Retaliation Claim as to the District and DeLape
(Count One)

The Court will first address the retaliation claims made
against the District and DeLape in Count One. Plaintiffs B.V.
and D.V. allege they were retaliated against because of their
advocacy of D.V.’s educational program. The alleged retaliatory
action was the unwarranted reporting of T.V. to DYFS.
The elements of a retaliation claim under '1983 and the
Rehabilitation Act are the same. Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The elements are:
(1)

the

plaintiff

engaged

in

a

protected

activity,

(2)

defendants’ retaliatory action was sufficient to deter a person
of ordinary firmness from exercising his or her rights, and (3)
there was a causal connection between the protected activity and
the retaliatory action. Id. The elements of a retaliation claim
under

the

ADA

are

similar:

(1)
11

the

plaintiff

engaged

in

a

protected activity, (2) that he was subject to an adverse action
either after or contemporaneous with the protected activity, and
(3) there was a causal connection between the protected activity
and the adverse action. Stouch v. Twp. of Irvington, 354 Fed.
Appx. 660, 667 (3d Cir. 2009)(citing Williams v. Phila. Hous.
Auth. Police Dept., 380 F.3d 751, 759 (3d Cir. 2004)).
Summary judgment will be entered in favor of the District
and

DeLape

on

plaintiffs’

retaliation

claims

under

the

Rehabilitation Act, ADA and '1983. Even if B.V. and D.V. satisfy
the

first

two

elements

of

a

retaliation

claim

against

the

District and DeLape under the Rehabilitation Act, the ADA and
'1983, their retaliation claims against the District and DeLape
still fail. 11 This is so because there was no causal connection
between the alleged protected activity, the educational advocacy
on behalf of D.V., and the alleged retaliatory act, the calls to
DYFS complaining about T.V. 12 The Court finds there are no facts
in the record from which a jury could reasonably find a causal
connection between the calls to DYFS and plaintiffs’ advocacy on
behalf of D.V. Instead, the jury cannot help but find that the

11

Plaintiffs concede there is no individual liability under the
Rehabilitation Act and the ADA. Plaintiffs’ Brief in Opposition
to Motions for Summary Judgment at 3. [Doc. No. 199]. However,
plaintiffs are still pursuing a claim against DeLape under '1983.
12 The Court makes it clear that this Opinion does not address
T.V.’s claims which have been severed and stayed. Further, even
if plaintiffs merely have to show that their individual advocacy
was a “motivating factor” for defendants’ calls to DYFS, summary
judgment would still be entered for defendants.
12

calls
albeit

to

DYFS

mistaken

were

made

belief,

because

that

D.V.

of

defendants’

might

have

good

been

faith,

abused

or

improperly supervised. 13
It is conceded that D.V. had hygiene problems, that this
was discussed at the August 18, 2011 meeting, and that T.V.
asked for assistance regarding D.V.’s hygiene at home. Dep. of
B.V. 14:15-18; Dep. of T.V. 183:17-20. Thus, plaintiffs, not
defendants, raised the hygiene issue. Further, the audiotape of
the August 18, 2011 meeting confirms that T.V. stated he had
“gotten into the shower three times now [with D.V.] and have
showed him how to wash…[.]” Id. 19:16-19; Dep. of T.V. 186:1024. B.V. and T.V. confirmed this was said. Id. 20:2-6. Even T.V.
admits he told the CST that on three occasions he got into the
shower

with

D.V.

T.V.

Dep.

315:12-17.

13

Lavelle

and

Taylor

Although there is no need to formally decide the issue,
plaintiffs present colorable arguments why B.V. and D.V. may be
able to show they were engaged in protected activity and they
were retaliated against. (The Court is not making a finding of
fact as to these matters). Defendants apparently concede that
B.V.’s educational advocacy was a protected activity. Further,
as a minor D.V. was acting through B.V. at the August 18, 2011
meeting. In addition, although the calls to DYFS were directed
to T.V.’s conduct, because of T.V.’s close relationship and
nexus to B.V. and D.V., a factfinder may find the alleged
retaliatory action directed against T.V. could have been
intended to also be directed to B.V. and D.V. B.V. and D.V. may
be retaliated against even though the alleged retaliatory
conduct was not directed to them personally. See Thompson v.
North American Stainless, LP, 562 U.S. 170 (2011)(Title VII does
not preclude a retaliation claim filed by an employee whose
fiancé filed a discrimination claim).
13

testified they called DYFS because of their concerns about D.V.,
not because of plaintiff’s educational advocacy.
The record being what it is, the Court finds there is no
fact question that Lavelle and Taylor had a legitimate concern
about

an

adult

getting

into

the

shower

with

a

9

year

old

mentally challenged child three times and showing him how to
wash, including his private parts. Based on these facts (and
others to be discussed) no jury could reasonably find there was
a causal connection between plaintiffs’ educational advocacy and
the calls to DYFS. 14 This is especially true given that school
districts

are

enforcement
abused

child

(emphasis
having

required

and

child

to

welfare

situation

supplied);

reasonable

give

is

see

cause

notice

authorities

detected.

also
to

to

See

N.J.S.A.

believe

appropriate
when

a

potential

N.J.S.A.

18A:36-25

9:6-8.10

that

law

a

(“Any

child

person

has

been

subjected to child abuse or acts of child abuse shall report the
same

immediately

to

the

Division

of

Child

Protection

and

Permanency by telephone or otherwise”). 15

14

The Court equates a “reasonable” jury with a “rational” jury.
The Division of Child Protection and Permanency is the
successor to DYFS. Further, judgment in defendants’ favor on
plaintiffs retaliation claim is also justified by N.J.S.A. 9:68.13 which provides for immunity for “any liability, civil or
criminal” for school district employees who report potential
abuses to DYFS. (emphasis supplied). This immunity applies when,
“a reasonable person would have reasonable cause to believe that
a child has been abused.” Melleady v. Blake, C.A. No. 11-1807
(NLH/KMW),
2011
WL
6303245,
at
*17
(D.N.J.
Dec.
15,
2011)(citation and quotation omitted). For the purpose of
15

14

The conclusion that a jury cannot find a casual connection
between

plaintiffs’

advocacy

and

the

calls

to

DYFS

is

also

furthered by the fact that plaintiffs have not shown defendants
had any animosity towards plaintiffs because of their advocacy.
See Lauren W. ex rel. Jean W., 480 F.3d at 267 (one way a casual
connection may be shown is by a pattern of antagonism coupled
with timing). Plaintiffs do not cite to any facts to support an
inference that defendants were antagonistic towards them. This
cannot be assumed merely because plaintiffs advocated for D.V.
and the parties did not always agree. T.V.’s belief as to why
the calls to DYFS were made is pure speculation.
summary

judgment

plaintiffs

must

rely

on

more

To defeat
than

pure

conjecture and speculation. Jackson v. Danberg, 594 F.3d 210,
227 (3d Cir. 2010)(citation omitted).
Plaintiffs’ arguments do not carry the day. Although T.V.
admits he said what he said about getting into the shower with
D.V. and showing him how to wash, T.V. testified he did not mean
what he said. Dep. of T.V. 315:12-19. T.V. testified he meant to
say he went into the bathroom while D.V. showered and stayed out

plaintiffs’ retaliation claim, plaintiffs have not presented
facts to support a reasonable jury finding that the decision to
call DYFS about T.V. was anything but objectively reasonable.
See L.A. v. N.J. Div. of Youth and Family Services, 217 N.J.
311, 327-28 (2014)(the “reasonable cause to believe” standard
that a child has been subjected to actual or potential child
abuse requires that the actions of the person on the scene be
objectively reasonable given the facts and circumstances known
to that person). This certainly occurred here.
15

of the shower. Id. at 188:2-5. Nevertheless, defendants could
not read T.V.’s mind. Even if after the fact T.V. testified he
did not mean what he said, T.V. told defendants he got into the
shower with D.V. three times and showed D.V. how to wash. Based
on

these

facts

a

jury

cannot

help

but

find

this

created

a

reasonable, but ultimately mistaken belief, that potential abuse
took place.
Plaintiff’s

other

arguments

are

also

not

convincing.

Plaintiffs argue because of the temporal proximity of the August
18, 2011 meeting and the calls to DYFS a fact question exists as
to the reason the calls to DYFS were made. However, the mere
fact that an adverse action occurs soon after alleged protected
activity

is

not

sufficient

in

and

of

itself

to

satisfy

the

burden of showing a causal link. Young v. Hobart West Group, 385
N.J. Super. 448, 466-67 (App. Div. 2005). Only where the facts
of a particular case are “unusually suggestive of retaliatory
motive”
necessary

may

temporal

causation

proximity

link.

Id.

on
at

its
467.

own

establish

Here,

the

the

temporal

proximity evidence is not unusually suggestive because of T.V.’s
comments

at

the

August

18,

2011

meeting.

These

comments

justified defendants’ first call to DYFS.
The decision in Epps v. Lidestri Foods, Inc., C.A. No. 113517 (NLH/AMD), 2013 WL 1222660, at *6 (D.N.J. March 25, 2013)
is instructive. In Epps the Court held that it must examine
16

temporal

proximity

arise. “While
inquiry

allegations

Plaintiff

begins

with

may

the

in

be

the

context

correct

temporal

that

proximity

in

the
of

which

they

casual

link

the

emails

in

question, the inquiry does not end there.” Id. The Court must
look at the context in which the temporal proximity occurred.
Id. at **6-7. As noted in Epps:
Because temporal proximity alone is inadequate to
establish the required causal link, the Court cannot
scrutinize allegations of retaliation in isolation—
looking strictly at the hands of the clock or the days
on the calendar. Rather, the Court must examine these
allegations in the context within which they arose.
Id. at *6. For the reasons discussed, in this case temporal
proximity

alone

regarding

the

connection

is

inadequate

requirement

between

to

that

plaintiffs’

establish
plaintiffs

educational

a

fact

show
advocacy

question
a

causal
and

the

calls to DYFS.
Plaintiffs also argue a fact question exists as to the
retaliatory motivation for the DYFS phone calls because no one
expressed concern to plaintiffs at the August 18, 2011 meeting
that T.V. assisted D.V., Lavelle and Taylor did not call DYFS
immediately after the meeting, someone from the CST called DYFS
back after DYFS first decided to take no action, and someone
from the CST is lying about making a second call. None of these
arguments permits a reasonable juror to infer that the calls to
DYFS

were

motivated

by

an

intent

to

retaliate

against

plaintiffs for their educational advocacy of D.V. Defendants
17

had no duty to question plaintiffs further at their meeting.
After all, the purpose of the meeting was to address D.V.’s
IEP, not T.V.’s conduct. In addition, the fact that the calls
to DYFS were made on August 19, 2011 does not demonstrate a
nefarious intent since DYFS was called the next day. Taylor
testified she wanted to take time calling DYFS to make sure the
call was justified. Dep. 71:21 to 72:5. Lovell testified she
wanted to review the audiotape of the meeting to make sure she
remembered events accurately. Dep. at 58. Defendants should not
be

penalized

for

taking

a

short

time

to

reflect

on

the

appropriateness of their decision to call DYFS. Indeed, if the
calls

were

defendants

made

on

August

“jumped

the

18

plaintiffs

would

gun”

without

likely

proper

argue

reflection.

Therefore, it is immaterial to the current discussion that DYFS
was called on August 19 rather than August 18. Further, as will
be discussed infra, while the second call to DYFS is relevant
to T.V.’s sex discrimination claim, it is not determinative to
plaintiffs’ retaliation claim. The fact that a second call was
made

to

DYFS

does

not

indicate

the

call

was

made

for

a

retaliatory reason. If anything, the second call is relevant to
T.V.’s

discrimination

claim.

Last,

the

fact

that

defendants

could not recall making the second call to DYFS is irrelevant
to why they called DYFS. Even if defendants are not telling the
truth about making the second DYFS phone call, this is not
18

evidence that they called DYFS for a retaliatory reason. In
sum, the record simply does not support plaintiffs’ retaliation
claim and judgment will be granted in defendants’ favor on the
claim. 16
3.

17

NJLAD Sex Discrimination Claim as to the District
(Count Three)

B.V., on behalf of D.V., alleges in Count Three of the
amended complaint that the District discriminated against D.V.
on the basis of his perceived sexual orientation. It is alleged
the

District

knew

or

should

of

known

of

the

harassment

or

bullying directed to D.V. but failed to take appropriate action
to end the harassment.
In L.W. ex rel. L.G. v. Toms River Regional Schools Bd. of
Educ., 189 N.J. 381 (2007), the New Jersey Supreme Court held
that the NJLAD recognizes a cause of action against a school
district for student-on-student sexual orientation harassment. A
school district is liable for this harassment if the district
knew or should have known of the harassment but failed to take
action

reasonably

calculated

to

16

end

the

mistreatment

and

It is not insignificant that it is undisputed defendants did
not relay to DYFS statements about any sexual or inappropriate
touching, gratification or abuse. The record does not reflect
that DYFS was told anything other than what T.V. stated at the
August 18, 2011 meeting. Defendants, therefore, did not
exaggerate or fabricate any facts which is some evidence they
did not intend to retaliate against plaintiffs but instead were
concerned about D.V.’s welfare.
17
Since the Court does not find there was a violation of
plaintiffs’ constitutional rights, there is no need to address
DeLape’s qualified immunity defense.
19

offensive conduct. A plaintiff’s claim is only actionable if the
District’s failure to reasonably address the harassment has the
effect

of

denying

to

the

student

any

of

a

school’s

“accommodations, advantages, facilities or privileges.” Id. at
402. However, “isolated schoolyard insults or classroom taunts”
are

not

actionable.

Id.

To

be

actionable

in

the

educational

context “an aggrieved student must allege discriminatory conduct
that would not have occurred ‘but for’ the student’s protected
characteristic,
maturity

that

level,

sufficiently

and

severe

a

reasonable

protected
or

student

of

characteristic

pervasive

enough

the

same

would
to

age,

consider

create

an

intimidating, hostile, or offensive school environment and that
the school district failed to reasonably address such conduct.”
Id. at 402-03. Liability is not strict. Id. at 407. Further, the
reasonableness of a District’s response to peer harassment must
be considered in light of the totality of the circumstances. Id.
at 408.
Although the bullying that D.V. allegedly experienced was
unfortunate, the Court still concludes that judgment must be
entered

in

the

District’s

favor

on

D.V.’s

NJLAD

sex

discrimination claim. As noted in L.W. ex rel. L.G., isolated
insults or classroom taunts are not actionable. 189 N.J. at 402.
Further, to be actionable it must be shown that a reasonable
student of the same age or maturity would consider the insults
20

sufficiently

severe

or

pervasive

to

create

an

intimidating,

hostile or offensive school environment. Id. at 402-03. The test
is

an

objective

one,

not

a

subjective

one.

See

Godfrey

v.

Princeton Theological Seminary, 2007 WL 1412095, at *7 (App.
Div. May 15, 2007).
Although

any

sexually

oriented

unacceptable,

the

fact

the

of

taunts

matter

is

or

insults

that

D.V.

are
only

experienced this on one or possibly two occasions. 18 This is the
sort of isolated insults that are not actionable. The New Jersey
Supreme Court has made it clear there is no strict liability for
sexual orientation bullying. Id. at 407. (“Because we do not
create a strict liability standard, a district is not compelled
to purge its schools of all peer harassment to avoid liability.
Rather,

we

require

school

and

remedial

preventative
discriminatory

districts

mistreatment”);

to

measures
see

also

implement

to

curb

Grazioli

effective
severe
v.

or

Genuine

Parts Co., 409 F. Supp. 2d 569, 577 (D.N.J. 2005)(citation and
quotation omitted)(indicating that a few isolated incidents do
not suffice under Title VII and the NJLAD to make out a cause of
action); King v. City of Phila., 66 Fed. Appx. 300, 305 (3d Cir.
2003)(finding that two “isolated and sporadic incidents … do not

18

B.V. testified she also heard students calling D.V. gay at a
bus stop. B.V. Dep. 78:15 to 80:6. However, this incident was
not brought to the District’s attention.
21

demonstrate the pervasive atmosphere of harassment required to
prove a Title VII violation”).
Apart from the fact that the sexual orientation bullying of
D.V. was isolated, it was not so severe or pervasive to be
actionable.

This

is

evidenced

by

D.V.’s

testimony

that

the

bullying does not bother him today. D.V. Dep. 51:22-24. Further,
D.V.’s April 25, 2012 psychiatric report, which was completed in
the midst of plaintiffs’ bullying allegations, indicates that
D.V. had no anxiety or depression. T.V. Dep. Exh. 26. Quite
simply, no reasonable jury could conclude from the record that
D.V.

was

subject

to

severe

or

pervasive

sexual

orientation

discriminatory mistreatment.
While plaintiff relies on L.W., the facts in that case are
clearly

distinguishable

from

this

case.

In

L.W.,

L.W.

was

subject to continuous taunting, bullying and harassment by other
students

over

several

years.

Further,

L.W.

was

subject

to

homosexual epithets such as “gay,” “homo” and “fag” almost daily
which

eventually

molestation.

189

resulted
N.J.

at

in

389.

physical
L.W.’s

aggression

situation

is

and

plainly

different from what D.V. experienced.
It is of course true that plaintiffs complained about other
instances of bullying aside from the one incident in class where
D.V. was called gay. However, D.V.’s claim is limited to sexual
orientation

bullying

and

not

general
22

bullying.

There

is

no

evidence from which to infer that the other bullying directed to
D.V. was caused by his perceived sexual orientation. To make
such an inference as plaintiff argues would be pure speculation.
See Thomas, g/a/l K.T. (a Minor) v. East Orange Bd. of Educ.,
998 F. Supp. 2d 338, 348-49 (D.N.J. 2014)(the fact that the
plaintiff was bullied does not in and of itself indicate that
the

plaintiff

conclusory

was

bullied

statements,

because

she

conjecture

and

was

a

girl).

speculation

Further,
will

not

defeat summary judgment. Orsatti v. New Jersey State Police, 71
F.3d 480, 484 (3d Cir. 1995).
Although the statements made by the school psychiatrist may
have been insensitive, it would be pure speculation to infer
that her attitude pervaded the District. In addition, plaintiffs
have

not

supervisory

presented

evidence

responsibilities

for

that

the

handling

psychiatrist
or

had

investigating

harassment, intimidation or bullying complaints. Nor is there
evidence that the psychiatrist supervised or disciplined school
personnel such that she was an “appropriate person” who could
subject the District to liability. See Warren ex rel. Good v.
Reading

School

Dist.,

278

F.3d

163

(3d

Cir.

2012)(school

guidance counselor was not “appropriate person” whose knowledge
could have subjected school district to liability). The jury
will not be permitted to speculate that but for the psychiatrist

23

the isolated sexual orientation bullying that D.V. experienced
would not have occurred.
In

addition

to

the

discussion

above,

there

is

another

reason summary judgment will be entered in the District’s favor
on D.V.’s sexual orientation bullying/discrimination claim. That
is, the jury cannot help but find that the District reasonably
addressed the one reported sexual orientation/bullying incident.
Amongst the factors to consider to determine if the District
acted

reasonably

involved

students,

culture

and

duration

of

whether

to

prevent

development

atmosphere,
harassment,

violence

harassment

was

and

rareness
extent

involved,

and

are

the

maturity
or

levels,

frequency

severity

effectiveness

ages

of
of

of

the

school

of

conduct,

the

conduct,

the

school

district’s response, the consideration of alternative responses
and the swiftness of the school’s reaction. George v. Board of
Educ. of the Tp. of Millburn, 34 F. Supp. 3d 442, 457 (D.N.J.
2014). To be candid, the record is not developed as to all these
factors. However, the record that exists does not permit a jury
to reasonably conclude that the District did not act reasonably
to end the sexual orientation harassment directed to D.V. Soon
after the complaint was brought to its attention the District
interviewed

the

allegedly

involved

students

and

teacher,

it

conducted an HIB investigation, and it promptly responded to
T.V.’s complaints. The record does not reflect there is anything
24

else

the

plaintiffs’

District

could

complaint

have

other

reasonably

than

what

done

it

to

did.

address

In

fact,

plaintiffs have not pointed to one action the District did not
take that it should have taken. Further, the effectiveness of
the District’s actions is demonstrated by the fact that after
the one incident in class no other sexual orientation bullying
of D.V. was reported to the District. 19 The school psychiatrist’s
comments at the May 16, 2012 meeting are a “red herring.” She
played no part in the relevant investigation and her ill-advised
comments were essentially ignored. 20
The Court is not insensitive to plaintiffs’ concerns. The
Court

does

not

doubt

for

a

moment

that

plaintiffs

sincerely

believe their sexual orientation bullying claim is meritorious.
Plaintiffs are to be commended for working so hard for D.V.’s
welfare, especially since by all accounts he is doing well in
his current placement. However, the evidence in the record is
not

sufficient

to

make

out

an

19

actionable

sex

discrimination

Plaintiffs have not cited, nor did they argue, that the
District’s policies or training was deficient.
20 There are stray comments in the record about other bullying
incidents. B.V. Dep. 82; D.V. Dep. 42:18-42:20. However,
plaintiffs do not rely on this testimony in their Briefs.
Further, a court need not adopt a version of facts if the facts
are “utterly discredited by the record [so] that no reasonable
jury” could believe them. Scott v. Harris, 550 U.S. 372, 380
(2007). Even in the face of such evidence summary judgment is
still appropriate “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving
party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
25

claim

and,

therefore,

summary

judgment

will

be

entered

in

defendants’ favor on D.V’s claim. 21
4.

NJLAD Retaliation Claim as to the District and DeLape
(Count Four)

In Count Four, B.V. o/b/o D.V., asserts a NJLAD retaliation
claim against the District and DeLape similar to the claim in
Count
because

One.
of

Plaintiffs
their

10:5-12(d).

advocacy

Similar

Rehabilitation

allege

Act,

for

to
ADA

they

and

D.V.

were
in

retaliation
'1983,

in

retaliated

violation
claims
order

to

of

against
N.J.S.A.

under
make

the
out

a

retaliation claim under the NJLAD it is necessary that there be
a

causal

link

between

the

protected

action

and

the

alleged

adverse action. Young, 385 N.J. Super. at 466-67; Barroso v.
Lidestri Foods, Inc., 937 F. Supp. 2d 620, 630 (D.N.J. 2013).
For the same reasons the Court grants summary judgment as to
plaintiffs’ retaliation claim in Count One, the Court will grant
summary

judgment

as

to

the

NJLAD

retaliation

claim

in

Count

Four. Simply put, there are no facts in the record from which a
jury can reasonably infer or conclude there was a causal link
between plaintiffs’ educational advocacy and the calls to DYFS.
5.

Title IX Discrimination Claim as to the District
(Count Five)

21

To repeat, this Opinion does not address T.V.’s sex
discrimination claim.
T.V.’s claim stands on a different
footing than D.V. in view of Jared Owen’s testimony that it was
his impression from talking with Lavell that Lavell was “very,
very adamant that [there] had to be a problem because [T.V.] was
gay.” Dep. 72:5-17.
26

In Count Five of their complaint, B.V. o/b/o D.V, asserts a
Title IX sex discrimination claim against the District based on
D.V.’s sexual orientation. The first issue to address in this
regard is whether Title IX’s prohibition of severe and pervasive
sexual harassment includes same-sex sexual harassment. For the
same reasons set forth in Judge Irenas’s August 7, 2013 Opinion
(see 2013 WL 4039022, at **9-10), the Court accepts that Title
IX encompasses same-sex sexual harassment.
Judge Irenas’s Opinion also sets forth what must be proven
to establish a student-to-student sexual harassment claim under
Title IX. Id. at *9. In order to be liable a school district
must be “deliberately indifferent to sexual harassment, of which
[it has] actual knowledge, that is so severe, pervasive, and
objectively offensive that it can be said to deprive the victims
of access to the educational opportunities or benefits provided
by the school.” Davis as Next Friend of LaShonda D. v. Monroe
Cnty.

Bd.

of

Educ.,

526

U.S.

629,

650

(1999).

Deliberate

indifference takes place when a school district official “is
advised of a Title IX violation [and] refuses to take action[.]”
Gebser
(1998).

v.

Lago
Thus,

Vista

Indep.

deliberate

Sch.

Dist.,

indifference

524

U.S.

requires

274,

290

“actual

knowledge,” 2013 WL 4039022, at *10; see also Bostic v. Smyrna
Sch. Dist., 418 F.3d 355, 360 (3d Cir. 2005)(defining deliberate
indifference as “an official decision by the recipient not to
27

remedy the violation”). There can be no Title IX liability if a
recipient of federal funds responds to known peer harassment in
a manner “that is not clearly unreasonable.” Davis v. Monroe
County Bd. Of Educ., 526 U.S. 629, 648-49 (1999).
For the same reasons summary judgment will be awarded on
D.V.’s

NJLAD

sex

discrimination

claim

against

the

District,

judgment will be entered for the District on D.V.’s Title IX
claim. For the reasons already discussed, the evidence does not
support a finding that the sexual orientation insults directed
to D.V. were severe or pervasive. The fact of the matter is that
only

two

reported

incidents
to

District

the

was

possibly

District.

occurred,

Further,

“deliberately

only

there

one

is

indifferent”

of

no

which

was

evidence

the

to

plaintiffs’

complaints as it did not refuse to take action in response to
the

complaints.

In

fact,

the

evidence

shows

the

District’s

attempts to investigate the one relevant incident brought to its
attention

was

timely

and

not

unreasonable.

The

fact

that

plaintiffs were not satisfied with the District’s investigation
is

not

determinative

as

to

whether

a

Title

IX

violation

occurred.
Conclusion
For all the reasons discussed above, summary judgment will
be entered in defendants’ favor as to all claims asserted by

28

D.V., by and through his Guardian B.V., and B.V. individually.
An appropriate Order will be separately entered. 22

s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: March 29, 2017

22

Due to the Court’s rulings there is no need to decide if
plaintiffs’ claims are barred by the Settlement Agreement they
signed to end their administrative claim.
29