SUSAN AND WILLIAM R. REMPHREY v. TOWNSHIP OF CHERRY HILL et al

Filing 11

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 1/20/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SUSAN AND WILLIAM R. REMPHREY,

HONORABLE JEROME B. SIMANDLE

Plaintiffs,
Civil Action
No. 16-3084 (JBS/JS)

v.
CHERRY HILL TOWNSHIP BOARD OF
EDUCATION, FRANCIS MADISON,
and JOHN DOES 1-3,

OPINION

Defendants.

APPEARANCES:
Frances A. Hartman, Esq.
Hartman Gilas, LLC
513 S. Lenola Road
Suite 212
Moorestown, NJ 08057
Attorney for Plaintiffs
Jeffrey L. Shanaberger, Esq.
Hill Wallack LLP
202 Carnegie Center
CN 5226
Princeton, NJ 08543
Attorney for Defendant

SIMANDLE, Chief Judge:
INTRODUCTION
In this case, Plaintiffs Susan and William R. Remphrey
bring claims on behalf of their minor daughter, S.R., under
Title IX and the New Jersey Law Against Discrimination against

the Cherry Hill Township Board of Education and Francis Madison. 1
Plaintiffs allege that Mr. Madison, a teacher at Cherry Hill
West High School, sexually harassed S.R. during the 2014-2015
school year. Defendants now move to dismiss Plaintiffs’
Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons
that follow, the Court will grant in part and deny in part
Defendants’ motion.
BACKGROUND 2
S.R. was a student in her junior year at Cherry Hill West
High School in Cherry Hill, New Jersey. (Complaint [Docket Item
1] ¶ 13.) Plaintiffs allege in the Complaint that S.R. was
subjected to sexual harassment by Francis Madison, a teacher and
coach at Cherry Hill West High School. (Id. ¶ 5.) Specifically,
Plaintiffs allege the following:
a. Defendant Madison walked-up behind S.R., while S.R. had
her back to Defendant Madison and placed his arms around S.R.,
placed his hand on the neck of S.R., and simultaneously said
“I love you, S.R.”;
b. Defendant Madison, frequently attempted to obtain hugs,
and other inappropriate and sexually familiar contact with
S.R. throughout the school year;
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The Complaint [Docket Item 1] also includes a Third Count for
inadequate investigation and retaliation, which Plaintiffs
withdrew in their opposition brief without prejudice to their
right to renew. [Docket Item 8.] Accordingly, the Court will
grant Defendants’ motion to the extent it seeks to dismiss this
claim.
2 For purposes of the pending motion, the Court accepts as true
the version of events set forth in Plaintiff’s Complaint,
documents explicitly relied upon in the Complaint, and matters
of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014).
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c. Defendant Madison flirted with S.R. in an inappropriate
manner, and engaged in other inappropriate conduct throughout
the school year.
(Id. ¶ 14.) Plaintiffs allege that this conduct took place
during school hours and on school grounds during the 2014-2015
school year. (Id. ¶ 15.)
S.R. and her parents reported Mr. Madison’s misconduct to
S.R.’s guidance counselor at Cherry Hill West High School, as
well as the principal of the school, Dr. Kwame Morton, and
superintendent, Joseph Meloche. (Id. ¶¶ 16, 19, 33-35). The
guidance counselor, Michelle Pryor, instructed S.R. to return to
Mr. Madison’s class and took no action to investigate S.R.’s
claims. (Id. ¶¶ 16, 33-34.) S.R. also spoke with Dr. Morton
about Mr. Madison’s conduct, but neither he nor the Board of
Education notified the Cherry Hill Police; secured videotape of
the hallway where the incident occurred; notified the New Jersey
Department of Child Custody and Protection (“DCCP”); or took any
other steps to investigate S.R.’s complaint. (Id. ¶¶ 24, 35-36.)
According to Plaintiffs, Mr. Meloche and Dr. Kwame and other
teachers, coaches, and administrators were aware that Mr.
Madison had made inappropriate physical contact and remarks to
other female students at Cherry Hill West High School before the
incidents with S.R., but had done nothing to protect S.R. (Id.
¶¶ 17-18.

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Mr. Madison was suspended briefly, without acknowledging
misconduct towards S.R., but resumed teaching at some time
later. (Id. ¶¶ 37-39.) S.R. thereafter left school upon the
advice of her pediatrician to receive home instruction after the
school failed to investigate her claims or take steps to protect
her from Mr. Madison. (Id. ¶¶ 40-41.) She now suffers from
severe emotional distress which has manifested as post-traumatic
stress disorder and exacerbation of pre-existing anxiety
disorder and migraine conditions. (Id. ¶ 42.) S.R. contends that
she may be required to repeat her junior year of high school and
may miss attending her senior year of high school because of Mr.
Madison’s misconduct and the Board of Education’s inaction. (Id.
¶ 43.)
Plaintiffs brought this suit against Cherry Hill Township,
the Cherry Hill Township Board of Education, Francis Madison,
and John Doe Defendants 1-3, asserting claims under Title IX, 20
U.S.C. § 1681 et seq., the New Jersey Law Against Discrimination
(“NJLAD”), N.J.S.A. 10:5-1 et seq., and for inadequate
investigation and retaliation. [Docket Item 1.] 3 Defendants now
move to dismiss Plaintiffs’ Complaint pursuant to Fed. R. Civ.
P. 12(b)(6) for failure to state a claim upon which relief may

3

Plaintiffs voluntarily dismissed their claims against Cherry
Hill Township. [Docket Item 4.] They have also withdrawn their
inadequate investigation and retaliation claim. (See Plaintiffs’
Opposition Brief at 9.)
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be granted. The motion is now fully briefed and the Court will
decide without holding oral argument pursuant to Fed. R. Civ. P.
78.
STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need
only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted). While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id. A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
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must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
DISCUSSION
A. Plaintiffs Have Stated A Claim Under Title IX Against the
Cherry Hill Township Board of Education
Title IX of the Education Amendments of 1972 (“Title IX”),
20 U.S.C. § 1681, prohibits a recipient of federal funding from
discriminating on the basis of sex. Title IX provides, “No
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 educational program or
activity receiving federal financial assistance . . . .” 20
U.S.C. § 1681(a). “Title IX encompasses sexual harassment of a
student by a teacher and is enforceable through an implied right
of action for damages against a school district.” Bostic v.
Smyrna Sch. Dist., 418 F.3d 355, 359 (3d Cir. 2005) (citing
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75-76
(1992)). 4

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Although Title IX is applicable to institutions and programs
that receive federal funds, it “does not authorize suits against
school officials, teachers, and other individuals.” Fitzgerald
v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009); see also
Lockhart v. Willingboro High School, 170 F. Supp. 3d 722, 735
(D.N.J. 2015) (same). Plaintiffs’ Title IX claim therefore does
not reach Mr. Madison and will be dismissed as to him.
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Under Title IX, a school board may be held liable for a
teacher’s sexual harassment of a student where a plaintiff can
show that an “appropriate person,” “who at a minimum has
authority to institute corrective measures on the district’s
behalf has actual notice of, and is deliberately indifferent to,
the teacher’s misconduct.” Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 277 (1998). “Actual notice” must amount to
“actual knowledge of discrimination in the recipient’s
programs.” Id. at 290. A school district will not be liable “for
a teacher’s sexual harassment of a student based on principles
of respondeat superior or constructive notice, i.e., without
actual notice to a school district official.” Id. at 285.
Defendants contend that Plaintiffs have failed to state a
claim under Title IX because they have not shown with adequate
detail that an appropriate person had actual knowledge of the
alleged harassment; that any school officials were deliberately
indifferent to S.R.’s complaints; that S.R. was subjected to
“severe, pervasive, and objectively offensive harassment” by Mr.
Madison; or that S.R. has been deprived of access to educational
opportunities or benefits. To the contrary, the Court finds that
the Complaint sufficiently states a claim under Title IX against
the Board of Education to withstand a motion to dismiss. 5

5

Defendants correctly point out in their Reply brief that
Plaintiffs flesh out the allegations in the Complaint with new
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The Court has no doubt that Plaintiffs have alleged that
S.R. reported the alleged harassment to an “appropriate person”
to establish this element of Title IX liability: the Complaint
alleges that S.R. discussed Mr. Madison’s conduct with Dr.
Morton, the principal of Cherry Hill West High School, on May
18, 2015, and that Plaintiffs “complained to members of the
Cherry Hill West staff including . . . the principal and
superintendent.” (Compl. ¶¶ 19, 35.) While S.R.’s complaints to
her guidance counselor or other teachers may not have been to
school officials with “authority to institute corrective
measures,” Gebser, 524 U.S. at 277, “a school principal who is
entrusted with the responsibility and authority normally
associated with that position will ordinarily be an appropriate
person under Title IX.” Warren ex rel. Good v. Reading Sch.
Dist., 278 F.3d 163, 171 (3d. Cir. 2002). These allegations, if
proved, are sufficient to establish that the Cherry Hill

facts in their Opposition brief. (See Reply at 3.) The Court
decides this motion disregarding this additional factual matter
because it is well-settled that “a plaintiff may not amend the
complaint through arguments in a brief.” Cheeseman v. Baxter
Healthcare Corp., Case No. 08-4814, 2009 WL 1351676, at *4
(D.N.J. May 13, 2009) (quoting Shanahan v. City of Chicago, 82
F.3d 776, 781 (7th Cir. 1996)). Nonetheless, the Court rejects
Defendants’ selective and narrow interpretation of the Complaint
itself, and finds sufficient the facts contained within the four
corners of the Complaint to state a claim under Title IX and, as
discussed below, the NJLAD.
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Township Board of Education had knowledge of Mr. Madison’s
alleged conduct.
Similarly, the Complaint sufficiently alleges that the
Board of Education was deliberately indifferent to S.R.’s
complaint. Deliberate indifference occurs “where the recipient’s
response to harassment or lack thereof is clearly unreasonable
in light of the known circumstances.” Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 648 (1999); 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 remedy the violation.”). Without relying on
mere legal conclusions, the Complaint describes how Dr. Morton
and Mr. Meloche allegedly knew of other instances of
inappropriate physical contact or remarks between Mr. Madison
and female students, and failed to investigate S.R.’s complaint,
preserve evidence, or separate S.R. from Mr. Madison. (See
Compl. ¶¶ 17-19, 36-40.) Assuming the truth of Plaintiffs’
allegation that such actions “violated [the Board of
Education’s] own protocols” for dealing with sexual harassment,
the Complaint sets forth grounds to find that the Board’s
decision to keep Mr. Madison on staff may have been “clearly
unreasonable.” Defendants’ argument that such allegations need
to set forth with more specificity “what particular knowledge
the superintendent or administrators . . . had” imposes a level
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of detail not required by Rule 8(a), Fed. R. Civ. P.
Accordingly, at this stage of the litigation, Plaintiffs have
alleged a plausible factual basis to satisfy this element that
the Board of Education was deliberately indifferent to S.R.’s
complaint.
Next, Defendants contend that Plaintiffs have not set forth
circumstances constituting a hostile school environment to be
actionable under Title IX. Defendants take the position that the
alleged sexual harassment must be “so severe, pervasive, and
objectively offensive that it effectively bars the victim’s
access to an educational opportunity or benefit.” Davis v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). But
Defendants fail to note that this standard is limited to “the
context of student-on-student harassment.” Id. at 651. Rather,
“[w]hether gender-oriented conduct rises to the level of
actionable ‘harassment’ thus depends on a constellation of
surrounding circumstances, expectations, and relationships,
including, but not limited to, the ages of the harasser and the
victim and the number of individuals involved.” Id. (internal
citations omitted). The Complaint alleges that Mr. Madison, a
teacher and coach, engaged in both inappropriate remarks and
physical conduct with S.R. and other female students, all of
whom were presumably of high school age, “throughout the school
year.” (Compl. ¶¶ 14, 17-18.) Assuming the truth of these
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allegations, Plaintiffs set forth circumstances in which an
adult, in a position of authority, engaged in inappropriate
conduct, both physical and verbal, with teenaged girls for
months – circumstances which could plausibly be interpreted as
actionable harassment. Again, Defendants’ argument that the
Complaint needs to specifically identify the people, conduct,
and dates of such harassment to withstand a motion to dismiss
imposes a level of detail not required by Rule 8(a). Such
details can be explored in pretrial discovery.
For these reasons, Defendants’ motion to dismiss is denied
to the extent it seeks to dismiss Plaintiffs’ cause of action
under Title IX against the Cherry Hill Township Board of
Education. Defendants’ motion is granted to the extent it seeks
to dismiss Plaintiffs’ Title IX claim against Mr. Madison as an
individual.
B. Plaintiffs Have Stated A Claim Under the NJLAD Against
the Cherry Hill Township Board of Education and Mr.
Madison
The New Jersey Law Against Discrimination (“NJLAD”)
provides that
All persons shall have the opportunity to obtain . . . all
the accommodations, advantages, facilities, and privileges
of any place of public accommodation . . . without
discrimination because of race, creed, color, national
origin, ancestry, age, marital status, affectional or
sexual orientation, familial status, disability, national
origin, sex, gender identity or expression. . . . This
opportunity is recognized as and declared to be a civil
right.
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N.J.S.A. 10:5-4. The NJLAD’s protections apply to gender
discrimination, including sexual harassment, in a school
setting. N.J.S.A. 10:5-5; see also L.W. ex rel. L.G. v. Toms
River Regional Sch. Bd. of Educ., 915 A.2d 535, 547 (N.J. 2007).
To state a claim for hostile school environment under the NJLAD,
“an aggrieved student must allege discriminatory conduct that
would not have occurred ‘but for’ the student’s protected
characteristic, that a reasonable student of the same age,
maturity level, and protected characteristic would consider
sufficiently severe or pervasive enough to create an
intimidating, hostile, or offensive school environment, and that
the school district failed to reasonably address such conduct.”
Id. The New Jersey Supreme Court purposely imposed a less
burdensome requirement under the NJLAD than Title IX’s
deliberate indifference standard; instead, a student must only
show that the school “grants a supervisor authority to control
the school environment and the supervisor either abuses that
authority or has actual or constructive knowledge of the
harassment and fails to take effective measures to end the
discrimination.” Joyce v. City of Sea Isle City, Case No. 045345, 2008 WL 906266, at *23 (D.N.J. March 31, 2008); see also
L.W., 915 A.2d at 549 (rejecting Title IX’s deliberate
indifference standard for harassment in schools). The

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reasonableness of the school’s response must be evaluated “in
light of the totality of the circumstances, that is, the
constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a single
recitation of the words used or the physical acts performed.”
L.W., 915 A.2d at 551 (citing Oncale v. Sundowner Offshore
Servs. Inc., 523 U.S. 75, 82 (1998)).
As with Plaintiffs’ Title IX claim, Defendants’ arguments
in favor of dismissal misconstrue the allegations in the
Complaint. Defendants focus on the single paragraph in which
Plaintiffs allege that Mr. Madison hugged S.R. and said “I love
you, S.R.” (Compl. ¶ 14a), taking the position that a
“reasonable student of the same age, maturity level, and
protected characteristic” would not consider this single
incident “severe or pervasive enough to create a hostile school
environment.” L.W., 915 A.2d at 547. Defendants’ position
ignores other allegations in the Complaint that Mr. Madison
“frequently” attempted to obtain hugs and “flirted with S.R. in
an inappropriate manner” throughout the school year, that he had
made similar inappropriate physical conduct and remarks to other
female students at Cherry Hill West High School, and that S.R.
had pre-existing medical conditions including an anxiety
disorder and migraine headaches. (Compl. ¶¶ 14b&c, 17-18, 42.)
The Complaint further alleges that this conduct was so pervasive
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and severe that it caused S.R. to withdraw from the school,
attempt homeschooling, and develop a severe emotional reaction.
Assuming the truth of these allegations, and keeping in mind
that Mr. Madison was in a position of authority with respect to
S.R. and other teenaged girls, the Complaint fairly gives rise
to an inference that Mr. Madison’s conduct may have been severe
and pervasive.
Likewise, the Complaint fairly alleges that the “school
district failed to reasonably address” Plaintiffs’ complaints
about Mr. Madison and S.R. While the Complaint acknowledges that
Mr. Madison was suspended briefly (Compl. ¶ 37), it also avers
that the Board of Education “violated its own protocols” and
failed to investigate S.R. and Plaintiffs’ complaints by failing
to alert the police or DCCP and preserve evidence. (Id. ¶¶ 25,
36-38.) Similarly, the Board of Education’s decision to
reinstate Mr. Madison as a teacher and keep S.R. in his class
for the remainder of her junior year may plausibly be found an
unreasonable decision in light of S.R.’s complaints that his
conduct occurred throughout the school year, and with other
female students. (Id. ¶¶ 17-18, 38-40.)
For these reasons, Defendants’ motion to dismiss
Plaintiffs’ claim under the NJLAD is denied.
C. Plaintiffs’ Request for Punitive Damages

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Defendants also move in their motion to dismiss Plaintiffs’
requests for punitive damages in all counts of the Complaint.
Plaintiffs concede that they are not entitled to punitive
damages under Title IX, and have withdrawn their claim for
inadequate investigation and retaliation. Accordingly, the Court
must only decide whether Plaintiffs have plead a prima facie
case entitling them to punitive damages under the NJLAD.
Because punitive damages are intended not to compensate an
injured party but to deter future misconduct, they are available
only under a “heightened standard” of liability. Punitive
damages are available against a public entity under the NJLAD
“only where the wrongdoer’s conduct is especially egregious . .
. . [and] only in the event of actual participation by upper
management or willful indifference.” Lehmann v. Toys R Us, Inc.,
626 A.2d 445, 464 (N.J. 1993); see also Cortes v. Univ. of
Medicine and Dentistry of New Jersey, 391 F. Supp. 2d 298, 31617 (D.N.J. 2005) (same). Conduct is considered egregious where
the plaintiff can prove “an intentional wrongdoing in the sense
of an ‘evil-minded act’ or an act accompanied by a wanton and
willful disregard for the rights of plaintiff” or where the
plaintiff can prove that the defendant “acted with actual
malice.” Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 230 (N.J.
2010). This is a fact-sensitive inquiry. Id.

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Because the Court has already determined that the Complaint
alleges that “upper management,” or in this case, Dr. Morton and
Mr. Meloche, knew of S.R.’s complaints of harassment and were
deliberately indifferent to her claims, and because it would be
premature to make a factual determination as to the
egregiousness of Mr. Madison’s conduct, the Court will not
dismiss Plaintiffs’ request for punitive damages under the NJLAD
at this time. Whether Plaintiffs will actually be entitled to
punitive damages, should they eventually prevail on their NJLAD
claim in the future, is a question for another day.
Accordingly, the Court will deny Defendants’ motion to the
extent they seek to dismiss Plaintiffs’ request for punitive
damages under the NJLAD. The Court will grant Defendants’ motion
to the extent they seek punitive damages under Title IX.
CONCLUSION
An accompanying Order will be entered.

January 20, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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