BITTENBENDER et al v. THE BANGOR AREA SCHOOL DISTRICT

Filing 11

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/27/17. 3/28/17 ENTERED AND COPIES EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RUSSELL and TAMMY
BITTENBENDER on behalf of
their daughter, S.B., a minor, and
individually on their own behalf,
Plaintiffs
vs.
THE BANGOR AREA
SCHOOL DISTRICT,
Defendant

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CIVIL ACTION

NO. 15-6465

MEMORANDUM
STENGEL, J.

March 27, 2017

In this Title IX case, an elementary school student alleges that she suffered
student-on-student sexual harassment while attending Defendant Bangor Area School
District (“BASD”). This harassment lasted over a five year period, continuing when she
entered middle school. BASD filed a motion to dismiss, arguing that the plaintiff failed
to plead sufficient facts to establish the elements of a Title IX claim.1 For the following
reasons, I will deny the motion in its entirety.
I.

BACKGROUND
Tammy and Russell Bittenbender bring this action on behalf of their minor

daughter, S.B. (Am. Compl. ¶¶ 2–4.) BASD is an incorporated public education entity

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BASD’s motion also sought to dismiss the individual claims of S.B.’s parents and S.B.’s claim
for punitive damages. Following BASD’s motion, S.B. stated that Russell and Tammy
Bittenbender do not assert individual claims and that S.B. no longer seeks punitive damages.
(Pl.’s Reply to Def.’s Mot. to Dismiss 17). Therefore, this action proceeds with only one issue:
whether S.B. sufficiently pleaded facts of BASD’s alleged Title IX violation.

within Pennsylvania that receives federal financial assistance. (Am. Compl. ¶¶ 6, 8.)
S.B. alleges that she suffered offensive verbal sexual harassment and physical assault
while attending BASD between the third and eighth grades. (Am. Compl. ¶¶ 1, 13, 27,
32–34, 73, 84, 89, 112, 158, 164). S.B. identified eight juvenile students who
participated in the offensive behavior on various occasions throughout those five years.
(Am. Compl. ¶¶ 13–23.)
The harassment began when S.B. was in third grade at Five Points Elementary
School but became a “serious” problem during S.B.’s fourth grade year, 2009 to 2010.
(Am. Compl. ¶ 28.) S.B. was called offensive terms and pushed because she did not
conform to the harassers’ perception of female gender norms. (Am. Compl. ¶ 35, 52.)
This included being called a “slut” or “lesbian” when she played football with male
students. (Am. Compl. ¶ 51.) S.B. reports that her guidance counselor, Mrs. Warren, and
teacher, Mrs. Dutt, observed, or were made aware of, the alleged conduct. (Am. Compl.
¶¶ 39, 46–47.)
Prior to the start of S.B.’s fifth grade year, S.B.’s parents conversed with and sent
a letter to DeFranco Elementary School’s Principal, Hendershot, about the offensive
conduct. (Am. Compl. ¶¶ 62–68.) S.B. asserts that during the fifth grade, the offensive
conduct diminished in the classroom but continued elsewhere. (Am. Compl. ¶¶ 70–76.)
She contends that “the sex-based comments” increased, with persistent commentary
about S.B.’s sexual orientation. (Am. Compl. ¶¶ 70–76.) There were continued instances
of physical assault. (Am. Compl. ¶¶ 70–76.) S.B. spoke to the guidance counselor about

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creating a bullying prevention club because S.B. was a victim of bullying. (Am. Compl.
¶¶ 79–80.)
During her sixth grade year, S.B. gave a speech in front of the BASD school board
about her bullying experience. (Am. Compl. ¶¶ 83–86.) The principal of S.B.’s
elementary school was present for this speech. (Am. Compl. ¶¶ 86.) During her seventh
grade year and the following summer, S.B. alleges that the frequency and severity of
bullying increased with continuing comments about her sexuality. (Am. Compl. ¶¶ 94,
118, 120, 125, 128.) S.B. organized a student club to combat bullying and consulted the
guidance counselor about the sexual harassment she was experiencing during this
process. (Am. Compl. ¶¶ 104–05.) S.B. alleges that the sexual harassment persisted
through the summer before and during her eighth grade year. (Am. Compl. ¶¶ 140, 143,
146, 163, 164).
On one occasion during her eighth grade year, the sexual harassment required S.B.
to remove herself from class and go to the main office to speak with the principal,
guidance counselors, and school psychologist. (Am. Compl. ¶¶ 165–67.) S.B. alleges
that she shared with them the details of the bullying at this meeting, including what was
said to her and the effects on her. (Am. Compl. ¶ 170.) At one point, S.B. signed into
the Lehigh Valley Hospital Behavioral Health Unit for ten days of treatment because she
was contemplating suicide. (Am. Compl. ¶¶ 171–73.) On September 27, 2013, S.B.’s
parents developed a “safety plan” with the principal, superintendent, head of BASD
security, and BASD school district police officer. (Am. Compl. ¶¶ 173–74.) On
November 12, 2013, BASD informed S.B’s parents that the school district was removing
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the escort protection provided to S.B. under the safety plan. (Am. Compl. ¶ 245.) As a
result, S.B.’s parents relocated to New Jersey where S.B. now attends school. (Am.
Compl. ¶¶ 256, 268, 270.)
On February 19, 2016, S.B. filed an amended complaint alleging one count of
sexual discrimination in violation of 20 U.S.C. § 1681.2 S.B. seeks $150,000.00 in
compensatory damages. (Am. Compl. ¶ 276.) BASD filed a motion to dismiss the
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 4,
2016 and S.B. filed a response to that motion on March 18, 2016.
II.

STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

for failure to state a claim upon which relief can be granted examines the sufficiency of
the complaint. Conley v. Gibson, 355 U.S. 41, 45–46 (1957). Following the Supreme
Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009), pleadings standards in federal actions have shifted
from simple notice pleading to a more heightened form of pleading, requiring a plaintiff
to plead more than the possibility of relief to survive a motion to dismiss under Fed. R.
Civ. P. 12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009); see
also Phillips v. Cty. of Allegheny, 515 F. 3d 224, 230 (3d Cir. 2008).
Therefore, when presented with a motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis. First, the factual and legal elements of
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“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 education program or activity
receiving Federal financial assistance.” 20 U.S.C. § 1681.
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a claim should be separated. The court must accept all of the complaint’s well-pleaded
facts as true but may disregard legal conclusions. Iqbal, 556 U.S. at 679. Second, a
district court must determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “plausible claim for relief.” Id. In other words, a complaint
must do more than allege the plaintiff’s entitlement to relief. A complaint has to “show”
such an entitlement with its facts. Id.; see also Phillips, 515 F.3d at 234–35. “Where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged — but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” As the
Court held in Twombly, the pleading standard Rule 8 announces does not require
“detailed factual allegations,” but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). A pleading that offers “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
III.

DISCUSSION
Plaintiff brought this action under 20 U.S.C. § 1681, alleging defendant’s violation

of Title IX for sexual harassment and discrimination. Title IX mandates that no
individual, on the basis of sex, “be excluded from participation in, be denied the benefits
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of, or be subjected to discrimination under any education program or activity receiving
federal financial assistance.” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 638
(1999). Title IX creates an implied private cause of action against a federally funded
public school board for sexual discrimination if student-on-student sexual harassment
occurs. Davis, 526 U.S. at 632. To hold the school board liable for its own conduct in
the instance of student-on-student harassment, the plaintiff must demonstrate (1) that the
federally funded school acted with “deliberate indifference to known acts of harassment
in its program and activities” and (2) that such sexual harassment is so “severe, pervasive,
and objectively offensive” that it effectively prevents the victim from enjoying an
educational opportunity or benefit. Id. at 633. At a minimum, the deliberate indifference
must cause the victim to suffer harassment or cause the victim to be vulnerable to
harassment. Id. at 645.
Defendant offers two reasons why the complaint should be dismissed: (1) plaintiff
failed to allege facts to demonstrate that the student-on-student harassment was severe
and pervasive sexual harassment; and (2) plaintiff failed to allege that she informed an
“appropriate person” of the sexual harassment.
A. Plaintiff has pleaded severe and pervasive sexual harassment.
To support a Title IX sexual harassment claim, the plaintiff must prove that the
alleged “conduct at issue was not merely tinged with offensive sexual connotations, but
actually constituted discrimination because of sex.” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998). Whether student-on-student sexual harassment rises
to the actionable level of “severe and pervasive” depends upon a “constellation of
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surrounding circumstances, expectations, and relationships . . . including, but not limited
to, the ages of the harasser and the victim and the number of individuals involved.”
Davis, 526 U.S. at 651 (quoting Oncale, 523 U.S. at 82). In Davis v. Monroe County
Board of Education, the United States Supreme Court reversed the Eleventh Circuit in a
case involving the dismissal of a student-on-student Title IX claim against a school
district. Id. at 654. In doing so, the Court recognized that one student sexually harassing
another over a five-month period, leading to a decline in the victim’s grades, is
sufficiently severe and pervasive to survive a motion to dismiss. Id. at 653–54.
Plaintiff alleges adequate facts to demonstrate harassment that was of a sexual
nature. Plaintiff alleges verbal harassment targeted at plaintiff’s gender consistently
throughout the relevant five-year period. (Am. Compl. ¶¶ 1, 13, 27, 32–34, 73, 84, 89,
112, 158, 164.) The alleged verbal harassment was premised upon her sexual orientation
and gender with comments regularly targeting her because she did not conform to gender
stereotypes and because the harassers believed she was lesbian. (Am. Compl. ¶¶ 1.)
When taken in the light most favorable to the plaintiff, the plaintiff’s sexuality was the
crux of the harassment that lead to repeated comments such as “slut,” “lesbian,” “gay,”
and “you have a disease because you’re a lesbian.” (Am. Compl. ¶¶ 1, 51, 73, 79, 118,
125, 128, 143, 146.)
Plaintiff further alleges facts sufficient to demonstrate that this sexual harassment
was severe and pervasive. Looking to the “constellation of surrounding circumstances,”
plaintiff asserts that eight individuals consistently sexually harassed her over a five-year
period. (Am. Compl ¶¶ 13–23.) This is far longer than the harassment in Davis (by four
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and a half years) and by seven additional antagonists. In Davis, the sexual harassment
led to a decline in the student’s grades. Davis, 526 U.S. at 654. For S.B., the alleged
harassment was extensive enough to require a ten-day in-patient stay for behavioral
health treatment, school intervention of an escort to ensure S.B.’s safety, and relocation
of her family to a different state for relief. (Am. Compl. ¶¶ 173, 175–180, 267–68.)
These allegations are more than sufficient to survive the defendant’s motion to dismiss.
B. Plaintiff has alleged that she informed the appropriate person for Title IX
purposes.
A plaintiff asserting a Title IX violation must demonstrate that an “appropriate
person” had actual notice of the alleged conduct and the appropriate person failed to
respond adequately to the discrimination. Warren v. Reading Sch. Dist., 278 F.3d 163,
169 (3d Cir. 2002). Actual notice occurs when an appropriate person at the defendant’s
institution has information sufficiently indicating a significant danger to the student “so
that the institution can reasonably be said to be aware of the danger.” Bostic v. Smyrna
Sch. Dist., 418 F.3d 355, 360 (3d Cir. 2005).
An appropriate person is, at a minimum, an official of the defendant entity with
the ability to take remedial action and terminate the discrimination. Id. (citing Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). Additionally, a person with the
authority to supervise teachers and investigate claims of misconduct constitutes an
appropriate person. Warren, 278 F.3d at 173. The Third Circuit has recognized a
principal of a school as an appropriate person for Title IX purposes. Warren, 278 F.3d at

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170–73. The Court, however, does not consider individuals to be an appropriate person
“solely by virtue of their position.” Bostic, 418 F.3d at 362.
Plaintiff alleges that various school officials had knowledge of the sexual
harassment while S.B. was enrolled in the school district. (Am. Compl. ¶ 1.) In
particular, plaintiff alleges that she or her parents informed various teachers, guidance
counselors, the principals of Bangor Middle School and Five Points Elementary School, a
school psychiatrist, the superintendent, the head of BASD security, and a BASD police
officer of the sexual harassment that she was experiencing. (Am. Compl. ¶¶ 39, 60, 89,
174, 189.) Although an “appropriate person” cannot be defined merely by that person’s
position, the plaintiff has sufficiently pleaded that an appropriate person was informed of
the sexual harassment when plaintiff alleged communication with over eight school
officials of varying levels of authority.
In conclusion, the plaintiff has asserted the necessary facts that, when viewed in
the light most favorable to the plaintiff, establish defendant’s Title IX violation.
Accordingly, the defendant’s motion to dismiss will be denied.
An appropriate Order follows.

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