Young et al v. Pleasant Valley School District et al

Filing 117

MEMORANDUM and ORDER denying plaintiff's 85 Partial Motion for Partial Summary Judgment; the case against Dft Pullo is DISMISSED ; and granting in part and denying in part 86 dfts' Motion for Summary Judgment Signed by Honorable James M. Munley on 1/4/10 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PATRICIA YOUNG, WILLIAM YOUNG, and PATRICIA YOUNG, on behalf of her minor daughter, Plaintiffs : No. 3:07cv854 : : (Judge Munley) : : : v. : : PLEASANT VALLEY SCHOOL : DISTRICT, : PLEASANT VALLEY SCHOOL : BOARD, : JOHN J. GRESS, Principal, in his : individual capacity, : DR. FRANK A. PULLO, : Superintendent, in his individual : capacity, and : BRUCE H. SMITH, JR., : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are defendants' motion for summary judgment and plaintiffs' m o tio n for partial summary judgment. Having been fully briefed and argued, the m a tte rs are ripe for disposition. I. Background T h is case arises from plaintiffs' conflicts with the defendant school district over e ve n ts in the United States history classroom of Defendant Bruce H. Smith at the P le a s a n t Valley, Pennsylvania high school in the spring of 2007. The material in q u e s tio n included photographs of murder victims, reading assignments that included

a sexually explicit memoir written by Smith, and classroom discussions and a s s ig n m e n ts that addressed sexual matters in a way that the plaintiffs found o ffe n s ive . At the time of the incidents in question Smith taught twentieth-century U n ite d States history at Pleasant Valley High School. (Defendants' Concise S ta te m e n t of Material Facts (Doc. 88) (hereinafter "Defendants' Statement") at ¶¶ 12 ). The minor daughter of Plaintiffs W illia m and Patricia Young was a student in S m ith 's classroom during the second semester of her junior year at Pleasant Valley H ig h School. (Id. at ¶ 3). She was sixteen years old. (Plaintiffs' Disputed Statement o f Facts (Doc. 103) (hereinafter "Plaintiffs' Statement") at ¶ 3). In March 2007, the plaintiffs' minor daughter complained to a guidance c o u n s e lo r at her school about the atmosphere and curriculum in Smith's classroom. (Defendants' Statement at ¶ 4). She told Donna Yozwiak, the counselor, that she "fe lt uncomfortable with the material, and she was questioning the graphics that were s h o w n during the class." (Deposition of Donna Yozwiak, Exh. 3 to Defendants' S ta te m e n t (hereinafter "Yozwiak Dep." at 5). Yozwiak suggested that the student s p e a k with the building principal, Defendant Gress. (Id.). The counselor later called th e student for a follow-up appointment. (Defendants' Statement at ¶ 6). Yozwiak a ls o spoke with the plaintiffs about their daughter's concerns. (Id. at ¶ 7). She told th e parents they should speak with Mr. Gress. (Yozwiak Dep. at 7). The material about which the plaintiffs' daughter complained included a book w ritte n by Smith. (Defendants' Statement at ¶ 22). This book was a memoir of

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Smith's youth, and plaintiffs' daughter was particularly offended by stories in the b o o k that described Smith losing his virginity and interrupting his mother having sex. (Plaintiffs' Statement at ¶ 22). Defendants contend that this book was not presented a s required reading, but plaintiffs's daughter testified that Smith urged students to re a d the book to prepare for required state exams. (Defendants' Statement at ¶ 23; P la in tiffs ' Statement at ¶ 23). In any case, the plaintiffs' daughter did not read the e n tire book. (Defendants' Statement at ¶ 25). Smith did not obtain approval from th e school district before introducing this book. (Id. at ¶ 24). Plaintiffs' daughter also c o m p la in e d about photographs of mutilated murder victims Smith showed the class. (Id. at ¶ 26). On March 8, 2007, the plaintiffs met with Defendant Gress to discuss their c o n c e rn s about Smith's teaching. (Defendants' Statement at ¶ 9). The plaintiffs c o m p la in e d about the content of Smith's teaching, as well as his behavior in the c la s s ro o m . (Id.). Defendant Gress promised plaintiffs he would keep their complaint c o n fid e n tia l. (Id. at ¶ 10). Gress testified that he had never had another complaint a b o u t Smith's teaching. (Id. at ¶ 11). Plaintiffs dispute this claim, but do not cite to a n y evidence in the record that indicates Gress was aware of previous complaints a b o u t Smith. (Plaintiffs' Statement at ¶ 11).1 Plaintiffs, citing to Smith's deposition, a ls o contend that Smith had been showing the material to his classes for five years,

Plaintiffs' objection reads as follows: "Denied as stated. Gress states he had no complaints, but we do not have proof that that is the case." (Plaintiffs' Statement at ¶ 11). The court is unsure how Gress could prove a negative. 3

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and that school officials were aware of his lesson plans. (Id. at ¶ 14). Gress began an investigation of Smith's teaching after his conversation with th e plaintiffs. (Defendants' Statement at ¶ 12). He contacted Smith and asked him a b o u t the photographs and assigned reading the plaintiffs found offensive. (Id. at ¶ 1 3 ). Gress directed Smith to cease using the material. (Id.). He also interviewed o th e r students in Smith's class about the material he used. (Id. at ¶ 14). Gress c o m p le te d a memorandum reporting on his investigation on March 15, 2007. (Id. at ¶ 19). He provided Defendant Pullo, the Pleasant Valley Superintendent, with this m e m o . (Id.). Plaintiffs contend that this investigation was inadequate, in part b e c a u s e they had warned Gress that Smith planned to show inappropriate p h o to g ra p h s of the Charles Manson and Ed Gien murders to his class. (Plaintiffs' S ta te m e n t at ¶ 12). Gress did not prevent this display. (Id.). Gress also failed to re s p o n d when plaintiffs complained to him after Smith showed these photographs. (Id.). According to the plaintiffs, Gress acted against Smith only after they c o m p la in e d to the local District Attorney's Office. (Id.). Defendant Pullo called the plaintiffs to discuss their complaints. (Defendants' S ta te m e n t at ¶ 15). The parties dispute the timing of this call; defendants claim Pullo c a lle d the day after the plaintiffs made their complaint, while plaintiffs insist that Pullo c o n ta c te d plaintiffs only after they spoke to the District Attorney's office. (Plaintiffs' S ta te m e n t at ¶ 15). Pullo, Gress, the plaintiffs and their daughter participated in a c o n fe re n c e call on March 20, 2007. (Defendants' Statement at ¶ 16; Plaintiffs'

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Statement at ¶ 16). The participants discussed with the plaintiffs' daughter what o c c u rre d in Smith's classroom. (Defendants' Statement at ¶ 16). On March 15, 2007, Defendant Pullo informed Smith that he had been s u s p e n d e d three days with pay. (Id. at ¶ 19). Plaintiffs contend that Smith c o n tin u e d to teach his students using videos during this suspension. (Plaintiffs' S ta te m e n t at ¶ 19). Pullo suspended Smith without pay for ten days on March 21, 2 0 0 7 . (Id. at ¶ 20). Plaintiffs also insist that Smith taught by video during this s e c o n d suspension. (Plaintiffs' statement at ¶ 20). Gress told Smith not to speak to a n y students about the reason for his absence from school. (Defendants' Statement a t ¶ 21). The parties disagree about whether Smith obeyed this instruction. (See D e fe n d a n ts ' Statement at ¶ 21; Plaintiffs' Statement at ¶ 21). Plaintiffs claim that "th e re is no evidence in the record to prove or disprove whether Smith talked to any s tu d e n ts about his suspension. However, it is known that he told his students his a b s e n c e was because of his mother." (Plaintiffs' Statement at ¶ 21). They point to a n e-mail Smith sent on March 25, 2007, which explained that he had to travel to M a ryla n d that week to care for his ailing mother, who doctors suspected needed a lu n g transplant. (Exh. G to Plaintiffs' Statement). This e-mail does not mention the c o n tro v e rs y surrounding Smith's teaching and does not address his suspension. (Id.). Smith also had a substitute teacher show a videotape about Daniel Ellsburg a n d the consequences of whistleblowing, which plaintiffs contend was an attempt to in tim id a te their daughter. (Defendants' Statement at ¶ 42; Plaintiffs' Statement at ¶

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42). A fte r Smith returned to teaching, administrators put in a place a plan to m o n ito r his teaching and lesson plans. (Defendants' Statement at ¶ 28). He was a ls o required to obtain authorization to use materials in the classroom. (Id.). Plaintiffs dispute the efficacy of this monitoring. (Plaintiffs' Statement at ¶ 28). They p o in t to evidence which indicates that Smith showed pictures of a women naked fro m the waist up and discussed homosexuality during a lecture about Nazism after re tu rn in g from his initial suspension. (Id.). After Plaintiff W illia m Young complained, G re s s responded by warning Smith that he would receive an unsatisfactory rating if h e continued such teaching practices. (Id.). Smith also continued to discuss "sexual to p ic s " in class, such as his college sexual experiences. (Id.). At the end of the ye a r, Smith received an unsatisfactory evaluation. (Defendants' Statement at ¶ 29). O n April 23, 2007, plaintiffs complained again to Gress about Smith's te a c h in g , contending that he had shown inappropriate and sexually explicit material. (Defendants' Statement at ¶ 44; Plaintiffs' Statement at ¶ 44). Gress called the p la in tiffs the next day to suggest they remove their daughter from Smith's class. (Defendants' Statement at ¶ 45). Plaintiffs contend that Gress did not acknowledge th e ir concerns, but instead emphasized that Smith was a valuable teacher. (Plaintiffs' Statement at ¶ 45).2 W h e n Gress informed Smith about a second

The record cited by the plaintiff does not appear to support this claim that Gress addressed Smith's value as a teacher during this conversation. Plaintiff Patricia Young's affidavit contends that Gress had called Smith a valuable teacher when she complained 6

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complaint about his teaching regarding Nazism, Smith asked Gress for permission to c a ll the parents and discuss the matter. (Defendants' Statement at ¶ 46). Smith n e ve rth e le s s called the plaintiffs. (Id.). Gress reprimanded Smith after Smith a d m itte d making this call. (Id. at ¶ 56). Smith's call was prompted by plaintiffs' complaints. The parties disagree a b o u t whether Gress told Smith that plaintiffs had complained about his teaching. (Defendants' Statement at ¶ 27). Smith denied at his deposition that Gress told him w h o complained about his teaching. (Smith Dep., Exh. 8 to Defendants' Statement a t 32). He claimed that another parent, Kim Dalmas, informed him by e-mail that p la in tiffs had complained about him. (Id. at 33). Still, upset by plaintiffs' accusations a n d by their criticism of his teaching, Smith called them after his initial suspension. (Id. at 35). Smith testified that when Plaintiff W illia m Young asked him if Defendant G re s s had instructed him to call, he replied that Gress had. (Id.). Smith testified that h e misspoke due to "nervousness," and quickly corrected himself to say he had c a lle d "on my own volition." (Id.). W illia m Young, by contrast, testified that Smith c a lle d the house and asked to speak to his wife regarding her concerns about his te a c h in g . (W illia m Young Dep. at 25). W h e n Young asked Smith who had told him to call Patricia Young about the issue, Smith hesitated, and then named Gress. (Id.).

about his course content, but the affidavit appears to reference an earlier conversation. (See Doc. 105). The other document referenced by the plaintiff, Gress's report on Smith's teaching, documents many of the grounds for their complaints, but does not document the contents of Gress's April 24 conversation with William Young. 7

Other evidence in the record indicates that plaintiffs complained to several other p a re n ts about Smith's teaching, and that some of these parents repeated their c o m p la in ts to others. (See Defendants' Statement at ¶¶ 30-39). Some of these p a re n ts deduced that plaintiffs had made the complaint about Smith. (Id. at ¶ 40). Plaintiffs contend that public knowledge about their complaints led to in tim id a tio n and harassment. The plaintiffs' minor daughter claims she was "too s c a re d to go back" to school after the local newspaper, the Pocono Record, p u b lis h e d a story about the filing of her lawsuit. (Id. at 49). Plaintiffs contend that s c h o o l administrators did nothing to stop this harassing treatment. (Plaintiffs' S ta te m e n t at ¶ 49). They insist that administrators offered a public commendation fo r students who held a pep rally in support of Smith. (Id.). Threats and name c a llin g eventually led plaintiffs to move out of the school district. (Id.). On May 13, 2 0 0 7 , before the family moved, W illia m Young requested homebound instruction for h is daughter. (Id. at ¶ 50). The Pleasant Valley school district provided teachers with yearly training on s e xu a l harassment and maintaining a proper work environment. (Defendants' S ta te m e n t at ¶ 51). The district also provided training on retaliation at personnel m e e tin g s , legal seminars hosted by attorneys and in-service training. (Dep. of A n th o n y Fadule, Exh. 9 to Defendants' Motion (Doc. 92) at 71). Gress attended a m o n th ly leadership council meeting at which he sometimes received training in s e xu a l harassment. (Defendants' Statement at ¶ 53). The district also had a written

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sexual harassment policy. (Id. at ¶ 54). Plaintiffs argue that this policy was in e ffe c tiv e , as Smith taught topics which the policy should have prohibited. (Plaintiffs' Statement at ¶ 54). On May 9, 2005, plaintiffs filed a complaint in this court alleging violations of th e ir First Amendment rights in the school district's reaction to their complaints. (See D o c . 1). Plaintiffs filed this complaint anonymously. Defendants responded with a m o tio n to dismiss that complaint because plaintiffs had not provided their real names a n d had not sought the court's permission to file the complaint anonymously. (See D o c . 5). Plaintiffs then filed a motion for permission to proceed anonymously due to s a fe ty concerns (See Doc. 9). In addition to responding to that motion, defendants file d a motion to stay discovery pending the outcome of our decision on those m o tio n s . (See Docs. 11-12). On August 1, 2007, the court issued a memorandum a n d order denying plaintiff's motion to proceed anonymously and the defendants' m o tio n to stay discovery. (See Doc. 16). The court also ordered the plaintiff to file a n amended complaint that provided the plaintiffs' real names. The plaintiffs filed their amended complaint on August 10, 2007. Defendants file d a motion to dismiss the amended complaint. (See Doc. 18). After briefing and o ra l argument, the court granted the motion in part and denied it in part. (See Doc. 3 3 ). The court also directed the plaintiffs to file a second amended complaint, which th e y did on February 18, 2008 (Doc. 35). On August 9, 2008, plaintiffs filed a third a m e n d e d complaint, which added now-ripe claims under Pennsylvania law. (Doc.

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54). Discovery continued and the parties eventually filed motions for summary ju d g m e n t. The parties then briefed those motions and the court held argument, b rin g in g the case to its present posture. II. Jurisdiction A s this case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction p u rs u a n t to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of a ll civil actions arising under the Constitution, laws, or treaties of the United States."). T h e court has supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367. III. Legal Standard G ra n tin g summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th a t there is no genuine issue as to any material fact and that the moving party is e n title d to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3 d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere e xis te n c e of some alleged factual dispute between the parties will not defeat an o th e rw is e properly supported motion for summary judgment; the requirement is that th e re be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 247-48 (1986) (emphasis in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. Int'l Raw 10

Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. W h e re the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the b u rd e n shifts to the nonmoving party, who must go beyond its pleadings, and d e s ig n a te specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. IV . Discussion T h e parties have each filed a motion for summary judgment. The court will a d d re s s each in turn. A. Defendants' Motion D e fe n d a n ts seek summary judgment on several grounds. The court will a d d re s s each. i. Retaliation D e fe n d a n ts seek summary judgment on plaintiffs' First Amendment retaliation claim. A plaintiff seeking to recover on a First Amendment retaliation claim "must 11

allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a c a u s a l link between the constitutionally protected conduct and the retaliatory a c tio n s ." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). D e fe n d a n ts ' argument focuses on whether plaintiffs have any evidence of re ta lia to ry conduct. The Third Circuit has declared in the context of workplace re ta lia tio n that "the key question in determining whether a cognizable First A m e n d m e n t claim has been stated is whether `the alleged retaliatory conduct was s u ffic ie n t to deter a person of ordinary firmness from exercising his First Amendment rig h ts .'" McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. D a d o n n a , 203 F.3d 228, 235 (3d Cir. 2000)). The sort of conduct that would count a s retaliatory "`need not be great in order to be actionable,' but it must be more than d e minimis." Id. (quoting Suppan, 203 F.3d at 235). Plaintiffs complain that Gress retaliated against them by revealing their names to Smith in connection with their complaints. The court finds that a reasonable juror c o u ld conclude that Gress revealed to Smith that plaintiffs had complained about his te a c h in g , and that such conduct would discourage an ordinary person from c o m p la in in g in the future. The evidence related above indicates that the Youngs had a s k e d Gress not to reveal their names because they worried that bringing a c o m p la in t about a popular teacher would lead other parents and students to harass th e m and their daughter. There is a question of fact over whether Gress revealed

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that plaintiffs complained about Smith's teaching. If a jury concluded that Gress p u rp o s e fu lly revealed the plaintiffs' names, that juror could reasonably find that a p e rs o n of ordinary firmness would be deterred from complaining again. Such re ta lia to ry conduct would also be causally related to the plaintiff's complaints.3 As s u c h , the court will deny Defendant Gress's motion on this point. N o evidence indicates, however, that Defendant Pullo was involved in re le a s in g plaintiffs' names to Smith. Plaintiffs point to other instances of retaliation, h o w e ve r. They argue that Gress permitted Smith to teach by video while on s u s p e n s io n , and that he showed a video about whistleblowers designed to intimidate th e plaintiffs' minor daughter. As other grounds for finding retaliation, plaintiffs c o n te n d that Gress's offer to move the minor plaintiff to another classroom was re ta lia tio n as well. They also contend that Gress "singled out" the plaintiff to ridicule b y calling her out of class to discuss her complaints and announcing to the school th a t he was proud students had protested Smith's suspension. Finally, they argue th a t the homebound instruction provided to the minor plaintiff was deficient and thus r e ta lia to r y . D e fe n d a n t Pullo was involved in only one of these alleged incidents of re ta lia tio n , the provision of homebound instruction to the plaintiffs' minor daughter. The evidence indicates that on May 13, 2007, plaintiffs wrote Defendant Pullo

As a jury need only find one instance of retaliation, the court will not address whether a jury could conclude that other actions complained of by plaintiffs constitute retaliation. 13

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requesting that their daughter receive homebound instruction. (E-mail from Youngs to Pullo, 5/13/2007, exh. 7 to Defendants' Motion). Plaintiffs cited "numerous th re a ts ," written and verbal, to their daughter as grounds for such instruction. (Id.). They asked Pullo to have Donna Yozwiak, a guidance counsellor, arrange an a p p ro p ria te tutor to assist their daughter in Physical Education, Chemistry II, C a lc u lu s I and 20 th Century History. (Id.). Plaintiffs' daughter received homebound in s tru c tio n as requested, but her mother found that "we didn't get sufficient teachers to teach what she needed to be taught." (Patricia Young Dep. at 67). A physics te a c h e r provided the instruction, and he could not provide her with instruction in c h e m is try , calculus or twentieth-century history. (Id.). The school "expected her to d o the work on her own." (Id.). Here, the evidence of record demonstrates only that Pullo responded to a re q u e s t for homebound instruction by arranging for that instruction, and that plaintiffs fo u n d the instruction inadequate because the teacher assigned to supervise the te a c h in g was not trained sufficiently in all of their daughter's courses. According to th e plaintiffs, this insufficient instruction was retaliation for their complaints. The c o u rt finds that a person of ordinary firmness would not be prevented from exercising h e r first amendment rights by this conduct. Plaintiffs have not introduced any e vid e n c e to indicate that Pullo was involved in the contents of this instruction. The e vid e n c e only indicates that Pullo received the request for homebound instruction, w h ic h the plaintiffs' daughter received. No evidence of record indicates that Pullo

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directed that the homebound instruction be insufficient. Thus, even assuming that p la in tiffs ' daughter did not receive the instruction to which she was entitled, no e vid e n c e indicates that this deficiency stemmed a reaction to plaintiffs' complaint. Moreover, a reasonable juror could not conclude that a person of ordinary firmness w o u ld be deterred from further complaints because they were dissatisfied with the q u a lity of instruction that they requested and received. A reasonable person could n o t expect to receive personalized instruction on every subject from a separate te a c h e r while homebound. The court will therefore grant the motion on this claim as it relates to Defendant Pullo. b. Failure to Train D e fe n d a n ts argue that they should be granted summary judgment on plaintiffs' fa ilu re -to -tra in claims against them. As a general matter, torts committed by e m p lo ye e s do not make a municipality liable under Section 1983 and "a local g o ve rn in g body can be held liable only for an official policy or custom." San Filippo v. Bongiovanni, 30 F. 3d 424, 445 (3d Cir. 1994). Under the standard first articulated in Monell v. Dept. of Soc. Servs., "local governing bodies . . . can be sued directly u n d e r §1983 . . . where, as here, the action that is alleged to be unconstitutional im p le m e n ts or executes a policy statement, ordinance, regulation, or decision o ffic ia lly adopted and promulgated by that body's officers." Monell v. Dept. of Soc. S e rvs . of the City of New York, 436 U.S. 658, 690 (1978). Thus, "[a] public entity . . . m a y be held liable for the violation of a constitutional right under 42 U.S.C. § 1983

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only when the alleged unconstitutional action executes or implements policy or a d e c is io n officially adopted or promulgated by those whose acts may fairly be said to re p re s e n t official policy." Reitz v. County of Bucks, 125 F.3d 139, 144 (3d Cir. 1 9 9 7 ). Liability exists when "`there is a direct causal link between a municipal policy o r custom and the alleged constitutional deprivation.'" Brown v. Muhlenberg Twp., 2 6 9 F.3d 205, 214 (3d Cir. 2001) (quoting City of Canton v. Harris, 489 U.S. 378, 3 8 5 (1989)). Here, plaintiffs claim that the defendants failed properly to train employees to a vo id violating students' rights. The Supreme Court has held that "[o]nly where a m u n ic ip a lity's failure to train its employees in a relevant respect evidences a `d e lib e ra te indifference' to the rights of its inhabitants can such a shortcoming be p ro p e rly thought of as a city `policy or custom' that is actionable under § 1983." City o f Canton v. Harris, 489 U.S. 378, 389, (1989). Further, "[w]hen a plaintiff alleges th a t a municipality has not directly inflicted an injury, but has caused an employee to d o so, stringent standards of culpability and causation must be applied to ensure that th e municipality in a § 1983 suit is not held liable solely for the conduct of its e m p lo ye e ." Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). These s tric t standards exist because "in enacting § 1983, Congress did not intend to im p o s e liability on a municipality unless deliberate action attributable to the m u n ic ip a lity itself is the `moving force' behind the plaintiff's deprivation of federal rig h ts ." Bd. of the County Commissioners of Bryan County, Oklahoma v. Brown, 520

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U.S. 397, 399 (1997). To avoid summary judgment on such a claim, plaintiffs "must p re s e n t evidence that the need for more or different training was so obvious and so lik e ly to lead to the violation of constitutional rights that the policymaker's failure to re s p o n d amounts to deliberate indifference." Brown, 269 F.3d at 216. D e fe n d a n ts argue that the evidence indicates that there had never been a c o m p la in t about Smith's conduct before, and that the district acted quickly when a p p ris e d of the problem and began an investigation. The district also provides tra in in g on sexual harassment and on responding to sexual harassment complaints. T h u s , no evidence exists by which a jury could conclude that defendants were d e lib e ra te ly indifferent to their rights. Plaintiffs argue that the district failed to provide tra in in g on appropriate images to display in class, and that such failing represents a d e lib e ra te indifference to the possibility of harassment. The district should also have in s titu te d a policy of monitoring lesson plans to insure that no such inappropriate m a te ria l appeared. The Pleasant Valley School District had a sexual harassment policy in place at th e time of the incidents in question. (See Exh. B. to Plaintiffs' Brief in Opposition to D e fe n d a n ts ' Motion (Doc. 101)). The policy "prohibits all forms of unlawful h a ra s s m e n t of employees and third parties by all district students and staff m e m b e rs , contracted individuals, vendors, volunteers, and third parties in the s c h o o ls ." (Id.). The policy defines sexual harassment as "unwelcome sexual a d va n c e s , requests for sexual favors: and other inappropriate verbal, written, graphic 17

or physical conduct of a sexual nature when . . . [s]uch conduct is sufficiently severe, p e rs is te n t or pervasive that it has the purpose or effect of substantially interfering w ith the employee's job performance or creating an intimidating, hostile or offensive w o rk in g environment." (Id.). Included in the district's description of conduct "that m a y constitute sexual harassment" are "graphic or suggestive comments about an in d ivid u a l's dress or body . . . jokes; pin-ups; calendars; objects; graffiti; vulgar s ta te m e n ts ; . . . references to sexual activities . . . or any conduct that has the effect o f unreasonably interfering with an employee's ability to work or creates an in tim id a tin g , hostile or offensive working environment." (Id.). The policy also sets o u t procedures for reporting and investigating complaints. (Id.). The evidence in d ic a te s that Smith received training under this policy, as did Gress. T h e court finds that no evidence indicates that "the need for more or different tra in in g was so obvious and so likely to lead to the violation of constitutional rights th a t the policymaker's failure to respond amounts to deliberate indifference." Brown, 2 6 9 F.3d at 216. Here, the defendants provided training that prohibited material and c o m m e n ts of the sort that Smith engaged in. Plaintiff argues that this training was in a d e q u a te , and defendant should have reviewed every lesson plan and examined e a c h of the images introduced by teachers like Smith to ensure that nothing a p p ro p ria te appeared. The court notes, however, that no evidence indicates that a n yo n e had complained about Smith's teaching or the images he used before p la in tiffs raised the issue. Thus, the district was not aware that its policies had failed

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to prevent inappropriate behavior from teachers. Moreover, the district did provide tra in in g about what sorts of images and subjects were inappropriate and could lead to a hostile environment which should have prevented Smith from his inappropriate b e h a vio r, as well as procedures for reporting and investigating incidents of h a ra s s m e n t. The plaintiffs' suggestion that failing to monitor every image shown in th e classroom and every lesson plan used by every teacher amounts to a claim"that a different training program than the one in place would have been more effective" in p re ve n tin g the hostile environment, and does not represent evidence of a training p ro g ra m "so obviously inadequate that it amounts to deliberate indifference" to p la in tiffs ' rights. Grazier v. City of Philadelphia, 328 F.3d 120, 125 (3d Cir. 2003). No evidence of deliberate indifference on this matter exists, and summary judgment is appropriate on this claim. Plaintiffs also argue that their failure-to-train claim should survive summary ju d g m e n t because the district failed to provide training to prevent retaliation against p a re n ts who complain about curriculum or teachers' activities. They point to the d e p o s itio n of Anthony J. Fadule as evidence of this lack of training. (See Exh. 9 to D e fe n d a n ts ' Statement). During his deposition, plaintiffs' counsel asked Fadule if th e district had provided "specific training on retaliation." (Id. at 71). Fadule replied th a t retaliation has "been a topic at our IU personnel meeting. W e monthly get to g e th e r with all the HR people, superintendents as well, and we discuss a whole h o s t of topics." (Id.). He admitted, however, no one had ever "[come] into your

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facility and [trained him] on retaliation, how not to retaliate." (Id.). The district p ro vid e d no "formal training with that topic specifically." (Id.). Plaintiffs contend that n o t providing such formal training about retaliation amounts to deliberate in d iffe r e n c e . At issue, then, is whether the failure to provide specific training on retaliation a m o u n ts to deliberate indifference on the district's part. In many cases, "the e xis te n c e of a pattern of tortious conduct by inadequately trained employees may te n d to show that the lack of proper training, rather than a one-time negligent a d m in is tra tio n of the programs or factors peculiar to the officer involved in a p a rtic u la r incident, is the `moving force' behind the plaintiff's injury." Bd. of County C o m m is s io n e rs , 520 U.S. at 407-408. Here, however, plaintiff points to no pattern of re ta lia tio n on the part of Gress or other district officials, but instead insists that this s in g le instance of retaliation demonstrates a failure in training that amounts to a c o n s titu tio n a l violation. Still, liability for failure to train could occur when "in light of th e duties assigned to specific officers or employees the need for more or different tra in in g is so obvious, and the inadequacy so likely to result in the violation of c o n s titu tio n a l rights, that the policymakers of the city can reasonably be said to have b e e n deliberately indifferent to the need." Brown, 269 F.3d at 215 (quoting City of C a n to n , 489 U.S. at 390). T h e court finds that the failure to provide specific training to employees on h o w not to retaliate does not amount to "deliberate indifference to the rights of

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persons with whom the [district administrator] come[s] into contact." City of Cannon, 4 8 9 U.S. at 388. The offending conduct here­retaliation­is the sort of behavior that is so obviously wrong and contrary to right that an ordinary person could recognize it a s inappropriate even without any additional training, and thus failing to provide m o re training on retaliation would not obviously lead to a constitutional violation and d o e s not constitute deliberate indifference. See, e.g., W a lk e r v. New York, 974

F .2 d 293, 299-300 (2d Cir. 1992) (finding that "[w]here the proper response­to follow o n e 's oath, not to commit the crime of perjury, and to avoid prosecuting the in n o c e n t­ is obvious to all without training or supervision, then the failure to train or s u p e rvis e is not `so likely' to produce a wrong decision as to support an inference of d e lib e ra te indifference by city policymakers to the need to train or supervise."); Kline v. Mansfield, 255 Fed. Appx. 624, 639 (3d Cir. 2007) (finding that "because not c o m m ittin g the crime of sexually abusing a child is obvious, the failure of Hamburg to tra in its employees to spot signs of sexual abuse . . . was not deliberately in d iffe r e n t." ). The court will thus grant the defendants' motion on this claim.

c . Title IX Hostile Environment and Retaliation D e fe n d a n ts seek summary judgment on plaintiffs' claims for sexual harassment and retaliation pursuant to Title IX. Title IX provides that "[n]o person in th e United States shall, on the basis of sex, be excluded from participation in, be d e n ie d the benefits of, or be subjected to discrimination under any education p ro g ra m activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).

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Federal courts have found that Title IX is aimed at preventing institutional d is c rim in a tio n on the basis of sex, not on regulating individual behavior. As a result, p e rs o n s acting in their individual capacities cannot be liable for discrimination under T itle IX. See, e.g., Nelson v. Temple University, 920 F. Supp. 633, 635 (E.D Pa. 1 9 9 6 ) (concluding that "[a] majority of the few cases explicitly addressing the issue h a ve concluded that Title IX does not authorize a cause of action against in d ivid u a ls ."); Bougher v. University of Pittsburgh, 713 F. Supp. 139, 143 (W .D . Pa. 1 9 8 9 ) (finding that because individual defendants did not receive funds under Title IX , "no Title IX claim can be stated against them."); Lipsett v. University of Puerto R ic o , 864 F.2d 881, 901 (1st Cir. 1988) (finding that officials of a university were lia b le , "if at all, under section 1983, rather than under Title IX"). The question in this c a s e is therefore whether a jury could find the school district liable under Title IX. Under Title IX, a school district can be liable for money damages to a private p la in tiff who suffers sexual harassment. See Gebser v. Lago Vista Ind. Sch. Dist., 5 2 4 U.S. 274, 283-284 (1998). The Supreme Court has concluded, however, that s u c h liability is not unlimited, and thus "in cases . . . that do not involve official policy o f the recipient entity . . . a damages remedy will not lie under Title IX unless an o ffic ia l who at a minimum has authority to address the alleged discrimination and to in s titu te corrective measures on the recipient's behalf has actual knowledge of d is c rim in a tio n in the recipient's programs and fails adequately to respond." Id. at 2 9 0 . Liability for a school district therefore occurs only when an "appropriate person"

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has "actual knowledge" of the prohibited activity. Bostic v. Smyrna School Dist., 418 F .3 d 355, 361 (3d Cir. 2005). In most cases, "a school principal who is entrusted w ith the responsibility and authority normally associated with that position will o rd in a rily be `an appropriate person' under Title IX." W a rre n v. Reading Sch. Dist., 2 7 8 F.3d 163, 171 (3d Cir. 2002); see also Chancellor v. Pottsgrove Sch. Dist., 501 F . Supp. 2d 695, 704 (E.D. Pa. 2007) (holding that "a school district may be liable for a teacher's sexual relationship with a student if (1) the school district received fe d e ra l financial assistance, (2) the student was subjected to discrimination on the b a s is of sex, and (3) an `appropriate person' (4) had actual notice of, and was d e lib e ra te ly indifferent to, the discrimination."). Even when an appropriate person h a s actual knowledge of discrimination, the school district escapes liability unless its "re s p o n s e . . . amount[s] to deliberate indifference to discrimination." Id. The Court fo u n d this standard to amount to "an official decision by the recipient not to remedy th e violation." Id. The dispute between the parties here is whether the appropriate person acted w ith deliberate indifference to the discrimination the minor plaintiff faced in Smith's c la s s ro o m , not about whether the material shown by Smith was appropriate. The e vid e n c e in the record indicates that Gress undertook an investigation as soon as p la in tiffs raised their concerns about Smith's teaching. Gress spoke to Smith about h is methods, interviewed students in the class and examined the controversial m a te ria ls Smith presented to the class. He told Smith to stop using material he

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considered inappropriate. Pullo also acted, suspending Smith for three days with p a y and ten days without pay. The superintendent instituted a program reviewing S m ith 's lesson plans when he returned to teaching. Despite these efforts, Smith c o n tin u e d his inappropriate teaching. T h e court finds that no evidence exists by which a jury could conclude that an a p p ro p ria te person was deliberately indifferent to the harassment that allegedly o c c u rre d in Smith's classroom. No evidence indicates that administrators had ever re c e ive d complaints about Smith's teaching before they heard from plaintiffs. A log o f Gress's investigation reveals that he met with plaintiffs on March 8, 2007. (See E xh . 7 to Defendants' Motion (Doc. 92)). Over the next week, he spoke with the p a re n ts about the status of the investigation, had a conversation with the district a tto rn e y about the case, and met with Smith about the complaint. (Id.). Gress o rd e re d Smith to stop teaching his book and to eliminate explicit video and images. (Id.). He also made a close examination of Smith's autobiographical novel and s c re e n p la y , noting inappropriate material and references to sexual behavior and d rin k in g . (Id.). By March 15, Gress had produced a report for Pullo that found S m ith 's class assignments "inappropriate," "unprofessional" and bearing "no re la tio n s h ip to the curriculum." (Id.). On that date, Pullo wrote Smith to inform him th a t he had been suspended for three days with pay, and that Gress had been in s tru c te d to undertake a "full investigation" of complaints against Smith. (Id.). After th is investigation, Pullo suspended Smith for 10 days without pay. (Id.). Upon

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Smith's return to school, he was to provide Gress with his lesson plans each week, o b ta in permission before showing any media to his classes, and refrain from d is c u s s in g the investigation or its results with his classes. (Id.). The letter also w a rn e d Smith that subsequent "transgressions" could lead to "more stringent" action. (Id.). In the end, the evidence shows, administrators monitored Smith's teaching

c lo s e ly , if not always successfully. That they did not entirely succeed is not evidence o f deliberate indifference, but perhaps of Smith's unwillingness to hew to a d m in is tra tiv e guidelines in his teaching. No evidence indicates, however, that G re s s and Pullo were aware of a problem and chose to ignore it. The court will th e re fo re grant the defendants' motion on this point. D e fe n d a n ts also argue that they should be granted summary judgment on p la in tiffs ' Title IX retaliation claim. They argue that the standard of proof for such a c la im is essentially the same as for a First Amendment retaliation claim. Since, they c o n te n d , the court should grant summary judgment to the defendants on plaintiff's F irs t Amendment claim, they should receive such judgement on the Title IX re ta lia tio n claim. For the reasons described above, the court finds that plaintiff's Title IX retaliation claim should survive summary judgment. The motion will be denied on th is point. d. Defendant Smith D e fe n d a n ts argue that plaintiffs' Section 1983 claims against Smith should be d is m is s e d . The plaintiffs' claim against Smith is an equal protection claim based on

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the alleged sexual harassment that occurred in his classroom. The Supreme Court h a s recently held that "§ 1983 suits based on the Equal Protection Clause remain a va ila b le to plaintiffs alleging unconstitutional gender discrimination in schools." Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 797 (2009). "In order to re c o ve r under § 1983, a plaintiff must show that the defendant, under color of state la w , subjected the plaintiff to a deprivation of a right, privilege, or immunity secured b y the constitution or laws of the United States." Renda v. King, 347 F.3d 550, 557 (3 d Cir. 2003). D e fe n d a n ts do not appear to dispute that Smith, in his role as teacher, acted u n d e r color of state law. Nor could they. "[A] public employee acts under color of s ta te law while acting in his official capacity or while exercising his responsibilities p u rs u a n t to state law." W e s t v. Atkins, 487 U.S. 42, 50 (1988). Courts have c o n s is te n tly found that teachers in their role as teachers act under color of state law. See, e.g., W a lk e r-S e rra n o ex rel. W a lk e r v. Leonard, 325 F.3d 412 (3d Cir. 2003) (fin d in g that teacher and school administrators had not unlawfully restricted plaintiff's p e titio n rights because the school did not take action against petitioner, not because te a c h e r was not a state actor); S.M. ex rel. L.G. v. Lakeland School Dist., 33. Fed A p p x. 635 (3d Cir. 2003) (finding that teacher was not liable for violating students s u b s ta n tiv e due process rights because teacher's behavior did not shock the c o n s c ie n c e , not because he failed to act under color of state law). The question, th e n , is whether Smith's conduct in some way subjected the plaintiff to a deprivation

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of a right, privilege, or immunity secured by the constitution or laws of the United S ta te s ." Renda, 347 F.3d at 557. D e fe n d a n ts ' argument is that Smith could be liable only if he acted in a way "d e lib e ra te ly indifferent to a known federal right." (Defendants' Brief (Doc. 87) at 18). They cite to Stoneking v. Bradford Area School Dist., 882 F.2d 720 (3d Cir. 1989) for th is proposition. The court finds that case inapposite, since the Stoneking court fa c e d the question of whether school officials could be held liable for the actions of a b a n d director who sexually abused and harassed a high-school student, and w h e th e r qualified immunity applied. The court did not address the grounds upon w h ic h an individual accused of violating a federal right could be liable, especially w h e re the claim is an equal protection one grounded in sexual harassment. The a lle g a tio n s against Smith are not that he failed in his duty to supervise a teacher who s e xu a lly harassed his students. Instead, Smith himself allegedly engaged in sexual h a ra s s m e n t in violation of plaintiff's rights. Thus, the court must determine whether D e fe n d a n t Smith could be liable for unconstitutional gender discrimination under S e c tio n 1983. A n explanation of the Supreme Court's recent decision in Fitzgerald is helpful h e re . In Fitzgerald, the Supreme Court considered whether the prohibitions of s e xu a l harassment in Title IX of the Education Amendments of 1972, 20 U.S.C. § 1 6 8 1 (a ), precluded an action under Section 1983 for "unconstitutional gender d is c rim in a tio n in schools." Fitzgerald, 129 S. Ct. at 792. The case arose out of the

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persistent sexual harassment faced by plaintiffs' third-grade daughter by older s tu d e n ts in her school. Id. Believing that the school district's response to their c o m p la in ts was inadequate, the parents sued under both Section 1983 and Title IX. Id. at 792-93. The district court granted the defendants' motion to dismiss the S e c tio n 1983 and state-law claims, and granted defendants' motion for summary ju d g m e n t on the Title IX claim. Id. at 793. The First Circuit Court of Appeals a ffirm e d . Id. T h e Supreme Court noted that the Courts of Appeals were split in deciding w h e th e r Title IX precluded Section 1983 claims to address unconstitutional gender d is c rim in a tio n in schools. Id. The Third Circuit Court of Appeals had previously fo u n d that Title IX "subsumed" sexual harassment claims brought pursuant to S e c tio n 1983. Pfeiffer by Pfeiffer v. Marion Center Area School Dist., 917 F.2d 779, 7 8 9 (3d Cir. 1990); W illia m s v. School Dist. of Bethlehem, Pa., 998 F.2d 168, 176 (3 d Cir. 1993). The Court found that Title IX, unlike statutes that precluded a c o n s titu tio n a l remedy through Section 1983, lacked an "`unusually elaborate,' `c a re fu lly tailored,' and `restrictive' enforcement scheme." Fitzgerald, 129 S. Ct. 795. Because Title IX has no administrative exhaustion requirement or notice provisions, a n d plaintiffs can file their claims directly in court "parallel and concurrent § 1983 c la im s will neither circumvent required procedures, nor allow access to new re m e d ie s ." Id. Moreover, the rights and protections, as well as the standard of p ro o f, under the two statutes "diverge," and thus Congress could not have intended

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to have Title IX serve as the sole means of vindicating gender discrimination.4 Id. at 796. Thus, the court found that "§ 1983 suits based on the Equal Protection

C la u s e remain available to plaintiffs alleging unconstitutional discrimination in s c h o o ls ." Id. at 797. T h e question, then, is what would make Smith liable pursuant to Section 1983. The court did not address that question in Fitzgerald. Plaintiffs urge that the court a d o p t the standard for "traditional hostile environment analysis" in deciding whether p la in tiffs ' equal protection sexual harassment claim can survive summary judgment. (Plaintiffs' Brief in Opposition (Doc. 101) at 30). Because of prior holdings on the re la tio n s h ip between the two statutes, the Third Circuit Court of Appeals has not e xa m in e d the relationship between harassment claims brought pursuant to Title IX a n d claims brought under Section 1983. Circuit courts that have allowed plaintiffs to b rin g sexual harassment claims under these circumstances, however, have adopted T itle VII standards for determining whether a sexually harassing environment e xis te d . See, e.g., Hayut v. State Univ. of New York, 352 F.3d 733, 745 (2d Cir. 2 0 0 3 ) (holding that "Section 1983 sexual harassment claims that are based on a `h o s tile environment' theory . . . are governed by traditional Title VII `hostile The court noted that "Title IX reaches institutions and programs that receive federal funds . . . , which may include nonpublic institutions . . . but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals . . . The Equal Protection Clause reaches only state actors, but § 1983 equal protection claims may be brought against individuals as well as municipalities and certain other state entities. Fitzgerald, 129 S. Ct. at 796. That is the precise situation in this case: Defendant Smith, as an individual, cannot be liable under Title IX. He can, however, as a state actor, be liable for unconstitutional gender discrimination pursuant to Section 1983. 29
4

environment' jurisprudence."); Jennings v. Univ. of N.C., 482 F.3d 686, 701 (4th Cir. 2 0 0 7 ). Moreover, the Third Circuit Court of Appeals applies a Title VII analysis to a d e te rm in a tio n of whether a hostile environment exists for Title IX purposes. See, e .g ., Saxe v. State College Area Sch. Dist., 240 F.3d 200, 205 (3d Cir. 2001) (a p p lyin g Title VII standards to Title IX sexual harassment). a p p ly Title VII analysis to plaintiff's hostile environment claim. A plaintiff seeking to prove hostile environment discrimination pursuant to Title V II most have evidence of conduct this is "both: (1) viewed subjectively as h a ra s s m e n t by the victim and (2) be objectively severe or pervasive enough that a re a s o n a b le person would agree that it is harassment." Saxe, 240 F.3d at 205. "In d e te rm in in g whether an environment is hostile or abusive, we must look at numerous fa c to rs , including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it u n re a s o n a b ly interferes with an employee's work performance.'" W e s to n v. P e n n s ylva n ia , 251 F.3d 420, (3d Cir. 2001) (quoting Harris v. Forklift Sys., Inc., 510 U .S . 17, 23 (1993)). A jury could find that the evidence in this case indicates that plaintiffs s u b je c tiv e ly found Smith's teaching and conduct to be harassing. Both parents and d a u g h te r complained about his course materials, including photographs and reading m a te ria ls , as well as the topics that Smith discussed with the students. The minor p la in tiff testified that she was often offended by the material Smith presented in Thus, the court will

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class, and that after some classes she "felt sick and . . . wanted to pass out." (M. P la in tiff. Dep. at 9, 31). She also found offensive explicit classroom discussions of s e x, which occurred "over and over," even after she complained. (Id. at 36). She "fe lt intimidated every time I walked in the room. It seemed weird that he was­as the s e m e s te r progressed that he was always buddy-buddy and that he would talk about h is sex life. I was grossed out." (Id. at 33). After she complained about Smith's m e th o d s , things got worse, and she became convinced she could not return to s c h o o l because she would be "miserable." (Id. at 35). The plaintiffs and their d a u g h te r eventually found the environment at school too painful to endure, and d e c id e d that she should stop attending school. (Id. at 13). They moved and the m in o r plaintiff graduated from a different high school. (Id. at 6). A jury could also find that the conduct was objectively severe and pervasive e n o u g h as to offend and harass a reasonable person. The evidence indicates that S m ith frequently discussed sexual topics of a graphic nature, and that he often a d d re s s e d his own sexual history and asked his students about theirs. He also s h o w e d pictures of naked and dismembered corpses, urged students to read s e xu a lly graphic material, and ignored demands from administrators that he stop s u c h behavior. A jury could conclude that such activity was not simply offensive, but th a t it unreasonably interfered with students' attempts to learn about twentiethc e n tu ry United States history. W h ile a reasonable juror may find the material Smith p re s e n te d simply an example of the unpleasantness and violence characteristic of

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the twentieth century, the court finds that a reasonable jury could conclude that S m ith 's material and methods created a hostile environment as defined by the law. Summary judgment is therefore inappropriate on this claim. e. Qualified Immunity T h e individual defendants contend that they are entitled to qualified immunity. "`Government officials performing discretionary functions . . . are shielded from lia b ility for civil damages insofar as their conduct does not violate clearly established c o n s titu tio n a l rights of which a reasonable person would have known.'" Merkle v. U p p e r Dublin Sch. Dist., 211 F.3d 782, 797 (3d Cir. 2000) (quoting Harlow v. F itz g e ra ld , 457 U.S. 800, 8181 (1992)). Such "qualified immunity" applies "if re a s o n a b le officials in the defendant's position at the relevant time `could have b e lie ve d , in light of clearly established law, that their conduct comported with e s ta b lis h e d legal standards.'" Merkle, 211 F.3d at 797 (quoting Stoneking v. B ra d fo rd Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989)). Q u a lifie d immunity could apply to each of the individual defendants who have c la im s remaining against them. Defendants' argument in relation to Defendant G re s s is that no evidence exists to support a claim that he purposely revealed the p la in tiffs ' identities after promising not to, and thus retaliated against them. Such an a rg u m e n t applies to liability, not to immunity. The question in the qualified immunity c o n te xt is whether "reasonable officials in the defendant's position at the relevant tim e `could have believed, in light of clearly established law, that their conduct 32

comported with established legal standards.'" Merkle, 211 F.3d at 797. The court h a s already concluded that a reasonable juror could find that Gress revealed p la in tiffs ' names to Smith. A reasonable official, the court finds, could not have b e lie ve d that retaliating against a plaintiff by reporting their names to the public d e s p ite plaintiffs' request for anonymity comported with clearly established law. As th e re is evidence by which a jury could find that Gress purposefully revealed p la in tiffs ' names, qualified immunity is not appropriate here. In arguing that Smith is eligible for qualified immunity, defendants insist that no re c o rd evidence exists to demonstrate that "Smith felt his conduct or treatment of P la in tiffs was, in effect, depriving them of their constitutional rights." (Defendants' B rie f at 19). Smith had never in five years of teaching the same materials faced a p re vio u s complaint about his methods. As such, he could reasonably have believed th a t his conduct comported with federal law. The court disagrees. A jury could find th a t Smith taught material that was highly offensive, and which served to expose the p la in tiffs ' minor daughter to sexual harassment. A jury could also find that a re a s o n a b le person in Smith's position­a teacher of high school students­would k n o w that continually discussing matters of a sexual nature largely unrelated to c o u rs e topics, showing offensive pictures of naked murder victims, and exposing s tu d e n ts to graphic sexual material he had written himself and which bore little or no re la tio n to course topics could have the effect of creating an intolerable environment a n d depriving students of their right to equal access to education. Moreover, a

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reasonable teacher in Smith's position would have stopped teaching material that c o u ld have the effect of denying students their rights after being warned by a d m in is tra to rs about the subjects he was teaching. Summary judgment is therefore in a p p ro p ria te on qualified immunity grounds. f. Punitive Damages F in a lly, defendants dispute plaintiffs' claims to punitive damages. To obtain p u n itive damages on a Section 1983 claim, "defendant's conduct [must be] shown to b e motivated by evil motive or intent, or . . . [involve] reckless or callous indifference to the federally protected rights of others." Smith v. W a d e , 461 U.S. 30, 56 (1983). According to the Third Circuit Court of Appeals, punitive damages require that "the d e fe n d a n t's conduct must be, at a minimum, reckless or callous. Punitive damages m ig h t also be allowed if the conduct is intentional or motivated by evil motive, but the d e fe n d a n t's action need not necessarily meet this higher standard." Savarese v. A g ris s , 885 F.2d 1194, 1204 (3d Cir. 1989). Here, if the jury were to believe that Gress intentionally disseminated plaintiffs' n a m e s to Smith, that jury could conclude that Gress acted with callous indifference to plaintiffs' federally protected rights. In the same manner, if a jury were to find that S m ith intentionally created a sexually harassing environment, that jury could find that S m ith acted with callous indifference to plaintiffs' federally protected rights. As such, th e court will deny the plaintiffs' motion on this point. B . Plaintiffs' Motion 34

Plaintiffs seek summary judgment on their sexual harassment claim. They a rg u e that the minor plaintiff was subject to a hostile environment in Smith's c la s s ro o m , and that this hostile environment continued even after Smith returned fro m his suspension. Plaintiffs contend that the facts that gave rise to the hostile e n viro n m e n t are not in dispute. They also contend that the defendant school district a n d administrators were aware that Smith engaged in offensive teaching practice for a t least five years, and did nothing to halt those actions until plaintiffs complained. The failure of the district and school officials to act, plaintiffs claim, constitutes d e lib e ra te indifference to the environment Smith created. The court has already fo u n d that summary judgment is appropriate for the defendants on this claim. As e xp la in e d above, the mere existence of a hostile environment is not enough to s u b je c t a school district to liability­an appropriate person must be deliberately in d iffe re n t to the situation. Thus, summary judgment is inappropriate for the plaintiffs h e re , and the court will deny the motion. V . Conclusion For the foregoing reasons, the court will grant defendants' motion in part and d e n y it in part. The court will deny the plaintiffs' motion. As a result of this opinion, o n ly plaintiffs' retaliation claim against Defendant Gress, plaintiffs retaliation claims p u rs u a n t to Title IX, plaintiffs' equal protection claim against Defendant Smith, and p la in tiffs ' punitive damages claim against Smith and Gress will remain. Defendant P u llo will be dismissed from the case. An appropriate order follows. 35

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PATRICIA YOUNG, WILLIAM YOUNG, and PATRICIA YOUNG, on behalf of her minor daughter, Plaintiffs : No. 3:07cv854 : : (Judge Munley) : : : v. : : PLEASANT VALLEY SCHOOL : DISTRICT, : PLEASANT VALLEY SCHOOL : BOARD, : JOHN J. GRESS, Principal, in his : individual capacity, : DR. FRANK A. PULLO, : Superintendent, in his individual : capacity, and : BRUCE H. SMITH, JR., : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 4th day of January 2010, the defendants' motion for summary judgment (Doc. 87) is hereby GRANTED in part and DENIED in part, as f o l lo w s : 1) The motion for summary judgment as to plaintiffs' First Amendment re ta lia tio n complaint against Defendant Pullo is hereby GRANTED; 2 ) The motion for summary judgment as to plaintiffs' failure-to-train complaint p u rs u a n t to 42 U.S.C. § 1983 is hereby GRANTED; and 37

3) The motion is DENIED in all other respects. T h e plaintiffs' partial motion for summary judgment (Doc. 85) is hereby DENIED. The case against Defendant Pullo is hereby DISMISSED, as no claims remain a g a in s t him.

B Y THE COURT: s / James M. Munley JAMES M. MUNLEY U N IT E D STATES DISTRICT JUDGE

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