T.B. v. NEW KENSINGTON-ARNOLD SCHOOL DISTRICT

Filing 50

MEMORANDUM OPINION re 30 MOTION for Summary Judgment , 42 MOTION to Strike 35 Brief in Opposition to Motion Appendix Affidavit in Support filed by NEW KENSINGTON-ARNOLD SCHOOL DISTRICT. Signed by Chief Judge Joy Flowers Conti on 11/22/2016. (smc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
T.B. a minor, by her next friend and parent,
T.B.,
Plaintiff,
v.
NEW KENSINGTON-ARNOLD
SCHOOL DISTRICT.
Defendant.

) CIVIL ACTION NO. 15-606
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) JUDGE JOY FLOWERS CONTI
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Conti, Chief District Judge.
OPINION
I. INTRODUCTION
In this civil action, plaintiff, T.B., a minor by her next friend and parent (“Plaintiff”),1 a
minor student at the defendant New Kensington Arnold School District (the “School District” or
“Defendant”), brings claims alleging a hostile educational environment under Title IX of the
Education Amendments Act of 1972, 20 U.S.C.A. § 1681, et seq. Plaintiff avers that fellow
students sexually harassed her, and that the School District, despite repeated notifications, failed
to adequately address the offending conduct. Defendant filed a motion for summary judgment,
along with a related motion to strike a declaration that plaintiff submited in opposition to
summary judgment. For the following reasons, both of Defendant’s motions will be denied.
Each motion will be addressed.
II. MOTION TO STRIKE

1

For ease of reference, “Plaintiff,” as used herein, refers to the minor Plaintiff unless otherwise specified.

1

As a threshold matter, Defendant moves to strike Plaintiff’s declaration submitted in
opposition to summary judgment. Defendant contends that the declaration contradicts Plaintiff’s
prior testimony, and that the document constitutes a sham affidavit; Defendant further challenges
the statement as unsworn. An unsworn declaration, however, is permissible at the summary
judgment stage if it conforms to the requirement that declarant states that its contents are true,
subject to penalty of perjury. Fed. R. Civ. P. 56(c); 28 U.S.C.S. § 1746. Plaintiff’s challenged
declaration bears the required statement.
"A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot
maintain a consistent story or is willing to offer a statement solely for the purpose of defeating
summary judgment." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007).
Under the sham affidavit doctrine, “if it is clear that an affidavit is offered solely for the purpose
of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable
jury could accord that affidavit evidentiary weight….” Real v. Dunkle, 652 F. App’x 82 (3d Cir.
2016).
The Court of Appeals for the Third Circuit has recognized that not all contradictory
affidavits are necessarily shams. Jimenez, 503 F. 3d at 254. Therefore, "[d]isregarding
statements in an affidavit is appropriate on 'clear and extreme facts' . . . when the affidavit is
'flatly contradictory' to the prior testimony . . . ." Hickton v. Enterprise Rent-A-Car Co., MDL
No. 2056, 2012 U.S. Dist. LEXIS 136252, at *30 (W.D.Pa. Sept. 24, 2012) (quoting Coleman v.
Cerski, No. 3:04-cv-1423, 2007 U.S. Dist. LEXIS 74347, at *5 (M.D. Pa. Oct. 4, 2007)).
“When deposition testimony is ambiguous or incomplete, subsequent affidavits may be provided
to clarify the testimony and will not be discarded as sham documents.” Id. The court is to apply
a "flexible approach" when determining whether to apply the sham affidavit doctrine. Kline v.

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Zimmer Holdings, Inc., No. 13-513, 2015 U.S. Dist. LEXIS 87440, at **11-12 (W.D. Pa. July 6,
2015) (quoting Jimenez, 503 F. 3d 247 at 253).
Here, Defendant points to several purported inconsistencies between Plaintiff’s affidavit
and her prior testimony. For example, Defendant argues that Plaintiff’s affidavit states that
another student, identified here as L, created the Facebook post; but that in her deposition,
Plaintiff testified that Plaintiff had never seen the post. Defendant argues that Plaintiff
previously testified that the post was never viewed in the school setting, but her affidavit states
that other students discussed the post in class. Defendant objects that Plaintiff’s affidavits
identify particular students as harassers; in her deposition, she said “everybody” harassed her.
In these respects, the affidavit does not flatly contradict Plaintiff’s prior testimony. Instead, it
clarifies or elaborates upon that testimony. The variations to which Defendant points, therefore,
do not suggest that Plaintiff cannot maintain a consistent story, or that she is willing to offer a
statement solely for the purpose of defeating summary judgment. The affidavit will not be
discarded as a sham.
Defendant also objects that Plaintiff’s declaration contains hearsay. Defendant
presumably refers to Plaintiff’s declaration that other students told her that a student, identified
here as S, said that Plaintiff “fucked the entire football team.” Plaintiff contends that the
statements would not be offered to prove the truth of her involvement with the football team, but
to prove that the statements were made. In any event, an evidentiary ruling need not issue at this
point. A nonmoving party need not "produce evidence in a form that would be admissible at trial
in order to avoid summary judgment." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Instead, the evidence may be considered, if “it is likely that the information can be reduced to
admissible evidence at trial.” Straka v. Comcast Cable, 897 F. Supp. 2d 346, 360 (W.D. Pa.

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2012). At this juncture, Plaintiff suggests that she has both the intention and the ability to
produce direct testimony on the matters at issue. For these reasons, the motion to strike will be
denied.
III. MOTION FOR SUMMARY JUDGMENT
A. APPLICABLE STANDARDS
The Federal Rules of Civil Procedure provide that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment may be granted
against a party who fails to adduce facts sufficient to establish the existence of any element
essential to that party's case, and for which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322.
The moving party bears the initial burden of identifying evidence that demonstrates the
absence of a genuine issue of material fact. Id. at 323; Aman v. Cort Furniture Rental Corp., 85
F.3d 1074, 1080 (3d Cir. 1996). Once that burden has been met, the nonmoving party must
identify "specific facts showing that there is a genuine issue for trial," or the factual record will
be taken as presented by the moving party, and judgment will be entered as a matter of law.
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is
“genuine” only if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). In assessing the
record, a court must view all facts in the light most favorable to the nonmoving party, and must
draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler
County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005).

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B. FACTS
This case, like many of its ilk, involves conflicting accounts of significant events. Rather
than recounting the facts in full from the outset, this recitation of facts will be limited to those
that provide the necessary background. Disputed matters that form the bases for this court’s
decisions are more specifically identified infra, in the context of each pertinent discussion of
applicable law.
At the time of the events giving rise to this litigation, Plaintiff was a student within the
School District. Plaintiff’s allegations of harassment span her seventh and eighth grade school
years, from September 2013 to June 2014, and then from September 2014 to June 2015.
Although the parties dispute several details underlying Plaintiff’s school disciplinary record, it is
undisputed that the record reflects Plaintiff’s involvement in physical and verbal altercations
with other students and staff. Combined Concise Statement of Material Facts (“C.C.S.”) ¶¶2732.2
In April 2014, the spring of her seventh grade year, Plaintiff asserts that she was told that
a fellow student, L, posted on Facebook that Plaintiff was a “whore and a slut,” that her vagina
smelled, and that she engaged in oral sex with another female student. C.C.S. ¶33; Plaintiff’s
Appendix (“P.A.”) at 5, 16; Defendant’s Appendix (“D.A.”) at 146.3 Plaintiff did not see the
post. C.C.S. ¶36. Plaintiff testified that the post was shared by other students, and that L and
others began to call Plaintiff derogatory names at school, including “slut,” “whore,” and “fish
pussy.” C.C.S. ¶¶33, 171. Plaintiff submits that L called her names “like every day.” D.A. at

2

Citations to the Combined Concise Statement encompass both the stated facts, and the parties’ responses to each
cited paragraph.
3
The pages of Defendant’s Appendix are marked, in the record, with the designation “A.” In this opinion, to make
clear that citations refer to Defendant’s submission, the Appendix is designated “Defendant’s Appendix” or “D.A.”

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229. In addition to L, Plaintiff identified two other female students, S and K, as participating in
the alleged harassment, and also stated that other students called her derogatory and sexually
explicit names. C.C.S. ¶¶34, 38, 39. Plaintiff testified that in the fall of her eighth grade year, S
started a rumor that Plaintiff had sex with the entire football team. C.C.S. ¶¶55, 56, 167, 168.
Plaintiff testified that L continued to spread rumors about her and use sexually hostile terms
during Plaintiff’s eighth grade year. D.A. at 181, 219, 230. According to Plaintiff’s testimony,
offensive and derogatory statements and rumors were made, or spread, to and amongst students
in other schools. D.A. at 163-64.
Although the parties disagree about who instigated the confrontation, it is undisputed that
a physical and verbal altercation ensued between L and Plaintiff at school. C.C.S ¶¶47-52, 16164. Thereafter, in December of her eighth grade year, Plaintiff was removed from school, via
expulsion or voluntary agreement. C.C.S. ¶99. She was ultimately placed in an alternative
education program. C.C.S. ¶99. Plaintiff testified that while she was in alternative placement,
boys would throw things at her, call her names such as “bitch,” and make statements such as “I
want to have sex with you,” and “I would like to have oral sex with you.”4 C.C.S. ¶125; D.A. at
232a-234. During Plaintiff’s eighth grade year, she was issued a citation for harassment,
stemming from an encounter with L. C.C.S. ¶57. There is evidence regarding other negative
encounters between Plaintiff and teachers and other students, several details of which are
disputed. C.C.S. ¶¶86-94, 102-104, 112-13.
At the time of pertinent events, the following school personnel held the noted positions:
Tierra LaPrade Weaver (“Weaver”) was Plaintiff’s guidance counselor; John Pallone (“Pallone”)
was the District Superintendent; Jon Banko (“Banko”) was Acting Principal/Assistant
4

Included in Defendant’s appendix is Plaintiff’s testimony that the boys “said they were going to stick pencils in
[her] vagina” and “they wanted to…just have sex with me every day....” She testified that the boys would try to
touch “my butt or … my boobs and stuff.” D.A. at 234.

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Superintendent; and Todd Kutchak (“Kutchak”) and Jeff Thimons (“Thimons”) were Assistant
Principals. C.C.S. ¶¶6-8, 10, 13. It appears that Joe Locke (“Locke”) was not an employee of
Defendant, but was assigned the role of School Resource Officer pursuant to a grant. D.A. at
110, 508-509, 514.
Plaintiff recalls reporting the name calling to, inter alia, both Weaver and Kutchak.
C.C.S. ¶41. She testified that she reported the name calling to school personnel 10 or 11 times
during her seventh grade year. D.A. at 229. It is undisputed that Plaintiff’s mother spoke to the
Kutchak about the Facebook post, and he said that he would “monitor the situation.” C.C.S.
¶¶45, 156-57, 160. At that time, Kutchak took the position that he was unable to take action,
because the post was not created at school. C.C.S. ¶¶46, 158. Plaintiff’s mother testified that
she called the school “well over 15 times” to report harassment; Defendant disputes this
assertion. C.C.S. ¶183. Plaintiff’s parent stated that she spoke with Kutchak at a football game
at the beginning of Plaintiff’s eighth grade year, and informed him that L. called Plaintiff
derogatory names; he told her not to worry. C.C.S. ¶¶174-76. She says, and Kutchak disputes,
that she called him a week or less afterwards to inform him that the harassment continued. D.A.
at 256-57.
The record reflects several e-mail communications between Plaintiff’s parent and school
officials during the subject school year, touching on parental concerns about Plaintiff’s situation
and the conduct of other students toward Plaintiff. By way of example, the record contains an email dated November 19, 2014, from Plaintiff’s parent to Locke, and carbon copied to Banko
and Pallone:
I have told multiple people in the position of authority (Lorrie and Mr. Kuthchak)
that L is bulling my child and the only response that I have rec’d thus far is “She’s
not worth it” and “She is going to be gone soon”. This child has posted foul and
demeaning things about [Plaintiff] on Facebook and when they are anywhere
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around eachother [Plaintiff] is call horrible names. [Plaintiff] Reported to Lorrie
that L started a rumor and posted on FaceBook that [Plaintiff] allowed L to
perform oral sex on her and because of the smell of her vagina, [Plaintiff] is now
mad. … .
D.A. at 22, 26.5
On the same day, Banko forwarded the e-mail to Locke and Kutchak, stating, “Joe &
Todd, What is going on with this?” C.C.S. ¶71. Locke replied to Banko, “Ok got it thanks I’ll
look into it.” C.C.S. ¶72; D.A. at 28. Locke responded to Plaintiff’s parent the following day,
“ok got the e-mail…thanks I’ll look into it and bring it all up at magistrates….” C.C.S. ¶73;
D.A. at 30. The record contains an e-mail dated December 15, 2014, from Pallone to Plaintiff’s
parent, on a thread including Plaintiff’s parent’s November 19 e-mail, stating, “I just found your
e-mail message – it got sent to my spam folder.” D.A. at 33. In an e-mail dated February 27,
2015, Plaintiff’s parent wrote, “I have some serious concerns not only about [Plaintiff’s]
education but also her safety on the bus as she is the only female that rides most days and some
of the things she reports to me is clearly sexual harassment to say the least.” D.A. at 35.
The record contains an e-mail, this time from Plaintiff’s parent to Thimons, dated May 8,
2015. The e-mail states that Plaintiff reported to her parent that “the boys are touching her in
places that she should not be touched. She told me that even when the teacher try to intervene
and tell them stop and not to touch her that the boys still persist.” D.A. at 56. In response,
Thimons spoke to teachers and students, and determined that Plaintiff’s reports were not
credible. C.C.S. ¶133-34. Thimons testified that he attempted to return phone calls from
Plaintiff’s parent, but that the phone was out of service; Plaintiff’s parent states that her phone
was never out of service at that time. C.C.S. ¶¶131-32. Thimons told Plaintiff to come to him if

5

Where the text of e-mails is quoted verbatim, spelling and grammatical errors appear in the original texts.

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she was uncomfortable in her alternative classroom. C.C.S. ¶137. An aide was placed on the
bus. C.C.S. ¶132.
C. DEFENDANT’S MOTION
1. “On the basis of sex”
Title IX provides that "no person . . . shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance . . . ." 20 U.S.C. § 1681(a). A Title IX
plaintiff can demonstrate discrimination “on the basis of sex” by showing, for example, explicit
or implicit sexual proposals, or that the conduct was motivated by sexual desire, or that the
alleged harasser employed sex-specific and derogatory terms that made it clear that the harasser
was motivated by general hostility to one sex. Oncale v. Sundowner Offshore Servs., 523 U.S.
75, 80 (1998).
The kernel of Defendant’s argument is that Plaintiff cannot prove that she was harassed
“on the basis of sex,” because she was subjected to mere name calling that involved terms
commonly employed among Plaintiff’s peers. That situation, it contends, is insufficient to
support a Title IX claim.6 It is true that "in the school setting, students often engage in insults,
banter, teasing, shoving, pushing, and gender specific conduct that is upsetting to the students
subjected to it. Damages are not available for simple acts of teasing and name-calling among
school children, however, even where these comments target differences in gender.” Davis v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999). Accordingly, “[c]ourts have repeatedly
held that forms of abuse utilizing gendered or sexual language do not, by their use of such

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Defendant’s tangential arguments may be summarily dismissed. Evidence that Plaintiff used sexually charged and
degrading words herself, or that students her age commonly use those words, does not nullify the use of those terms
against her if sufficient evidence exists regarding the elements of a Title IX claim. The facts must be viewed in the
light most favorable to Plainiff.

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language alone, constitute discrimination on the basis of gender.” Eilenfeldt v. United C.U.S.D.
#304 Bd. of Educ., 84 F. Supp. 3d 834 (C.D. Ill. 2015).
It is well settled that "[w]hether gender-oriented conduct rises to the level of actionable
harassment . . . 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." Davis, 526 U.S. at 651. As other courts have recognized,
“gender derogatory terms” such as “bitch” and “whore” are “intensely degrading to women.” Cf.
Burch v. Young Harris College, No. 2:13-cv-64, 2013 U.S. Dist. LEXIS 190498, at *21 (N.D.
Ga. Oct. 9, 2013). As a result, the use of offensive, gendered words “can be strong evidence that
the harassment at issue is on the basis of sex.” Doe v. Galster, 768 F.3d 611, 617 (7th Cir 2014).
Discrimination based on the failure to conform to gender stereotypes, although difficult to
distinguish from sexual orientation discrimination, may constitute discrimination on the basis of
sex. See Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. 2006).7 This
court has recognized that asking another student to perform sexual acts “certainly can be
considered sexually harassing.” Doe v. North Allegheny Sch. Dist., No. 2:08-cv-1383, 2011
U.S. Dist. LEXIS 93551, at *23 (W.D. Pa. Aug. 22, 2011).
Cases involving peer-on-peer sexual harassment often require courts to engage in delicate
line-drawing between actionable and nonactionable conduct. True to form, the proper
delineation in the case at bar is far from clear. The facts, however, must be viewed in the light
most favorable to Plaintiff, and as a whole. The constellation of facts presented here include
offensive and gender-derogatory name calling, including references fairly read as targeting a
7

Defendant, in support of its motion, points out that the rumor about Plaintiff being involved in a same-sex
relationship was not based in fact. “A plaintiff's ‘actual’ sexual orientation is irrelevant to a Title IX … claim
because it is the biased mind of the alleged discriminator that is the focus of the analysis.” Videckis v. Pepperdine
Univ., 150 F. Supp. 3d 1151, 1159-60 (C.D. Cal. 2015). Plaintiff not being involved in a same-sex relationship
further removes this case from the realm of nonactionable sexual orientation discrimination.

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failure to conform to gender norms and references to Plaintiff’s genitalia and other comments
fairly read as explicitly sexual propositions. Indeed, nearly every comment that other students
reportedly made to Plaintiff was gendered or sexually loaded. Despite Plaintiff’s
acknowledgement that offensive terms are sometimes used in jest, a jury may reasonably view
the constellation of facts as amounting to more than “simple acts of teasing.” The court must
conclude that a reasonable jury could find that Plaintiff was harassed “on the basis of sex,” and
Defendant’s motion must be denied to that extent.
2. Notice
Defendant argues that it did not have actual knowledge of the harassment. In particular,
Defendant focuses on its employees’ testimony that they were unaware of any threat to Plaintiff,
and that the Facebook post occurred outside of its control, and on its own characterization and
interpretation of e-mails sent by Plaintiff’s parents.
“Actual notice” or “actual knowledge” exists when an “appropriate person” “knows the
underlying facts, indicating sufficiently substantial danger to students, and was therefore aware
of the danger." Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 361 (3d Cir. 2005). As Defendant
states, the notice requirement “does not set the bar so high that a school district is not put on
notice until it receives a clearly credible report of sexual abuse from the plaintiff-student.” Escue
v. Northern OK College, 450 F.3d 1146, 1154 (10th Cir. 2006). "'[T]he institution must have
possessed enough knowledge of the harassment that it reasonably could have responded with
remedial measures to address the kind of harassment upon which plaintiff's legal claim is
based.'" Staehling v. Metropolitan Gov’t of Nashville, No. 3:07-0797, 2008 U.S. Dist. LEXIS
91519, at * 10 (M.D. Tenn Sept. 12, 2008).

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Defendant’s arguments do not acknowledge the disputed testimony of both Plaintiff and
her parent that they spoke with school officials multiple times regarding the harassment that
Plaintiff claims to have experienced. Although the parties disagree about the substance and
frequency of reports from Plaintiff and her parents, Defendant acknowledges and describes three
instances of relevant contact with school personnel.8 Plaintiff submitted several e-mails, the
sending and receipt of which do not appear to be disputed. These include a November 19, 2014
e-mail to Locke, reporting the content of the Facebook post and spreading of rumors; a February
27, 2015 e-mail to Banko regarding concerns about safety on the bus and sexual harassment; and
the May 8, 2015 e-mail to Thimons, in which Plaintiff’s parent advised that Plaintiff was being
touched, inappropriately, by male students. D.A. at 22-30, 35, 56. Defendant attempts to dilute
these e-mails by characterizing them as no more than a parent’s effort “to defend her child,” or
“to press the School District for a change along with accusations that the [alternative] room was
too cold.” Defendant’s Brief in Support of Motion for Summary Judgment at 18. A reasonable
jury could certainly view them as such, but also could view them as notice of harassing conduct.
That the Facebook post was created and viewed off school property does not negate
Plaintiff’s numerous purported reports to Defendant of other objectionable conduct occurring on
school grounds. Likewise, school officials’ testimony that they were unaware of any threat to
Plaintiff is not dispositive under the surrounding circumstances of this case. Given extant
testimony regarding the nature, frequency, and duration of the peer conduct at issue, and the
disputed evidence regarding the nature and frequency of reports to school officials, a reasonable
8

In particular, Defendant acknowledges that Plaintiff made Kutchak aware of the Facebook post, and he indicated
that he could not exercise control over that post but would monitor the situation; Plaintiff’s parent sent an e-mail to
Locke, on which Banko and Pallone were carbon copied, and Locke responded to the parent that he would look into
it; and Plaintiff’s parent complained to Thimons regarding other students’ behavior toward Plaintiff on the bus and
in the alternative education classroom. Indeed, Defendant’s position -- that when it received notice, it responded
appropriately – implicitly acknowledges that it was, at some point, notified of at least some of the facts underlying
Plaintiff’s allegations.

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jury could conclude that appropriate persons were made aware of underlying facts indicating the
substantial danger that Plaintiff was being, or would be, sexually harassed. Defendant’s motion
in that respect will be denied.
3. Deliberate Indifference
Next, Defendant argues that it is entitled to summary judgment because Plaintiff cannot
establish that it acted with deliberate indifference. In so doing, it focuses on Thimons’ receipt of
notice of Plaintiff’s complaints about her bus and alternative placement classroom, speaking with
teachers and finding that the complaints were not credible. Thimons advised Plaintiff that she
could come to speak with him if she felt uncomfortable and assigned her a bus aide.
A school district is deliberately indifferent when it "is advised of a Title IX violation
[and] refuses to take action." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
The inquiry requires that school administrators respond to known peer harassment in a manner
that is not "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648.
The deliberate indifference standard sets a high bar for a plaintiff seeking to recover under Title
IX. Galster, 768 F.3d at 619. “This is an exacting and strict standard requiring that the official
disregard a known or obvious consequence of his action or inaction. Therefore, the appropriate
remedial action necessarily depends on ‘the particular facts of the case - the severity and
persistence of the harassment, and the effectiveness of any initial remedial steps.’" Bernard v. E.
Stroudsburg Univ., N2014 U.S. Dist. LEXIS 52091, at *45 (M.D. Pa. Apr. 14, 2014). 9
Here, Defendant’s “deliberate indifference” argument focuses on the adequacy of
Thimons’ response to Plaintiff’s complaints in 2015, which Defendant acknowledges concerned
9

Perhaps pertinent to the adequacy of Defendant’s conduct, the parties refer to Defendant’s sexual harassment
policies. The parties’ submissions in that respect are material neither to Defendant’s argument nor the decision
today. It is, however, notworthy that while such policies are relevant, "the failure to follow sexual harassment …
procedures does not prove deliberate indifference under Title IX." Doe v. Board of Educ., 982 F. Supp. 2d 641, 657
(D. Md. 2013).

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“conduct which would be considered sexual harassment if found unwelcome.”10 This focus,
however, utterly disregards testimony regarding reports and complaints of potentially harassing
conduct, which are alleged to have occurred at school and well before Thimons’ actions in 2015.
There is evidence that Kutchak said that he would monitor the situation, for example, and that
Locke said he would look into it, but there is no evidence of corresponding action. Whether the
school officials’ conduct was reasonable under the circumstances is not sufficiently clear to
entitle Defendant to summary judgment. A reasonable jury could conclude that during the
relevant time period, which spanned two school years, Defendant’s overall response to the
situation was clearly unreasonable. Therefore, Defendant’s motion will be denied.
4. Access to Education
Defendant argues that Plaintiff was not denied access to education, because the alleged
harassment was not sufficiently severe, pervasive, and offensive. Defendant points out that
Plaintiff was placed in an alternative education program because of her own misconduct, and not
because of harassment.
"[I]n the context of student-on-student harassment, damages are available only where the
behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal
access to education that Title IX is designed to protect." Davis, 526 U.S. at 652. In assessing the
severity of conduct, “the situation needs to be viewed as a whole.” Riccio, 467 F. Supp. 2d at
227. In that regard, courts considering Title IX harassment claims have held that comments
occurring bi-weekly, or eight to fifteen times over the course of a semester, raised a triable issue
10

Perhaps related to Defendant’s caveat regarding whether the alleged harassment was welcome, Defendant submits
a May 12, 2015 e-mail from a teacher, Katie LaCava (“LaCava”), to Thimons. D.A.at. 435. In the e-mail, LaCava
described “a little of what I see in the classroom.” She stated that Plaintiff tended to sit around boys more than the
one other girl in the class; tried to “play hit” the boys, or sit closely to them, and wore clothes that “are very tight or
that show her undergarments.” Id. The teacher continued to describe Plaintiff’s clothing in detail, including a
recitation of Plaintiff’s stretch pants, tight-fitting shirt, and tank top that showed the “her leopard print bra….” Id.
Defendant’s purpose in submitting this e-mail is unclear, however, as it does not argue that Plaintiff’s clothing or
behavior invited or caused the boys’ conduct.

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regarding severity and pervasiveness. Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409
(5th Cir. 2015). A plaintiff is not required to show physical exclusion from school to meet this
requirement. Davis, 651. Instead, a “denial of access to education” encompasses a "concrete,
negative effect" on the victim's access to education. Davis, 526 U.S. at 633. It has been held
that “relatively moderate ill effects following sexual harassment events” may suffice. T.Z. v.
City of New York, 634 F. Supp. 2d 263, 273 (E.D.N.Y. 2009). Indeed,
…even where a Title IX plaintiff's ‘academic performance does not appear to
have suffered’ during the alleged sexual harassment but the harassment ‘simply
created a disparately hostile educational environment relative to her peers,’ the
issue of whether the harassment deprived the plaintiff of educational opportunities
and benefits is one for the trier of fact.
Doe ex rel. A.N. v. E. Haven Bd. of Educ., 200 F. App’x 46, 48 (2d Cir. 2006) (quoting Hayut v.
State Univ. of N.Y., 352 F.3d 733, 748, 750 (2d Cir. 2003)).
For the reasons discussed supra – that is, the nature, persistence, and frequency of the
offensive conduct to which Plaintiff testified -- a reasonable jury could conclude that the conduct
complained of was severe and pervasive; Defendant does not contend that the conduct was
anything other than objectively offensive. In terms of the effect on Plaintiff, there is evidence
that Plaintiff’s grades declined. C.C.S. ¶¶247, 249. She has seen a therapist to address schoolrelated depression. C.C.S. ¶256. Plaintiff’s disciplinary record, while possibly viewed in
Defendant’s favor, may also reasonably be viewed as a consequence of harassment. Plaintiff
became depressed, lost sleep, and wanted to miss school. C.C.S. ¶¶252-55; P.C.S.F. ¶¶ 249, 254,
255-57. A reasonable jury could find that the events at issue did have a concrete, negative affect
on Plaintiff’s access to education.

CONCLUSION

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To be sure, the record here is not overwhelmingly favorable to Plaintiff’s ability to prove
the elements of her prima facie case. This decision is limited to the facts at bar, and represents
careful adherence to the requirement that the facts must be viewed in the light most favorable to
Plaintiff. Having done so, the disputed and undisputed material facts, taken together, preclude
the entry of judgment in Defendant’s favor. While being alert to the dangers of overextending
the protections of Title IX in the context of peer-on-peer harassment, the court must also be
mindful that those protections serve as more than empty promises. An appropriate order will be
entered.
BY THE COURT:

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief Judge, U.S. District Court
Dated: November 22, 2016

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