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Doe v. Evergreen Park Elementary School District 124

United States District Court, N.D. Illinois, Eastern Division

December 29, 2017

JANE DOE, a minor, JOHN DOE and JANET DOE, individually as parents and next friends of JANE DOE Plaintiffs,
v.
EVERGREEN PARK ELEMENTARY SCHOOL DISTRICT 124; CENTRAL MIDDLE SCHOOL; ROBERT MACHAK; RITA SPARKS; TRAYON SALLIS; and PAOLA POLASEK Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE United States District Court Judge

         On June 13, 2017, Plaintiff Jane Doe (“Doe”) brought the present Amended Complaint against Defendants, Evergreen Park Elementary School District 124 (the “District”), Central Middle School (“Central”), Robert Machak, Rita Sparks, Trayon Sallis, and Paola Polasek (collectively, “Defendants”) alleging violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), 42 U.S.C. § 1981 (“§ 1983”), and various state law claims.[1]Before the Court is Defendants' motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendants' motion.

         BACKGROUND

         Plaintiff, Jane Doe, and her parents, John and Janet Doe, are residents of Evergreen Park, Illinois. (R. 25, Am. Compl. ¶ 1.) Plaintiff, a thirteen-year-old girl, attended Central, which is the only public middle school in Evergreen Park and in the District. (Id. ¶¶ 2-5.) Defendant Robert Machak is the Superintendent of the District, Defendant Rita Sparks is the principal of Central, Defendant Trayon Sallis is the assistant principal, and Defendant Paola Polasek is a teacher at Central. (Id. ¶¶ 6, 8, 10, 12.) Plaintiff alleges that Defendants acted with deliberate indifference to physical, verbal, and sexual harassment she suffered at Central, forcing her to transfer to a private school in September 2017. (Id. ¶¶ 17, 49.)

         Plaintiff was enrolled at Central from 2015 until 2017, and she alleges that during that time, a minor male student, James Roe (“Roe”), bullied, physically and verbally assaulted, and sexually harassed her because she is a female. (Id. ¶ 20.) Plaintiff alleges that Roe had a “documented history” of harassing, intimidating, and inappropriately touching female students, including Plaintiff's friends and that he bullied her and at least one of her friends during the 2015-16 school year. (Id. ¶¶ 21-22.) Plaintiff alleges that Roe called Fridays “ass grab Fridays” and would grope at least one female student during school on those days. (Id. ¶ 23.) She alleges that at least one female student moved out of the District prior to the 2016-17 school year because Roe had bullied her, verbally assaulted her, and touched her inappropriately. (Id.) Plaintiff claims that other parents have stated that they also plan to move their children to other schools because of Roe. (Id. ¶ 24.) Plaintiff alleges that, on one occasion, Roe threatened to have his parents kill another student and her parents if the student reported his behavior. (Id. ¶ 26.) Plaintiff alleges that Defendants were aware of Roe's bullying conduct in the 2015-16 school year and were aware that Roe bullied, intimidated, sexually harassed, and inappropriately touched female students and had received multiple bullying complaints relating to Roe. (Id. ¶ 27.) Despite this knowledge, Plaintiff alleges Defendants failed to take any action to discipline Roe. (Id. ¶¶ 28, 32.)

         On August 23, 2016, Roe pushed Plaintiff down a set of stairs at Central, injuring her and making her worry for her safety. (Id. ¶ 29.) Plaintiff reported the incident to Defendant Polasek, who was at the scene of the incident, but Polasek did not discipline Roe and told Plaintiff to go to class. (Id.) On August 24, 2016, Plaintiff was retrieving an item from her locker, and Roe intimidated her by blocking her path repeatedly, before pushing her backwards. (Id. ¶ 30.) Plaintiff reported this incident to Polasek. (Id.) After the second incident, Plaintiff's father called the school and spoke to Polasek and Defendant Sallis, both of whom assured him that his daughter was safe at Central. (Id. ¶ 31.) On the same day that Plaintiff's father spoke with Sallis and Polasek, he and his wife emailed the school administration and superintendent and raised concerns about the lack of consequences for Roe and the lack of an investigation he believed the District's bullying and harassment policy mandated. (Id. ¶ 33.) The Does, who are both teachers in the District and who were aware of the District's policies, also proposed talking points for the next faculty meeting regarding proper documentation of bullying incidents. (Id. ¶¶ 34-35.)

         On August 25, Defendant Sparks responded to Plaintiff's parents and promised a meeting with Roe's parents. (Id. ¶ 37.) She also assured them that the staff monitors the hallway during passing period. (Id.) The same day, Polasek called Plaintiff's parents to apologize for inadvertently broadcasting her report regarding Roe's bullying of Plaintiff to the class on a computer projector and allowing the class to see the details of the incident and students involved. (Id. ¶ 38.) Plaintiff alleges that as a result of Polasek's mistake, during lunch that day, other students taunted and harassed her for getting Roe in trouble. (Id. ¶ 39.) Plaintiff ate lunch with a teacher and called her father crying. (Id.)

         After an email exchange with Sparks, Plaintiff's father called Mr. Machak, the superintendent, and they discussed Plaintiff's father's concerns about timely reporting and lack of disciplinary action. (Id. ¶ 41.) Machak told Plaintiff's father that Roe had previously been “on his radar.” (Id.) Plaintiff's father picked her up early from school that day because she was emotionally distressed and did not feel safe in school. (Id.) Plaintiff's father also met in person with school administrators and expressed his frustration about the lack of discipline for Roe. (Id. ¶ 43.) That night the District sent an automatic call to parents about a Central student who had threatened to bring a gun to Central and “shoot up the school.” (Id. ¶ 44.) Plaintiff feared that the threat was related to her. (Id.) The next day, on August 26, Plaintiff alleges that Roe came into Plaintiff's classroom, sat immediately behind her, and glared at her. (Id. ¶ 45.) The teacher did not notice Roe until another student notified her, at which point the teacher yelled at Roe and called a resource officer who admonished Roe in the hall. (Id.) A teacher followed Roe around for the rest of the day for her safety, but Plaintiff alleges that her emotional state became worse. (Id.) On August 29, 2016, Plaintiff was again bullied and mocked by other students at Central, and on August 30, she refused to go to school and her parents decided to transfer Plaintiff to a private school. (Id. ¶¶ 46-47.)

         Plaintiff alleges that Roe bullied her and other female students because of their gender, and that Defendants were aware of Roe's bullying and harassing behavior but failed to properly discipline Roe or remedy the situation. (Id. ¶¶ 49-58.)

         LEGAL STANDARD

         I. 12(b)(6)

         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's “factual allegations must be enough to raise a right to relief above the speculative level.” Id. Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In determining the sufficiency of a complaint under the plausibility standard, courts must “accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs' favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016).

         ANALYSIS

         I. Count I-Title IX Claim

         In Count I, Plaintiff alleges a Title IX discrimination claim. 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 educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Supreme Court has found an implied private right of action in Title IX, with private parties authorized to seek monetary damages for intentional violations. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (citing Cannon v. Univ. of Chi., 441 U.S. 677, 690-93 (1979)). “The Supreme Court has set a high bar for plaintiffs seeking to hold schools and school officials liable for student-on-student harassment.” Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014). School officials are given broad latitude to resolve peer harassment and are liable only in “certain limited circumstances.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999). A plaintiff complaining of peer harassment must demonstrate that (1) the harassment was discriminatory, (2) the school officials had “actual knowledge” of the harassment, (3) the harassment was “so severe, pervasive, and objectively offensive that it . . . deprive[d] the victims of access to educational opportunities, ” and (4) officials were “deliberately indifferent” to the harassment. Id. at 650. The Court made clear that “courts should refrain from second-guessing the disciplinary decisions made by school administrators.” Id. at 648.

         Defendants argue that the Court should dismiss Count I because (1) Plaintiff has failed to allege Defendants had “actual knowledge” of any bullying incidents before Plaintiff's August 2016 complaint; (2) Plaintiff has failed to allege that Roe harassed her based on sex; (3) Plaintiff has failed to allege that the conduct of which Defendants were aware was “severe and pervasive”; and (4) Defendants were not deliberately indifferent to Plaintiff's bullying reports. The Court addresses each argument in turn.

         A. Actual Knowledge of Bullying Before August 2016

         Defendants first argue that they did not have actual knowledge of Roe's bullying and harassing actions towards Plaintiff until August 2016.[2] Plaintiff argues that she has sufficiently alleged that Defendants were aware of Roe's bullying and harassing behavior before August 2016, and that she does not, at this stage, need to allege that this past behavior was directed specifically at Plaintiff for it to be included within the scope of Defendants' actual knowledge.

         The Seventh Circuit has held that “[s]chool administrators have actual knowledge only of the incidents that they witness or that have been reported to them.” Doe v. Galster, 768 F.3d 611, 617-18 (7th Cir. 2014) (citations omitted). “The Supreme Court has flatly rejected applying a ‘knew or should have known' standard to Title IX claims.” Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d 599, 605 (7th Cir. 2008) (citations omitted). The Seventh Circuit has held that a “school district need not possess actual knowledge of [ ] acts directed at a particular plaintiff, but must still have actual knowledge of misconduct that would create risks ‘so great that they are almost certain to materialize if nothing is done.'”[3] Id. at 605-06 (citation and internal quotation omitted). As such, if school officials are aware of a “‘serial harasser, ' a school district might be found to have actual knowledge of [ ] misconduct and that students might be at great risk.” Id. at 606.

         Plaintiff has alleged that Roe engaged in various types of misconduct in the 2015-16 school year, prior to August 2016 when he allegedly pushed and harassed Plaintiff. Plaintiff alleges, for example, that Roe participated in “ass grab Fridays, ” that one student moved out of the district due to Roe's harassment, and that Roe threatened to have his parents kill a student. (Am. Compl. ¶¶ 21-27.) Plaintiff fails to allege, however, that school officials witnessed any of these specific incidents-such as “ass grab ...


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