United States District Court, N.D. Illinois, Eastern Division
JANE DOE, a minor, JOHN DOE and JANET DOE, individually as parents and next friends of JANE DOE Plaintiffs,
EVERGREEN PARK ELEMENTARY SCHOOL DISTRICT 124; CENTRAL MIDDLE SCHOOL; ROBERT MACHAK; RITA SPARKS; TRAYON SALLIS; and PAOLA POLASEK Defendants.
MEMORANDUM OPINION AND ORDER
ST. EVE United States District Court Judge
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.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.
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.)
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.)
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.
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.)
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.)
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.)
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).
Count I-Title IX Claim
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.
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.
Actual Knowledge of Bullying Before August 2016
first argue that they did not have actual knowledge of
Roe's bullying and harassing actions towards Plaintiff
until August 2016. 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.
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.'” 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.
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