Kirby v. Loyalsock Twp. Sch. Dist.

• Decision Date: 06 September 2011
• Docket Number: Civil Action No. 4:09–cv–01695.
• Citation: 837 F.Supp.2d 467,281 Ed. Law Rep. 234
• Parties: Molly KIRBY, Plaintiff v. LOYALSOCK TOWNSHIP SCHOOL DISTRICT, Allen DiMarco, in his official and individual capacity, and Richard J. Mextorf, in his official and individual capacity, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

837 F.Supp.2d 467

281 Ed. Law Rep. 234

Molly KIRBY, Plaintiff

v.LOYALSOCK TOWNSHIP SCHOOL DISTRICT, Allen DiMarco, in his official and individual capacity, and Richard J. Mextorf, in his official and individual capacity, Defendants.

Civil Action No. 4:09–cv–01695.

United States District Court, M.D. Pennsylvania.

Sept. 6, 2011.

Robert A. Hoffa, Campana Lovecchio & Morrone, PC, Williamsport, PA, for Plaintiff.

Sharon M. O'Donnell, Christopher J. Conrad, Marshall Dennehey Warner Coleman and Goggin, Harrisburg, PA, for Defendants.

MEMORANDUM

YVETTE KANE, Chief Judge.

Pending before the Court is Defendants' motion for summary judgment. (Doc. No. 30.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion.

I. BACKGROUND

Plaintiff attended high school in the Loyalsock Township School District (“the District”) and graduated at the end of the 2008–2009 school year. (Doc. No. 32 ¶ 9.) Plaintiff played basketball for the school until she quit the team during her senior year of high school. ( Id. ¶ 10.) Beginning around the end of her sophomore year, Plaintiff began to feel intimated by other girls on the basketball team. ( Id. ¶ 13.) Five girls in particular were involved. (Doc. No. 32 ¶ 14.) According to Plaintiff, the girls “started to avoid me. They didn't want to talk to me. They didn't want me on their team. Just little signs of not wanting me there. I wasn't invited to go places with them, things like that.” ( Id. ¶ 15.) During her junior year, some of Plaintiff's teammates wore t-shirts to practice that said “Out of Control.” ( Id. ¶ 24.) Defendant DiMarco, the high school principal, and Mr. Insinger, the school's athletic director, told the teammates not to wear the t-shirts because Plaintiff believed the phrase “Out of Control” was directed at her. ( Id.)

Plaintiff's father, who coached the District's varsity basketball team until November 2008, met with Defendant DiMarco and Mr. Insinger in November 2008 and stated that “there has to be an acknowledgment that what [Plaintiff's teammates are] doing is wrong and it has to stop.” ( Id. ¶¶ 11, 12, 26.) Plaintiff's father also wrote a letter to Mr. Insinger in November, asking Mr. Insinger to “take any and all steps necessary to make sure [Plaintiff] faces no harassment this coming year.” ( Id. ¶ 27.) Mr. Insinger responded to Plaintiff's father in a letter detailing what he was going to do to ensure that Plaintiff had “a successful year.” ( Id. ¶ 28.) Mr. Insinger also talked directly with Plaintiff. ( Id.) During Plaintiff's senior year, Defendant Mextorf, the District's superintendent, offered to provide her with a “female companion” ¹ to follow her around school and keep her separated from those who were allegedly bullying her. ( Id. ¶ 29.) Plaintiff's family rejected this offer. ( Id. ¶ 30.) The District also offered to provide mediation services to Plaintiff any time she was willing to sit down with the other students to address her concerns. ( Id. ¶ 31.) This offer was made to Plaintiff several times but was also rejected. ( Id. ¶ 32.)

In the spring semester of Plaintiff's senior year, a rumor that Plaintiff was pregnant circulated the high school. ( Id. ¶ 35.) On February 4, 2009, Plaintiff made a formal complaint with the school against a fellow student, one of Plaintiff's teammates, alleging that the student started the pregnancy rumor. ( Id. ¶ 34.) The District offered Plaintiff an opportunity to discuss the matter with the student and a state trooper. ( Id. ¶ 36.) Plaintiff and her family rejected the offer “because it was Plaintiff's position that a state police officer was not needed to tell her what harassment was and that he should discuss this matter with [the student].” ( Id. ¶ 36; Doc. No. 33 ¶ 36.) Plaintiff and her father also rejected the District's offer to meet with the student and her parents to discuss Plaintiff's concerns about the pregnancy rumor. (Doc. No. 32 ¶¶ 38, 39.) Dr. Reitz, the high school assistant principal, was unable to determine whether the student started the rumor. ( Id. ¶ 40.) Dr. Reitz never received any admission from the student, and could not corroborate any testimony from other witnesses he had spoken with. ( Id.)

On March 26, 2009, Plaintiff and her father filed a complaint regarding an incident between Plaintiff and others in the cafeteria, including one of Plaintiff's teammates. ( Id. ¶ 42.) As a part of Dr. Reitz's investigation of the complaint, he reviewed video from the cafeteria on the date in question. ( Id. ¶ 43.) Dr. Reitz stated that the video revealed nothing remarkable. ( Id.) He also stated that the teammate's actions and body language were inappropriate but did not rise to the level of harassment. (Doc. No. 33 ¶ 43.) Dr. Reitz spoke directly with the teammate regarding the cafeteria incident. (Doc. No. 32 ¶ 44.)

Plaintiff quit the basketball team her senior year because “I got to a point where I wasn't enjoying it anymore because of the harassment every day, and I didn't feel when I entered the gym I should have to feel uncomfortable.” ( Id. ¶ 45, Doc. No. 33 ¶ 45.) Plaintiff chose not to attend the senior class trip in which the class went white water rafting. (Doc. No. 32 ¶ 47.) Although Defendant DiMarco offered to sit with Plaintiff on the bus and in the same raft on the trip, Plaintiff rejected the offer because she felt it would be embarrassing. ( Id. ¶ 48.) Defendant DiMarco also wrote a letter to two male students who planned to attend the prom with Plaintiff's former teammates and warned them that if anything happened at the prom, “it would be on them.” ( Id. ¶ 51.) There were no incidents between Plaintiff and the alleged bullies at prom. ( Id. ¶ 52.) Plaintiff also chose not to attend her graduation. ( Id. ¶ 53.)

Plaintiff met with Defendant DiMarco multiple times to discuss the way she was being treated. ( Id. ¶ 22.) Plaintiff met once with Defendant Mextorf, the District's superintendent, and Plaintiff “told him a bit about how I had been being [sic] harassed....” ( Id. ¶ 19.) Plaintiff's father met with Defendant Mextorf on more than one occasion during Plaintiff's time in high school, including once during Plaintiff's junior year to discuss five separate incidents in which Plaintiff's teammates were allegedly bullying her. ( Id. ¶ 20; Doc. No. 33 ¶ 20.) One of the alleged bullies recalled that she met with Defendant DiMarco “pretty often” during her senior year to discuss “different circumstances where [Plaintiff] was accusing us of treating her badly.” (Doc. No. 32 ¶ 54.) Another alleged bully stated that she met with Defendant DiMarco on five or six occasions to talk about reports made by Plaintiff, explaining that “they would call me down because [Plaintiff] would go to them and tell them about an incident, and they would discuss it with me to find out the details.” ( Id. ¶ 55.) Finally, another alleged bully recalled that Defendant DiMarco called her to the office twice to talk about Plaintiff's complaints. ( Id. ¶ 56.)

During the period at issue, the District had a written anti-bullying policy (“the Policy”). ( Id. ¶ 1.) The Policy defined the term “bullying” to include:

• Placing a student in reasonable fear of physical harm;

• Placing a student in emotional unrest by spreading rumors, manipulating social relationships or environment, engaging in social exclusion, extortion, intimidation and ridicule;

• Creating an intimidating or hostile environment that substantially interferes with a student's educational opportunities; and

• Creating verbal statements or written remarks that are taunting, malicious, threatening, or sexual.

( Id. ¶ 2.) Under the Policy, each building principal or designee is authorized to investigate reports of bullying. ( Id. ¶ 3.) According to the Policy, “an investigation of a report may include meetings with students, parents, guardians or employees, a review of student records, and other reasonable efforts to understand the facts surrounding a reported incident.” ( Id. ¶ 4; Doc. No. 32–11 at 3.) Consequences for students found to have bullied others “may include counseling, a parent/guardian conference, detention, suspension, expulsion, a loss of school privileges and/or exclusion from school-sponsored activities.” (Doc. No. 32 ¶ 5; Doc. No. 32–11 at 4.)

Plaintiff filed the complaint in this action on August 31, 2009, alleging that Defendants violated her constitutional rights to freedom of association, substantive and procedural due process, and equal protection. (Doc. No. 1.) Plaintiff also alleged a claim of municipal liability against Defendant Loyalsock Township School District. ( Id.) On December 23, 2009, the Court dismissed all claims brought against Defendant DiMarco and Defendant Mextorf in their official capacity. (Doc. No. 13.) Defendants filed a motion for summary judgment, a brief in support, and a statement of facts on February 22, 2011. (Doc. Nos. 30, 31, 32.) Plaintiff filed a brief in opposition and a statement of facts on March 15, 2011. (Doc. Nos. 33, 34.) Defendants filed a reply brief and a counterstatement of facts on March 28, 2011. (Doc. Nos. 35, 36.)

II. STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted “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).² A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must...