E.N v. Susquehanna Twp. Sch. Dist., CIVIL ACTION NO. 1:09-CV-1727

CourtU.S. District Court — Middle District of Pennsylvania
Writing for the CourtCHRISTOPHER C. CONNER
Docket NumberCIVIL ACTION NO. 1:09-CV-1727
Decision Date23 November 2010

E.N., Plaintiff
and JUDY BAUMGARDNER, Defendants



Dated: November 23, 2010


Judge Conner

Plaintiff E.N. brings this action for damages against defendants under 42 U.S.C. § 1983, and 20 U.S.C. § 1681(a). E.N. also brings pendent state law claims for damages under the Pennsylvania Constitution and state tort law. Presently before the court is defendants' motion (Doc. 19) to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons that follow, the motion will be granted in part and denied in part.

Page 2


A. Statement of Facts1

This suit arises from allegations that a male high school teacher sexually assaulted a sixteen-year-old female student during a driving lesson. The alleged victim has since graduated from high school. (Doc. 1 ¶ 7). The court refers to the plaintiff by her initials, E.N., due to the sensitive nature of the claims and the minor status of the plaintiff at the time of the alleged assault. (Id. ¶ 34); see also L.R. 5.2(d)(2).

E.N. was a student at Susquehanna Township High School ("the school") from 2004 to 2008. (Doc. 1 ¶ 36). In the spring of 2006, E.N. was simply one name on a long waiting list for behind-the-wheel driver education available through the school. (Id. ¶ 41). The instructor was defendant James Frank ("Frank"), a longtime teacher at the school. (Id. ¶ 12, 37, 39). E.N. purportedly asked Frank whether she could move up the list and take her driving lessons sooner. (Id. ¶¶4142). Frank supposedly offered her the option of taking after-school lessons. (Id. ¶ 43). According to the complaint, E.N. accepted the offer but specifically requested that other students be included. (Id. ¶ 48). Moreover, other students separately asked Frank for permission to participate in after-school lessons with E.N. (Id.

Page 3

¶ 49). Frank allegedly rebutted these entreaties and took only E.N. for the after-school lessons. (Id. ¶ 47). Private lessons violate an express policy of the school district, which provides: "at no time will a driver education teacher instruct one student in the car. Two or more students will be scheduled during each driving period." (Id. ¶ 47, Ex. A). Principal Kermit Leitner ("Leitner"), superintendent David W. Volkman ("Volkman"), and former principal Mark Galowitz were aware that Frank provided individualized lessons in violation of this policy. (Id. 51, 5355).

E.N. had three driving lessons with Frank. (Id. ¶ 47). During E.N.'s first driving lesson, on February 23, 2006, Frank touched E.N.'s thigh while telling her to brake harder. (Id. ¶¶ 57-58). During the second driving lesson, on March 1, 2006, Frank allegedly reached across E.N.'s body without her permission to buckle her seat belt. (Id. ¶¶ 60, 61). While driving past an area with adult entertainment establishments, Frank purportedly suggested that he and E.N. visit the area together in the future. (Id. ¶ 63). The third driving lesson occurred on March 8, 2006. (Id. ¶ 64). During this lesson, Frank allegedly asked E.N. to pull the car over near a wooded area and directed E.N. to follow him into the woods. E.N. complied. (Id. ¶¶ 65-67). Once in the woods, Frank purportedly unbuttoned his pants and instructed E.N. that if she knew what was good for her she would "do this." (Id. ¶¶ 68-69). Frank allegedly pushed E.N. to her knees and forced her to perform oral sex. (Id. ¶¶ 71-72). When it was over, Frank warned E.N. not to tell anyone what had happened because he knew where she lived. (Id. ¶75). Frank and E.N.

Page 4

returned to the vehicle, and Frank took E.N. for her driver's exam, which she passed. (Id. ¶¶ 74, 76).

Approximately two months later, on May 7, 2006, E.N. informed her English teacher that she had been sexually assaulted. (Id. ¶ 77). On the advice of the English teacher, E.N. notified two guidance counselors—defendants Sandie L. Pensiero ("Pensiero") and Randy Brenner ("Brenner")—about the sexual assault, although she did not disclose the identity of the person who had assaulted her. (Id. ¶¶ 78-79). Pensiero and Brenner were initially supportive. When E.N. named Frank as the man who had assaulted her, Pensiero and Brenner tried to persuade E.N. to change her story. (Id. ¶¶ 80-81, 87). Thereafter, Pensiero and Brenner advised E.N. that school administrators were skeptical of her allegations and that the allegations had brought Frank to tears. (Id. ¶¶ 82-84). In addition, Pensiero allegedly divulged details of the assault to a third person without E.N.'s consent. (Id. ¶¶ 85-86).

Although the school district suspended Frank in May of 2006 as a result of the allegations (id. ¶ 92), many of the school administrators, teachers, and students openly supported Frank. On July 20, 2006, Principal Leitner sent a letter to school district employees soliciting money for Frank's defense fund. (Id. ¶ 88; id. Ex. B). After he retired from the school district, Leitner sent a second letter to district employees in February 2007. (Id. ¶ 89; id. Ex. C). In this second letter, Leitner expressed his belief that Frank's accuser was not telling the truth and that he "could have minimally gotten her to changer her story (again) or recant it

Page 5

altogether" but that he had been denied the opportunity to interrogate her. (Id. ¶ 89; id. Ex. C at 1). Neither letter specifically mentioned E.N. by name or provided any details of the alleged assault. (Id. Exs. B, C).

Teachers encouraged students to start a school petition in support of Frank and administrators made no effort to stop the petitioning. (Id. ¶¶ 106, 108). In a class attended by E.N., a teacher displayed on an overhead projector a Leitner letter soliciting money in support of Frank. (Id. ¶¶ 109-110). Students wore tee-shirts that read "FREE FRANK" in a senior class photo displayed and circulated at the high school.(Id. ¶¶ 112-113).

Nancy Frank ("Mrs. Frank"), Frank's wife, was a substitute teacher in the school district. On multiple occasions, the school district assigned Mrs. Frank to substitute-teach E.N.'s classes. (Id. ¶¶ 100-101). At various times, Mrs. Frank complained to students in her classes about her husband's mounting legal fees and the difficulties created by E.N.'s allegations. (Id. ¶ 104).

In August of 2006, despite his suspension, Frank was permitted on the school campus when E.N. was also on campus participating in school-sponsored activities. (Id. ¶¶ 93-94). After Frank's reinstatement in 2007, the school district made no effort to restrict Frank's contact with E.N. (Id. ¶¶ 95, 99). Throughout this period, E.N. and her parents notified the new principal, defendant Judy Baumgardner ("Baumgardner"), of E.N.'s extreme discomfort. (Id. ¶ 116). Despite their entreaties, Baumgardner simply excused E.N. from certain attendance requirements, and burdened E.N. with the decision to escape those situations she

Page 6

found stressful. (Id. ¶¶ 115-120). Because of her constant distress on campus, E.N. completed the requirements of her senior year in homebound instruction. (Id. 122).

According to the complaint, the circumstances of E.N.'s homebound instruction were also a source of humiliation and embarrassment. The school district conducted tutoring at a public library, and E.N.'s plight was on display to the general public. (Id. ¶¶ 123-124). E.N. also avers that the homebound instruction did not provide the same quality of instruction, depriving her of educational opportunities available to other students. (Id. ¶ 125).

E.N. alleges that the school administration failed to investigate her allegations, to make findings, or to discipline Frank. (Id. ¶¶ 96-98). E.N. states the administration knew of past misconduct by Frank, including inappropriate touching of females, inappropriate comments to females, taking inappropriate pictures of females and preferential treatment of females. (Id. ¶¶ 127-128). E.N. points to statements by three administrators—Leitner, Volkman, and former principal Mark Galowitz—admitting their awareness of Frank's individual lessons in contravention of district policy. (Id. ¶¶ 52-55). Additionally, Brenner has acknowledged that Frank had gained a reputation over the years for paying inappropriate attention to female students and teachers. (Id. ¶ 130).

The complaint identifies two specific instances of inappropriate sexual behavior by Frank in the school context prior to the alleged sexual assault. First, Frank purportedly approached a female student at a school dance during the 1999-

Page 7

2000 school year and asked to see her nipple piercing. (Id. ¶ 132). This student filed a complaint with the school's dean of students, Harold Wilson. (Id. ¶ 133). Second, Frank allegedly looked down the blouse of a female teacher and asked to see the tattoo on her breast. (Id. ¶ 135). More generally, E.N. avers that both students and faculty were aware of Frank's reputation—spanning decades of teaching—for inappropriate flirtation and physical contact. (Id. ¶¶ 128-129). E.N. avers that the school district never disciplined Frank for any of this offensive conduct. (Id. ¶ 134, 142).

B. Procedural History

E.N. filed this...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT