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October 25, 2005.


The opinion of the court was delivered by: DAVID CERCONE, District Judge



Defendant ARIN Intermediate Unit and Defendants Indiana Area School District, Kathleen R. Kelley and Rodney Ruddock have filed motions for summary judgment. After careful consideration of the motions, the memoranda of law in support and in opposition and the supporting materials supplied by the parties, this Court will grant ARIN Intermediate Unit's motion with respect to Plaintiffs' request for punitive damages in Count IV and deny it in all other respects. The Court will grant the motion filed by defendants Indiana Area School District, Kathleen R. Kelley and Rodney Ruddock with respect to Counts II, III and V of the complaint and deny the motion with respect to Counts I and IV.


  Rachel Jones was a student in the Indiana Area School District (School District) at the time of the events at issue. Nancy Jones, Rachel's mother, is employed as a Vision Specialist by ARIN Intermediate Unit (ARIN), an agency that provides educational services to the eleven school districts within its geographical boundaries of Armstrong and Indiana Counties, Pennsylvania. This case arises out of the alleged harassment of Rachel by another former student, a special education student referred to by the parties as "John Doe." Plaintiffs contend that the School District, its Superintendent (Kathleen R. Kelley) and the principal of the high school (Rodney Ruddock) (together, the School District Defendants) were aware that John Doe was harassing Rachel but did nothing to prevent or remedy it, thereby violating Rachel's rights under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88 (Title IX) and her rights to bodily integrity and equal protection of the laws under the Fourteenth Amendment. Plaintiffs also allege that Defendants retaliated against Nancy for exercising her First Amendment rights when ARIN complied with the School District's request to have her transferred out of the School District. Finally, they allege that Kelley subjected Nancy, and Kelley and Ruddock subjected Rachel, to intentional infliction of emotional distress in violation of Pennsylvania law.


  During the relevant times at issue, Rachel was a student at the School District, Kelley was the Superintendent of the School District, Ruddock was the principal of the high school and Nancy was employed by ARIN as a Vision Specialist. (Compl. ¶¶ 2-3, 6-7; Answers ¶¶ 2-3, 6-7.) John Doe is mentally retarded and has Sturge-Weber Syndrome. (Rebovich Dep. at 13.)*fn1 He has been identified as a special education student. (Pretrial Stip. § III, ¶ 6.)*fn2 Rachel and John Doe were assigned alphabetically to the same home room in the seventh, eighth and ninth grade years at the Indiana Junior High. (Pretrial Stip. § III, ¶ 7.)

  Rachel has stated that, beginning when she was seventh grade in 1997, John Doe began harassing her, in the form of "unwanted attention and affection." (Rachel Dep. at 35-36; Nancy Dep. at 16.)*fn3 Rachel told her homeroom teacher in the eighth and ninth grades about Doe's conduct and she gave the teacher a copy of a letter or drawing John Doe gave to her. (Rachel Dep. at 45-47.) The teacher separated their desks. (Nancy Dep. at 27-28.) Nancy had multiple conversations with Rachel's guidance counselor, Linda Chrielson, about John Doe's conduct. Nancy was particularly concerned because Rachel was small and John Doe was large. Rachel began suffering from anorexia. (Nancy Dep. at 28-29.)

  John Doe had an Individualized Education Program (I.E.P.) with a behavior plan at this time, but there was no mention of his harassing behavior toward Rachel or any other student, and no services were provided to help him deal with it. (Pls.' App. Ex. R.)

  Prior to beginning of Rachel entering tenth grade, Nancy had a conversation with John Doe's new special education teacher, Lois Rebovich. (Nancy Dep. at 30.) Mrs. Rebovich stated that she was already aware of the problem and that she had taken John Doe out of Rachel's homeroom and moved his locker. (Pretrial Stip. § III, ¶ 10; Nancy Dep. at 30.) Mrs. Rebovich said she would do what she could. (Nancy Dep. at 33.) John Doe continued to give Rachel notes and drawings and he told her he wanted her to be his girlfriend every day. (Rachel Dep. at 45-47.)

  He told her he wrote about her in his journals. Rachel told him that she had a boyfriend and that she would never be his girlfriend. When she turned down his request to take her to a dance, he hit a wall in front of her. (Rachel Dep. at 59-60.) During that same school year, Nancy had continued conversations with Mrs. Rebovich to discuss John Doe's unwanted attention and affection towards Rachel. (Pretrial Stip. § III, ¶ 11.)

  When Rachel was in eleventh grade, John Doe began stalking her. He would wait for her at her locker and walk to her classes and he wanted to carry her books. Rachel stated that "He was everywhere." (Rachel Dep. at 64.) She went for help to Bill Waryck, her A.P. Biology Teacher and head of the Student Assistance Program. (Rachel Dep. at 72, 80.) She told him that John Doe was bothering her, talking to her incessantly and wanted to be her boyfriend. Waryck stated that he clearly remembered her coming to him on one occasion, although she may have said something about it again. He told Rachel to bluntly tell John Doe that she did not want to be his girlfriend and that he should leave her alone. (Waryck Dep. at 12-15, 42.)*fn4 Rachel spoke to Waryck about the situation on numerous occasions and Waryck said he would do what he could. (Rachel Dep. at 82.)

  Waryck made an effort to stand in his classroom doorway between classes to watch Rachel at her locker because he knew that John Doe would wait for her there. Waryck continued to do this for the two years that Rachel remained in the high school. (Waryck Dep. at 13-14, 16-17.)*fn5 He also advised Mrs. Rebovich and Assistant Principal Holly Rougeaux (then named Holly Lecce) of the situation. (Rebovich Dep. at 34-35; Waryck Dep. at 25-27.)*fn6 He indicated that he did not take discipline problems such as this one to the Student Assistance Program team, but instead told students to take them to the principals. (Waryck Dep. at 24.)

  During the spring of Rachel's eleventh grade school year, John Doe began waiting for Rachel after track practice and hanging around her car. (Rachel Dep. at 70-71.) Rachel and Nancy met with Luanne Kokolis, then Vice Principal of the high school. (Rachel Dep. at 73-74, 79; Kokolis Dep. at 18-19, 52.)*fn7 Mrs. Kokolis informed Nancy at their first meeting in April that she had already been apprised of the situation by Mrs. Rebovich. (Nancy Dep. at 39.) Rachel said that she felt uncomfortable because John Doe was around her too much and she wanted him to stop sitting by her in the cafeteria, standing at her locker and giving her gifts and notes. (Kokolis Dep. at 18-19, 52; Rachel Dep. at 73-79.) Mrs. Kokolis told Rachel she could not do anything about John Doe hanging around her car because the car was not on school property. (Rachel Dep. at 73.) Rachel also indicated that John Doe was getting very angry and she heard that he and his friends were looking for her to beat her up after school. (Rachel Dep. at 84.)

  Mrs. Kokolis said she spoke with John Doe and Mrs. Rebovich about the situation and explained to him that he could not be friends with Rachel anymore and was not permitted to be around her. Apparently, this made John Doe angry. (Kokolis Dep. at 19, 27-29.)*fn8 Mrs. Kokolis also believed that John Doe's behavior toward Rachel ended after she spoke to him. (Kokolis Dep. at 40.)*fn9 However, Plaintiffs noted that Mrs. Kokolis was later informed of subsequent developments and had a meeting with John Doe's parents in the spring of Rachel's junior year. (Nancy Dep. at 40.)

  On March 22, 2001, an I.E.P. conference was held, attended by John Doe, his mother, Mrs. Rebovich and Principal Ruddock, among others. The team removed John Doe's behavior plan, recommended no discipline, no behavior plan and no services. In response to the question on the form that asked "Does the Student Exhibit Behaviors that impede his/her learning or that of others?" the I.E.P. team checked "no." (Pls.' App. Ex. R, Mar. 22, 2001 I.E.P. at 2.)

  In Rachel's senior year, on September 11, 2001, John Doe attempted to get into her car as she was leaving school. He held onto the door handle and banged on the glass as she tried to get away. She was hysterical when she arrived at home. (Rachel Aff. ¶ 2; Rachel Dep. at 84-85.)*fn10 Vice Principal Rougeaux stated that, if the incident occurred off of school grounds, there was little the administration could do about it. (Rougeaux Dep. at 31.)*fn11 Rachel, however, testified that she was a senior with an assigned parking space in the school parking lot and the incident occurred in the school parking lot. (Rachel Aff. ¶ 3.) She further stated that Rougeaux knew about the incident, that both she (Rachel) and her mother told Rougeaux that it had occurred on school property, and that the School District did nothing about it except to reassure them that John Doe would be reminded and it would not happen again. (Rachel Aff. ¶¶ 4-5.) Nancy was also told that they were reminding John Doe and it would not happen again. (Nancy Dep. at 49.) After this incident, however, John Doe continued to appear at Rachel's locker, at track practice and in the school parking lot. (Rachel Dep. at 90.)

  On December 13, 2001, John Doe found Rachel in the high school weight room and physically blocked her from leaving for half an hour, until another student came to her rescue. (Pls.' App. Ex. J.) Both Rachel and Nancy reported this incident to the School District administration. Nancy received no response from Waryck or Rebovich. (Nancy Dep. at 51-52; Rougeaux Dep. at 124.)*fn12 The School District contends that it immediately initiated an investigation. (Ruddock Dep. at 61, 66; Rougeaux Dep. at 84.)*fn13

  On December 17, 2001, School District administrators met with Rachel, Nancy and Trooper Fry from the Pennsylvania State Police. (Ruddock Dep. at 71; Rougeaux Dep. at 94; Scanlon Dep. at 27.)*fn14 Nancy had brought in Trooper Fry after Mrs. Kokolis recommended that they call the State Police. (Nancy Dep. at 53-54; Scanlon Dep. at 28; Rachel Dep. at 80.)*fn15 At the meeting, Principal Ruddock and Vice Principal Rougeaux advised Rachel that she should have someone with her at all times in the school building and while going to her car. (Ruddock Dep. at 91-92; Rougeaux Dep. at 104.)*fn16

  Trooper Fry inquired about the School District's response to the weight room incident and indicated that he intended to file criminal charges against John Doe. (Ruddock Dep. at 71-72.)*fn17 Criminal charges were never filed. Nancy indicated that Trooper Fry told her John Doe was too low functioning to understand the nature of the offenses. (Nancy Dep. at 54.) Mrs. Rebovich contends that she spoke to John Doe and told him he had to stay away from Rachel. (Rebovich Dep. at 41, 48.)*fn18 She also told John Doe's mother that he had to stay away from Rachel. (Rebovich Dep. at 50-51.)*fn19

  On January 8, 2002, the School District assigned female aides to "tail" John Doe while he was in school so that he would be kept away from Rachel. (Pretrial Stip. § III, ¶ 12; Kelley Dep. at 113; Ruddock Dep. at 86-87; Rougeaux Dep. at 60-61; Scanlon Dep. at 48-49.)*fn20 Plaintiffs contend that John Doe's mother told Mrs. Rebovich that she did not think it would be sufficient if a female aide accompanied him and that a male aide should be assigned, but the school proceeded with its original plan. (Pls.' App. Ex. Y.) Also in January, the School District arranged for John Doe to be transported directly from his work assignment to his home at the end of the day in order to minimize his contact with Rachel. (Pretrial Stip. § III, ¶ 13; Kelley Dep. at 51; Ruddock Dep. at 87, 89; Rebovich Dep. at 114; Rougeaux Dep. at 61, 102; Scanlon Dep. at 85-86.)*fn21

  On January 11, 2002, the School District advised its teachers and coaches, both verbally and via e-mail, that John Doe was to have no contact with Rachel. (Pretrial Stip. § III, ¶ 14; Rebovich Dep. at 36, 43; Rougeaux Dep. at 59, 67, 68, 108, 143-44.)*fn22 The School District also placed a behavior plan in John Doe's I.E.P. in January 2002. (Pretrial Stip. § III, ¶ 15; Kelley Dep. at 114; Ruddock Dep. at 76; Rebovich Dep. at 36; Rougeaux Dep. at 67; Scanlon Dep. at 42-43.)*fn23 No evaluation was performed when the plan was added to his I.E.P. again in January 2002. This was the first time his I.E.P. and specifically his behavior plan made mention of his problem with Rachel or any other female student. (Pls.' App. Exs. Q, R; Rebovich Dep. at 98.)

  Nancy asked to be placed on the agenda to address the School Board at an upcoming meeting, but Superintendent Kelley instructed her instead to write a letter. (Kelley Dep. at 21.) In the letter, dated January 23, 2002, Nancy reviewed the history of the situation and then stated that:
District administrators have told me over the last year and a half, there is nothing more they can do, and that I needed to involve the state police. I have contacted the state police and due to the low mental functioning of this student, charges are unable to be filed. Therefore, in addition to the state police, a mental health agency and the district attorney's office have been brought in because the nature of this issue poses a harmful situation to students. To many, this exhibits the district's inability to control the situation and to assure the safety of the Indiana Area school district children.
I attempted to schedule a few minutes to address the school board, but Dr. Kelley discouraged me and asked instead that I address my concerns in a letter. I am doing so now. I have been teaching special education in this district for more than 25 years, so I am knowledgeable of the policies and procedures the district must follow regarding special education students. I am also aware of the needs of the non-exceptional students to be assured of a safe learning environment. I am requesting that this school board take the necessary steps to properly prepare and train district administrators and staff on how to handle students with non-compliant behavior. I am hopeful that my daughter, and all concerned, can complete the year without further incidence.
(Pls.' App. Ex. J.)

  In February 2002, Nancy sent a complaint to the Pennsylvania Department of Education which stated that the School District had failed to comply with special education laws and regulations as to John Doe and thereby exacerbated the situation with Rachel. (ARIN App. Ex. O.) The complaint was dismissed on March 1, 2002, because the Department could not address the issue of the handling of a special education student unless the parent or guardian of the student complained. (Kelley Dep. at 146.)

  Patrick Scanlon, Coordinator of Special Programs for the School District, was directed by the School District's Board of Directors to pursue an alternative placement for John Doe. (Scanlon Dep. at 8-9.)*fn24 He spoke to Rick Foust, Principal at Homer Center High School, to see if that neighboring school district would accept John Doe as a full-time student in its life skills program. John Doe was already spending half a day at Homer Center in its work experience program. (Kelley Dep. at 20; Ruddock Dep. at 111; Scanlon Dep. at 17-19, 21, 58, 60.)*fn25 He did not use John Doe's real name or otherwise identify him. (Kelley Dep. at 53; Scanlon Dep. at 606-1.)*fn26

  Prior to receiving a response, Mr. Scanlon went back to Mr. Foust and told him that the unnamed student was allegedly harassing a girl, that it was a liability issue for anyone who would take him and that he (Scanlon) hoped that Foust would say no. (Scanlon Dep. at 62-65.) Homer Center School District did not accept John Doe into its program. (Kelley Dep. at 52-53; Scanlon Dep. at 65.)*fn27 Mr. Foust was upset that he had not been told who the students were. (Kelley Dep. at 18.)

  Over the next several months, John Doe continued to return to school, even after he had been transported home after his work experience at Homer Center. He hung around the parking lot. On at least two occasions, Rachel ran into him in the hall and he had no "tail." (Rachel Dep. at 95; Nancy Dep. at 64.)

  In a meeting on March 4, 2002, the School District informed Nancy that it could not place John Doe in another school district, but it offered Rachel the option of being on homebound instruction. (Pretrial Stip. § III, ¶ 16; Kelley Dep. at 154; Ruddock Dep. at 116; Rougeaux Dep. at 158-59.)*fn28 Rachel and Nancy did not accept this offer. (Kelley Dep. at 156; Ruddock Dep. at 117.)*fn29 They further stated that the School District could not or would not provide instruction in Rachel's two advanced placement classes. Rachel would have been forced to drop these classes, which her guidance counselor said, would have jeopardized her acceptance to R.I.T. (Rachel Dep. at 97; Pls.' App. Ex. L.)

  Nancy's Transfer

  ARIN is a regional educational service agency under the Pennsylvania School Code which provides educational services to eleven school districts within its geographical boundaries of Armstrong County and Indiana County, Pennsylvania. (Smith Arb. Hr'g. Test. at 41-43; Coad Arb. Hr'g Test. at 137-38.)*fn30 Nancy has been employed by ARIN as a Vision Specialist since January 1976 and was assigned to provide vision services to students at various school districts within the service umbrella of ARIN, including the Indiana Area School District. She has traveled to all eleven school districts in Indiana and Armstrong counties. (Nancy Dep. at 8-15, 174.)*fn31 However, she states that, as the most senior vision specialist, her preference for assignment is to be considered first and factors such as geographical proximity are to be considered. (Nancy Aff. ¶ 3.)*fn32

  On or about March 15, 2002, Superintendent Kelley made a verbal request to Dr. John T. Smith, Director of Special Education for ARIN, to have Nancy reassigned out of the School District. Dr. Smith told Superintendent Kelley that she had to send a letter outlining her reasons for the request, in accordance with the Collective Bargaining Agreement (CBA) between ARIN and its teachers. Dr. Smith immediately told Dr. Robert H. Coad, Executive Director of ARIN. (Smith Dep. at 29-31; Kelley Dep. at 80-88.)*fn33 It was Superintendent Kelley's expectation that if she asked ARIN to reassign Nancy, her request would be honored. (Pretrial Stip. § III, ¶ 17; Kelley Dep. at 159.) Just before Superintendent Kelley made this request, Nancy told Dr. Smith about Rachel's on-going harassment problem and her efforts to remedy it. (Nancy Dep. at 131-33; Smith Dep. at 32-34.) Dr. Smith thought there might be some connection between Superintendent Kelley's request and the situation involving Nancy's daughter. (Smith Dep. at 36.)

  On April 13, 2002, Nancy submitted her annual request to ARIN to remain in her same assignment. (Pls.' App. Ex. N.) However, on May 10, 2002, Superintendent Kelley put her request to have Nancy transferred in writing. The letter provided two reasons for the request:
1) Mrs. Jones does not have the appropriate certification to provide Orientation and Mobility Training, which is needed by our students; and 2) Mrs. Jones has not exercised prudent judgment in a situation involving her daughter. She has breached student confidentiality, involved another school district inappropriately, made slanderous remarks about the administration in our district, and could not separate her personal life from her professional obligations.
(ARIN App. Ex. G.) The comment about breaching confidentiality was a reference to Superintendent Kelley's belief that Nancy had discussed the possibility of John Doe attending Homer Center School District with Mr. Foust. (Kelley Dep. at 14-15, 65, 79.)*fn34

  At Dr. Coad's direction, Dr. Smith investigated Superintendent Kelley's complaints. He discovered that it was true that Nancy did not have orientation and mobility certification, but that she had already declared her intention to go back to school to obtain this certification and she had been bringing people into the district at no cost to provide orientation and mobility services to her students for years. If there were students who needed these services, another ARIN employee could provide them to Nancy's students without removing her from the assignment. This alternative would be raised during a meeting about the subject. (Smith Dep. at 53-54, 82.)

  Dr. Smith also investigated and found that Nancy had not breached confidentiality. Mr. Foust told him there had been no breach and Dr. Smith agreed. (Smith Dep. at 63, 65-66.) Nancy denied ever having discussed the possibility of John Doe attending Homer Center with Mr. Foust. (Nancy Dep. at 76-77.) Rather, she spoke with Mr. Foust on March 5, 2002, to ascertain why he had refused to take the student (whom she did not identify) in Homer Center on a full-time basis. (Nancy Dep. at 74.) She did this in response to Superintendent Kelley's allegation, made on March 4, 2002, that Homer Center had refused to take John Doe all day because Nancy "had shot off [her] mouth and everybody knew all about him, Homer Center had said, no, they would not take him." (Nancy Dep. at 122.)

  On June 19, 2002, the day before a meeting to discuss the issue of Nancy's transfer, Superintendent Kelley called Dr. Coad. During this conversation, she told Dr. Coad that Nancy had to say she made a mistake and that ARIN had to reprimand her because she "spread the information to the district and the union" and had "stirred up that troubled labor pot in [the School District]." (Pls.' App. Ex. T.)

  The CBA provides that ARIN has final authority concerning the assignment of its employees to the various school districts which it serves. It also contains a provision concerning requests for reassignment of ARIN employees by member school districts which states that ARIN is to meet with the affected employee and the school district in an attempt to resolve or remediate the situation. (CBA Art. XX, at 25-29.)*fn35

  In accordance with the CBA, meetings were held on June 20 and July 26, 2002, in order to attempt to rectify the matter so that no transfer was necessary. (Pretrial Stip. § III, ¶ 18; Nancy Dep. at 140-65; Coad Dep. at 57-90; Smith Dep. at 70-102; Nancy Arb. Hr'g Test. at 98-113, 118-21, 173-82; Coad Arb. Hr'g Test. at 144-56; Smith Arb. Hr'g Test. at 66-81, 83-86, 111-17.)*fn36 Additionally, other conversations and negotiations ensued until late August, at which time a decision had to be reached as to staff assignments. Despite these ongoing efforts, no resolution was reached. (Pretrial Stip. § III, ¶ 19; Coad Dep. at 100-02; Coad Arb. Hr'g Test. ...

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