The opinion of the court was delivered by: Christopher C. Conner United States District Judge
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.
A. Statement of Facts*fn1
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 long-time 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. ¶¶ 41-42). 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. ¶ 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, 53-55).
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). Thethird 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. 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 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 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- 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).
E.N. filed this civil action on September 4, 2009. (See Doc. 1). In Counts I and II, E.N. claims that Frank, Leitner, Volkman, Pensiero, Brenner, and the school district violated her Fourth Amendment right under the U.S. Constitution to be free from governmental seizures, and her Fourteenth Amendment right to personal security and bodily integrity. Count III alleges a violation of E.N.'s Fourteenth Amendment right to privacy against all defendants, except Frank. E.N. alleges in Count IV claims that the school district violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, by maintaining a hostile educational environment. E.N. alleges in Counts V and VI that all defendants violated her right to an education under Title IX, and all defendants (except Frank) retaliated against her for complaining about Frank's conduct. Counts VII and VIII allege state tort law claims of Intentional Infliction of Emotional Distress against all defendants and assault and battery against Frank. Count IX states a claim for repondeat superior liability against the school district. E.N. alleges violations of the Pennsylvania Constitution in Count X against all defendants, and she seeks punitive damages against all defendants in Count XI. Defendants filed a motion (Doc. 19) to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion has been fully briefed and is now ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests."
Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a two-step inquiry. In the first step, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1950 (2009) (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, --- U.S. at ---, 129 S.Ct. at 1949. When the complaint fails to establish defendant liability, however, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
E.N. asserts a number of claims stemming from the allegations of unwanted touching, inappropriate comments, and sexual assault. The claims may be categorized into four general classes: claims arising under the U.S. Constitution, claims arising under Title IX, claims arising under the Pennsylvania Constitution, and claims in tort arising under Pennsylvania common law.
A. Claims under the U.S. Constitution
An individual may bring suit under 42 U.S.C. § 1983 when persons, acting under color of state law, violate the individual's federal constitutional or statutory rights. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988) (deprivation of constitutional right must be person acting under color of state law). School districts are state actors for purposes of § 1983 actions. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). School administrators and employees may be considered state actors for purposes of the Fourth and Fourteenth Amendments. See New Jersey v. T.L.O., 469 U.S. 325, 336 (1985) (Fourth Amendment); Goss v. Lopez, 419 U.S. 565 (1975) (Fourteenth Amendment).
The Fourth Amendment, applicable to the states through the Fourteenth Amendment, Wolf v. Colorado, 338 U.S. 24, 27-28 (1949), protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. CONST. amend. IV. "It has been said of the Fourth Amendment that its 'overriding function . . . is to protect personal privacy and dignity against unwarranted intrustion by the state.'" Ingraham v. Wright, 430 U.S. 651, 674 n.42 (1977) (quoting Schmerber v. California, 383 U.S. 757, 767 (1966)). Nonetheless, the Fourth Amendment's protection against unreasonable searches and seizures is principally concerned with criminal investigations. Id. (citing Whalen v. Roe, 429 U.S. 589, 604 n.32 (1977)).
In the instant matter, E.N. characterizes the sexual assault by Frank as a "government seizure" within the meaning of the Fourth Amendment. (See Doc. 1 ¶ 159). The Fourth Amendment applies to public schools, see T.L.O., 469 U.S. 325, and hence school officials and employees. However, plaintiff provides no authority for a Fourth Amendment claim based on the sexual assault of a student. Those cases applying the Fourth Amendment to public school officials are limited to investigations of student misconduct and student discipline. See id.*fn3 In SF ex rel.
Freeman v. Delaware Valley School Dist., No. 3:08-CV-581, 2008 WL 4680580 (M.D. Pa. 2008), the court rejected a Fourth Amendment claim brought by the parents of a minor who had been inappropriately touched by her third-grade teacher. The court noted that the claim did not concern an intrusion of privacy during the course of a criminal investigation and, therefore, the plaintiff could not proceed on a Fourth Amendment theory. Id. at *6; see also K.K. ex rel. Knowles v. Weeks, Civ. No. 1:CV-04-2290, 2007 WL 2782273 at * 6 (M.D. Pa. Sept. 21, 2007) Similarly, in the instant matter, E.N. does not allege an invasion of privacy during the course of an investigation. To the contrary, the complaint alleges the commission of a sexual assault by a rogue actor. Accordingly, the court must dismiss plaintiff's Fourth Amendment claims.
2. Fourteenth Amendment-Bodily Integrity
The Fourteenth Amendment protects individuals from arbitrary government interference with certain protected liberty interests. An individual's interest in bodily integrity-to be free from physical abuse or unwanted medical treatment by government officials-is among the fundamental liberty interests protected by the Fourteenth Amendment. See Black v. Indiana Area Sch. Dist., 985 F2d 707, 709 n.1 (3d Cir. 1993) ("Plaintiff's have a liberty interest in their bodily integrity that is protected by the Fourteenth Amendment.") (citing Ingraham, 430 U.S. at 673-74 and Youngberg v. Romeo, 457 U.S. 307, 315 (1982)); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (right to be free from invasion of personal security through sexual abuse well-established).
In the instant matter, E.N. alleges that Frank forced her to perform a sex act in the course of driving lessons sponsored by the school district. At all relevant times, Frank was an employee of the school district. E.N.'s allegations raise the plausible inference that Frank used his authority as the driver's education teacher to coerce her into the sex act. Thus, E.N. has adequately alleged a Fourteenth Amendment injury under color of state law as to Frank.*fn4
b. School District Liability*fn5
A school district may be liable under 42 U.S.C. § 1983 for the violation of an individual's federal statutory or constitutional rights when it implements an official policy or custom that results in a constitutional deprivation. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978) ("It is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."). A school district cannot be held liable solely for the acts of its employees on a respondeat superior theory. Id. at 691.
In the instant matter, E.N. must prove that the district established and maintained a custom or policy that affirmatively contributed to E.N. being assaulted. See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 176 (3d Cir. 2001). Additionally, E.N. must establish that a supervisory official or final policy maker of the school district, with actual knowledge of similar conduct in the past, acted with deliberate indifference in response thereto. See id.
i. School District Custom or Policy
E.N. alleges unofficial customs of the school district lead to the sexual assault. A custom exists when a policy, though not an official edict, is so well-settled and permanent that it approximates official policy. See Beck v. City of Pittsburg, 89 F.3d 966, 971 (3d Cir. 1996). Custom may be established by knowledge and acquiescence on the part of an official policymaker. Id.
The courts have noted three scenarios where a government employee's actions, or in this case, school district employee's actions may be deemed to be the result of a policy or custom of the entity that subjects the school district to § 1983 liability: (1) when an appropriate officer or entity promulgates a statement of policy and the employee's act is an implementation of that policy; (2) when the act of the policymaker violates federal law; and (3) when a policymaker fails to act affirmatively despite the obvious need for action to control agents of the government. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003). The instant matter implicates the third scenario.
E.N. avers that the school district and defendants in their official capacities maintained several customs that resulted in her injury. First, the school district had a custom of inadequate training for employees who are likely to respond to incidents of sexual harassment. (Doc. 1 ¶¶ 144, 166). Second, the school district had a custom of ignoring or downplaying reports of harassment. (Id. ¶¶ 138-39). Third, the school district had a custom of suppressing specific complaints of harassment against Frank. (Id. ¶¶ 138-39, 142). Fourth, the school district had a custom of allowing Frank to take students out for driving lessons alone, in violation of official school district policy. (Id. ¶ 52).
Liability requires more than proof of an opportunity for the school district to avert the injury and a failure to seize the opportunity. E.N. must establish that a policy, practice or custom played an affirmative role in bringing about the sexual abuse and that the school district acted with deliberate indifference. See Black, 985 F.2d at 712 (discussing Stoneking, 882 F.2d 720, in which a high school concealed complaints of sexual abuse of students by teachers, failed to investigate complaints, and required complainants to apologize to accused teachers thus precluding summary judgment for school officials). This requires "something more culpable than a negligent failure to recognize [a] high risk of harm" to plaintiff. Colburn v. Upper Darby, 946 F.2d 1017, 1025 (3d Cir. 1991). Context is key. Black, 985 F.2d at 713 (context in which school sexual abuse investigation shortcoming occurred "cannot be ignored").
Failure to train is a valid basis for § 1983 liability only when such failure amounts to deliberate indifference. Beck, 89 F.3d at 971-72 (noting the adoption of the deliberate indifference standard in other policy/custom contexts outside the area of police training) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)); Young v. Pleasant Valley Sch. Dist., No. 3:07-cv-854, 2008 WL 417739 at *5 (M.D. Pa. Feb 13, 2008). In City of Canton v. Harris, the Supreme Court stated that, [i]t may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. 489 U.S. at 390.
E.N. must also establish that the deficiency in training is related to the ultimate injury. City of Canton, 489 U.S. at 391. In other words, the acquiesence, encouragement or condonation must contribute to the injury. Beck, 89 F.3d at 972 (citing Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). Thus, E.N. must demonstrate a "plausible nexus" or "affirmative link" between the custom and the deprivation of constitutional rights. Bielevicz, 915 F.2d at 850. 'A sufficiently close causal link between . . . a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom.' Id. at 851 (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1988) and adopting this formulation of the causation requirement). A failure to train amounts to deliberate indifference when the failure to train has caused a pattern of violations. Kelly v. Borough of Carlisle, ---F.3d--- (3d Cir. 2010), 2010 WL 3835209 at *15; Kline ex rel. Arndt v. Mansfield, 255 Fed. Appx. 624, 630, No. 06-4583, 2007 WL 4171108 at *3 (3d Cir. 2007) (discussing allegations of failure to train school district employees to recognize and report sexual abuse).
E.N. has adequately alleged the presence of several school district customs that proximately caused her injury. E.N. avers that Frank has a long history of inappropriate comments and physical touching. E.N. alleges prior instances of abusive and harassing conduct by Frank for which the school district failed to impose any disciplinary action. E.N. alleges the school district knew that Frank was taking students out alone in direct violation of the school district driver education policy. Former Principal Galowitz, former Principal Leitner and school district Superintendent Volkman were aware of Frank's contravention of the policy, and Galowitz purportedly gave Frank express permission to violate the policy. ...