United States District Court, E.D. Pennsylvania
RUSSELL and TAMMY BITTENBENDER on behalf of their daughter, S.B., a minor, and individually on their own behalf, Plaintiffs
THE BANGOR AREA SCHOOL DISTRICT, Defendant
Title IX case, an elementary school student alleges that she
suffered student-on-student sexual harassment while attending
Defendant Bangor Area School District (“BASD”).
This harassment lasted over a five year period, continuing
when she entered middle school. BASD filed a motion to
dismiss, arguing that the plaintiff failed to plead
sufficient facts to establish the elements of a Title IX
claim. For the following reasons, I will deny the
motion in its entirety.
and Russell Bittenbender bring this action on behalf of their
minor daughter, S.B. (Am. Compl. ¶¶ 2-4.) BASD is
an incorporated public education entity within Pennsylvania
that receives federal financial assistance. (Am. Compl.
¶¶ 6, 8.) S.B. alleges that she suffered offensive
verbal sexual harassment and physical assault while attending
BASD between the third and eighth grades. (Am. Compl.
¶¶ 1, 13, 27, 32-34, 73, 84, 89, 112, 158, 164).
S.B. identified eight juvenile students who participated in
the offensive behavior on various occasions throughout those
five years. (Am. Compl. ¶¶ 13-23.)
harassment began when S.B. was in third grade at Five Points
Elementary School but became a “serious” problem
during S.B.'s fourth grade year, 2009 to 2010. (Am.
Compl. ¶ 28.) S.B. was called offensive terms and pushed
because she did not conform to the harassers' perception
of female gender norms. (Am. Compl. ¶ 35, 52.) This
included being called a “slut” or
“lesbian” when she played football with male
students. (Am. Compl. ¶ 51.) S.B. reports that her
guidance counselor, Mrs. Warren, and teacher, Mrs. Dutt,
observed, or were made aware of, the alleged conduct. (Am.
Compl. ¶¶ 39, 46-47.)
to the start of S.B.'s fifth grade year, S.B.'s
parents conversed with and sent a letter to DeFranco
Elementary School's Principal, Hendershot, about the
offensive conduct. (Am. Compl. ¶¶ 62-68.) S.B.
asserts that during the fifth grade, the offensive conduct
diminished in the classroom but continued elsewhere. (Am.
Compl. ¶¶ 70-76.) She contends that “the
sex-based comments” increased, with persistent
commentary about S.B.'s sexual orientation. (Am. Compl.
¶¶ 70-76.) There were continued instances of
physical assault. (Am. Compl. ¶¶ 70-76.) S.B. spoke
to the guidance counselor about creating a bullying
prevention club because S.B. was a victim of bullying. (Am.
Compl. ¶¶ 79-80.)
her sixth grade year, S.B. gave a speech in front of the BASD
school board about her bullying experience. (Am. Compl.
¶¶ 83-86.) The principal of S.B.'s elementary
school was present for this speech. (Am. Compl. ¶¶
86.) During her seventh grade year and the following summer,
S.B. alleges that the frequency and severity of bullying
increased with continuing comments about her sexuality. (Am.
Compl. ¶¶ 94, 118, 120, 125, 128.) S.B. organized a
student club to combat bullying and consulted the guidance
counselor about the sexual harassment she was experiencing
during this process. (Am. Compl. ¶¶ 104-05.) S.B.
alleges that the sexual harassment persisted through the
summer before and during her eighth grade year. (Am. Compl.
¶¶ 140, 143, 146, 163, 164).
occasion during her eighth grade year, the sexual harassment
required S.B. to remove herself from class and go to the main
office to speak with the principal, guidance counselors, and
school psychologist. (Am. Compl. ¶¶ 165-67.) S.B.
alleges that she shared with them the details of the bullying
at this meeting, including what was said to her and the
effects on her. (Am. Compl. ¶ 170.) At one point, S.B.
signed into the Lehigh Valley Hospital Behavioral Health Unit
for ten days of treatment because she was contemplating
suicide. (Am. Compl. ¶¶ 171-73.) On September 27,
2013, S.B.'s parents developed a “safety
plan” with the principal, superintendent, head of BASD
security, and BASD school district police officer. (Am.
Compl. ¶¶ 173-74.) On November 12, 2013, BASD
informed S.B's parents that the school district was
removing the escort protection provided to S.B. under the
safety plan. (Am. Compl. ¶ 245.) As a result, S.B.'s
parents relocated to New Jersey where S.B. now attends
school. (Am. Compl. ¶¶ 256, 268, 270.)
February 19, 2016, S.B. filed an amended complaint alleging
one count of sexual discrimination in violation of 20 U.S.C.
§ 1681. S.B. seeks $150, 000.00 in compensatory
damages. (Am. Compl. ¶ 276.) BASD filed a motion to
dismiss the amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) on March 4, 2016 and S.B. filed a
response to that motion on March 18, 2016.
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which
relief can be granted examines the sufficiency of the
complaint. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Following the Supreme Court decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009),
pleadings standards in federal actions have shifted from
simple notice pleading to a more heightened form of pleading,
requiring a plaintiff to plead more than the possibility of
relief to survive a motion to dismiss under Fed.R.Civ.P.
12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009); see also Phillips v. Cty. of
Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
when presented with a motion to dismiss for failure to state
a claim, district courts should conduct a two-part analysis.
First, the factual and legal elements of a claim should be
separated. The court must accept all of the complaint's
well-pleaded facts as true but may disregard legal
conclusions. Iqbal, 556 U.S. at 679. Second, a
district court must determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff has a
“plausible claim for relief.” Id. In
other words, a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to
“show” such an entitlement with its facts.
Id.; see also Phillips, 515 F.3d at 234-35.
“Where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679.
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” As the
Court held in Twombly, the pleading standard Rule 8
announces does not require “detailed factual
allegations, ” but it demands more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). A pleading that offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor does a complaint
suffice if it tenders “naked assertion[s]” devoid
of “further factual enhancement.” Id. at