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Bittenbender v. Bangor Area School District

United States District Court, E.D. Pennsylvania

March 27, 2017

RUSSELL and TAMMY BITTENBENDER on behalf of their daughter, S.B., a minor, and individually on their own behalf, Plaintiffs


          STENGEL, J.

         In this 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.[1] For the following reasons, I will deny the motion in its entirety.

         I. BACKGROUND

         Tammy 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.)

         The 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.)

         Prior 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.)

         During 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).

         On one 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.)

         On February 19, 2016, S.B. filed an amended complaint alleging one count of sexual discrimination in violation of 20 U.S.C. § 1681.[2] 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.


         A 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).

         Therefore, 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.

         Under 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, the-defendant-unlawfully-harmed-me accusation. 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 557.

         III. ...

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