United States District Court, W.D. Pennsylvania
G.Z., by and through his natural parent and guardian, Stacey Figueroa, Plaintiff,
OIL CITY AREA SCHOOL DISTRICT, et al, Defendants.
PARADISE BAXTER UNITED STATES DISTRICT JUDGE
civil rights action was brought by G.Z. ("G.Z."), a
minor, by and through his mother, Stacey Figueroa
("Figueroa"), pursuant to 42 U.S.C. §1983. The
Defendants in this action include the Oil City Area School
District (the "School District") and three of its
employees, i.e.: Principal Tammy Newman
("Newman") and teachers Kelly Zerbe
("Zerbe") and Jessica Rodriguez
("Rodriguez"). G.Z. asserts that, while he was
enrolled as an elementary school student within the School
District, he suffered racial harassment by his fellow
students. G.Z. alleges that the Defendants' actions in
response to his complaints about the harassment violated his
rights under the Fourteenth Amendment.
before the Court is the Defendants' motion to dismiss the
Second Amended Complaint for failure to state a claim upon
which relief can be granted. For the reasons that follow, the
Defendants' motion will be granted in part and denied in
a nine-year-old child of Hispanic descent who resides with
his mother, Figueroa, in Oil City, Pennsylvania. Second
Amended Compl. ("SAC"), ECF No. 16,
¶¶4-5, 11-12. During the 2016-17 and 2017-18 school
years, G.Z. was enrolled in the School District at Smedley
Elementary School. SAC ¶¶ 16-17. The School
District's racial demographic is 96% white, with
Hispanics comprising only one percent of the population.
claims that, during the School Years 2016-17 and 2017-18, he
was racially harassed by his peers. SAC ¶ 17. As an
example, G.Z. alleges that five white children in his class
(identified as "L.W.," "M.R.,"
"C.T.," "T." (last name unknown), and
"C.S., ") referred to him as a "stinky
African" or remarked that he "stunk because of the
color of his skin." SAC ¶18. One of these same
students pushed G.Z. down a flight of stairs and, on a
separate occasion, hit G.Z. in the head with a ball.
Id. ¶I9. Another student punctured G.Z.'s
skin with a woodchip. Defendant Zerbe allegedly knew of these
incidents but took no action. SAC ¶2O.
each incident of harassment, G.Z.'s father informed the
school of what had taken place. SAC ¶23. This included
emails to the superintendent, to Newman, and to G.Z.'s
teacher on numerous occasions. Id. ¶24. When
complaints were made to Newman, she responded that children
were too young to understand the difference in race and
color. Id. ¶25. When complaints were lodged
about G.Z. being assaulted, Newman variously responded,
"[M]aybe it was a mistake," "[M]aybe the child
had bad aim," or "[M]aybe the child was initiating
a game of dodgeball." Id. ¶26.
another occasion, a child who had previously been reported
for bullying G.Z. jumped out of a bush and made intimidating
faces at him. SAC ¶27. When the child realized that G.Z.
was being walked to school by his mother, the child then
smiled as if embarrassed. Id. After reporting this
incident to Newman, G.Z.'s parents were told that
"children sometimes make faces," and Figueroa
"may have misunderstood." Id. ¶28.
Newman also informed G.Z.'s parents' that there was
nothing the school could do about their complaints if they
did not report the alleged bullying on the day that it
occurred. Id. ¶29.
with Newman's responses, G.Z.'s parents made
complaints to the School District's superintendent,
Patrick Gavin. SAC ¶3O. Gavin emailed G.Z.'s parents
and informed them he would speak to Newman. Id.
¶31. After he did so, Newman called G.Z. to her office
and scolded him for having a bad attitude. Id.
effort to mitigate future problems, Gavin permitted
G.Z.'s parents to select G.Z.'s teacher for the
following school year. SAC ¶32. G.Z.'s parents
specifically instructed the administration not to place G.Z.
in the same classroom as L.W., the student primarily
responsible for instigating the harassment. Id.
¶33. Despite this instruction, Newman placed G.Z. in the
same classroom as L.W. Id. ¶34. Following this
placement, L.W. continued to harass G.Z.. Id.
claims that none of the administrators have addressed or
disciplined the students harassing him, nor have any reports
been written or filed, despite the fact that teachers have
been aware of-or even witnessed--the verbal and physical
assaults. SAC ¶¶36-37, 40. According to G.Z.,
Defendant Rodriguez discouraged him from reporting the
harassment that other students inflicted on him, stating that
it was "tattling." Id. ¶41. G.Z.
thereafter stopped reporting instances of assaults to any
teachers or administrators. Id. ¶43.
G.Z. was disciplined for minor infractions such as getting
out of his seat or for alleged harassing conduct toward his
white peers. Id. ¶¶38, 52. The disciplines
have ranged from loss of recess to in-school suspension.
Id. ¶39. On at least one occasion when Zerbe
thought that G.Z. was behaving inappropriately, she made him
face his desk towards the wall. Id. ¶2l. This
segregation lasted for approximately one month and ended only
after G.Z.'s parents complained to Newman about it.
Id. ¶¶21-22. Zerbe never explained to
G.Z.'s parents why she implemented this form of
punishment. Id. ¶22.
result of these events, G.Z. has suffered trauma, which he
continues to address through therapy. Id. ¶45.
This lawsuit followed.