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Doe v. Torrington Board of Education

United States District Court, D. Connecticut

August 7, 2017

JOHN DOE, Plaintiff
v.
TORRINGTON BOARD OF EDUCATION, GERARD CARBONE, JOANNE CREEDON, JOHANNA DEZURIK, DANIEL DUNAJ, JAMES DZIEKAN, CHERYL KLOCZKO, MICHAEL MCKENNA, and CHARLES MCSPIRITT Defendants.

          RULING ON RENEWED MOTIONS TO DISMISS

          Michael P. Shea, U.S.D.J.

         Plaintiff John Doe filed this lawsuit against the Torrington Board of Education (the “Board”) and several Board employees, on March 27, 2015. Doe alleges that as a student and member of the football team at Torrington High School, he experienced verbal abuse, physical attacks, and sexual assault by other students. He claims that defendants failed to adequately respond to and prevent this bullying, and condoned a culture of harassment and violence. After initially dismissing the case, the Court granted Doe's motion to reconsider and allowed him to file a second amended complaint. Defendants have now filed renewed motions to dismiss. As explained more fully below, the motions to dismiss (ECF Nos. 95; 96) are GRANTED in part and DENIED in part. The claim of intentional infliction of emotional distress (Count Four) is dismissed as to all defendants but former football coach Daniel Dunaj. The case may proceed as to the substantive due process, state-created danger claim against Dunaj (Count One), the state law negligence claims against all defendants (Counts Two, Three, and Five), and the intentional infliction of emotional distress claim against Dunaj (Count Four).

         I. FACTUAL ALLEGATIONS

         According to the allegations in the second amended complaint, Plaintiff John Doe was a student at Torrington High School in Torrington, Connecticut, from August 2011 until April 2013. (ECF No. 91 ¶ 14.) During that time period, Defendant Cheryl Kloczko was Superintendent of the Torrington Board of Education, Defendant Joanne Creedon was Principal of Torrington High School, and Defendant Charles McSpiritt was Vice Principal. (Id. ¶¶ 2-5.)

         While a student at Torrington High School, Doe was a member of the football and track teams. (Id. ¶¶ 17, 46.) Defendant Daniel Dunaj was the head football coach, and Defendant Michael McKenna was the athletic director. (Id. ¶¶ 6-7.) As a student with a learning disability, Doe was entitled to certain services and accommodations at Torrington High School. (Id. ¶ 15.) At all relevant times, Defendant Gerard Carbone was Doe's school special education case manager, Defendant James Dziekan was the school social worker assigned to counsel Doe, and Defendant Johanna DeZurik was his school guidance counselor. (Id. ¶¶ 8-10.)

         A. Dunaj's Prior Employment

         Before working at Torrington High School, Dunaj was a teacher and coach in Seymour, Connecticut. (Id. ¶ 18.) From 2004 to 2007, while employed by the Seymour Public Schools, he was the subject of multiple complaints and investigations. (Id. ¶ 20.) For example, a female student on the track team filed a complaint against Dunaj for subjecting her to “verbal abuse, humiliation and degradation.” (Id. ¶ 22.) The student's mother wrote a letter to the editor about the complaint, which Dunaj posted in the boys' locker room, causing the student to be ridiculed and abused. (Id. ¶¶ 23-24.) Another complaint alleged that Dunaj had asked a class of students, “What do we call girls who wear tight shorts?” A female student raised her hand and said, “it's the s word, ” to which Dunaj replied, “yes, sluts and whores.” (Id. ¶ 30.) Dunaj was hired as the head football coach at Torrington High School in or around the fall of 2008. (Id. ¶ 33.)

         B. Incidents Involving Doe

         The first incident of harassment of Doe described in the second amended complaint occurred in October of 2011, during the fall semester of Doe's freshman year. (Id. ¶ 36.) Student A[1] threw Doe on the floor of the locker room, breaking his glasses, and rubbed Doe's hat in Student A's genitals. (Id.) Doe reported the assault, and the school suspended Student A briefly. (Id. ¶ 37.) Vice Principal McSpiritt provided a written report of the incident to Principal Creedon, and kept Creedon informed of other reports of bullying and harassment made by Doe. (Id¶ 38.) Though Doe was assured that this report would be private, staff and students on the football team learned that he had gone to school officials and began to retaliate against him. (Id. ¶ 37.)

         Next, around late October or early November, 2011, Student B tackled Doe and said he wanted to fight him. (Id. ¶ 40.) This occurred in a public place “on school grounds and/or during a school sponsored activity” that “was and/or should have been” supervised by defendants. (Id.) Doe did not immediately report this assault, because he “did not feel safe” after the way his prior report had been handled by school staff and coaches. (Id. ¶ 42.) His mother later reported the assault to school administrators. (Id. ¶ 43.)

         In January 2012, after Doe had sustained an injury that limited his ability to play football, coaches and students, including Student I, ridiculed him and called him “pussy, ” “bitch, ” and “baby.” (Id. ¶ 45.) Coach Dunaj “witnessed, participated in, encouraged, and condoned this harassment.” (Id.)

         In the spring of 2012, during track practice, Student C, a member of both the football and track teams, threw Doe on the ground and threw rocks in Doe's face, one of which he swallowed. (Id. ¶ 46.) Again, this occurred “on school grounds and/or during a school sponsored activity in a public place that was and/or should have been supervised” by defendants. (Id.) Doe did not immediately report this assault, but his mother later reported it to school administrators. (Id. ¶ 48.) From that point until the end of Doe's freshman year, Doe was assaulted by Student C or other students on school grounds and/or during school sponsored activities nearly every day. (Id. ¶ 49.) (Student C had himself been a victim of bullying: he reported to police that he quit football “from being bullied by the coaches and kids.” (Id. ¶ 50.))

         Also in the spring of 2012, Student D hit Doe on the back of the neck in a “karate chop.” (Id. ¶ 53.) Doe hit back, and both students received in-school suspensions. (Id.) Coach Dunaj informed the team of Doe's suspension, and disciplined the entire team for it by forcing them to run sprinting exercises called “gassers.” (Id. ¶ 54.) The second amended complaint alleges that Dunaj was “aware that the policy of requiring the entire team to run gassers as a result of one student's discipline would encourage players to retaliate within the team, and encourage escalating incidents of bullying, harassment and assaults.” (Id. ¶ 55.) Dunaj's discipline resulted in more physical assaults on Doe, including Students C, E, and other members of the football team seeking Doe out after practice and striking him repeatedly on the neck. (Id. ¶¶ 55-56.) Later, in fall 2012, defendants were informed that this sort of team punishment for suspensions was resulting in physical assaults, and that the coaches knew this. (Id. ¶ 82.)

         During the summer, in August 2012, Doe and other students were playing football in a park. (Id. ¶ 57.) Student B, in the presence of other students, sexually assaulted Doe. (Id.) Doe “did not feel safe” to report this incident to anyone immediately after it happened. (Id. ¶ 58.) (Student B was later convicted of sexual assault, in September 2014. (Id. ¶ 128.))

         When Doe's sophomore year began in fall of 2012, he was repeatedly harassed in class, including being called a “faggot” and “fat ass” by other students. (Id. ¶ 59.) Though teachers heard the harassment, they did not discipline the other students. (Id.) Doe's attendance and grades began to suffer. (Id. ¶ 85.)

         In September 2012, Guidance Counselor DeZurik left a voicemail for Doe's mother indicating that she was aware of harassment against Doe but would not take action because Doe had not offered names. (Id. ¶ 84.) DeZurik and other defendants did not investigate. (Id.) In November 2012, Doe's mother requested a meeting to address the bullying and other issues. (Id. ¶ 86.) At the meeting, Case Manager Carbone “became visibly agitated with and angry at” Doe, stating “I am sick of hearing about phantom bullies.” (Id. ¶ 87.) Doe then provided some of the names of the perpetrators. (Id. ¶ 88.) Defendants also received reports that “coaches sometimes encourage the violence as the coaches are verbally mean to the players-which makes the players verbally mean to the lower classman [sic].” (Id. ¶ 81.) Defendants did not investigate these reports. (Id.)

         After the November meeting, the bullying continued. (Id.) In December 2012, defendants honored various students at the Torrington High School football banquet, seven of whom had been identified as responsible for hazing and bullying against other students. (Id. ¶ 89.) Among the students honored were Students B, E, and I, all of whom had bullied Doe. (Id.)

         In January 2013, Doe's mother requested another meeting with defendants to address the harassment of Doe. (Id. ¶ 93.) At this meeting, which Doe's private counselor and his grandmother also attended, Guidance Counselor DeZurik, Vice Principal McSpiritt, and Case Manager Carbone described the harassment as “everyday banter between the boys, back and forth.” (Id. ¶¶ 94-95.) With Doe's mother in tears, and the private counselor and grandmother objecting to this characterization, defendants offered Doe 30 minutes of counseling per week with Dziekan to “help him learn certain skills to assist him in dealing with issues related to his peers because of his ‘sensitivity.'” (Id. ¶¶ 95-96.) Though Doe requested that Dziekan speak with his private counselor regarding the harassment, Dziekan never contacted her. (Id. ¶ 97.) Dziekan also did not meet with Doe as required. (Id. ¶ 103.) (Later, Dziekan stated that “he felt that the use of the word ‘bullying' was overused” and he was unable to provide the required services to Doe because “his caseload of students grows every day and he is unable to meet with every student he is supposed to.” (Id. 104.))

         On or about March 17, 2013, Doe's mother attended another meeting at Torrington High School, where she “pleaded for help to end the bullying, assault and harassment.” (Id. ¶ 100.) Also on or about March 17, 2013, Student F, unprovoked, pushed Doe in the chest and said “What the fuck, gay boy.” (Id. ¶ 101.) Doe, defending himself, pushed Student F. (Id.) A teacher witnessed this but “dismissed it as mutual, ” and took no action. (Id.) The next day, Doe's mother told Carbone that Doe was afraid to go to school, and two days later, she called Dziekan about the bullying. (Id. ¶¶ 102-03.)

         On April 1, 2013, Doe was in a resource study hall for special education students. When the paraprofessional opened the blinds, he turned his desk so students in the hall couldn't see. (Id. ¶ 105.) The paraprofessional, noticing this, said, “What? Are you embarrassed? You should be embarrassed. About the only thing you should be embarrassed about is yourself. You are a hider.” (Id. ¶ 106.) Other students then started calling Doe a “hider.” (Id.) The paraprofessional also suggested that the other students get paint and write Doe's name on the window, and when Doe requested to leave early to avoid his harassers, she asked the class “Don't you wish you could” ...


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