United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTIONS FOR SUMMARY
BOND ARTERTON, U.S.D.J.
A.F., PPA J.F. and J.F. filed a Twenty Count Amended
Complaint [Doc. # 33] on October 2, 2015 alleging against
minor defendant D.L and his mother J.L. assault (Count One),
negligence (Count Two), and parental liability (Counts Three
and Four), and alleging against Defendants Griswold Board of
Education (the "Board") and Vice Principal Sarah
Cary ("Ms. Cary"), negligence on the part of both
(Counts Thirteen, Fourteen, Fifteen and Seventeen), negligent
infliction of emotional distress on the part of Ms. Cary
(Count Sixteen), and violations of Title IX (Counts Eighteen
and Twenty) and of A.F's procedural rights (Count
Nineteen) by the Board. Defendants D.L and J.L now move [Doc. #
65] for summary judgment on all four state common law counts
against them, while Defendants the Board and Ms. Cary move
[Doc. # 66] for summary judgment on all counts against them.
After briefing and oral argument, Plaintiffs only remaining
federal claim is A.F.'s Title IX claim against the
Defendant Board (Count Eighteen). For the following reasons,
the Board's Motion for Summary judgment on Count Eighteen
is granted and the remaining state law claims are remanded to
action arises out of an incident that occurred in the seventh
grade lunch line on the second-to-last day of school at
Griswold Middle School (the "School") on June 20,
2013. (See Pl.'s L. Civ. R. 56(a)2 Statement
("LR 56") [Doc. # 68-2] ¶ 1-2.) While
A.F. was waiting in the long lunch line, she felt someone
touch her buttocks. (Id. ¶ 2.) When she felt
someone touch her again, and turned around, she saw three
fellow students, N.Y., M.G., and D.L., behind her giggling.
(Id. ¶ 4.) A.F. testified that although she
told them to stop, the boys kept touching her butt, perhaps
five or more times, until she saw M.G. go to the back of the
line, which brought an end to the incident. (Id.
¶¶ 7-9.) A.F. never saw which of the three boys
actually touched her. (Id. ¶ 10.) Two minor
witness' statements indicate that they saw the boys
"all touching A.F.'s butt on purpose." (Exs. E,
F to Pl.'s Opp'n.)
lunch, A.F. and three of her friends went to the
principal's office and informed Vice Principal Sarah Cary
about being touched, at which point Ms. Cary had the students
stop speaking and write their statements. (Id.
¶¶ 23-25.) Ms. Cary spoke with A.F. privately and
had her show on her arm how she was touched; A.F. touched Ms.
Cary's arm with an open hand. (LR 56 ¶¶ 26-27.)
Ms. Cary pulled the three identified boys out of class to
speak with them in the in-school suspension room.
(Id. ¶ 28.) She verbally reprimanded them and
had them write their statements, as well as apology letters.
(Id. ¶ 29.) Ms. Cary also updated her principal
about the incident, who in turn updated the superintendent.
(Id. ¶ 32.) Ms. Cary was not aware of any prior
disciplinary issues with the three boys. (LR 56 ¶ 34.)
After ascertaining that A.F. was willing to accept M.G.'s
apology, Ms. Cary brought him to apologize to A.F., which she
accepted. (Id. ¶ 35.) The boys remained in the
in-school suspension room, which is equivalent to detention,
for the rest of that day (id. ¶ 28) and Ms.
Cary gave D.L. and N.Y. lunch detention for the next day
(id. ¶ 36).
Cary then called the parents of all the students involved,
beginning with J.F., A.F.'s father. (Id. ¶
37.) The next morning, J.F. came to the School and informed
Ms. Cary that A.F. had told her mother about an incident
approximately two months prior where, in science class, N.Y.
had touched A.F.'s breast while ostensibly reaching
across her for a pen. (LR 56 ¶¶ 38-40.) It is
undisputed that no one at the School had ever been told about
this earlier incident prior to that meeting. (Id.
¶ 41.) Upon learning of this possible prior incident,
Ms. Cary assured J.F. that she would look into the
allegations. (Id. ¶ 44.)
Cary informed the principal of this development, and
contacted N.Y.'s mother, who met with Ms. Cary and denied
any awareness of the prior incident, claiming she thought it
was something her son would have told her about had it
happened. (Id. ¶¶ 45-46.) When the boys
came for lunch detention, Ms. Cary asked N.Y. directly about
A.F.'s allegations, explaining the definition of
harassment and that anything of a repetitive nature is of
great concern. (Id. ¶¶ 47-48.) N.Y. denied
the allegations about the prior incident and assured Ms. Cary
he understood what she was saying and what her expectations
for his behavior were. (Id. ¶ 49.)
Cary also spoke with the school psychologist about how they
would support A.F. the following school year. (Id.
¶ 50.) On June 24, 2013, upon advice from her principal,
Ms. Cary wrote J.F. a letter, which concluded, at the
principal's direction, that "unfortunately, the
incident occurred on the next-to-last day of school and our
ability to follow through to the last detail was compromised,
" although she considered the investigation completed.
(Id. ¶ 51; Ex. B (Deposition of Ms. Cary) to
Pl.'s Opp'n. at 36:1-4.) Plaintiffs note that she
never interviewed any other adults supervising the lunch line
besides Mrs. Mager, but Plaintiffs do not identify anyone
else with probative knowledge about the incident. After
speaking with all the involved students, Ms. Cary concluded
this had been "incidental conduct" and not sexual
harassment. (LR 56 ¶ 53.) She determined that the boys
had bumped into A.F. "and then not been as responsive to
stop their game as they should have been in the face of her
discomfort." (Id. ¶ 54.) Several factors
informed Ms. Cary's decision, including A.F.'s delay
in reporting the incident until after lunch and the fact she
was familiar with all the involved students. (Id.
J.F. believed that what had happened to his daughter was
sexual assault. (Id. ¶ 58.) Although Ms. Cary
explained her investigation to him and that the boys had
apologized and been punished, he contacted the State Police,
who informed him that they would contact him if something did
happen because the School would report it. (Id.
¶ 59-61.) J.F submitted a letter to the School stating
that he wanted his daughters to be transferred to Plainfield
schools or another school system because the School presented
a "hostile environment." (LR 56 ¶ 62-63.)
Despite the fact that over the summer the Board attempted to
establish a plan that would keep A.F. and the boys separated
in the next year, J.F. wanted the boys removed from the
School and would not otherwise permit his daughters to
return. (Id. ¶¶ 64- 65; Ex. C
(J.F.'s Deposition) to Def.'s Mot. for Summary
Judgment [Doc. # 66-5] at 48:7-11.) J.F. decided that A.F.
and her sister would not return to Griswold schools.
(Id. ¶ 66.)
September 2013, the Board's new Title IX coordinator,
Susan Rourke ("Ms. Rourke"), was first informed of
the June 20, 2013 incident by the superintendent, who
requested she conduct an investigation. (Id. ¶
68.) Ms. Rourke's investigation consisted of reviewing
Ms. Cary's investigation and interviewing J.F. and Ms.
Cary. She requested an interview with A.F., but J.F. denied
the request. (Id. ¶ 69.) Ms. Cary also reviewed
all the witness statements taken by Ms. Cary. (Id.
¶ 70.) From this investigation, Ms. Rourke concluded
that the boys' conduct had not created a hostile
environment within the meaning of Title IX because it was not
"continuous, consistent, or over the top." (LR 56
¶ 76.) She also concluded that Ms. Cary's
investigation was complete and there was nothing else Ms.
Cary could have done. (Id. ¶
do not contest the Board's Motion as to the Sixteenth,
Nineteenth, and Twentieth Counts and thus these claims are
dismissed. Additionally, Plaintiffs fail to respond at all to
Defendant's Motion for Summary Judgment on Count
Seventeen, which is therefore also dismissed. As a result,
the sole remaining federal claim conferring subject matter
jurisdiction is A.F.'s Title IX claim against the Board,
which is discussed below.
A.F.'s Title IX Claim Against the Board
Count Eighteen, Plaintiffs allege that the Board
"tolerated and encouraged a pattern of sexual misconduct
and gender discrimination against. . . A.F." resulting
in a denial of education on the basis of her sex in violation
of Title IX of the Education Amendments of 1972, 20 U.S.C.
§§ 1681-1688. (Am. Compl, Count XVIII ¶ 20.)
Title IX provides that "[n]o person in the United States
shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance." 20 U.S.C.
§ 1681(a). In certain circumstances, deliberate
indifference to known acts of student-on-student harassment
may amount to a violation of Title IX capable of supporting a
private damages action. Davis v. Monroe Cty. Bd. of
Educ, 526 U.S. 629, 643 (1999). However, "funding
recipients are properly held liable in damages only where
they are deliberately indifferent to sexual harassment, of
which they have actual knowledge, that is so severe,
pervasive, and objectively offensive that it can be said to
deprive the victims of access to the educational
opportunities or benefits provided by the school."
Id. at 650.