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Francoeur v. D.L.

United States District Court, D. Connecticut

September 25, 2017

FRANCOEUR, Plaintiffs,
D.L., et. al., Defendants.



         Plaintiffs 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.[1] 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 state court.

         I. Background

         This 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.)[2]

         After 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).

         Ms. 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.)

         Ms. 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.)

         Ms. 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. ¶ 55.)

         However, 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.[3] (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.)

         In 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. 77.)

         II. Discussion[4]

         Plaintiffs 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. A.F.'s Title IX Claim Against the Board

         In 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.[5]

         i. ...

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