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Wells v. Hense

United States District Court, District of Columbia

January 24, 2017

TANYA WELLS, et al., Plaintiffs,
DONALD L. HENSE, et al., Defendants.


          ELLEN SEGAL HUVELLE United States District Judge

         This case arises from an alleged incident of peer-on-peer sexual harassment/assault that occurred during the school day at the Friendship Collegiate Academy Public Charter School, a public charter school in the District of Columbia. The incident involved four high school students, two male perpetrators (D.B and E.E.) and two tenth-grade female victims (S.G. and J.G.). Plaintiffs Tanya Wells and Yolanda Thomas are the mothers of the minor victims and filed this suit on their behalf against the Charter School; its corporate owner, Friendship Public Charter School, Inc. (the “Corporation”); and the corporation's chief executive officer, Donald Hense, alleging violations of Title IX, 20 U.S.C. § 1681(a) (Counts I and II), 42 U.S.C. § 1983 (Counts III and IV), and District of Columbia tort law (Counts V and VI). Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants have moved to dismiss all of plaintiffs' claims. For the reasons stated herein, the motion will be granted as to Counts II, III, IV, part of V, and VI, and denied as to Count I and part of Count V.



         The facts as alleged in the complaint are as follows. At all relevant times, S.G. and J.G. were students in the 10th grade at Friendship Collegiate Academy Public Charter School, a public charter school in the District of Columbia authorized by and operating pursuant to D.C. Code § 38-1801, et seq. (Am. Compl. ¶¶ 9-10, 14-15, 19.) On May 19, 2015, S.G. and J.G. reported to their assigned classroom for math class. (Am. Compl. ¶ 30.) Their teacher, Gregory Harris, was absent due to a regularly-scheduled bi-weekly medical appointment, but no substitute teacher was present. (Am. Compl. ¶¶ 30-34.) There was no system in place to verify that an individual qualified to teach or monitor the students was present in each assigned classroom (Am. Compl. ¶ 62), and no other teacher or school official came to the classroom during the scheduled class period. (Am. Compl. ¶ 35.) In addition to the approximately ten other students who were supposed to be there, two male students, D.B. and E.E, who were supposed to be in a foreign language class in the next room, came into the unsupervised math classroom. (Am. Compl. ¶¶ 36-38.) S.G. and J.G. were in the back of the room. (Am. Compl. ¶ 41.) D.B. approached S.G. and grabbed her left arm above her wrist. (Am. Compl. ¶ 42.) S.G. told him to “move, stop and don't touch me, ” but he ignored her and then proceeded to forcefully hold her hair, maneuver her body to bend her over a table, stand behind her and, against her will, perform a grinding and thrusting sexual-type action. (Am. Compl. ¶¶ 44-48.) Five minutes later, he did it again. (Am. Compl. ¶¶ 49-50.) At the same time, E.E. engaged in similar conduct directed at J.G. (Am. Compl. ¶¶ 51-56.) None of the other students in the classroom intervened to stop D.B. or E.E. or notified any school official of what was happening. (Am. Compl. ¶¶ 59-60.) During the entire time these events were taking place, the doors to the math classroom were locked from the inside, and the windows were covered with sheets of paper. (Am. Compl. ¶ 40.) In addition, there was no hall monitor or security guard in the hall in the vicinity of the math classroom. (Am. Compl. ¶ 62.)

         D.B. and E.E.'s actions violated the Charter School's anti-harassment policy, which provides that harassment includes “references made to a person or group based upon age, sex, race, religion or ethnic origin. Verbal comments, sexual name-calling, gestures, jokes, slurs or spreading sexual rumors directed toward an individual or group is also considered harassment. Sexual harassment is unwelcome sexual advances, request for sexual favors, or other unwelcome verbal or physical contract of a sexual nature.” (Am. Compl. ¶ 145.)

         After the class period ended, J.G. told a friend about what had transpired, and during the next class period, both S.G. and J.G. were in the same chemistry class and several students in that class were talking about the incidents. (Am. Compl. ¶¶ 81-82.) However, neither S.G. nor J.G. reported the incidents to anyone that day. (Am. Compl. ¶ 83.) The following day, however, during a meeting with her “weekly mentoring group, ” S.G. mentioned that something had happened during math class. (Am. Compl. ¶¶ 84, 86.) At the request of the group's leader, Tiffany Green, S.G. remained after the meeting to talk to her in private, and she then told her what had happened. (Am. Compl. ¶¶ 87-89.) J.G. also told Ms. Green what had happened to her. (Am. Compl. ¶ 90.) Ultimately, Ms. Green reported the incidents to Ms. L. Jones, a Charter School official, who reported them to the Charter School's principal, Peggy Jones. (Am. Compl. ¶¶ 91.) A representative from the Charter School then contacted the girls' mothers and told them about the incidents. (Am. Compl. ¶ 92.)

         Plaintiffs immediately went to the Charter School to meet with school officials. (Am. Compl. ¶ 93.) During that meeting, they learned that D.B. had been involved in a fight at school on May 18, 2015, and they were also told that the Charter School wanted to suspend D.B. and E.E., that calls had been made to initiate their suspension, and that they would be arrested for their actions. (Am. Compl. ¶¶ 94-95.)

         After that meeting, an investigation was conducted by the school officials and the MPD, but according to plaintiffs, they were not adequate. (Am. Compl. ¶¶ 99, 160-61.) In the end, neither D.B. nor E.E. was arrested, suspended or otherwise disciplined for the May 19, 2015 incidents. (Am. Compl. ¶¶ 96-97, 154.)

         As a result of D.B. and E.E.'s continued presence at the Charter School, S.G. and J.G. were afraid to attend their classes. In addition, the incidents were the subject of extensive gossip and led to S.G. and J.G. being ostracized, called names and otherwise bullied by their peers. (Am. Compl. ¶¶ 108, 114-19.) S.G. and J.G. reported the peer harassment, but nothing was done to stop it. (Am. Compl. ¶¶ 120-21.) D.B. and E.E.'s continued presence at the school in conjunction with the peer harassment led S.G. and J.G. to stop attending classes for the remainder of the school year. (Am. Compl. ¶ 108.) They completed their remaining assignments at home, returning to the school only for a brief period to take their final exams. (Am. Compl. ¶¶ 108-09.) When S.G. and J.G. returned to school in the fall of 2015, D.G. and E.E.'s presence continued to cause them emotional stress. (Am. Compl. ¶ 169.)

         Both S.G. and J.G. experienced significant drops in their grades for the fourth quarter of 2015. (Am. Compl. ¶¶ 111-12.) In addition, J.G. experienced nightmares as the result of E.E.'s actions toward her, and both have required ongoing mental health counseling. (Am. Compl. ¶¶ 115, 168, 172.)


         Plaintiffs filed the original complaint in this case on May 6, 2016, and an amended complaint on June 6, 2016. The amended complaint includes six Counts: Counts I and II are Title IX claims, brought against the Charter School and the Corporation (Am. Compl. ¶¶ 175- 89); Counts III and IV are § 1983 claims, brought against all of the defendants (Am. Compl. ¶¶ 190-208); Count V is a claim for gross negligence brought against all defendants (Am Compl. ¶¶ 209-229); and Count VI is a claim for negligent infliction of emotional distress brought against Hense and the Corporation (Am. Compl. ¶¶ 230-35.) Plaintiffs seek injunctive relief “to ensure that the acts complained of herein are not engaged in again by the defendants or any of [their] agents” and damages. (Am. Compl. at 33-34.)

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants have moved to dismiss the complaint in its entirety for failure to state a claim upon which relief can be granted. (Defs.' Mot. to Dismiss, ECF No. 7 (“Mot.”).) Plaintiffs have filed an opposition (Pls.' Opp'n, ECF No. 10 (“Opp'n”)), and defendants filed a reply (Defs.' Reply, ECF No. 11 (“Reply”).


         I. FED. R. CIV. P. 12(b)(6) LEGAL STANDARD

         “In ruling on a motion to dismiss for failure to state a claim, the court must ‘accept as true all of the factual allegations contained in the complaint, '” Phillips v. Fulwood, 616 F.3d 577, 581 (D.C. Cir. 2010) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and “construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). However, the court will “not accept inferences drawn by [the] plaintiff if those inferences are not supported by the facts set out in the complaint, nor must the court accept legal conclusions cast as factual allegations.” Id. (citations omitted).

         A court should dismiss a complaint for failure to state a claim if the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Rudder v. Williams, 666 F.3d 790, 7994 (D.C. Cir. 2012). To state a facially plausible claim, a complaint must set forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint that pleads factual allegations that are “‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). While the factual allegations need not be “detailed, ” the Federal Rules demand more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.


         Section 901(a) of Title IX prohibits sex discrimination by recipients of federal education funding. See 20 U.S.C. § 1681(a) (“[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”).[1] Although not expressly stated, sex discrimination for purposes of Title IX encompasses both sexual harassment and retaliation against a person because that person has complained of sexual harassment. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005).

         “[Title IX's] only express enforcement mechanism, 20 U.S.C. § 1682, is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions.” See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009). However, the Supreme Court has held that Title IX implies a private right of action to enforce its prohibition on sex discrimination, see Cannon v. Univ. of Chic.,441 U.S. 677, 708, 717 (1979), and that private parties can seek monetary damages for intentional violations.[2]See Franklin v. GwinnettCty. Public Sch.,503 U.S. 60, 76 (1992). This private right of action for damages encompasses claims based on a funding recipient's “deliberate indifference” to the sexual harassment of a student by ...

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