United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge
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.
FACTS ALLEGED IN THE COMPLAINT
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.)
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.)
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.)
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.)
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.)
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. ¶
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.)
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.)
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”).
FED. R. CIV. P. 12(b)(6) LEGAL STANDARD
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.
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.
TITLE IX CLAIMS (COUNTS I & II)
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”). 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
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.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