PITTSBURGH – Geibel Catholic Junior Senior High School, its principal and superintendent believe that civil rights and tort claims, raised by a female student, who alleged she was allowed by school authorities to be molested and sexually harassed multiple times by a fellow male student, should be dismissed with prejudice.
S.S. (by and through her parent and legal guardian, Gerald S.) of Fayette County filed suit in the U.S. District Court for the Western District of Pennsylvania on Nov. 2 versus Geibel Catholic Junior Senior High School of Connellsville, plus Principal Patricia Nickler, Superintendent Maureen Marsteller and Cole Kendall, also all of Fayette County.
(An amended version of the complaint was later filed on Jan. 20.)
“On or about March 8, 2019, as plaintiff was leaving a bathroom located on defendant Geibel’s property, defendant Kendall forcibly grabbed the plaintiff, held her against the wall, grabbed her buttocks and groped her breast. Defendant Kendall then forcibly attempted to kiss the plaintiff’s mouth, kissed the plaintiff’s cheek and placed his hand underneath the plaintiff’s skirt,” the suit stated.
“Thereafter, on three or four separate occasions, defendant Kendall sent the plaintiff unwanted and pornographic photographs of his penis via Snapchat, without the plaintiff’s request and/or consent. Upon receipt, plaintiff immediately deleted these unwanted and pornographic photographs. Defendant Kendall also regularly grabbed the plaintiff’s buttocks when she passed him on the school bus.”
On April 15, 2019 and during school hours, the suit stated Kendall followed the plaintiff down a hallway on Geibel’s property, grabbed the plaintiff’s backpack and forcibly pressed the plaintiff up against a wall.
Kendall allegedly then forcibly kissed the plaintiff’s mouth and cheek, groped the plaintiff’s buttocks and breast and placed his hand underneath the plaintiff’s skirt. When she escaped from Kendall, Kendall is said to have followed the plaintiff up a stairwell and onto a landing.
“Kendall forcibly stopped the plaintiff and proceeded to unzip his pants and remove his penis. At that time, defendant Kendall grabbed the plaintiff’s hand and forced her to touch his penis,” the suit stated.
Despite multiple incidents of alleged inappropriate, unwanted, provoked and unlawful conduct done without the plaintiff’s consent, Kendall was allegedly not disciplined in any way by defendant Nickler and/or Geibel – and although they shared classes and activities, Nickler and/or Geibel are said to have failed to separate defendant Kendall from the plaintiff.
“As a student, plaintiff was repeatedly subjected to a sexually hostile environment and pervasive harassment by defendant Kendall on defendant Geibel’s property. Defendant Geibel, through its agents, including but not limited to, defendant Nickler and defendant Marsteller, had actual knowledge of the sexually hostile environment and pervasive harassment by defendant Kendall on its property,” per the suit.
“Despite defendants Geibel, Nickler and Marsteller’s actual knowledge of the sexually hostile environment and pervasive harassment by defendant Kendall that the plaintiff suffered on defendant Geibel’s property, defendants failed to take any action and therefore ratified this environment and permitted the sexual harassment to continue.”
Counsel for Kendall filed an answer to the complaint on Jan. 13, invoking protections afforded to juveniles under the Juvenile Act and denying the alleged conduct was non-consensual.
In addition to stating that contact between the plaintiff and Kendall was consensual, he denied that any physical interaction between himself and S.S. took place after March 2019 – since the plaintiff allegedly advised him that she had a boyfriend who lived out-of-state and consequently suggested that the two of them should no longer have any physical contact.
(Kendall lodged similar responses to the amended version of the complaint in a second answer to the litigation on Jan. 26.)
UPDATE
Counsel for all of the Geibel defendants, excluding Kendall, filed a motion to dismiss the case with prejudice for failure to state a claim on Feb. 3.
“Plaintiff cannot maintain her Title IX claim against Geibel because she does not allege she suffered any harassment as a result of Geibel’s alleged indifference. Alternatively, plaintiff’s allegations of Title IX liability against Geibel prior to Feb. 9, 2020 must be dismissed because, as plaintiff alleges, Geibel did not have actual notice of the alleged discrimination until then,” per the motion to dismiss.
“Plaintiff’s tort claims also fail. Her negligence claim against the Geibel defendants is barred by the gist of the action doctrine, as plaintiff’s relationship with the Geibel defendants is contractual in nature. Additionally, her claim for negligent infliction of emotional distress against Principal Nickler and Dr. Marsteller must be dismissed, because there is no underlying negligence and because she suffered no specific, physical injury as a result of her alleged distress.”
Counsel for the Geibel defendants added he conferred with plaintiff’s counsel in a good faith attempt to resolve or narrow the issues contained in this motion prior to its filing, which proved to be unsuccessful.
For counts of violation of Title IX and violation of Pennsylvania common law rights for failure to protect, negligence, negligent infliction of emotional distress, assault and battery and intentional infliction of emotional distress, the plaintiff is seeking compensatory general damages in the amount proven at trial, and compensatory special damages including, but not limited to, costs of suit, reasonable attorney’s fees as permitted by law, pre- and post-judgment interest as permitted by law, punitive damages and such other relief, including injunctive and/or declaratory relief as this Court may deem proper, plus a trial by jury.
The plaintiff is represented by Joel S. Sansone, Elizabeth Tuttle and Massimo A. Terzigni of the Law Offices of Joel Sansone, in Pittsburgh.
The defendants are represented by Corey S.D. Norcross of Stradley Ronon Stevens & Young in Philadelphia, plus Kenneth J. Nolan of Phil DiLucente & Associates, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01671
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com