PHILADELPHIA – A charter school in Chester is seeking dismissal with prejudice of civil rights claims in a lawsuit that alleges it failed to prevent the repeated sexual assaults of one of its kindergarten students by their classmate.
Z.D. (a minor, by her parent and natural guardian Shanae Bridgeford) of Brookhaven first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Dec. 21 versus Chester Community Charter School, of Chester.
“Plaintiff, an African-American female, began her kindergarten school year at CCCS in August 2022. On Oct. 5, 2022, plaintiff was harassed by a boy in her class during the month of September and early October 2022. The harassment included the boy slapping her on her buttocks in the classroom. Plaintiff’s teacher claimed not to have seen the incident when told about it, despite plaintiff reporting the incident to her. CCCS made no effort to contact plaintiff’s mother or separate the boy from plaintiff in class or outside of class,” the suit said.
“On or about Oct. 6, 2022, plaintiff asked the teacher to use the restroom and was granted permission. Plaintiff made her way to the girls’ restroom, but the teacher did not use the walkie-talkie communication device to alert the security guard that plaintiff would be using the restroom. While plaintiff was in the restroom, the room was unguarded. The same boy who smacked plaintiff’s buttocks on Oct. 5, 2022 left his classroom and made his way to the girls’ bathroom that plaintiff was using.”
The suit added that while the plaintiff was in the bathroom, the boy turned the lights out to the room, pulled the plaintiff’s pants down and smacked her on the buttocks and saw the plaintiff’s genital and buttocks areas. The plaintiff then reported the incident to her teacher, who did not inform the plaintiff’s mother of the assault, per the suit.
“After learning of the incidents from her daughter, plaintiff’s mother confronted the administration at CCCS. CCCS made no efforts to address the incident and expected plaintiff to continue in class and at school with the boy after this assault. Plaintiff was not offered any counseling or other services by the school. CCCS made no effort to investigate the incident and the response by the teacher or security in allowing this incident to happen. Plaintiff has had nightmares, anxiety, fear, depression and other emotional and psychological symptoms since the incident on Oct. 6, 2022. Plaintiff’s mother has sought treatment for plaintiff since the incident. Plaintiff has suffered a decreased interest in school and has expressed fear of school since the incident,” the suit stated.
“As a result of the failures of the school and the emotional and psychological toll of the incident and repeated exposure to the boy who assaulted the plaintiff, the plaintiff’s mother enrolled plaintiff in a different school. Plaintiff continues to suffer from emotional and psychological injuries from the assault. Plaintiff’s mother made multiple attempts to resolve the complaints with CCCS, but has been met with indifference, at best, from the officials charged with providing their child with a proper education free from harassment based on her sex. Plaintiff continues to have lasting psychological trauma related to the harassment, assault and intimidation she suffered at the hands of the young boy and others who have mocked her after the incident. Prior to the actions of the boy and the inaction, indifference, and, later, outright refusal to act on the part of CCCS staff, plaintiff has been made to feel that she should forfeit her academic and social life at school and leave the school community. This tragedy is a direct result of the administrators at CCCS.”
The suit accused the defendant of failing to investigate numerous reported incidents of harassment of the plaintiff, failing to report the assault of the plaintiff to authorities as required by law and failing to investigate the assault, among other institutional and procedural failures which led to the assault in question.
The defendant answered the complaint on March 3, denying the events as presented by the plaintiff in their totality and asserting 34 separate affirmative defenses on its own behalf.
“Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff’s claims may be barred, and the damages, if any, may be reduced, in whole or in part, by plaintiff’s failure to mitigate damages, if any. Defendant is not subject to liability under Title IX because it has an effective policy for reporting and redressing sexual harassment and other types of sexual assault, such as that alleged in plaintiff’s complaint, pursuant to which defendant conducted a prompt and thorough investigation of plaintiff’s allegations and implemented appropriate disciplinary sanctions and other corrective actions to remediate any alleged effects of that conduct on plaintiff. At all times relevant hereto, defendant acted appropriately and in good faith, without any harmful or malicious intent, and did not engage in any extreme, outrageous, intentional, willful or reckless conduct. Plaintiff’s claims are barred, in whole or in part, because defendant did not commit unlawful, intentional and/or negligent acts against plaintiff,” according to those defenses, in part.
“Plaintiff’s claims are barred, in whole or in part, because defendant’s actions were based on reasonable factors. Plaintiff is barred from recovery in that any damage sustained by plaintiff was the direct and proximate result of the independent, intervening, negligent and/or unlawful conduct of independent third parties or their agents, and not any act or omission on the part of defendant. Plaintiff’s claim may be barred, in whole or in part, by the applicable statute of limitations. Plaintiff has not suffered any injury proximately caused by any conduct of defendant, as alleged in the complaint. Defendant properly selected and trained its employees and personnel and formulated and enforced appropriate rules, policies, and procedures to ensure plaintiff’s safety. Plaintiff’s claims may be barred, in whole or in part, by reason of lack of standing of plaintiff.”
UPDATE
The defendant followed up with a motion for judgment on the pleadings on May 23, seeking that the plaintiff’s claim (which the defendant asserts should instead be filed under Title VI of the Civil Rights Act of 1964) be dismissed with prejudice.
“Title VI, as amended, provides that no person shall, ‘on the ground of race, color or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity’ covered by Title VI. Plaintiff has failed to assert any facts whatsoever to support a claim under Title VI, i.e. that she was discriminated against on the basis of her race, color or national origin. Federal Rule of Civil Procedure 8(a)(2) requires a ‘short and plain statement of the claim showing that the pleader is entitled to relief. This statement must ‘give the defendant fair notice of what the…claim is and the grounds upon which it rests.’ A plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions,” the motion stated.
“The pleadings in this matter are closed. Defendant has filed an answer to plaintiff’s complaint. As such, the within motion is timely and appropriate. Plaintiff’s complaint is completely devoid of a single fact to support her claims under Title VI. Any claims asserted by plaintiff under Title VI must be dismissed as plaintiff has not set forth a cause of action under said statute, nor alleged any facts to support a finding of liability against defendant under said statute. For these reasons, it is respectfully requested that this Honorable Court grant the within motion for judgment on the pleadings based upon demurrer for plaintiff’s failure to set forth a cause of action under Title VI, upon which relief can be granted against defendant.”
For a lone count of hostile educational environment under Title IX of the Education Amendments Act of 1972, the plaintiff is seeking damages in an amount that adequately compensates her for damages, attorneys’ fees, costs and other damages established by plaintiff that are related to defendant’s illegal acts.
The plaintiff is represented by Andrew Justin Thomson and Jared Scott Zafran of the Law Office of Jared Zafran, in Philadelphia.
The defendant is represented by Joseph J. McHale and Penelope Cilluffo of Stradley Ronon Stevens & Young in Philadelphia and Malvern, plus Kalani E. Linnell of Raffaele Puppio, in Media.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-05082
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com