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GP v. Lee County School Board

United States District Court, M.D. Florida, Fort Myers Division

September 19, 2017

GP, minor child by and through her Mother, JP, Plaintiff,

          OPINION AND ORDER [1]


         This matter comes before the Court on Lee County School Board's Motion for Partial Summary Judgment (Doc. 71), to which GP, by and through her mother, JP, timely filed a Response in opposition (Doc. 81) and, with the Court's permission, sealed exhibits in support thereof (Docs. 83, 84). The motion is fully briefed and ripe for the Court's review. For the following reasons, the Court grants in part the motion for partial summary judgment.


         This is a school bullying case. GP, by and through her mother, JP, filed this action on November 23, 2015 against the Lee County School Board (LCSB), Lexington Middle School (LMS), and Linda Caprarotta, the Principal of LMS, pursuant to Florida state laws prohibiting bullying and harassment, as well as federal claims pursuant to Title VI of the Civil Rights Act of 1964, the Individuals with Disability Education Act of 2004, and Section 504 of the Rehabilitation Act of 1973. (Doc. 1). GP filed an amended complaint (Doc. 17), of which only one count survived a motion to dismiss (Docs. 26, 35). GP was permitted to file an amended complaint, which was filed on June 14, 2016 (Doc. 37). She then sought leave to file another amended complaint (Doc. 48), which was denied (Doc. 49). GP's Second Amended Complaint (Doc. 37) was ultimately stricken for failure to comply with Federal Rule of Civil Procedure 15(a) and the Court's prior Order (Doc. 35). (Doc. 62). GP was then permitted one “final opportunity to amend.” (Doc. 62 at 2, 3 (emphasis in original)).

         GP's “Second Amended Complaint (Revised) and Demand for Jury Trial” (hereinafter “Complaint”) (Doc. 63) was filed on January 10, 2017, and LCSB's Answer was filed on January 17, 2017 (Doc. 64). The Complaint alleges race or national origin discrimination in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et seq. (Count One), gender discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (Count Two), and Florida state law claims of negligent infliction of emotional distress (Count Three) and negligent supervision (Count Four). LCSB's motion seeks summary judgment as to the federal claims only, and GP's Response states that she wishes to voluntarily dismiss the Title VI claim (Count One). (Doc. 81 at 1 (“Plaintiff will not move forward on Count One, and voluntarily dismisses it.”)). Accordingly, the Court addresses only the Title IX claim.

         GP is a female student who attended LMS. Her claims arise out of an incident during which she claims she was bullied by another student while attending LMS, which is part of the LCSB. The gist of her Title IX claim is that the LCSB treated similarly situated male students more favorably, and that, because GP is female, LCSB failed to adequately respond to her complaints of bullying and was deliberately indifferent to her federally protected rights. GP alleges that she suffered physical[2] and emotional damages as a result.

         The undisputed facts are these. While in orchestra class on November 22, 2013, GP was hit in the face by a spiral notebook swung by another student, NM, after they had a verbal altercation. NM blocked GP's ingress into the band locker room, which led her to call NM a derogatory name. NM then left, retrieved the notebook, returned to the room, and hit GP in the face. GP and other female students reported the incident to the substitute teacher, and then to LMS Principal Linda Caprarotta. This was the first time that GP reported to anyone at LMS that she was being bullied or harassed by another student, and no one else reported to LMS any instances of bullying or harassment of GP by NM. However, GP alleges that she told her peers about other prior incidents.

         After reporting NM's conduct to Caprarotta, GP went home on the school bus on Friday afternoon. No action was taken by LMS personnel until Monday, November 25, 2013, at which time LMS Assistant Principal Jason Peters initiated an investigation into the incident. During Peters' investigation, he and Caprarotta interviewed GP and her mother. Peters also interviewed NM, during which NM admitted to striking GP in the face with the notebook but denied any prior instances of bullying. Following the meeting, LMS changed GP's schedule by removing her from the class she shared with NM in an effort to ensure that she would have no further contact with NM. NM was also instructed by Peters that he was not to have any contact with GP. Both GP and NM were told to report any contact with each other to the administration immediately. On November 26, 2013, GP and her mother filed a formal bullying complaint with LMS, alleging that NM had been bullying GP since September 2013.

         After the formal complaint was filed, LMS began a bullying investigation. As part of that investigation, school guidance counselor Julie Claprood interviewed twelve students from the class GP and NM shared, including GP. Claprood took written statements from each student during their interview. Ultimately, LMS concluded that “bullying, ” as that term is defined in the code of conduct, had not occurred, but that GP was the victim of a battery by NM. On December 4, 2013, GP's mother was informed of the investigation's findings and told that NM would be disciplined. NM was suspended from school for two days on December 9, 2013. GP's schedule remained changed such that she no longer had any classes with NM, and the school's instructions to both GP and NM to avoid contact with the other also remained in place. NM never again spoke to GP after they no longer had any classes together.


         Summary judgment is proper “when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011); Fed.R.Civ.P. 56(a), (c). The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The movant bears the burden of showing the absence of dispute as to material facts, and upon such a showing the burden shifts to the non-moving party to establish that a genuine dispute exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The evidence must be viewed in favor of the non-moving party and all inferences drawn in her favor. Anderson, 477 U.S. at 255.


         Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex. It provides, in pertinent part, 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). At the outset, it is not entirely clear whether GP is attempting to show a Title IX violation based solely on LCSB's discriminatory intent via its deliberate indifference, a student-on-student harassment claim, or both.

         Discriminatory intent may be shown by establishing deliberate indifference. Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 347 (11th Cir. 2012). In Title IX cases, deliberate indifference, and thus discriminatory intent, may be shown by establishing that a recipient of federal funds was actually aware of the discrimination and refused to act on that knowledge. Id. Where Title IX cases do not involve an official policy of the recipient, damages are available only where “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist.,524 U.S. 274, 290 (1998). Thus, “[f]or an organization to be liable for Title IX purposes, [Supreme Court precedent] requires the deliberate indifference of ‘an official who at a minimum has authority to address the alleged discrimination and to institute corrective ...

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