Sanchez v. Brawley Elementary School District et al, No. 3:2014cv00564 - Document 58 (S.D. Cal. 2016)
Court Description: ORDER Granting 24 Defendant's Motion for Summary Judgment as to Plaintiff's remaining Title IX claims. The Clerk of Court shall prepare a judgment accordingly. Signed by Judge Gonzalo P. Curiel on 5/25/16. (dlg)
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Sanchez v. Brawley Elementary School District et al Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ANYSSA A. SANCHEZ, a minor, by LORENTINA SANCHEZ, her 12 Guardian Ad Litem, 11 13 Plaintiff, v. 14 BRAWLEY ELEMENTARY 15 SCHOOL DISTRICT, and DOES 1 through 10, inclusive, 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 14-cv-0564 GPC (BLM) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [ECF No. 24] 18 19 Before the Court is Defendant Brawley Elementary School District’s 20 (“Defendant”) Motion for Summary Judgment. Def. Mot., ECF No. 24. The motion has 21 been fully briefed. Pl. Opp., ECF No. 31; Def. Reply, ECF No. 33; Pl. Supp., ECF No. 22 58; Def. Supp., ECF No. 55. A hearing on the motion was held on May 13, 2016. ECF 23 No. 53. 24 Upon consideration of parties’ briefing, oral argument, and the applicable law, 25 and for the reasons set forth below, the Court GRANTS Defendant’s Motion for 26 Summary Judgment. 27 // 28 // 14-cv-0564 GPC (BLM) Dockets.Justia.com 1 FACTUAL BACKGROUND 2 Plaintiff Anyssa Sanchez (“Plaintiff”) was a sixth-grader at Phil Swing 3 Elementary School (“Phil Swing”) in Defendant Brawley Elementary School 4 District during the time the events in the case occurred. Plaintiff’s Separate 5 Statement of Undisputed Facts (“Pl. SSUF”) No. 5. Anyssa alleges that at Phil 6 Swing, there was an ongoing schoolyard game where, depending on the day of the 7 week, students would play “games” with each other with such names as “flipping 8 the patty,” “hotdog on a stick,” “vagina bun,” and “smack ass,” where the students 9 would attempt to do things like flick other students’ breasts, knee each other in the 10 groin, and hit each other on the buttocks. Id. at No. 9. On January 18, 2013, Anyssa 11 reported an incident to a school teacher where her friend Alexandra was touched in 12 a private area as a result of the game. Id. at No. 79. Later on that same day, Anyssa 13 was standing in the lunch line when another sixth-grade student, Isaac, approached 14 her without touching her. Id. at No. 8. He then walked up to another student and 15 flicked him in the chest. Id. at No. 10. Several seconds later, Isaac approached 16 Anyssa and touched her left breast with a quick, flicking motion. Id. at No. 11. 17 Anyssa reacted by kneeing Isaac in the groin, causing Isaac to fall upon the ground. 18 Id. at No. 15. During the time of this altercation, at least two staff members were 19 standing seven to ten feet nearby, but did not intervene. Id. at No. 25. Anyssa then 20 stayed in the lunch line, got her lunch, and began eating it. Id. at Nos. 25–26. 21 Isaac then reported to Vice-Principal Calunga that Anyssa had kneed him in 22 the groin. Calunga then walked up to Anyssa where she was eating lunch and called 23 her to Calunga’s office. Id. at No. 28. Anyssa and Isaac were then brought to 24 Principal Dial’s office. Id. at Nos. 29–30. Dial and Calunga questioned both 25 students and their teachers as to what had occurred. Id. at No. 31. Dial then called 26 Anyssa’s mother, Lorentina Sanchez, to the school. Id. at No. 33. Dial imposed a 27 one-day in-school suspension on Anyssa. Id. at No. 39. Isaac was also suspended. 28 Id. at No. 86. During the meeting with Principal Dial, neither Lorentina nor Anyssa 2 14-cv-0564 GPC (BLM) 1 protested Anyssa’s suspension. Id. at No. 35. Both Lorentina and Anyssa allege that 2 Principal Dial showed awareness of the schoolyard “games” being played by the 3 students. Id. at No. 79. Subsequently, Anyssa’s family protested the suspension 4 once Anyssa explained on the drive home from school that she had acted in self- 5 defense when she kneed Isaac. Id. at Nos. 41– 42, 51–52. They also filed a police 6 report documenting the incident on January 21, 2013. Id. at No. 49. 7 Following an appeal process, Anyssa served a one-day in-school suspension 8 on February 8, 2013. Id. at No. 59. In addition, she was briefly removed from honor 9 roll and her homeroom teacher told her that she would not be allowed to participate 10 in an honor roll ceremony and receive her honor roll certificate. Id. at No. 65. 11 However, following a protest from her mother Lorentina, Anyssa was reinstated on 12 honor roll and allowed to participate in the ceremony and receiver her certificate. Id. 13 at No. 66. Anyssa was able to make up the work she missed as a result of her 14 in-school suspension, and her grades did not suffer as a result of the incident. Id. at 15 No. 67. 16 PROCEDURAL BACKGROUND 17 Plaintiff initially filed a complaint in California state court alleging four 18 causes of action for: (1) negligence; (2) negligent infliction of emotional distress; 19 (3) statutory violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 20 § 1681 et seq. (“Title IX”) based on peer-to-peer sexual harassment; and (4) 21 statutory violation of Title IX based on retaliation. Compl. 5–9, ECF No. 1-1. 22 On March 12, 2014, Defendant removed the case to this Court. Notice of 23 Removal, ECF No. 1. On March 19, 2014, Defendant filed a motion to dismiss. ECF 24 No. 3. On June 16, 2014, this Court granted in part and denied in part Defendant’s 25 motion to dismiss, dismissing Plaintiff’s state law claims for negligence and 26 negligent infliction of emotional distress, but permitting Plaintiff’s Title IX claims 27 to go forward. Order Granting in Part and Denying in Part Defendant’s Motion to 28 Dismiss (“June 16, 2014 Order”) 10–11, ECF No. 8. This motion for summary 3 14-cv-0564 GPC (BLM) 1 judgment followed. ECF No. 24. On May 20, 2016, the Court conducted a hearing on the motion. On the same 2 3 day, the Court issued an Order Directing Additional Briefing on the issue of 4 whether self-defense constitutes protected activity under a Title IX retaliation claim. 5 ECF No. 54. Parties submitted their supplemental briefs on May 20, 2016. See ECF 6 Nos. 55, 57. DISCUSSION 7 8 9 I. Legal Standard Federal Rule of Civil Procedure 56 empowers the Court to enter summary 10 judgment on factually unsupported claims or defenses, and thereby “secure the just, 11 speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 12 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings, 13 depositions, answers to interrogatories, and admissions on file, together with the 14 affidavits, if any, show that there is no genuine issue as to any material fact and that 15 the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 16 A fact is material when it affects the outcome of the case. Anderson v. Liberty 17 Lobby, Inc., 477 U.S. 242, 248 (1986). 18 The moving party bears the initial burden of demonstrating the absence of 19 any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving 20 party can satisfy this burden by demonstrating that the nonmoving party failed to 21 make a showing sufficient to establish an element of his or her claim on which that 22 party will bear the burden of proof at trial. Id. at 322–23. If the moving party fails 23 to bear the initial burden, summary judgment must be denied and the court need not 24 consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 25 144, 159–60 (1970). 26 Once the moving party has satisfied this burden, the nonmoving party cannot 27 rest on the mere allegations or denials of his pleading, but must “go beyond the 28 pleadings and by her own affidavits, or by the ‘depositions, answers to 4 14-cv-0564 GPC (BLM) 1 interrogatories, and admissions on file’ designate ‘specific facts showing that there 2 is a genuine issue for trial.’” Celotex, 477 U.S. at 324. If the non-moving party 3 fails to make a sufficient showing of an element of its case, the moving party is 4 entitled to judgment as a matter of law. Id. at 325. “Where the record taken as a 5 whole could not lead a rational trier of fact to find for the nonmoving party, there is 6 no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 7 475 U.S. 574, 587 (1986). In making this determination, the court must “view[] the 8 evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 9 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility 10 determinations, weighing of evidence, or drawing of legitimate inferences from the 11 facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255. 12 II. Analysis 13 A. Title IX Claim Based on Peer-to-Peer Sexual Harassment 14 Title IX provides, with certain exceptions not at issue here, that“[n]o person 15 in the United States shall, on the basis of sex, be excluded from participation in, be 16 denied the benefits of, or be subjected to discrimination under any education 17 program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). 18 For a funding recipient to be liable under Title IX for peer-on-peer 19 harassment, a plaintiff must demonstrate that the funding recipient was: (1) 20 “deliberately indifferent to sexual harassment”; (2) “of which they ha[d] actual 21 knowledge”; and (3) that was “so severe, pervasive, and objectively offensive that it 22 can be said to [have] deprive[d] the victims of access to the educational 23 opportunities or benefits provided by the school.” Davis ex rel. LaShonda D. v. 24 Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999). “[F]unding recipients are 25 deemed ‘deliberately indifferent’ to acts of student-on-student harassment only 26 where the recipient’s response to the harassment or lack thereof is clearly 27 unreasonable in light of the known circumstances.” Id. at 648. A funding recipient’s 28 liability for such claims is limited to “circumstances wherein the recipient exercises 5 14-cv-0564 GPC (BLM) 1 substantial control over both the harasser and the context in which the known 2 harassment occurs.” Id. at 645. 3 Here, there is no dispute that Defendant is a funding recipient. Defendant 4 argues that they were not deliberately indifferent and they did not have actual 5 knowledge, but taking all inferences in favor of the non-moving party, Plaintiff has 6 a colorable argument on those two prongs. There is evidence in the record that the 7 Principal and at least two teachers indicated awareness of the “games” played by the 8 students, indicating actual knowledge. And while the “clearly unreasonable” bar is a 9 high one for the deliberate indifference prong, if teachers and administrators at the 10 school knew that these types of “games” were widespread among the students and 11 took no corrective action, that inaction is arguably clearly unreasonable. 12 The problem for Plaintiff is the third prong that the sexual harassment be “so 13 severe, pervasive, and objectively offensive that it can be said to [have] deprive[d] 14 the victims of access to the educational opportunities or benefits provided by the 15 school.” In Davis, the Supreme Court observed that 16 17 18 19 20 21 22 23 24 25 26 Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. 526 U.S. at 652–53. The Court also observed that, Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect. 27 Id. at 651–52 (emphasis added). Here, we have only a single instance of sexual 28 harassment, and it does not appear to be “sufficiently severe.” While Plaintiff 6 14-cv-0564 GPC (BLM) 1 alleges that these schoolyard “games” were widespread, there is only a single 2 instance in which something happened to her. Moreover, Plaintiff did receive 3 disciplinary action, but only in the form of one day of in-school suspension, and her 4 grades did not suffer as a result. By contrast, in Davis, the plaintiff suffered from 5- 5 months of sexual harassment from a fellow classmate, which included numerous 6 acts of offensive touching, and experienced a drop in grades. Id. at 653–54. Thus, 7 the Court GRANTS Defendant’s motion for summary judgment with respect to 8 Plaintiff’s Title IX peer-on-peer sexual harassment claim. 9 10 B. Title IX Claim Based on Retaliation To claim retaliation under Title IX, a plaintiff must first establish a prima 11 facie case by showing: (1) protected activity by the plaintiff; (2) adverse 12 school-related action; and (3) a causal connection between the protected activity and 13 the adverse action. Emeldi v. Univ. of Oregon, 698 F.3d 715, 724 (9th Cir. 2012) 14 Defendant argues that Plaintiff cannot assert a retaliation claim because she 15 did not engage in protected activity, such as lodging a complaint with the school 16 regarding Isaac’s actions. At the motion to dismiss stage, this Court found that 17 Plaintiff had plausibly alleged protected activity by asserting that “Plaintiff 18 report[ed] the sexual assault to Defendant.” ECF No. 8 at 9. However, it is now 19 undisputed that it was Isaac who reported the incident to the Vice-Principal, not 20 Anyssa. See Pl. SSUF No. 28. The school then imposed the suspension upon 21 Anyssa. Id. at No. 39. While Anyssa and her mother did subsequently decide that 22 Isaac’s actions constituted sexual harassment and complain to the school, they did 23 not do so until after the school imposed the suspension upon Anyssa. Id. at No. 24 41–42. Thus, Plaintiff’s retaliation claim fails because she cannot demonstrate that 25 she engaged in protected activity. 26 Plaintiff also argues that “self-defense” constitutes the protected activity for 27 which she was retaliated against under Title IX. In the classic Title IX retaliation 28 case, a school takes adverse action against the plaintiff after the plaintiff complains 7 14-cv-0564 GPC (BLM) 1 of sex discrimination. See, e.g., Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167, 2 184 (2005); Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th Cir. 3 2014); Emeldi v. Univ. of Oregon, 698 F.3d 715, 725 (9th Cir. 2012). Plaintiff has 4 been able to provide no authority supporting the proposition that self-defense can 5 constitute protected activity under Title IX, and other circuits have expressed cogent 6 reasons why courts should be reluctant to so find in the analogous Title VII context. 7 Cf. Cruz v. Coach Stores, Inc., 202 F.3d 560, 566–67 (2d Cir. 2000) (“The term 8 ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited 9 discrimination. . . . Slapping one’s harasser, even assuming arguendo that Cruz did 10 so in response to Title VII-barred harassment, is not a protected activity. While the 11 law is clear that opposition to a Title VII violation need not rise to the level of a 12 formal complaint in order to receive statutory protection, this notion of ‘opposition’ 13 includes activities such as ‘making complaints to management, writing critical 14 letters to customers, protesting against discrimination by industry or by society in 15 general, and expressing support of co-workers who have filed formal charges.’ 16 Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). It does not 17 constitute a license for employees to engage in physical violence in order to protest 18 discrimination.”). Thus, the Court GRANTS Defendant’s motion for summary 19 judgment with respect to Plaintiff’s Title IX retaliation claim. CONCLUSION 20 21 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s 22 Motion for Summary Judgment, ECF No. 24, is GRANTED as to Plaintiff’s 23 remaining Title IX claims. The Clerk of Court shall prepare a judgment accordingly. 24 25 IT IS SO ORDERED. DATED: May 25, 2016 26 27 HON. GONZALO P. CURIEL United States District Judge 28 8 14-cv-0564 GPC (BLM)
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