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D.V. v. Pennsauken School District

United States District Court, D. New Jersey, Camden Vicinage

March 29, 2017

D.V., by and through his Guardian B.V., et al., Plaintiffs,


          JOEL SCHNEIDER United States Magistrate Judge.

         This Opinion addresses whether plaintiffs present a viable cause of action that they were retaliated against because of their educational advocacy on behalf of D.V., a minor, and whether D.V.'s claim for sexual orientation bullying is actionable. The answer to both these questions is no. Summary judgment will therefore be entered in favor of defendants.[1]


         The Court will start this Opinion by providing a summary of the background facts. As required in the present context, plaintiffs will be given the benefit of all reasonable inferences from the facts of record and the evidence will be viewed in the light most favorable to plaintiffs.

         Plaintiffs filed their complaint on December 13, 2012. On August 7, 2013, the Honorable Joseph E. Irenas (S.U.S.D.J.), granted in part and denied in part defendants' motion to dismiss. [Doc. Nos. 23, 24]. Plaintiffs' amended complaint was filed on September 21, 2013. [Doc. No. 33]. The named plaintiffs in the complaint are D.V., by and through his Guardian, B.V., B.V. individually, and T.V.[2] D.V. is presently a 16 year old male with a learning disability and autism. At the relevant time of the events giving rise to this lawsuit D.V. was approximately 9 years old. D.V. lives with his paternal grandmother and legal guardian, B.V., and his grandfather. T.V. is D.V.'s uncle and is gay. At all relevant times T.V. acted as an educational advocate for D.V. with the District. The claims in the case arise out of plaintiffs' educational advocacy and alleged sexual orientation bullying of T.V.

         At the relevant time giving rise to the claims in this lawsuit D.V. lived within the boundary of the District. Also at the relevant time defendant Ms. Marty DeLape (“DeLape”) was the District's Director of Special Education, defendant Chris Lavell (“Lavell”) was D.V.'s case manager, and defendant Holly Taylor (“Taylor”) was a District social worker. Lavelle and Taylor were members of D.V.'s child study team (“CST”).[3]

         Although D.V. attended District programs for all or part of the 2010-11 and 2011-12 school years, B.V. and T.V. were not satisfied with the services provided. B.V., T.V. and D.V.'s grandfather met with the District's CST at what turned out to be a key August 18, 2011 meeting. The purpose of the meeting was to address D.V.'s Individualized Education Plan (“IEP”). C. Lavell Dep. at 32. Apart from D.V.'s IEP, however, another issue discussed was D.V.'s hygiene and body odor. Plaintiffs acknowledged that D.V. did not have adequate self-grooming habits and did not know if he was ungroomed, unclean, or had body odor. However, B.V. and T.V. explained they tried to help D.V. with his grooming habits without success. At the meeting T.V. told the attendees he had gotten into the shower three times with D.V. and showed him how to wash. It was also mentioned there was an incident with D.V. where he was approached by men in a truck who asked D.V. to ask people if they wanted their lawns cut.[4]

         The day after the August 18, 2011 meeting Taylor and Lavelle called the New Jersey Division of Youth and Family Services (“DYFS”). Although not completely clear what exact words were used, it was mentioned during the call that T.V. relayed at the IEP meeting that he went into the shower with D.V. Again, giving plaintiffs the benefit of all reasonable inferences from the evidence, Lavelle mentioned T.V. was gay. (or words to this effect) and lived with his partner. J. Owen Dep. 12:2-9; 19:1-15; 30:23-31:10; 36:2-8; C. Lavell Dep. 76:7-16; H. Taylor Dep. 93:4-22. After initially being told by the DYFS phone screener that DYFS would take no further action because what was relayed did not constitute abuse, Taylor and Lavelle called DYFS back and told DYFS the CST was unhappy with the decision not to take further action. After the second phone call DYFS changed its position and decided to investigate the matter.[5] Thereafter, DYFS visited D.V.'s home to investigate whether D.V. was subject to inappropriate touching by T.V. DYFS's investigation concluded that nothing untoward had occurred.

         Turning to the second main focus of plaintiffs' claims, the bullying directed to D.V., there is a fairly good “paper trail” regarding plaintiffs' complaints to the District about D.V's bullying and the District's responses. The relevant events took place from January to May, 2012. Starting on or about January 20, 2012, plaintiffs complained that D.V. was bullied at school. T.V. Dep. Exh. 18. The same day D.V.'s principal, Dr. Anne Morris (“Morris”), wrote back to T.V. and indicated she would investigate the complaint. Id. Exh. 19; T.V. Dep. 240:24. T.V. wrote to Dr. Morris on January 27, 2012 to thank her for meeting with T.V. so promptly about his letter. T.V. Dep. 242:16 to 242:22. Thereafter, additional correspondence concerning bullying was exchanged between and amongst T.V., Morris, plaintiffs' counsel, Amelia Carolla, Esquire, and T.V.'s psychiatrist, Dr. Bruce Banford.

         Plaintiffs made four general bullying complaints, only one of which related to D.V.'s sexual orientation.[6] First, plaintiffs complained D.V. was bullied by his classmate(s). The District's prompt investigation could not corroborate the claim and also determined that T.V. was friends with at least one of the alleged bullies (A.N.). In connection with this investigation the District performed a timely Harassment/Intimidation/Bullying (“HIB”) investigation and assessment that concluded there was no indication of HIB behavior from D.V.'s teachers, assistant principal or students interviewed. T.V. Exh. 23; Defendants' Exhs. G, H.[7] Plaintiffs' Response at &40. Second, plaintiffs complained about a balance due in the cafeteria. However, it turned out there came to be a zero balance. T.V. Dep. Exh. 26. Further, even though D.V. testified that on occasion he gave away lunch money, D.V. never missed a school lunch when he wanted one. T.V. Dep. 247:22 to 248:4; D.V. Dep. 49:23 to 50:2. Third, plaintiffs complained about D.V.'s seat placement in a class. Almost immediately D.V.'s seat was changed. Four, plaintiffs complained D.V. was called gay in class. It was alleged that several students circled D.V. and called him “gay” while the teacher was out of the room. T.V. Dep. 269:5 to 270:8.[8]The District's HIB investigation did not corroborate that the incident occurred.

         In May 2012, plaintiffs pulled D.V. out of school because they did not feel safe. Thereafter, the District met with plaintiffs on May 16 and 17, 2012, in an effort to get D.V. to return to school. During the meeting the District agreed to additional services such as a three point checklist, daily check-ins, reports to the family, an agreement that D.V.'s therapist would become his counselor, and more support when D.V. was in gym. Plaintiffs' Response at ¶51. Ultimately the District agreed to place D.V. in another school.

         Also at the May 16, 2012 meeting a school psychiatrist in attendance allegedly made some comments that infuriated plaintiffs. Viewing the evidence in the light most favorable to plaintiffs, the psychiatrist stated in plaintiffs' presence that students commonly call each other gay, they act like typical 5th and 6th graders when they use this language, and plaintiffs should not be upset by the language used. B. Birnbaum Dep. 77:14 to 79:23, Dep. Exh. 8; T.V. Dep. Exh. 25. Thereafter the school psychiatrist was asked to leave the meeting.

         Also of note is the fact that on May 23, 2012, B.V. filed a petition with the New Jersey Office of Administrative Law requesting emergent relief for home services. In September 2012, B.V. and the District came to an agreement to resolve the question of D.V.'s placement at a private special education school. The agreement was memorialized in a Settlement Agreement wherein the petitioners waived their right to sue the District except for a carve out for retaliation claims.

         Plaintiffs' complaint generally alleges the District contacted DYFS in retaliation for their advocacy on behalf of D.V. Plaintiffs also complain the District did not appropriately respond to “sexual orientation” bullying directed to D.V.

         Plaintiffs' complaint consists of five Counts. As directed to the District, B.V. and D.V. assert a retaliation claim under Title II of the Americans with Disabilities Act, 42 U.S.C. §1213 (“ADA”), Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and 42 U.S.C. §1983 (First Amendment)(Count One). Also as to the District, D.V. asserts a New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 sex discrimination claim (Count Three), a NJLAD retaliation claim (Count Four), and a Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 (“Title IX”) discrimination claim (Count Five).[9] As directed to DeLape, B.V. and D.V. assert a retaliation claim under the ADA, Rehabilitation Act and '1983 (Count One), and a NJLAD retaliation claim (Count Four). As to DeLape, plaintiffs' concede there is no individual liability under the Rehabilitation Act and the ADA. Brief at 1. However, they are still pursuing their '1983 retaliation claim against DeLape.

         The District and DeLape contest all liability allegations. The defenses of the District and DeLape essentially mirror each other. They are: (1) “there is no evidence that the District or any Defendant took any action toward B.V. and D.V. and [plaintiffs] certainly cannot demonstrate any ‘adverse action' or that B.V. or D.V. suffered any negative impact” (Brief at 9); (2) D.V. did not engage in any constitutionally protected act; (3) the District is entitled to qualified immunity; (4) the District is entitled to statutory “good faith” immunity; (5) plaintiffs cannot establish a viable hostile educational environment claim because D.V. is not a protected class, the alleged bullying was not severe or pervasive, and the District reasonably addressed the alleged bullying; (6) the District did not act with deliberate indifference under Title IX; (7) the Title IX claim was previously dismissed; (8) Title IX does not extend to same sex harassment; and (9) plaintiffs waived all claims under the NJLAD and Title IX. In their reply brief defendants also argue DYFS's records are inadmissible and should not be considered by the Court.

         In response to defendants' motion plaintiffs generally argue: (1) there is a question of fact as to whether defendants retaliated against them by making an unwarranted report to DYFS about T.V.; (2) fact questions preclude qualified immunity; (3) fact questions preclude defendants' alleged “absolute immunity” defense; and (4) fact questions exist as to whether the bullying directed to D.V. was severe or pervasive and whether the District responded appropriately.


         1. Summary Judgment Standard

         A court should grant summary judgment when the record demonstrates “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists if the evidence is such that a reasonable jury could find for the non-moving party on an issue affecting the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine if a material fact exists a court must view the evidence in the light most favorable to the non-moving party. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

         The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to identify specific facts that contradict those of the moving party. See Anderson, 477 U.S. at 256. If the non-moving party comes forward with “specific facts showing that there is a genuine issue for trial, ” such that a jury may return a verdict in his favor, summary judgment must be denied. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A mere “scintilla of evidence, ” without more, does not give rise to a genuine dispute for trial. Anderson, 477 U.S. At 252.

         2. Retaliation Claim as to the District and DeLape (Count One)

         The Court will first address the retaliation claims made against the District and DeLape in Count One. Plaintiffs B.V. and D.V. allege they were retaliated against because of their advocacy of D.V.'s educational program. The alleged ...

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