United States District Court, D. New Jersey, Camden Vicinage
SCHNEIDER United States Magistrate Judge.
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
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.
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. 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.
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”).
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.
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. 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.
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.
made four general bullying complaints, only one of which
related to D.V.'s sexual orientation. 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
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. 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.The District's HIB investigation did
not corroborate that the incident occurred.
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.
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
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.
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.
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.
Â§1213 (“ADA”), Section 504 of the Rehabilitation
Act, 29 U.S.C. Â§794, and 42 U.S.C. Â§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.
Â§1681 (“Title IX”) discrimination claim (Count
Five). 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.
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.
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.
Summary Judgment Standard
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.
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.
Retaliation Claim as to the District and DeLape (Count
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