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Higgins v. Saavedra

United States District Court, D. New Mexico

January 8, 2018

RACHEL HIGGINS, as Guardian Ad Litem for B.P., a minor child, Plaintiff,
v.
BRITTNY SAAVEDRA, in her personal capacity acting under color of state law; DEBORAH GARTMAN, in her personal capacity acting under color of state law; MARK A. GARCIA, in his personal capacity acting under color of state law; SHONN SCHROER, in his personal capacity acting under color of state law; CYNTHIA SOO HOO, in her personal capacity acting under color of state law; and ALBUQUERQUE PUBLIC SCHOOL DISTRICT, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Title IX Claim for Failure to State a Claim, filed on June 27, 2017. (Doc. 64.) Jurisdiction arises under 28 U.S.C. § 1331.

         One evening during a three-day cheerleading camp, two teenage girls went into the bathroom where their teammate, B.P., was in the shower. One of the girls put a phone over the shower curtain and took pictures of B.P. The second girl then pulled the shower curtain away and videotaped B.P., who was naked, scared, and defenseless. Not satisfied, the girls then made the contemptible decision to post the video of B.P. on a social media app and show it to other teammates staying at the hotel.

         Mortified, B.P. went to her cheerleading coach for help. Rather than help the child and discipline the perpetrators of a crime, the coach turned on B.P. The coach prevented B.P. from telling hotel security, refused to cooperate with the eventual police investigation, forced B.P. to apologize to the entire squad for ruining the weekend, ostracized her from squad activities, and ultimately demoted her from her squad position. Emboldened by the tacit approval from their authority figure, B.P.'s now former teammates continued to harass her at school to the point that B.P. did not feel safe and sought transfer to a new high school. School officials, smelling a lawsuit, tried to obstruct B.P.'s exit: they told her parents that the transfer would not go through until the family signed documents releasing the school from all civil claims. The school's ruse was unsuccessful, as B.P. is now at her transfer school and the Court is presiding over her claims under Title IX, the First Amendment, the Equal Protection Clause, and 42 U.S.C. § 1985.

         In their Motion to Dismiss Plaintiff's Title IX Claim for Failure to State a Claim, the Defendants argue that “Plaintiff's Title IX claim is premised on acts by Defendants that simply are not driven by B.P.'s sex, the defining element of a Title IX claim.” (Doc. 64 at 2.) The Court agrees that Plaintiff did not plead allegations sufficient to maintain her Title IX claim for gender-based harassment; however, Plaintiff has stated a plausible claim for retaliation under Title IX. Accordingly, the Court will grant the motion in part.

         I. Background[1]

         The July 25, 2015 incident

         B.P., a minor child and former student at West Mesa High School (WMHS), was a member of the WMHS Varsity Cheerleading Squad (the “Squad”). (Am. Compl. ¶¶ 2, 13.) WMHS “is a public high school within the [Albuquerque Public School (APS)] District.” (Id. ¶ 4.)

         In July 2015, the Squad traveled to Phoenix, Arizona to participate in a three-day cheerleading camp. (Id. ¶ 14.) B.P.'s parents had authorized B.P., who was 15 years old at the time, to participate in the camp on the condition that B.P. stay in the same room as the head varsity cheerleading coach, Defendant Brittny Saavedra (“Coach Saavedra”). (Id. ¶ 19.) Although Coach Saavedra had agreed to this arrangement, her boyfriend turned up at the Phoenix hotel, so Coach Saavedra moved B.P. into a different room. (Id. ¶¶ 19-21.) B.P. shared her new hotel room with two student-teammates and Ms. Salome Chavez, a 17-year-old Squad “chaperone.”[2] (Id. ¶¶ 17, 21.)

         On the evening of July 25, 2015, B.P. took a shower in the shared hotel room. (Id. ¶ 22.) Her two teammates, who had taken Ms. Chavez's smart phone, entered the bathroom. (Id. ¶¶ 21- 22.) One of the girls held the phone over the shower and photographed B.P. (Id. ¶¶ 22, 47(a).) They “then pulled the shower curtain out of B.P.'s grasp[, ]” and the second girl took “video of B.P.[, ] naked and scared.” (Id. at ¶ 22; see also Id. ¶ 47(a).) The girls posted the video to Snapchat, a social media app, and shared it with approximately seven other teammates.[3] (Id. ¶¶ 24-25.) B.P.'s teammates “began to tease and harass B.P. about her body, ” making comments such as “she doesn't shave, ” “who would want to have sex with her, ” “her body ain't shit, ” and “didn't know girls still had hair on their vagina.” (Id. ¶¶ 24, 47(f).)

         Coach Saavedra's response

         That same evening, “B.P. went to Coach Saavedra's hotel room to discuss the incident.” (Id. ¶ 29.) Inexplicably, Coach Saavedra instructed B.P. to apologize to her teammates “for overreacting to a joke.” (Id. ¶ 30.) Coach Saavedra told B.P. that she would not discipline the Squad members, because she did not want to ruin their trip. (Id. ¶ 31.) In fact, Coach Saavedra threatened to punish B.P. “by making her run during practice if B.P. ruined the trip for” the Squad. (Id. ¶ 32.) Coach Saavedra told B.P. that the “incident was no big deal because” one of the two girls who had perpetrated the incident “had previously taken photos and videos of another teammate” who was using the toilet, “and that teammate had not complained.” (Id. ¶¶ 33, 51.)

         At some point after the incident, B.P. told her parents what happened. (Id. ¶ 37.) B.P. attempted to notify hotel security, but Coach Saavedra and an assistant coach “became upset with B.P. when they saw her speaking with hotel security . . ., and they prevented security from further assisting B.P. and prevented B.P. from reporting to security what had occurred.” (Id. ¶ 36.) When she spoke with B.P.'s mother the morning after the incident, Coach Saavedra asked that B.P.'s parents not contact the police department, because Coach Saavedra “did not want the teammates to get in trouble for the ‘prank.'” (Id. ¶ 34.) Nevertheless, B.P.'s family alerted the Phoenix Police Department, which opened an investigation. (Id. ¶ 38.) Coach Saavedra “prevent[ed] witnesses from speaking with Phoenix police officers[, ]” told “police there was no video[, ] and fail[ed] to return phone calls from the Phoenix Police Department detective.” (Id. ¶ 39.)

         On July 26, 2015, Coach Saavedra attempted to have B.P. and the two girls engage in mediation. (See Id. ¶ 58(a).) Coach Saavedra later emailed Defendant Shonn Schroer, WMHS's Athletic Director (“Athletic Director Schroer”), and stated, “I interviewed them all separately and then together to try and mediate the situation. I felt we weren't getting anywhere with mediation so I called [B.P.'s mother] and told her that [B.P.] is still very upset . . . .” (Id.) Later that day, Coach Saavedra excluded B.P. from a WMHS Varsity Cheerleading Squad photo. (Id. ¶ 40.) In front of some of B.P.'s teammates, Coach Saavedra told B.P. that the two girls “were only playing a joke on her, this was just what girls did during sleepovers, and that B.P. was overreacting.” (Id. ¶ 35.) Coach Saavedra also made “negative comments about B.P. to the other coaches and team members, including calling B.P. ‘a baby[, '] saying that B.P. needed to get over it[, ] . . . calling B.P. a bad teammate for reporting the incident to hotel security and police, and stating that” these types of incidents “are part of competing.” (Id. ¶ 41.) Coach Saavedra and an assistant coach repeated these statements to B.P. on the flight home to New Mexico, “calling her ‘a baby' who was ‘overreacting' and that she simply needed to ‘get over it.'” (Id. ¶ 42.)

         In the weeks following the July 25, 2015 incident, Coach Saavedra demoted B.P. from her “flier” position on the varsity squad and “blamed B.P. for [a] two-week suspension of practices in front of the entire team . . . .” (Id. ¶ 44.) Coach Saavedra refused to coach B.P. and “continued to exclude her from team activities, including a team meeting with” Athletic Director Schroer on August 10, 2015. (Id. ¶¶ 44, 131(1).)

         Harassment from Squad members

         B.P. continued to experience “pervasive sexual harassment, distress and intimidation by her former teammates . . . .” (See Id. ¶¶ 54, 58(c).) The Amended Complaint details these examples of the harassment: (1) “an incident on October 5, 2015, when B.P. was followed around campus by a former teammate involved in the July 25th incident and that teammate's mother” (see Id. ¶ 69); (2) former teammates followed B.P. around campus and laughed at her (id. ¶ 70); and (3) three of the original seven teammates who “constantly made comments about” both B.P. and one of her friends, calling them “bitch friend” and “whore” (id. ¶ 73). Both Squad members and coaches “so severely taunted and ostracized” B.P. “that she was forced to leave the” Cheerleading Squad. (Id. ¶¶ 65-66.)

         The teammates did not limit their harassment to B.P. Both B.P.'s younger brother and one of B.P.'s friends (also a former member of the WMHS Varsity Cheerleading Squad), “also experienced continued pervasive sexual harassment, distress, and intimidation by B.P.'s former teammates . . . and students of WMHS . . . .” (Id. ¶¶ 71-72.)

         The response from WMHS and APS officials

         WMHS officials interviewed Squad members on August 4 and 5, 2015. (Id. ¶ 47.) At least one teammate confessed to videotaping B.P. (Id. ¶ 28.) School officials defined the July 25, 2015 incident as “Bullying/Intimidation” in an August 10, 2016 disciplinary record and as “harassment/bullying” in an August 19, 2015 email. (Id. ¶¶ 55-56.) School officials knew that the behavior of all of the teammates-those who took the photographs and video and those who viewed the video-was both criminal and contrary to the APS Athletic and Activity Code of Conduct and the APS Student Behavior Handbook. (Id. ¶¶ 26-27, 48.)

         B.P.'s family insisted that WMHS “administration take action against the teammates responsible for the” original incident. (Id. ¶ 44.) At an August 14, 2015 meeting between B.P., her parents, Athletic Director Schroer, APS Officer Deb Romero, and Defendant Deborah Gartman, (“Assistant Principal Gartman”), [4] B.P.'s family learned that school officials disciplined only one of the girls-the one who had confessed to videotaping B.P.-but the girl would remain on the Squad. (Id. ¶ 45.) School officials did not discipline any of the Squad members who viewed the video or the second teammate, the girl who had taken photographs of B.P., despite the fact that “Coach Saavedra had actual knowledge that this teammate had previously taken photographs and video footage of another” Squad member. (Id. ¶¶ 48-49, 51- 52, 60.) While one APS official, Toby Herrera, Director of the Student Service Center, “suggested the teammates involved in the July 25, 2015 incident be removed from the [Squad] for the year[, ]” his “suggestion was disregarded.” (Id. ¶ 59.)

         Handwritten notes from an unidentified WMHS official show that B.P.'s father “expressed concerns that the incident was being downplayed, and . . . that B.P. was afraid and was shunned for reporting the incident.” (Id. ¶ 46.) APS School Board Member Dr. Don Duran acknowledged in an August 18, 2015 “email that APS officials were aware of” continuing harassment: “[B.P.'s father] believes his daughter is still being harassed even though [Athletic Director Schroer] has warned the girls that the video needs to be destroyed and the harassment needs to stop.” (Id. ¶ 57.) On August 20, 2015, Mr. Toby Herrera emailed Defendant Mark A. Garcia (“Principal Garcia”), Assistant Principal Gartman, and Athletic Director Schroer, and indicated:

B.P.'s father “is quite concerned about what he feels is a lack of support of his daughter and a lack of action against the two students who were directly involved in the videotaping of his daughter . . . [. B.P.'s father] believes this whole event is interfering with her education. She continues to be teased by WMHS students (male and female) who have been ...

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