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A federal judge has refused to dismiss a civil rights suit brought by a high school student who says that she was sexually harassed by an assistant football coach and that school officials ignored her repeated pleas for help. Significantly, Senior federal Judge James McGirr Kelly of the U.S. District Court for the Eastern District of Pennsylvania also refused to dismiss Danielle DiSalvio’s claim of intentional infliction of emotional distress, saying that although the Pennsylvania Supreme Court has never officially recognized the tort, the federal courts have repeatedly predicted that it will one day. Kelly also ruled in DiSalvio v. Lower Merion that while the Lower Merion School District and the school itself are immune from all of the state law claims, none of the individual defendants enjoys that immunity. According to the suit, DiSalvio was a ninth-grader at Harriton High School in Rosemont, Pa., in 1998 when Hal Smith, the head football coach, offered her a position as the student manager for the football team. She began in the fall of 1999, her sophomore year. From the beginning, the suit says, she was harassed by Thomas Russell, the assistant football coach, whose continual advances during three months made DiSalvio afraid to return to school. Ultimately, she left school and finally relapsed into bulimia, for which she had successfully received treatment several years earlier. The suit alleges that Russell rubbed her leg from her thigh to her knee and smiled at her in a sexually suggestive manner; slid his hand down the back of her shirt and patted her buttocks, saying, “Thanks, sweetheart”; winked at her suggestively when they saw each other in school hallways; brushed his hand against her breast as he grinned at her, feigning an accident; and constantly greeted her with the salutation “What’s up, honey?” Once, the suit says, Russell followed her into the women’s room and conversed with her while she was in the stall. DiSalvio contends that she repeatedly informed school employees about Russell’s conduct but that no one attempted to prevent it. A principal, a vice principal and a guidance counselor, all of whom accused DiSalvio of provoking Russell, instructed her not to discuss their meeting with anyone, not even her parents, the suit says. DiSalvio’s lawyer, Joanne W. Rathgeber of Doylestown, Pa., alleged six claims: � Deprivation of DiSalvio’s rights under the 14th Amendment, Section 1983 of the Civil Rights Act. � Negligent supervision and retention of school employees. � Negligent hiring of school employees. � Negligence. � Negligent infliction of emotional distress. � Intentional infliction of emotional distress. Russell’s lawyers, Michael I. Levin, David W. Brown and Andria L. Borock of Michael I. Levin & Associates in Huntingdon Valley, Pa., moved to dismiss the Section 1983 claim, arguing that DiSalvio had not pleaded sufficient facts to establish any rights guaranteed by the 14th Amendment. Kelly disagreed, saying that DiSalvio had alleged a violation of her “substantive due process right to bodily integrity.” “Such a right clearly exists,” Kelly wrote, citing the 3rd Circuit’s 1989 decision in Stoneking v. Bradford Area School District. The right is violated, Kelly said, when a wrongdoer’s actions are “so ill-conceived or malicious that it shocks the conscience.” Russell’s lawyers also argued that Russell enjoys “qualified immunity,” but Kelly disagreed, saying, “Any reasonable person would have known that acting in the alleged manner would violate DiSalvio’s well-established rights to bodily integrity.” Wrote Kelly, “No reasonable official could consider such conduct lawful or proper.” In their final attack on the Section 1983 claim, Russell’s lawyers argued that because the claim resembles a Title IX suit, it is barred by the Sea Clammers doctrine. Kelly found that the Sea Clammers doctrine — named after the U.S. Supreme Court’s decision in Middlesex County Sewerage Authority v. National Sea Clammers Association — holds that Congress, which enacted Section 1983, can provide that a statute will not allow for Section 1983 remedies. But Kelly found that the doctrine does not apply when a student plaintiff brings only a Section 1983 claim premised on a 14th Amendment violation and does not bring a Title IX claim. If she had brought a Title IX claim, Kelly said, the Section 1983 claim would be “subsumed” by it and therefore barred. “Although this result would seemingly allow plaintiffs to frustrate the Sea Clammers doctrine through artful pleading, the lower courts within this circuit have regularly allowed plaintiffs not specifically alleging a violation of Title IX to proceed with a Section 1983 claim in its stead,” Kelly wrote. But Kelly agreed that several of the state law claims against Russell must be dismissed. “Clearly, Russell, the employee wrongdoer, cannot be liable for negligent hiring, retention or supervision of himself. Moreover, the harassment to which Russell allegedly subjected DiSalvio was intentional, not negligent. For that reason, neither the negligence nor the negligent infliction of emotion distress claims can be brought against Russell,” Kelly wrote. However, Kelly found that DiSalvio alleged a valid claim against Russell for intentional infliction of emotional distress — a tort that requires “outrageous conduct on the part of the tortfeasor” that would arouse “resentment against the actor” because his actions go so far “beyond all possible bounds of decency” that it would be “regarded as atrocious, and utterly intolerable in a civilized society.” If her accusations are true, Kelly said, “Russell’s behavior rises to that level.” “Teacher-on-student sexual harassment has a character totally distinct from an employment context between two adults. In light of the parties’ age and relative power, Russell’s actions were extreme and outrageous, and any reasonable person would have known that to act in such a way would be to incur liability and resentment,” Kelly wrote. The school district and the other individual defendants also filed a motion to dismiss the suit, arguing that the complaint does not allege facts with sufficient particularity and that Pennsylvania does not recognize the claim of intentional infliction of emotional distress. Kelly quickly rejected the first argument, finding that under the liberal “notice pleading” requirements in federal court, DiSalvio needed only to make a “short and plain statement” that put the defendants on notice of the claims against them. “It is of little moment that certain defendants are not mentioned prominently throughout the complaint, or that their actions are not recounted with exacting particularity,” Kelly wrote. Attorney Jeffrey H. Quinn of Dickie McCamie & Chilcote in Philadelphia, representing the school district and the individual defendants except Russell, also cited the Pennsylvania Supreme Court’s 1998 decision in Hoy v. Angelone, which, he argued, stands for the proposition that Pennsylvania “does not recognize intentional infliction of emotional distress as a cause of action.” Kelly disagreed, saying that “that interpretation of the Hoy decision is incorrect.” “Rather, Hoy stands for the quite different proposition that the Pennsylvania Supreme Court has yet to officially recognize the tort,” he said. Quinn’s argument was flawed, Kelly said, since he didn’t even address the decisions of the 3rd Circuit Court of Appeals “which have repeatedly held that the tort of intentional infliction of emotional distress, despite the ambiguous language of … Hoy, are available in Pennsylvania.” Quinn also argued that even if the tort is recognized, DiSalvio’s allegations do not rise to the requisite level of egregiousness. Kelly disagreed, saying that “while the school district defendants are clearly not as culpable as Russell, their inactivity in the face of DiSalvio’s repeated pleas for help constitute outrageous behavior.” Finally, Kelly ruled that although the school district and the school itself enjoy immunity from the state law claims, the individual defendants do not. “DiSalvio alleged facts sufficient to give rise to the reasonable inference that these defendants were on notice about the harassment and knew or should have known that their nonfeasance would allow the harassment to continue or worsen,” Kelly wrote. “Because these defendants were aware that the continued harassment of DiSalvio was substantially certain to follow if they did not act, their desire that it continue can be implied.”

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