Case ECF No. 15 filed 08/16/16 PagelD.53 Page 1 of 33 IN THE UNITED STATED DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN JANE DOE, Case No. -PJ Plaintiff JUDGE GORDON J. QUIST LANSING PUBLIC YVONNE CAAMAL CANUL, Superintendent, in her Of?cial and Individual Capacities; DONNA POHL, Principal, in her Of?cial and Individual Capacities; GLENN STEVENS, Assistant Principal, in his Of?cial and Individual Capacities; SHARON Student Services Specialist, in her Of?cial and Individual Capacities; and WILLIE ROGERS, Public Safety Of?cer, in his Of?cial and Individual Capacities, Defendants. Karen Truszkowski (P56929) Scott L. Mandel (P33453) TEMPERANCE LEGAL GROUP, PLLC Pamela C. Dausman (P64680) Attorneys for Plaintiff FOSTER, SWIFT, COLLINS SMITH, RC. 530 Mall Court, #131 Attorneys for Defendants Lansing, MI 48912 313 S. Washington Square (517) 235-3053 Lansing, MI 48933 (517) 371-8185 DEF ANSWER TO THE COMPLAINT AFFIRMATIVE DEF ENSES AND RELIANCE ON JURY DEMAND Defendants, Lansing Public Schools, Yvonne Caamal Canul, Donna Pohl, Glenn Stevens, Sharon McWilliarns, and Willie Rogers, through their attorneys, Foster, Swift, Collins Smith, PC, in answer to Plaintiff?s Complaint, state as follows: Case ECF No. 15 filed 08/16/16 PageID.54 Page 2 of 33 I. JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. 1331, which gives district courts jurisdiction over all civil actions arising under the Constitution, laws, and treaties of the United States. ANSWER: In answer to Paragraph 1 of Plaintiffs Complaint, Defendants admit the allegations contained therein. 2. This Court also has subject matter jurisdiction pursuant to 28 U.S.C. 1343, which gives district courts original jurisdiction over any civil action authorized by law to be brought by any person to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; and any civil action to recover damages or to secure equitable relief under any Act of Congress providing for the protection of the civil rights. ANSWER: In answer to Paragraph 2 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 3. Plaintiff brings this action to redress a hostile educational environment pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a), as more ?illy set forth herein. ANSWER: In answer to Paragraph 3 of Plaintiff?s Complaint, Defendants deny the allegation of a hostile educational enviromnent. 4. This is also an action to redress the deprivation of Plaintiffs constitutional rights under the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. 1983. Case ECF No. 15 filed 08/16/16 PageID.55 Page 3 of 33 ANSWER: In answer to Paragraph 4 of Plaintiff?s Complaint, Defendants deny the alleged deprivation of Plaintiff?s constitutional rights. 5. Venue is proper in this district pursuant to 28 U.S.C. 1391(b), since all defendants reside or resided in this district and the events giving rise to the claims occurred in this district. ANSWER: In answer to Paragraph 5 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 11. THE PARTIES 6. Plaintiff ("Jane Doe") was a 14 year old female at the time of the incident that is the subject of this complaint. ANSWER: In answer to Paragraph 6 of Plaintiff? Complaint, Defendants admit the allegations contained therein. 7. At all material times, Plaintiff was a resident of Ingham County, State of Michigan. ANSWER: In answer to Paragraph 7 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 8. At the time of events complained of herein, Plaintiff was a student attending a high school within the Defendant LANSING PUBLIC SCHOOLS ("The School District"). ANSWER: In answer to Paragraph 8 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 9. The Defendant School District is a public educational institution located in Ingham County, State of Michigan. ANSWER: In answer to Paragraph 9 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. Case ECF No. 15 filed 08/16/16 PageID.56 Page 4 of 33 10. At all material times, Defendant YVONNE CAAMAL CANUL ("Canul"), in her of?cial and individual capacities, worked within the County of Ingham, State of Michigan. ANSWER: In answer to Paragraph 10 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 11. During all material times, Canul was an agent and/or employee of Defendant School District, acting or failing to act within the scope, course, and authority of her employment and her employer. ANSWER: In answer to Paragraph 11 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 12. At all material times, DONNA POHL in her of?cial and individual capacities, worked within the County of Ingham, State of Michigan. ANSWER: In answer to Paragraph 12 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 13. During all material times, Pohl was an agent and/or employee of Defendant School District, acting or failing to act within the sc0pe, course, and authority of her employment and her employer. ANSWER: In answer to Paragraph 13 of Plaintiff Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 14. At all material times, Defendant Assistant Principal GLENN STEVENS ("Stevens"), in his of?cial and individual capacities, worked within Ingham County, State of Michigan. Case ECF No. 15 filed 08/16/16 PageID.57 Page 5 of 33 ANSWER: In answer to Paragraph 14 of Plaintiff Complaint, Defendants admit the allegations contained therein. 15. At all material times, Stevens was an agent and/or employee of Defendant School District, acting or failing to act within the scope, course, and authority of his employment and his employer. ANSWER: In answer to Paragraph 15 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 16. At all material times, Defendant Student Services Specialist SHARON ("McWilliams"), in her of?cial and individual capacities, worked within Ingham County, State of Michigan. ANSWER: In answer to Paragraph 16 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 17. At all material times, McWilliams was an agent and/or employee of Defendant School District, acting or failing to act within the scope, course, and authority of her employment and her employer. ANSWER: In answer to Paragraph 17 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 18. At all material times, Defendant Public Safety Of?cer WILLIE ROGERS ("Rogers"), in his of?cial and individual capacities, worked within Ingham County, State of Michigan. ANSWER: In answer to Paragraph 18 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. Case ECF No. 15 filed 08/16/16 PageID.58 Page 6 of 33 19. At all material times, Rogers was an agent and/or employee of Defendant School District, acting or failing to act within the scope, course, and authority of his employment and his employer. ANSWER: In answer to Paragraph 19 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 20. At all material times, Plaintiffs attacker, "John Roe," is and continues to be a student attending Defendant School District. ANSWER: In answer to Paragraph 20 of Plaintiff?s Complaint, Defendants admit that John Roe is a student attending Defendant School District. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 111. APPLICABLE LAW AND POLICY 21. Title IX of the Education Amendments of 1972 ("Title 20 U.S.C. 1681(1), states that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the bene?t of, or be subjected to discrimination under any education program or activity receiving Federal ?nancial assistance. . . ANSWER: In answer to Paragraph 21 of Plaintiffs Complaint, Defendants admit that the above provision has been accurately quoted, in part. 22. Title IX is implemented through the Code of Federal Regulations. See 34 CPR. Part 106. Case ECF No. 15 filed 08/16/16 PageID.59 Page 7 of 33 ANSWER: In answer to Paragraph 22 of Plaintiff Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 23. 34 C.F.R. 106.8(b) provides: . . . A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part. ANSWER: In answer to Paragraph 23 of Plaintiff Complaint, Defendants admit that the provision has been accurately quoted. 24. In Gebser v. Lago Vista Independent School District, 524 US. 274 (1988), the United States Supreme Court recognized that a recipient of federal educational funds intentionally violates Title IX, and is subject to a private damages action, where the recipient is "deliberately indifferent" to known acts of teacher-student discrimination. ANSWER: In answer to Paragraph 24 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 25. In Davis v. Monroe County Board of Education, 526 US. 629 (1999), the United States Supreme Court extended the private damages action recognized in Gebser to cases where the harasser is a student, rather than a teacher. ANSWER: In answer to Paragraph 25 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 26. Davis held that a complainant may prevail in a private Title IX damages action against a school district in cases of student?on-student harassment where the funding recipient is: Case ECF No. 15 filed 08/16/16 PageID.60 Page 8 of 33 a) deliberately indifferent to sexual harassment of which the recipient has actual knowledge; and b) the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or bene?ts provided by the school. Davis, 526 US. at 1669-76. ANSWER: In answer to Paragraph 26 of Plaintiffs Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 27. The Fourteenth Amendment to the United States Constitution provides in pertinent part that no State shall "deny to any person within its jurisdiction the equal protection of the laws." US. Const. Amend. XIV, 1. ANSWER: In answer to Paragraph 27 of Plaintiff?s Complaint, Defendants admit that the above provision has been accurately quoted, in part. 28. At MCL Michigan law provides that "If a pupil . . . commits criminal sexual conduct in a school building or on school grounds, the school board, or other designee of the school board . . . shall expel the pupil from the school district permanently. ANSWER: In answer to Paragraph 28 of Plaintiff?s Complaint, Defendants admit that the above provision has been accurately quoted, in part. 29. The Lansing School District's Code of Conduct provides disciplinary action in the event of Sexual Harassment or intimidation. That policy de?nes sexual harassment to include "Unwelcome sexual advances, teasing, jokes, remarks, or questions, either verbal or physical, toward another person because of his/her sex or sexual orientation. Also includes a request for sexual favors or other verbal or physical conduct of a sexual nature where such conduct has the purpose or effect of unreasonably interfering with a student's educational performance by Case ECF No. 15 filed 08/16/16 PageID.61 Page 9 of 33 creating an intimidating, hostile or offensive educational environment" (See Code of Conduct, p. 17, attached as Exhibit 1). ANSWER: In answer to Paragraph 29 of Plaintiff?s Complaint, Defendants state that the Lansing School District?s Code of Conduct speaks for itself and is the best evidence of its content. IV. COMMON ALLEGATIONS 30. At all material times, the School District was receiving federal funding, as contemplated by Title IX, 20 U.S.C. 1681, et seq. ANSWER: In answer to Paragraph 30 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 31. The School District implemented and executed policies and customs in regard to the events that resulted in the deprivation of Plaintiff?s constitutional, statutory, and common-law rights. ANSWER: In answer to Paragraph 31 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 32. The School District is responsible for ensuring that all its employees are properly trained and supervised to perform their jobs. 7 ANSWER: In answer to Paragraph 32 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 33. The School District is responsible for the acts and omissions of its employees. ANSWER: In answer to Paragraph 33 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 9 Case ECF No. 15 filed 08/16/16 PageID.62 Page 10 of 33 34. At the time of the attack that gave rise to the events complained of herein, Plaintiff was a 14 year old ninth grader at Eastern High School ("Eastern"). ANSWER: In answer to Paragraph 34 of Plaintiffs Complaint, Defendants admit that Plaintiff was a 14 year old ninth grader at Eastern High School when the incident complained of occurred. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 35. At the time of the attack that gave rise to this action, student John Roe ("John Roe") was also a 14 year old ninth grader at Eastern. ANSWER: In answer to Paragraph 34 of Plaintiff?s Complaint, Defendants admit that John Roe was a 14 year old ninth grader at Eastern High School when the incident complained of occurred. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 36. John Roe is diagnosed with an ADHD impulsivity disorder, is classi?ed as "otherwise health impaired" and is under treatment for this disorder. (See Motion attached as Exhibit 2). ANSWER: In answer to Paragraph 36 of Plaintiffs Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. In further answer to said paragraph, Defendants submit that information contained in Exhibit 2 speaks for itself and is the best evidence of its content. 37. On October 13, 2015, at approximately 2:00 pm, John Roe violently and forcibly sexually assaulted Plaintiff in a stairwell at Eastern ("Assault"). 10 Case ECF No. 15 filed 08/16/16 PageID.63 Page 11 of 33 ANSWER: In answer to Paragraph 37 of Plaintiffs Complaint, Defendants admit that an incident occurred on October 13, 2015, in a stairwell at Eastern. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 38. On more than one occasion before the assault, Plaintiff witnessed John Roe exhibit violent and impulsive behavior giving Plaintiff a reasonable fear that John Roe was capable of harming her. ANSWER: In answer to Paragraph 38 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. 39. Plaintiff did not report the assault to any authority ?gures in the School District as she was afraid she would get into trouble. ANSWER: In answer to Paragraph 39 of Plaintiff Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. 40. The School District's written Student Code of Conduct provides the following de?nition for Obscene and Lewd Behavior under Behaviors Which May Lead to Disciplinary Action: "Obscene or Lewd Behavior The act of using obscene or profane language in verbal or written form, possessing pornographic pictures, performing offensive gestures or acts or engaging in conduct of a sexual nature regardless of consent. Emphasis added. (See Code of Conduct, p. 17, attached as Exhibit 1). ANSWER: In answer to Paragraph 40 of Plaintiffs Complaint, Defendants admit that Plaintiff accurately quoted a portion of the Student Code of Conduct. In ?irther answer, 11 Case ECF No. 15 filed 08/16/16 PageID.64 Page 12 of 33 Defendants state that the School District?s written Student Code of Conduct speaks for itself and is the best evidence of its content. 41. On October 14, 2015, John Roe himself reported the sexual assault to Of?cer Rogers. ANSWER: In answer to Paragraph 41 of Plaintiff?s Complaint, Defendants deny the allegations contained therein in the form and manner alleged. 42. John Roe told Of?cer Rogers that Plaintiffs boyfriend was threatening John Roe and that John Roe was in fear of being beat up. ANSWER: In answer to Paragraph 42 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 43. Of?cer Rogers called Plaintiff out of class, took Plaintiff to a school of?ce, and asked Plaintiff for her version of the events that had taken place the previous day. ANSWER: In answer to Paragraph 43 of Plaintiffs Complaint, Defendants admit the allegations contained therein. 44. Plaintiff gave Of?cer Rogers her statement. She explained that John Roe had taken her into the stairwell, took his penis out of his pants, masturbated himself, forced her to rub his penis, and attempted to force his penis into her mouth, all of which was without her consent. ANSWER: In answer to Paragraph 44 of Plaintiffs Complaint, Defendants admit the allegations therein. In further answer, Defendants submit that the information contained in Plaintiff?s statement speaks for itself and is the best evidence of its content. 45. Of?cer Rogers told Plaintiff that he was going to ?nd the closed-circuit security footage ?'om the stairwell security camera and watch the incident to see if what Plaintiff reported in her statement matched what was in the footage. 12 Case ECF No. 15 filed 08/16/16 PageID.65 Page 13 of 33 ANSWER: In answer to Paragraph 45 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 46. AP Stevens and Of?cer Rogers later told Plaintiff that Of?cer Rogers and AP Stevens had watched the video footage of the accident. ANSWER: In answer to Paragraph 46 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 47. Of?cer Rogers told Plaintiff that what Of?cer Rogers and AP Stevens saw in the video did not match what Plaintiff said in her statement, giving Plaintiff the impression that they did not believe her. Of?cer Rogers then asked Plaintiff did she want to "change anything" about what she said in her statement. Plaintiff steadfastly maintained that her statement was accurate and that she did not want to change anything. ANSWER: In answer to Paragraph 47 of Plaintiff?s Complaint, Defendants admit that Of?cer Rogers told Plaintiff that what Of?cer Rogers and Mr. Stevens saw in the video did not match what Plaintiff said in her statement and that Plaintiff maintained that her statement was accurate. Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegation that Plaintiff had the impression that they did not believe her; and, therefore, neither admit nor deny the same. As to the remaining allegations, Defendants deny same. 48. Of?cer Rogers then told Plaintiff that she was being suspended for Lewd and Lascivious behavior pursuant to the Lansing School District Student Code of Conduct for engaging in sexual activity during school. ANSWER: In answer to Paragraph 48 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 13 Case ECF No. 15 filed 08/16/16 PageID.66 Page 14 of 33 49. Of?cer Rogers contacted Plaintiffs mother, L. Doe, told her mother Plaintiff had been an "active participant in sexual activity in the erome/Penn stairwell" with John Roe during school hours, and that Plaintiff needed to be picked up from school. (See Disciplinary Form attached as Exhibit 3). ANSWER: In answer to Paragraph 49 of Plaintiff?s Complaint, Defendants deny the allegations pertaining to Defendant Rogers. Defendants further state that the Disciplinary Form speaks for itself and is the best evidence of its content. 50. Plaintiff was suspended for what was supposed to be a ten-day suspension beginning on October. 14, 2015, with a return date of October 27, 2015. (Exhibit 3). ANSWER: In answer to Paragraph 50 of Plaintiff?s Complaint, Defendants admit the allegations contained therein, and submit that Exhibit 3 speaks for itself and is the best evidence of its content. 51. On October 14, 2015, Plaintiff?s mother C. Doe contacted the school to discuss Plaintiff?s return to school. Plaintiff?s parents were concerned that Plaintiff was suspended for being an "active participan when she was the victim of a traumatizing sexual assault. ANSWER: In answer to Paragraph 51 of Plaintiff?s Complaint, Defendants admit on October 14, 2015, Plaintiff?s mother C. Doe contacted the school to discuss Plaintiff?s return to school. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 52. On October 14, 2015, C. Doe attempted to report the assault herself to the Lansing Police Department because to the best of her knowledge, the assault has not been reported by school personnel. 14 Case ECF No. 15 filed 08/16/16 PageID.67 Page 15 of 33 ANSWER: In answer to Paragraph 52 of Plaintiff?s Complaint, Defendants deny that the incident was not reported to the Lansing Police Department. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 53. Despite repeated messages left with Pohl's of?ce and Canul?s of?ce, no calls were ever returned to Plaintiff?s mother C. Doe. ANSWER: In answer to Paragraph 53 of Plaintiff?s Complaint, Defendants deny the allegations that Defendant Pohl and Defendant Caamal Canul failed to return phone calls to Plaintiff?s mother, C. Doe. 54. A police report was eventually ?led with the Lansing Police Department by C. Doe on her own volition. ANSWER: In answer to Paragraph 54 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. In further answer, Defendants deny the allegation that they did not report the incident to the Lansing Police Department. 55. A meeting was scheduled with Student Services Specialist McWilliams to be held on October 22, 2015, for Plaintiff and her parents, C. Doe and L. Doe, and Stevens. ANSWER: In answer to Paragraph 55 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 56. During this meeting, McWilliams told Plaintiff and her parents the following: a) That McWilliams reviewed the video and found that Plaintiff had not consented to the sexual activity; and 15 Case ECF No. 15 filed 08/16/16 PageID.68 Page 16 of 33 b) That although Plaintiff had not consented to the sexual activity, she did not have a "strong enough no," she did not "try to get away," and she did "not ?ght bac and 0) Plaintiff could not return to school on Tuesday, October 27, 2015, as stated in the original suspension notice. (Exhibit 3). ANSWER: In answer to Paragraph 56, including subparagraphs a through c, of Plaintiff?s Complaint, Defendants admit that Ms. McWilliams told Plaintiffs parents that Plaintiff could not return to school on Tuesday, October 27, 2015, as stated in the original suspension notice, Defendants deny that Ms. McWilliams said she reviewed the video and found that Plaintiff had not consented to the sexual activity. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 57. Plaintiff responded to these comments by asking McWilliams "What did you expect me to do, hit him?" ANSWER: In answer to Paragraph 57 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 58. McWilliams responded to Plaintiffs question with the following statement, "No, you should not have hit him, but you could have said to him, 'is this all you've got?'" ANSWER: In answer to Paragraph 58 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. 59. Present during this meeting was Stevens, who McWilliams con?rmed this statement with by saying in front of Plaintiff, "Isn't that right Mr. Stevens, wouldn't that de?ate a guy if you said that to him?" 16 Case ECF No. 15 filed 08/16/16 PageID.69 Page 17 of 33 ANSWER: In answer to Paragraph 59 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. 60. Once these comments were made, C. Doe and L. Doe immediately took their Plaintiff daughter and left the meeting. ANSWER: In answer to Paragraph 60 of Plaintiff's Complaint, Defendants deny the allegations contained therein. 61. During the October 22, 2015, meeting, McWilliams told C. Doe and L. Doe she would call them on Monday, October 26, 2015, to inform them as to when Plaintiff could return to school. No call was received on October 26, 2015. ANSWER: In answer to Paragraph 61 of Plaintiff?s Complaint, Defendants deny that Defendant McWilliams told C. Doe and L. Doe she would call them on Monday, October 26, 2015, and admit that Defendant McWilliams did not call C. Doe and L. Doe on October 26, 2015. 62. On October 27, 2015, McWilliams called C. Doe and told her that Plaintiff could not return to school until a plan could be put into place to "curb [Plaintiff?s] behavior. ANSWER: In answer to Paragraph 62 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 63. On October 28, 2015, at 3:00 pm, McWilliams called C. Doe and told C. Doe that Plaintiff could not come back to school until the following Monday, November 2, 2015. ANSWER: In answer to Paragraph 63 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 64. On October 28, 2015, at 3:35 pm, Susan Lands, McWilliams' Supervisor, called C. Doe and told C. Doe that Plaintiff could return to school the following day, October 29, 2015. 17 Case ECF No. 15 filed 08/16/16 Page 18 of 33 ANSWER: In answer to Paragraph 64 of Plaintiff?s Complaint, Defendants admit that Susan Land called C. Doe on October 28, 2015, and told C. Doe that Plaintiff could return to school on October 29, 2015. Defendants neither admit nor deny the allegation that Ms. Land called C. Doe at 3:35 pm. on October 28, 2015, and leave Plaintiff to her proofs. 65. Plaintiff returned to school on October 29, 2015. John Roe, who was also suspended, returned to school but was transferred to Lansing Everett, another school in the District. ANSWER: In answer to Paragraph 65 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 66. On November 2, 2015, a representative from the Superintendent's of?ce called C. Doe to schedule what was termed as an "apology meeting" for November 9, 2015. This meeting was rescheduled for November 23, 2015. ANSWER: In answer to Paragraph 66 of Plaintiff?s Complaint, Defendants deny the allegation that the Superintendent?s Of?ce termed the meeting as an ?apology meeting.? As to the remaining allegations, Defendants admit same. 67. At the November 23, 2015, meeting, Canul had no idea what the meeting was about and had no concept that it was intended to be an "apology" to the Doe family. ANSWER: In answer to Paragraph 67 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 68. Despite the ?ndings of Of?cer Rogers and Stevens that Plaintiff was an active participant in a sexual activity, the Lansing Police Department found otherwise, and they also found that the video supported "a majority" of Plaintiffs claims. (See Lansing Police Department Report, p. 4, attached as Exhibit 4). 1 8 Case ECF No. 15 filed 08/16/16 PageID.71 Page 19 of 33 ANSWER: In answer to Paragraph 68 of Plaintiff?s Complaint, Defendants deny the allegations against Defendants Rogers and Stevens as stated, and submit that the Lansing Police Department Report is the best evidence of its content and speaks for itself. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 69. John Roe was charged with four felonies: #1 Criminal Sexual Conduct-Assault with Intent to Commit Sexual Penetration, #2 Gross Indecency between Male and Female- Committing/Procuring, #3 Criminal Sexual Conduct-4th Degree, and #4 Indecent Exposure. John Roe pled to one count of Indecent Exposure with the agreement of Plaintiff and her parents. (See Prosecutor's Charging Document, attached as Exhibit 5). ANSWER: In answer to Paragraph 69 of Plaintiffs Complaint, Defendants state the Prosecutor?s Charging Document is the best evidence of its content and speaks for itself. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 70. After Plaintiff returned to school, she was bullied, teased, and harassed by other students for being "boy crazy." ANSWER: In answer to Paragraph 70 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. 71. Plaintiff was suspended to student services again on December 1, 2015, for a separate incident and met with student services on January 4, 2016, regarding this second suspension. 19 Case ECF No. 15 filed 08/16/16 PageID.72 Page 20 of 33 ANSWER: In answer to Paragraph 71 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 72. That meeting was attended by Susan Land, McWilliams, Pohl, Plaintiff, and her parents, Plaintiffs counsel Karen Truszkowski, and the attorney for the School District, Barbara Ruga, who attended remotely. ANSWER: In answer to Paragraph 72 of Plaintiff?s Complaint, Defendants admit the allegations contained therein. 73. At that meeting, options for Plaintiffs return to school were discussed. Plaintiff was not given the option of returning to Eastern. Plaintiff could not attend Everett as John Roe was transferred there leaving Sexton High School as the only remaining option. ANSWER: In answer to Paragraph 73 of Plaintiffs Complaint, Defendants admit that options for Plaintiff?s return to school were discussed at the meeting. Defendants deny the remaining allegations in the form and manner alleged. 74. Plaintiff was not comfortable attending Sexton since Stevens was now the Principal at Sexton so Plaintiff was given the option of online classes using APEX, an online class system. ANSWER: In answer to Paragraph 74 of Plaintiff?s Complaint, Defendants admit Plaintiff was given the option of online classes using APEX, and that Defendant Stevens was the Principal at Sexton as of January 4, 2016. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 75. Assurances were made that if Plaintiff chose this online option, she would be provided with all the necessary technology, support, and equipment necessary to complete her 20 Case ECF No. 15 filed 08/16/16 PageID.73 Page 21 of 33 schoolwork online at home, and that a Chromebook would be given to her with intemet restrictions allowing her to access only school-related intemet websites. ANSWER: In answer to Paragraph 75 of Plaintiff Complaint, Defendants admit the allegations contained therein. 76. Plaintiff was not provided with any initial instruction on using the APEX system, was not provided with the necessary math calculator until several months into the semester, and was told she would have to come into one of the schools to charge the calculator as she would not be provided with a charger. ANSWER: In answer to Paragraph 76 of Plaintiff?s Complaint, Defendants admit that they provided Plaintiff with a math calculator when they learned Plaintiff needed the calculator and that Defendants would not provide Plaintiff with a charger for the calculator. Defendants deny the remaining allegations. 77. Although Plaintiff was assured by the School District that a printer would be provided for her to complete her school work, she has been told that she has to come into one of the schools to print her work. ANSWER: In answer to Paragraph 77 of Plaintiff?s Complaint, Defendants deny that they told Plaintiff the District would provide Plaintiff with a printer to complete her school work. Defendants admit that they told Plaintiff she could come to Sexton High School to print her work if needed. 78. Plaintiff does not always have transportation available to her making printing dif?cult. ANSWER: In answer to Paragraph 78 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegations contained therein; and, therefore, neither admit nor deny the same. 21 Case ECF No. 15 filed 08/16/16 PageID.74 Page 22 of 33 79. Plaintiff was also assured that she would be allowed to continue to participate in after-school, extra?curricular activities, speci?cally the Native American Youth Association whose meetings were held at Eastern. ANSWER: In answer to Paragraph 79 of Plaintiffs Complaint, Defendants admit the allegations contained therein. 80. Beginning in January 2016, Plaintiff began attending the NAYA meetings at Eastern. On March 8, 2016, Rogers approached Plaintiff when she was waiting in the Welcome Center of Eastern for a NAYA meeting to begin, told Plaintiff she was "trespassing" and physically escorted her out of the building, subjecting Plaintiff to humiliation and embarrassment. ANSWER: In answer to Paragraph 80 of Plaintiff?s Complaint, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of the allegation that Plaintiff was subjected to humiliation and embarrassment; and, therefore, neither admit nor deny the same. As to the remaining allegations, Defendants admit same. 81. Plaintiff has lost the opportunity to participate in extra-curricular activities such as soccer, and she has become socially isolated from her peers, teachers, and ?'iends. ANSWER: In answer to Paragraph 81 of Plaintiff Complaint, Defendants deny the allegations that Plaintiff has lost the opportunity to participate in extra-curricular activities such as soccer. As to the remaining allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 82. Plaintiffs sex-based harassment has resulted in her being denied the educational bene?ts of her school and the school district. 22 Case ECF No. 15 filed 08/16/16 PageID.75 Page 23 of 33 ANSWER: In answer to Paragraph 82 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 83. Plaintiff suffered sex-based harassment that was severe, pervasive, and objectively offensive. ANSWER: In answer to Paragraph 83 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 84. The School District's response and its of?cials? conduct was such that future reasonable students in Plaintiff's circumstances would be chilled from reporting sexual harassment and/or assault. ANSWER: In answer to Paragraph 84 of Plaintiffs Complaint, Defendants deny the allegations contained therein. 85. As a direct and proximate result of the harassing educational environment created by Defendants' deliberately indifferent response to the sexual assault and subsequent harassment, as well as violations of her Fourteenth Amendment Rights, Plaintiff has suffered and continues to suffer damage, emotional distress, loss of standing in her community, and damage to her reputation, and her future relationships have been negatively affected. ANSWER: In answer to Paragraph 85 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 86. Plaintiff has required ongoing counseling and elevated levels of medication to address her depression and anxiety caused by Defendants' conduct and the resulting harassing education environment. ANSWER: In answer to Paragraph 86 of Plaintiff?s Complaint, Defendants deny their conduct caused and resulted in a harassing educational environment. As to the remaining 23 Case ECF No. 15 filed 08/16/16 PageID.76 Page 24 of 33 allegations, Defendants are without suf?cient knowledge or information to form a belief as to the truth or falsity of same; and, therefore, neither admit nor deny the same. 87. Plaintiff has also been deprived of a normal childhood education due to Defendants' conduct and the resulting educational environment. ANSWER: In answer to Paragraph 87 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 88. Plaintiff has also been damaged by missed educational opportunities and her future earning capabilities have been damaged by Defendants' conduct and the resulting hostile educational environment. ANSWER: In answer to Paragraph 88 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. COUNT I VIOLATION OF TITLE IX AS TO DEFENDANT LANSING SCHOOL DISTRICT (20 U.S.C. 1681, et seq) (The School's Deliberate Indifference to Alleged Sexual Harassment) Paragraphs 1 through 88 are incorporated by reference as if stated in full herein. 89. The sex-based harassment articulated in the Plaintiff?s General Allegations was so severe, pervasive, and objectively offensive that it deprived Plaintiff of access to educational opportunities or bene?ts provided by the school. ANSWER: In answer to Paragraph 89 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 90. The Defendant School District created and/or subjected Plaintiff to a hostile educational environment in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) ("Title because a) Plaintiff was a member of a protected class; 24 Case ECF No. 15 filed 08/16/16 PageID.77 Page 25 of 33 b) she was subjected to sexual harassment in the form of a sexual assault by another student; c) she was subjected to harassment based on her sex; and d) she was subjected to a hostile educational environment created by the School District's lack of and/or improper policies and procedures and the failure to properly investigate and/or address the sexual assault and subsequent harassment. ANSWER: In answer to Paragraph 90, including subparagraphs a through d, of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 91. Defendant School District and its of?cials had actual knowledge of the sexual assault and the resulting harassment of Plaintiff created by its policy to suspend any student involved in sexual activity on school grounds, Regardless of Consent. ANSWER: In answer to Paragraph 91 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 92. The Defendant School District's failure to appropriately respond to the alleged sexual harassment resulted in Plaintiff, on the basis of her sex, being excluded ?om participating in, being denied the bene?ts of, and being subjected to discrimination in the School District's educational program in violation of Title IX. ANSWER: In answer to Paragraph 92 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 93. Defendant School District's policy to immediately suspend any student involved in sexual activity on school grounds, regardless of consent, resulted in acting with deliberate indifference toward Plaintiff, and this policy has a chilling effect upon any student who has been the victim of an assault from reporting the assault for fear of being punished. 25 Case ECF No. 15 filed 08/16/16 PageID.78 Page 26 of 33 ANSWER: In answer to Paragraph 93 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 94. Defendant School District persisted in its actions and inaction even after it had actual knowledge of the harm suffered by Plaintiff. ANSWER: In answer to Paragraph 94 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 95. Defendant School District engaged in a pattern and practice of behavior designed to discourage and dissuade students and parents of students who had been sexually assaulted ?'om seeking prosecution and protection and from seeking to have sexual assaults from being fully investigated. ANSWER: In answer to Paragraph 95 of Plaintiff's Complaint, Defendants deny the allegations contained therein. 96. This policy and/or practice constituted disparate treatment of females and had a disparate impact on female students. ANSWER: In answer to Paragraph 96 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 97. Plaintiff has suffered emotional distress and damage, and her character and standing in the community have suffered from the harassment fostered as a direct and proximate result of Defendant School District's deliberate indifference to her rights under Title IX. ANSWER: In answer to Paragraph 97 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 26 Case ECF No. 15 filed 08/16/16 PageID.79 Page 27 of 33 COUNT II 1983 VIOLATION AS TO DEFENDANTS LANSING SCHOOL DISTRICT, CANUL, POHL, STEVENS, ROGERS, AND WILLIAMS [sic] (42 U.S.C. 1983) Paragraphs 1 through 97 are incorporated by reference as if set forth in full herein. 98. Under the Fourteenth Amendment, Plaintiff had the right as a public school student to personal security and bodily integrity and Equal Protection of Laws. ANSWER: In answer to Paragraph 98 of Plaintiff Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 99. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] were all state actors under the color of state law. ANSWER: In answer to Paragraph 99 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 100. Defendants each subjected Plaintiff to violations of her right to personal security and bodily integrity and Equal Protection of Laws by: failing to monitor the closed-circuit camera feeds displaying real-time activity throughout the school, suspending the Plaintiff for being the victim of a sexual assault, failing to adequately train and supervise Pohl, Stevens, Rogers, and Williams [sic], and manifesting deliberate indifference to the sexual assault and ongoing harassment of Plaintiff by other students. ANSWER: In answer to Paragraph 100 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 101. The School District has and/or had unconstitutional customs or policies of 27 Case ECF No. 15 filed 08/16/16 Page 28 of 33 a) failing to investigate evidence of criminal or tortious misconduct against School District students in the nature of violations of their right to personal security and b) Failing to adequately train and supervise School District employees with regard to maintaining, preserving, and protecting students from violations of their right to personal security, bodily integrity, and Equal Protection of Laws. ANSWER: In answer to Paragraph 101, including subparagraphs a through b, of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 102. On information and belief, the School District has followed these unconstitutional customs and policies not only with regard to Plaintiff but also with regard to criminal and tortious misconduct committed against other School District students. ANSWER: In answer to Paragraph 102 of Plaintiff Complaint, Defendants deny the allegations contained therein. 103. The School District's policies and/or practices constituted disparate treatment of females and had a disparate impact on female students. ANSWER: In answer to Paragraph 103 of Plaintiff Complaint, Defendants deny the allegations contained therein. 104. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] are or were at the time of events complained of within, policymakers for the purpose of implementing the School District's unconstitutional policies or customs. ANSWER: In answer to Paragraph 104 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 28 Case ECF No. 15 filed 08/16/16 PageID.81 Page 29 of 33 105. Plaintiff has suffered emotional distress and damage, and her character and standing in her community have suffered ?om the harassment fostered as a direct and proximate result of Defendant School District's deliberate indifference to her rights under the Fourteenth Amendment. ANSWER: In answer to Paragraph 105 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. COUNT IV [sic] MONELL LIABILITY FOR FAILURE TO TRAIN AND SUPERVISE AS TO RESPONSE TO SEXUAL ASSAULT AS TO DEFENDANT LANSING SCHOOL DISTRICT (42 U.S.C. 1983) Paragraphs 1 through 105 are hereby incorporated by reference as if set forth in full herein. 106. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] were "state actors" working for the Lansing School District, a federally funded school system. ANSWER: In answer to Paragraph 106 of Plaintiffs Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 107. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] acted under color of "state law" when they responded inadequately and inappropriately to Plaintiffs sexual assault. ANSWER: In answer to Paragraph 107 of Plaintiff?s Complaint, Defendants deny that they responded inadequately and inappropriately to the reported incident. As to the remaining allegations, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 29 Case ECF No. 15 filed 08/16/16 PageID.82 Page 30 of 33 108. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] failed to preserve Plaintiffs constitutional right to equal protection as guaranteed by the Fourteenth Amendment. ANSWER: In answer to Paragraph 108 of Plaintiff? Complaint, Defendants deny the allegations contained therein. 109. Under the Equal Protection Clause of the Fourteenth Amendment, Plaintiff had the right to equal access to an educational environment free from harassment and discrimination. ANSWER: In answer to Paragraph 109 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 110. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] should have known that their response to sexual assault allegations must comply with federal law, particularly as outlined in Title IX's published and widely promulgated implementing regulations. ANSWER: In answer to Paragraph 110 of Plaintiff?s Complaint, Defendants state that the allegations in this paragraph are conclusions of law, not allegations of fact; and, therefore, Defendants neither admit nor deny same. 111. Defendants Canul, Pohl, Stevens, Rogers, and Williams [sic] each violated Plainti??s right to equal access by: a) failing to take immediate and appropriate action to investigate or otherwise determine what occurred once informed of possible sexual violence; b) failing to take prompt and effective steps to prevent and end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation; c) failing to take steps to protect the Plaintiff and other students as necessary; 30 Case ECF No. 15 filed 08/16/16 PageID.83 Page 31 of 33 d) failing to provide a grievance procedure for students to ?le complaints of sexual discrimination, including complaints of sexual violence; e) failing to use a preponderance of the evidence standard to resolve complaints of sex discrimination in grievance procedures; f) failing to notify parties of the outcome of complaints; g) failing to enact adequate safety procedures including, but not limited to, monitoring the real-time camera feeds from closed-circuit cameras placed throughout the school. ANSWER: In answer to Paragraph 111, including subparagraphs a through g, of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 112. Defendant Lansing School District violated Plaintiffs Fourteenth Amendment right to equal protection by failing to properly train and supervise its employees as to these mandated investigative requirements. ANSWER: In answer to Paragraph 112 of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 113. Defendants have acknowledged that despite the presence of closed-circuit cameras throughout the school with real-time feeds, the camera monitors are not always watched by school personnel. ANSWER: In answer to Paragraph 113 of Plaintiff's Complaint, Defendants admit the allegations contained therein. 113 [sic]. These policies and/or practices constituted disparate treatment of females and had a disparate impact on female students. ANSWER: In answer to Paragraph 113 [sic] of Plaintiff?s Complaint, Defendants deny the allegations contained therein. 31 Case ECF No. 15 filed 08/16/16 PageID.84 Page 32 of 33 114. Defendants? actions and lack of actions were the proximate cause of Plaintiffs emotional distress and damage, and her character and standing in her community have suffered from the harassment fostered as a result of Defendant School District's deliberate indifference to her right to equal protection under the Fourteenth Amendment. ANSWER: In answer to Paragraph 114 of Plaintiff Complaint, Defendants deny the allegations contained therein. WHEREFORE, Defendants pray that a judgment of no cause of action be entered in their favor. AFFIRMATIVE DEFENSES Plaintiff will please take note that Defendants will rely upon the following af?rmative defenses: 1. Plaintiff may have failed to mitigate her damages. 2. The individual Defendants are protected by quali?ed immunity. 3. Lansing School District did not act with deliberate indifference. 4. Defendants reserve the right to supplement and amend these af?rmative defenses as facts are learned through the discovery process. RELIANCE ON JURY DEMAND Defendants hereby rely upon the Jury Demand ?led by Plaintiff in this matter. FOSTER, SWIFT, COLLINS SMITH, PC. Attorneys for Defendants Dated: August 16, 2016 By: Scott L. Mandel (P33453) Scott L. Mandel (P33453) 313 S. Washington Square Lansing, M148933 (517) 371?8185 32 Case ECF No. 15 filed 08/16/16 PageID.85 Page 33 of 33 CERTIFICATE OF SERVICE I hereby certify that on August 16, 2016, I directed Patricia M. Burdick to electronically ?le the foregoing with the Clerk of the Court using the ECF system which will send noti?cation of such ?ling to all parties of record. Dated: August 16, 2016 5/ Scott L. Mandel Scott L. Mandel (P33453) Foster, Swift, Collins Smith, PC. 313 S. Washington Square Lansing, MI 48933-2193 (517) 371-8185 MW 1981 9:00257z2697564-l 33