Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.53 Page 1 of 33

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
*****
SHAREE BROOKS as GUARDIAN AD LITEM OF AB,
AB, a minor,
CASE No. 1:17-CV-93
Plaintiffs,

HON. ROBERT J. JONKER

v.
BENTON HARBOR AREA SCHOOLS;
DR. SHELLY WALKER, Superintendent,
in her Official and Individual Capacities;
RODGER R. TRIPPLETT, Principal,
In his Official and Individual Capacities:
PATRICIA ROBINSON, Title IX Coordinator,
In her Official and Individual Capacities;
Defendants.
________________________/
Marlo D. Bruch (P70362)
Attorney for Plaintiffs
Bruch Law Offices, PLLC
229 E. Michigan Ave., Ste. 245-A
Kalamazoo, MI 49007
Tele: 269-312-8169
Fax: 269-743-1181
mdbruch@bruchlawoffices.com
______________________________________________________________________________
FIRST AMENDED COMPLAINT AND JURY DEMAND
This cause of action arises from the Respondents’ deliberately indifferent response to a
student-on-student sexual assault on school premises and subsequent sex-based harassment. The
Respondents’ failure to promptly and appropriately investigate and respond to the assault
1

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.54 Page 2 of 33

subjected Plaintiff AB to further sexual harassment and a hostile environment, effectively
denying her access to educational opportunities.
This claim alleges violations of Title IX of the Education Amendments of 1972, which
prohibits discrimination on the basis of sex; the denial of equal protection of the laws under the
Fourteenth Amendment to the U.S. Constitution, and denials of procedural and substantive due
process under 42 U.S.C § 1983..
Plaintiffs, AB, 1 and Sharee Brooks, by and through their attorney, Bruch Law Offices,
PLLC, hereby file the following complaint against Defendants as captioned above.
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 all civil actions arising under the
Constitution, laws, and treaties of the United States.
2. The Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1343, which gives
district courts original jurisdiction over (a) any civil action authorized by law to be
brought by any person to redress the deprivation, under the 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
(b) any civil action to recover damages or to secure equitable relief under any Act of
Congress providing for the protection of civil rights.
3. Plaintiff AB 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 fully set
forth herein.
1

“AB” has been substituted for minor Plaintiff’s name for all causes of action brought through this Complaint.
Plaintiff was a minor at the time of the sexual assault and aftermath complained herein.

2

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.55 Page 3 of 33

4. This is also an action to redress the deprivation of Plaintiff AB’s constitutional rights
under the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C.
§ 1983.
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.
II. THE PARTIES
6. Plaintiff AB is a female and was a minor at all material times during the events
complained of herein and remains a minor as of the date of the filing of this Complaint.
7. At all material times, Plaintiff AB was a resident of the County of Berrien, State of
Michigan.
8. At the time of the events complained herein, Plaintiff AB was a student attending a high
school within the Defendant BENTON HARBOR AREA SCHOOLS (“the School
District”).
9. Plaintiff Sharee Brooks (“Brooks”) is the Mother of AB and is her legal guardian during
the events complained of herein and remains so as of the date of the filing of this
Complaint.
10. At all material times, Plaintiff Brooks was a resident of the County of Berrien, State of
Michigan.
11. The Defendant School District is a public educational institution located in the County of
Berrien, State of Michigan.

3

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.56 Page 4 of 33

12. At all material times, Defendant SHELLY WALKER (“the Superintendant”), in her
official and individual capacities, worked within the County of Berrien, State of
Michigan.
13. During all material times, the Superintendant 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.
14. At all material times, RODGER R. TRIPPLETT, (the “Principal”), in his official and
individual capacities, worked within the County of Berrien, State of Michigan.
15. During all material times, the Principal 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.
16. At all material times, Defendant PATRICIA ROBINSON, (the “Title IX Coordinator”),
in her official and individual capacities, worked within the County of Berrien, State of
Michigan.
17. At all material times, the Title IX Coordinator 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.
18. At all material times, Plaintiff AB’s attacker, “TB,” w as a student attending the
Defendant School District.
III. COMMON ALLEGATIONS
19. At all material times, the School District was receiving federal funding as contemplated
by Title IX, 20 U.S.C. § 1681, et. seq.

4

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.57 Page 5 of 33

20. The Benton Harbor School District’s Board of Education has also adopted antiharassment policies in the Benton Harbor High School Student Handbook on pages 20-21
in pertinent part as follows:
District’s Anti-Bullying Policy
…
Definitions
A. “Bullying” means systematically and chronically inflicting physical hurt or
psychological distress on one or more students or employees. It is further defined as:
unwanted purposeful written, verbal, nonverbal, or physical behavior, including but not
limited to any threatening, insulting, or dehumanizing gesture, by an adult or student, that
has the potential to create an intimidating, hostile, or offensive educational environment
or cause long term damage; cause discomfort or humiliation; or unreasonably interfere
with the individual’s school performance or participation, is carried out repeatedly and is
often characterized by an imbalance of power. Bullying may involve, but is not limited
to:
1. Unwanted teasing
2. Threatening
3. Intimidating
4. Stalking
7. Physical violence
9. Sexual, religious, or racial harassment
10. Public humiliation
12. Social exclusion, including incitement and/or coercion
13. Rumor or spreading of falsehoods.
B . “Harassment” means any threatening, insulting, or dehumanizing gesture, use of
technology, computer software, or written, verbal or physical conduct directed against a
student or school employee that:
1. Places a student or school employee in reasonable fear of harm to his or her person or
damage to his or her property.
2. Has the effect of substantially interfering with a student’s educational performance, or
employee’s work performance, or either’s opportunities, or benefits;
3. Has the effect of substantially negatively impacting a student’s or employee’s
emotional or mental well-being; or
4. Has the effect of substantially disrupting the orderly operation of a school and/or
school district work environment.
E. “Bullying”, “Cyber-bullying”, and/or “Harassment” also encompass:
1. Retaliation against a student or school employee by another student or school
employee for asserting or alleging an act of bullying, harassment, or discrimination.
2. Retaliation also includes reporting a baseless act of bullying, harassment, or
discrimination that is not made in good faith.
3. Perpetuation of conduct listed in the definition of bullying, harassment, and/or
discrimination by an individual or group with intent to demean, dehumanize, embarrass,
or cause emotional or physical harm to a student or school employee by:
a. Incitement or coercion;
5

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.58 Page 6 of 33

b. Accessing or knowingly and willingly causing or providing access to data or computer
software through computer, computer system, or computer network within the scope of
the District school system;
or
c. Acting in a manner that has an effect substantially similar to the effect of bullying,
harassment, or discrimination

21. The School District implemented and executed policies and customs in regard to the
events that resulted in the deprivation of Plaintiff AB’s constitutional, statutory, and
common-law rights.
22. The School District is responsible for ensuring that all its employees are properly trained
and supervised to perform their jobs.
23. The School District is responsible for the acts and omissions of its employees.
24. At the time of the attack that gave rise to the events complained of herein, Plaintiff AB
was a fifteen (15) year old Freshman at Benton Harbor High School (“Benton Harbor”).
25. At the time of the attack that gave rise to this action, student “TB” was in his junior year
and was a prominent athlete at Benton Harbor.
26. The attack occurred on December 28, 2015 at the Benton Harbor High School, 870
Colfax Avenue, Benton Harbor, Michigan 49022.
27. Plaintiff AB was a cheerleader and is also autistic of which the High School and all the
Administrators, Teachers, Staff and Faculty were fully aware of.
28. On December 28, 2015, Plaintiff AB was cheerleading at a Christmas Tournament
Basketball game at Benton Harbor High School which was under the supervision and
control of the School District, its administrators, faculty, and staff.

6

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.59 Page 7 of 33

29. During the basketball game another student and “star” football and basketball player2,
“TB” (of minor age almost seventeen (17)), was able to “lure” Plaintiff AB away to a part
of the school which was not being monitored (the third floor boy’s bathroom).
30. “TB” violently and forcibly sexually assaulted Plaintiff AB and while making a video of
it on his cellular telephone while the sexual assault was taking place in Benton Harbor’s
second floor boys’ bathroom.
31. It was mandatory that Plaintiff AB cheerlead at the event as she was cheering for the
Freshman team. Playing schedules were handed out unsupervised for the games.
32. The Defendants and the school did not provide supervision at the game, the school didn’t
suspend or take any action against” TB” even after criminal charges were filed after the
prosecutor took the case until several months after the sexual assault.
33. The cameras in the school were broken on the day of the sexual assault and did not work.
34. The Defendants and its agents were grossly negligent as they all knew or should have
known the surveillance cameras in the school’s hallways did not work placing Plaintiff
AB and other students in danger.
35. The video that “TB” made began circulating among students and Plaintiff AB’s Mother
became aware of it on January 7, 2016 from the father of Plaintiff AB and thereafter a
teacher at Benton Harbor. TB deleted the video and Plaintiffs do not have a copy.
36. On January 7, 2016, Plaintiff AB’s Mother received a telephone call from Plaintiff AB’s
Father saying that he received a telephone call from a Benton Harbor High School

2

In 2015, TB led his football team to its first winning record in a quarter century and made the playoffs for the first
time in school history.

7

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.60 Page 8 of 33

security guard, Ms. Mary Singer-Pargo that told him there was a video going around of
Plaintiff AB and TB.
37. Plaintiff AB’s Father went to the High School and spoke with Plaintiff AB about what he
had heard while the same security guard, Ms. Mary Singer-Pargo stood nearby listening.
38. On the evening of January 7, 2016, the mother of TB began to relentlessly Facebook and
text Plaintiff AB’s mother in an effort to have her not file charges against her son.
39. Plaintiff AB and her mother had been harassed by TB’s mother and her friends through
Facebook and text messages about the sexual assault.
40. The electronically transmitted harassment questioned Plaintiff AB’s integrity, her
sexuality and her sexual behavior, and her character for bringing the sexual violence to
the attention of school officials.
41. The electronically transmitted messages caused and continue to cause Plaintiff AB to
withdraw from other students and the academic environment.
42. On January 8, 2016, Plaintiff AB’s Mother became aware of the content of the video that
had her daughter in it and the full extent of the sexual assault after the return of Plaintiff
AB to school after the holiday vacation when she received a call from Keisha McKee, a
teacher at Benton Harbor High School, that Plaintiff AB’s best friend brought her to the
teacher after TB started showing a recorded video of the forcible sexual assault to other
students.
43. On January 8, 2016, Plaintiff AB’s mother immediately went to the school and turned in
Plaintiff AB’s cheerleading uniform and went to the police department to file a report
immediately thereafter with Officer Robert Shepherd with Benton Harbor Police
Department.
8

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.61 Page 9 of 33

44. When Plaintiff AB’s Mother turned in her daughter’s cheerleading uniform on January 8,
2016, and informed the Coach and Assistant to the Athletic Department, Ms. Kenisha M.
Nichols that Plaintiff AB would not be staying on the team, Ms. Nichols stated she knew
about the video.
45. Ms. Nichols smirked and said to Plaintiff AB’s Mother she had just told all the girls on
the cheerleading team about the video. Ms. Nichols failed to notify the School District
regarding the sexual assault as she was required to.
46. On January 8, 2016, the Benton Harbor Police Department / Berrien County Sherriff’s
Prosecutor Department launched a criminal investigation for the sexual assault on
Plaintiff AB by TB.
47. Neither the individual Defendants or the School District ever called to file a police report
for the sexual assault on Plaintiff AB by “TB.”
48. Upon information and belief, the School District was fully aware of the sexual assault
through contact from the police investigation.
49. Detective Harmon from the Benton Harbor Police Department conducted the
investigation with the officials at Benton Harbor High School. Detective Harmon began
his investigation and contacted Defendants no later than mid January 2016. Detective
Harmon spoke in person to Ms. McKee, Defendant Tripplett, TB, Ms. Nichols, friends of
TB and other team players of TB who had seen the video. Detective Harmon attempted
to retrieve TB’s cellular telephone but was unsuccessful as TB’s family took it and would
not provide it to Detective Harmon. Plaintiff AB’s Mother called Detective Harmon after
a couple of weeks had passed because the Defendants never contacted her. Detective
Harmon told Plaintiff AB’s Mother that he had been to the Benton Harbor High School
9

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.62 Page 10 of 33

on several occasions and to the home of TB. Detective Harmon stated he was still
working on the investigation and that he had spoken to Ms. Nichols as well.
50. Plaintiff AB began to suffer a great deal of ridicule, teasing, taunting her and violent
outbursts from the other athletes. One of the athletes tried to engage Plaintiff AB into a
fight, DP (male). During March 2016, DP called Plaintiff AB “bitches and lying whores”
in front of her entire band class and the band teacher (the Defendant School District never
addressed this incident or the others). One of the athletes said to Plaintiff AB, “you know
you wanted it. Don’t ruin his life. You are so wrong.”
51. Plaintiff AB had to endure the sex-based harassment every day in school including have
to see TB in the classrooms and the hallways.
52. Plaintiff AB who once loved going to school was terrified.
53. In a matter of weeks, Plaintiff AB’s Mother began to suffer extreme emotional distress
waiting for her daughter to come home safe from school.
54. Because of Plaintiff AB’s autism, she thrives off structure and did not want to miss going
to school.
55. During January 2016, Plaintiff AB began counseling for the sexual assault.
56. On February 8, 2016, Plaintiff AB checked into Lakeland hospital for a suicide threat for
a three day stay. Plaintiff AB had been admitted but did not stay one time prior for not
being able to cope with the stress of the sexual assault.
57. Plaintiff AB developed acid reflux and was diagnosed with Post Traumatic Stress
Disorder as a result of the sexual assault.

10

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.63 Page 11 of 33

58. The Defendants did not take appropriate action and allowed “TB” in the school having
direct and daily contact with Plaintiff AB and continue his athletics until March 2016
despite direct knowledge of the sexual assault.
59. On March 12, 2016, Plaintiff AB’s Mother received a telephone call from Defendant
School District requesting Plaintiff AB’s Mother to meet with Defendant Tripplett.
Defendant Tripplett told Plaintiff AB’s Mother that he had spoken with both of TB’s
parents and TB admitted to the sexual assault. Defendant Tripplett also discussed the
teasing and bullying. Defendant never discussed that an investigation was to be
conducted by the School District. This is documented in a March 18, 2016 letter to
Plaintiff AB’s Mother from Defendant Tripplett.
60. Plaintiff AB and her mother were not able to make the first meeting date due to the
Plaintiff AB’s extreme emotional distress as Plaintiff AB lost her peripheral vision and
was suffering from severe headaches.
61. On March 18, 2016, TB was suspended from school and athletics for the first time.
62. Immediately after TB’s suspension, threats began again against Plaintiff AB including,
“she better not come back to school.” Male students and other athletes on a daily basis
would say to Plaintiff AB, “if she would do them too, why are you doing this to him, you
are ruining his life, you are so dirty, you are so disgusting, you are a liar.”
63. On March 21, 2016, Plaintiff AB’s mother had a meeting for the first time with
Defendant Tripplett where he denied prior knowledge of the incident but admitted his
staff knew. Plaintiff AB’s Mother made requests that they make changes to ensure that
the harassment of Plaintiff AB would stop, that Plaintiff AB would have a safe
educational environment, and that Plaintiff AB’s education could continue without
11

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.64 Page 12 of 33

disruption. Plaintiff AB’s mother reported more details of the entire sexual assault and
all of the sex-based harassment, ridicule and teasing Plaintiff AB was being subjected to
since the sexual assault. No action was taken by Defendant Tripplett and the sex based
harassment by TB and classmates continued.
64. On April 21, 2016, Plaintiff AB’s mother reported the other student’s harassment to
Defendant Tripplett including the band room incident. Nothing was told to Plaintiffs of
what was done.
65. On March 24, 2016, Plaintiff AB’s mother received a “post-dated” letter from Defendant
School District (Defendant Tripplett) dated March 18, 2016 offering support to Plaintiff
AB but did not state anything about TB being removed from the school, no contact of TB
with Plaintiff AB or any other type of action to keep TB away from Plaintiff AB.
66. School District officials never interviewed Plaintiff AB or her Mother until several
months after the Benton Harbor Police Department / Berrien County Sheriff’s
Department began its investigation.
67. On April 7, 2016 at the Berrien County Prosecuting Phase II Hearing, Plaintiff AB’s
mother found out that TB’s school suspension was lifted from Defendant School District
without either herself of Plaintiff AB being notified.
68. On April 13, 2016, Plaintiff AB’s mother met with Defendant Tripplett in person for plan
of action regarding T.B. at 5:00 P.M.
69. The harassment of Plaintiff AB immediately began again upon TB’s return to school
from the suspension on April 14, 2016.
70. TB was allowed to sit with the team and dress out. He was not allowed to play but was
giving the impression that he was “still part of the team.”
12

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.65 Page 13 of 33

71. On April 14, 2016, Defendant School District allowed TB to return to school for
academics and athletics.
72. Upon information and belief, the Defendant School District has a sports code of conduct
that revokes an athlete’s privilege of playing sports if charged with a crime.
73. On April 18, 2016, Defendant School District sent a letter to the Juvenile Court, Judge
Mayfield stating that the District allowed TB to return to school, attend all classes and
athletics that TB on his own volition was to avoid contact with Plaintiff AB instead of
immediate expulsion.
74. Despite their immediate and continuing duty to investigate and address the sexual assault,
the School District officials conducted virtually no or very little investigation at all of the
assault on Plaintiff AB or the continuing sex-based harassment.
75. Upon information and belief, despite knowledge of the sexual assault, Principal Tripplett
was not proactive in removing TB out of school including suspension and or expulsion.
76. Principal Tripplett knew or should have known immediately about the assault after
January 8, 2016 through other faculty members who had personal knowledge of the
sexual assault.
77. “TB” had direct contact on a daily basis with Plaintiff AB and the Defendants and school
did not initiate immediate and appropriate action to protect Plaintiff AB and she was
fearful for her safety.
78. On Friday, April 22, 2016, Plaintiff AB’s Mother had a private meeting with Defendant
Tripplett after band concert requesting that they make changes to ensure that the
harassment of Plaintiff AB would stop, that Plaintiff AB would have a safe educational

13

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.66 Page 14 of 33

environment, and that Plaintiff AB’s education could continue without disruption . This
did not happen.
79. On April 28, 2016, Plaintiff AB was being harassed and teased so bad by “TB’s”
followers that Plaintiff AB’s Mother removed Plaintiff AB from the school.
80. Plaintiff AB’s Mother made the decision to remove Plaintiff AB from the school and
begin home schooling at the recommendation of her therapist due to Plaintiff AB not
being able to endure the harassment, humiliation and emotional distress.
81. After the initial suspension in March 2016, “TB” was allowed to come back to school and
continue his athletics (TB was not allowed to play but sat on the team bench dressed in
uniform) through May 2016 with no restrictions regarding access to Plaintiff AB.
82. The Defendants and the school never told Plaintiff AB or her Mother the school was
allowing “TB” to go back to school to resume his athletics and classes.
83. On May 2, 2016, the Berrien County Prosecutor’s office by mail notified Plaintiffs of the
authorized four felony counts against TB for his assault on Plaintiff AB of Criminal
Sexual Conduct-First Degree During Felony, Criminal Sexual Conduct – Third Degree
(Multiple Variables), Child Sexually Abusive Commercial Activity and Computers- Use
to Commit Crime-Maximum Imprisonment 20 years/more or life.
84. During end of March or beginning of April 2016, the Defendants and its attorneys (two
Clark Hill Attorneys (Stephen R. Gee and Mohammed J. Lakhani)) had Plaintiff AB’s
Mother and Plaintiff AB come into the school and Plaintiff AB and her Mother were
interviewed (interrogated) by about the school’s legal liability for the sexual assault—one
asked the questions, the other typed the answers into a computer. After the interrogation,
Plaintiff AB’s Mother was told by Defendant Walker that she would get to the bottom of
14

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.67 Page 15 of 33

the problem. Plaintiff AB’s Mother was never contacted back from Defendant Walker
regarding the investigation.
85. Plaintiff AB was interviewed together with Plaintiff AB’s Mother.
86. Plaintiff AB’s Mother asked for a written copy of their testimony taken but was denied
by the Defendants.
87. The District never officially responded to the report nor gave a response.
88. Mr. Tripplett told Plaintiff AB’s Mother that he would handle everything regarding the
sexual assault and sex-based harassment thereafter, but nothing was ever done.
89. Plaintiff AB was harassed and teased so bad by “TB’s” followers that she began home
schooling on April 28, 2016 (at the recommendation of her counselor) as the Defendants
and school did absolutely nothing to protect Plaintiff AB and protected “TB” and
themselves.
90. The Defendant School District never told Plaintiffs on what date if ever it completed its
investigation regarding the sexual assault of Plaintiff AB by TB.
91. Defendant School District refused to tell the Plaintiff AB’s Mother the outcome of the
investigation regarding the sexual assault.
92. Plaintiff AB stopped going outside and severe depression started including Plaintiff AB
just sleeping and crying.
93. Plaintiff AB’s mother owns her own business, and has had to take a lot of time off to help
her daughter and could not leave her alone for fear of Plaintiff AB trying to commit
suicide and has lost and continues to lose a substantial amount of money from her
business.

15

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.68 Page 16 of 33

94. Plaintiff AB’s younger brother has also been deeply affected at ten (10) years of age as
the children at his school also said negative things about Plaintiff AB that he did not
understand.
95. The school has a Title IX coordinator and at no time was Plaintiff AB or her family ever
advised of their legal rights to request an investigation, and that a Title IX complaint
could be filed.
96. TB was a junior at the time (age 17) when he was charged.
97. During July 26, 2016, TB, was convicted of felony Criminal Sexual Conduct- Assault
With Intent to Commit Sexual Penetration in the First Degree and put in jail with a
sentence of one (1) year and five years probation.
98. TB is a sexual predator and has no remorse confirmed by his sentencing hearing and his
criminal records3.
99. Plaintiff AB has subsequently been diagnosed with severe and permanent medical
conditions as a direct result of the sexual assault from TB.
100. In TB’s sentencing hearing, Plaintiff AB’s impact statement was read by Berrien
County Prosecuting Attorney Meghan Hurley in which the victim wrote she had been to
the hospital three times because of the incident. Plaintiff AB said one time because she
was suicidal.
101. Because Plaintiff AB had complained of TB’s sexual assault on her, throughout the rest
of the 2015-2016 school year, TB’s friends verbally and physically harassed and
frightened Plaintiff AB as she went in and out of classrooms and the hallways, and
3

TB was laughing with his brother and sister on June 29, 2016 when they visited him in Berrien County Jail, and
made a disparaging remark about women (which was recorded) relating to his intentions when he got out of jail.

16

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.69 Page 17 of 33

around the Benton Harbor High School campus, including in the gym, and athletic fields,
both during and after school, and as TB hung out with his friends.
102. TB and his friends repeatedly denied that the incident was a sexual attack but that
Plaintiff AB consented to it.
103. Plaintiff AB’s education and her learning have been permanently affected by TB, the
Defendants and the school.
104. Plaintiff AB and her entire family could not go out in public because everyone was
whispering and pointing at them even at the grocery store. Plaintiff AB and her family
were afraid to go out after dark and even in the daylight.
105. Plaintiff AB’s Mother had just purchased a new home in October 2015, but due to the
harassment and threats of violence, the family had to relocate to a new city and school
district. Due to the harassing and hostile academic and local environment to Plaintiff AB
and her younger brother, Plaintiff AB’s Mother now has to commute an hour each way
to and from work each day. Plaintiff AB’s Mother still pays the mortgage on their
unoccupied home and the utilities in addition to rent and utilities for their new home (a
rented apartment).
106. Plaintiff AB’s Mother had to deplete all of her savings and does not have enough money
to continue adequate counseling for Plaintiff AB and herself and her brother. Plaintiff
AB’s mother had to apply for state assistance so the family could survive.
107. This was not just a school incident it was a community incident because of the
popularity of TB. He was an all around athlete. He played and excelled in all sports.
108. Defendants failed to take a proper, immediate and active role in the situation and instead
chose to protect TB and their athletics.
17

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.70 Page 18 of 33

109. The school and its Title IX coordinator has tried to cover up the unlawful activity they
were engaged in to protect themselves and not Plaintiff AB.
110. The District had and continues to have in place the Benton Harbor School District’s
Board of Education anti-harassment policy in the Benton Harbor High School Student
Handbook on pages 20-21 named “District’s Anti-Bullying Policy” that remains in
place on the date of the filing of this lawsuit as required by MCL 380.131b.
111. On numerous occasions using telephone, email, and personal meetings, throughout the
2015-2016 school year following the attack, Plaintiff AB’s mother advised School
District officials of the problems and hostility Plaintiff AB was confronting in school.
Plaintiff AB and her Mother asked school officials on various occasions throughout the
2015-2016 school year following the attack to make changes to ensure that the
harassment of Plaintiff AB would stop, that she would have a safe educational
environment, and that her education would continue without disruption. This did not
happen.
112. School District officials, including Defendants Walker, Tripplett, and Robinson, made
none or very little changes to the educational environment to prevent future problems; the
school’s officials response was limited to telling Plaintiff AB to report/document ongoing
and future problems to the Defendant School District.
113. Each time Plaintiff AB documented and reported ongoing problems to School District
Officials, the School District took no remedial measures to eliminate the continued sexbased harassment in school.

18

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.71 Page 19 of 33

114. Reprimand of TB or a change in his placement was mandated by MCL 380.1311(2) and
MCL 300.530(d) on the basis of the assault alone and would have been consistent with
internal school policy.
115. Through her legal counsel, on November 16, 2016 Plaintiff AB filed in the Michigan
Court of Claims her Notice of Intention to File a Claim and a First Amended Notice to
File a Claim on November 29, 2016, Case No. 16-200789-0.
116. Plaintiff AB filed on November 7, 2016 a Title IX Complaint with the United States
Department of Education Office for Civil Rights, Region XV alleging that the District
failed to promptly and appropriately responds to alleged sexual harassment, resulting in a
student, on the basis of sex, being excluded from participation in, being denied the
benefit of, or being subjected to discrimination in any District Education Programs or
activities in violation of the Title IX implementing regulation at 34 C.F.R. § 106.31.
117. Plaintiff AB’s Mother also complained that the District failed to notify her that there
were grievance (filing/appeal) procedures (including the filing of Title IX Complaint)
that incorporate appropriate due process standards and that provide for the prompt and
equitable resolution of student complaints under Title IX in violation of Title IX
implementing regulation at 34 C.F.R. § 106.8(b).
118. Plaintiff AB holds the Defendants,( the Benton Harbor Public School District, the
Superintendent, the Title IX Coordinator and Principal liable for the damages sustained
as a result of the deliberate inaction, failures and negligence of the Benton Harbor Public
District by failing to provide a safe environment for the children attending its schools
including Plaintiff AB.

19

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.72 Page 20 of 33

119. On October 31, 2016, Plaintiff AB through her legal counsel via email sent a
Preservation of Evidence Letter to Defendant Walker requesting all evidence associated
with the sexual assault. No response was ever received from Defendants. Thereafter, the
same request was served in person by process server on November 30, 2016. No
response was ever received from Defendants.
120. Plaintiff AB through her legal counsel sent proper FOIA requests to Defendant School
District on October 31, 2016 via email and as of the date of the filing of this lawsuit, no
response has been received. Defendants, its agents and representatives have willfully
violated FOIA laws in order to cover up their unlawful activity. Thereafter, the same
requests were served in person via process server on Defendant Walker on November 30,
2016. No response was ever received from Defendants.
121. School officials have refused to provide any investigative findings to Plaintiff AB’s
Mother, and never notified her of any complaint or appellate recourse.
122. Plaintiff AB’s personal damages include those arising from her psychological distress,
loss of standing in her community, and damage to her reputation, continue as of the date
of the filing of this lawsuit in addition to the emotional distress of Plaintiff AB’s mother
and her lost economic damages.
123. Plaintiff AB suffered sex-based harassment that was severe, pervasive, and objectively
offensive.
124. The sex- based harassment deprived Plaintiff AB of access to the educational
opportunities or benefits of the school.
125. School District officials including Defendants, Walker, Tripplett and Robinson had the
authority to take remedial action to correct the sex-based harassment.
20

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.73 Page 21 of 33

126. The School District and Defendants had actual knowledge of the sex-based harassment.
127. The School District and its Defendants responded with deliberate indifference to the
sex-based harassment.
128. Plaintiff AB became afraid to stay after school and stopped participating in band and
cheerleading and withdrew from attending school events.
129. Plaintiff AB found it difficult to concentrate in class that resulted in many absences
from school.
130. Plaintiff AB spent hours outside of the classroom due to her emotional distress and
anxiety.
131. Plaintiff AB became too afraid to stay after school to get help from teachers for
assistance in her academics.
132. Plaintiff AB required and continues to require mental health counseling and medication
for depression and anxiety to cope with the stress of having attended Benton Harbor High
School.
133. Plaintiff AB’s grades dropped from a 3.7 G.P.A. to a 2.5 G.P.A.
134. When Plaintiff AB realized that even after TB was charged with the sexual assault the
Defendant School District allowed him to return to academics/athletics for the 2015-2016
school year with no discipline or change in his boundaries for her protection, she was
forced to leave the school to avoid the continuing hostile environment.
135. The Defendant School District’s response and its officials’ conduct was such that future
reasonable students in Plaintiff AB’s circumstances would be chilled from reporting
sexual harassment.

21

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.74 Page 22 of 33

136. 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 AB has
suffered and continues to suffer psychological damage, emotional distress, loss of
standing in her community, and damage to her reputation, and her future relationships
have been negatively affected.
137. Plaintiff AB has required ongoing counseling to assist her depression and anxiety
caused by Defendants’ conduct and the resulting harassing educational environment.
138. Plaintiff AB has also been deprived of a normal childhood education due to Defendants’
conduct and the resulting educational environment.
139. Plaintiff AB has also been damaged by missed educational opportunities and her future
learning capabilities have been damaged by Defendants’ conduct and the resulting hostile
educational environment.
COUNT I
VIOLATION OF TITLE IX
AS TO DEFENDANT BENTON HARBOR SCHOOL DISTRICT
(20 U.S.C. § 1681, et seq.)
(The School’s Deliberate Indifference
to Alleged Sexual Harassment)
140. Paragraphs one through 139 are incorporated by reference as if stated in full herein.
141. The sex-based harassment articulated in the Plaintiffs’ General Allegations was so
severe, pervasive, and objectively offensive that it deprived Plaintiff AB of access to
educational opportunities or benefits provided by the school.

22

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.75 Page 23 of 33

142. The Defendant School District created and/or subjected Plaintiff AB to a hostile
educational environment in violation of Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681(a) (“Title IX”), because
a) Plaintiff AB was a member of a protected class;
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 policies and procedures and failure to properly investigate and/or
address the sexual assault and subsequent harassment.
143. Defendant School District and its officials had actual knowledge of the sexual assault
and the resulting harassment of Plaintiff AB created by its failure to investigate and
discipline Plaintiff AB’s attacker in a timely manner and consistent with its own policy
and federal and state law.
144. The Defendant School District’s failure to promptly and appropriately respond to the
alleged sexual harassment, resulted in Plaintiff AB, on the basis of her sex, being
excluded from participation in, being denied the benefits of, and being subjected to
discrimination in the District’s education program in violation of Title IX.
145. Defendant School District failed to take immediate, effective remedial steps to resolve
the complaints of sexual harassment and instead acted with deliberate indifference toward
Plaintiff AB.
146. Defendant School District persisted in its actions and inaction even after it had actual
knowledge of the harm suffered by Plaintiff AB.
23

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.76 Page 24 of 33

147. 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
from seeking prosecution and protection and from seeking to have sexual assaults from
being fully investigated.
148. This policy and/or practice constituted disparate treatment of females and had a
disparate impact on female students.
149. Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681(a) states
that:
No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefit of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance ….
150. Title IX is implemented through the Code of Federal Regulations. See 34 C.F.R. Part
106.
151. 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 which would
be prohibited by this part.
152. In Gebser v. Lago Vista Independent School District, 524 U.S. 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.
153. In Davis v. Monroe County Board of Education, 526 U.S. 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.

24

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.77 Page 25 of 33

154. 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
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 benefits provided by the
school.
Davis, 526 U.S. at 1669-76.
155. Plaintiff AB has suffered emotional distress and psychological damage, and her
character and standing in her 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.
COUNT II
VIOLATION OF TITLE IX
AS TO DEFENDANT BENTON HARBOR SCHOOL DISTRICT
(20 U.S.C. § 1681, et seq.)
(Retaliation by Withholding Protections Otherwise Conferred by Title IX)
156. Paragraphs one through 155 are incorporated by reference as if stated in full herein.
157. Immediately after Plaintiff AB advised the Defendant School District through her
teacher, the teacher failed to report the sexual assault to the Defendant School District.
158. The Principal had previously reassured Plaintiff AB’s Mother that he would investigate
the attack regardless of whether the matter was referred to law enforcement but delayed
and did nothing for over three months.
159. Even though Plaintiff AB and her Mother insisted upon involving law enforcement for a
criminal investigation, the Principal and the other School District officials retaliated
25

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.78 Page 26 of 33

against Plaintiff AB by declining to investigate the matter or to otherwise comply with
their responsibilities as mandated by Title IX.
160. Fellow students harassed Plaintiff AB for reporting her attack to the school and police.
Plaintiff AB’s Mother reported this harassment to School officials, who declined to
intervene to stop it.
COUNT III
1983 VIOLATION AS TO
DEFENDANTS BENTON HARBOR SCHOOL DISTRICT,
WALKER, TRIPPLETT, and ROBINSON
(42 U.S.C. § 1983)
161. Paragraphs one through 160 are hereby incorporated by reference as if set forth in full
herein.
162. Under the Fourteenth Amendment, Plaintiff AB had the right as a public school student
to personal security and bodily integrity and Equal Protection of Laws.
163. Defendants Walker, Tripplett, and Robinson were all state actors acting under the color
of state law.
164. Defendants each subjected Plaintiff AB to violations of her right to personal security
and bodily integrity and Equal Protection of Laws by: failing to investigate TB’s
misconduct; failing to appropriately discipline TB; failing to adequately train and
supervise Walker, Tripplett and Robinson; and manifesting deliberate indifference to the
sexual assault and ongoing harassment of Plaintiff AB by other students, including TB.
165. The School District has and/or had unconstitutional customs or policies of
a) failing to investigate evidence of criminal and tortious misconduct against School
District students in the nature of violations of their right to personal security and bodily
integrity and
26

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.79 Page 27 of 33

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 the Laws.
166. On information and belief, the School District has followed these unconstitutional
customs and policies not only with regard to Plaintiff AB but also with regard to criminal
and tortious misconduct committed against other School District students.
167. The School District’s policies and/or practices constituted disparate treatment of females
and had a disparate impact on female students.
168. Defendants Walker, Tripplett, and Robinson 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.
169. 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.” U.S. Const. amend. XIV, § 1.
170. At MCL 380.1311(2), Michigan law provides that “if a pupil … commits criminal
sexual conduct in a school building or on school grounds, the school board, or the
designee of the school board … shall expel the pupil from the school permanently.”
171. Plaintiff AB has suffered emotional distress and psychological damage, and her
character and standing in her community have suffered from the harassment fostered as a
direct and proximate result of Defendant School District’s deliberate indifference to her
rights under the Fourteenth Amendment.
COUNT IV
MONELL LIABILITY FOR FAILURE TO TRAIN AND SUPERVISE
AS TO RESPONSE TO SEXUAL ASSAULT
27

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.80 Page 28 of 33

AS TO DEFENDANT BENTON HARBOR SCHOOL DISTRICT
(42 U.S.C. § 1983)
172. Paragraphs one through 171 are hereby incorporated by reference as if set forth in full
herein.
173. Defendants Walker, Tripplett, and Robinson, were “state actors” working for Benton
Harbor School District, a federally funded school system.
174. Defendants Walker, Tripplett, and Robinson acted under “color of law” when refusing
to respond to Plaintiff AB’s sexual assault on school premises.
175. Defendants Walker, Tripplett, and Robinson failed to preserve Plaintiff AB’s
constitutional right to equal protection as guaranteed by the Fourteenth Amendment.
176. Under the Equal Protection Clause of the Fourteenth Amendment, Plaintiff AB had the
right to equal access to an educational environment free from harassment and
discrimination.
177. Defendants Walker, Tripplett, and Robinson 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.
178. Defendants Walker, Tripplett, and Robinson each violated Plaintiff AB’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 end the sexual violence, prevent its
recurrence, and address its effects, whether or not the sexual violence is the subject of
a criminal investigation;
28

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.81 Page 29 of 33

c. Failing to take steps to protect Plaintiff AB as necessary, including interim steps taken
prior to the final outcome of the investigation;
d. Failing to provide a grievance procedure for students to file complaints of sexual
discrimination, including complaints of sexual violence. The procedures must include
an equal opportunity for both parties to present witnesses and other evidence and the
same appeal rights;
e. Failing to use a preponderance of the evidence standard to resolve complaints of sex
discrimination in grievance procedures; and
f. Failing to notify both Plaintiffs of the outcome of the complaint.
179. Defendant Benton Harbor Schools violated Plaintiff AB’s Fourteenth Amendment right
to equal protection by failing to properly train and supervise its employees as to these
mandated investigative requirements.
180. These policies and/or practices constituted disparate treatment of females and had a
disparate impact on female students.
181. Defendants’ actions and lack of actions were the proximate cause of Plaintiff AB’s
emotional distress and psychological 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.
COUNT V
DENIAL OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS IN VIOLATION OF
THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION PURSUANT TO
42 U.S.C. § 1983 AGAINST THE INDIVIDUALLY NAMED DEFENDANTS WALKER,
TRIPPLETT AND ROBINSON

29

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.82 Page 30 of 33

182. Plaintiffs repeat and re-allege the statements contained in paragraphs 1 through 181 as if
fully restated herein.
183. Plaintiff AB was unable to complete her academic program in the Defendant School
District due to the arbitrary and capricious manner she was treated by Defendant School
District after the sexual assault took place. This has caused a substantial drop in her
grades and she could not continue to attend classes or participate in band or cheerleading.
184. Plaintiff AB was entitled, under Substantive and Procedural Due Process, to a speedy
determination of her requests for assistance in her education program so that she would
continue to be successful after the sexual assault. The faculty’s repeated lack of response
or a minimal response fell short of this standard.
185. Plaintiff AB repeatedly requested that she received proper and adequate support in her
education program but was denied.
186. Plaintiff AB made requests to be provided information regarding the investigation for
the sexual assault and the aftermath of sex-based harassment but she was denied.
187. Defendants failed to advise Plaintiff AB that she was entitled to file a Title IX
Complaint and failed to identify any appeal process she may have had when Defendants
allowed TB to return to school in the classroom and athletics.
188. Plaintiff AB is informed and believes, and thereon alleges, that the individual
Defendants by engaging in the aforementioned acts engaged in willful, malicious,
intentional, oppressive and despicable conduct, and acted with willful and conscious
disregard of Plaintiff AB’s rights, welfare, safety, and sensibilities, thereby justifying an
award of damages in an amount to be determined at trial.

30

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.83 Page 31 of 33

189. Defendants, acting under color of law, have denied Plaintiff AB her right to procedural
due process and the manner in which she was treated is completely arbitrary and
capricious.
190. The Fifth Amendment to the Constitution made applicable to the states by the
Fourteenth Amendment, prohibits persons acting under the color of the law, i.e., taking
their property without justification, and acting outrageously and with intention to deprive
persons of property and related rights.
191. Plaintiff AB has both a property interest and a liberty interest in her continued
enrollment at Benton Harbor High School, and that the Defendants’ conduct or lack
thereof unconstitutionally deprived her of both.
192. The courts have conceded that a student enrolled in a academic program has a property
interest in the continuation of that education and that Plaintiff AB was denied this right
when she was forced to homeschooling and then moving to another school district.
193. By the aforesaid acts and omissions of Defendants, and each of them, Plaintiff AB has
been directly and legally caused to suffer actual damages including, but not limited to,
damages for Plaintiff AB’s psychological and emotional distress and damages, loss of
standing in her community, damage to her reputation, and her family’s unreimbursed out
of pocket expenses incurred in response to these circumstances loss of earnings and
future earning capacity, attorney’s fees, costs of suit and other pecuniary loss not
presently ascertained, for which Plaintiff AB will seek leave of Court to amend when
ascertained.

31

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.84 Page 32 of 33

194. As a result of Defendants’ acts as alleged herein, Plaintiffs pray for such relief as
appropriate, including reasonable attorney’s fees and costs of suit as provided in
Michigan and Federal Code.
WHEREFORE, Plaintiffs respectfully request judgment in their favor and against
Defendants Benton Harbor School District, and Defendants Walker, Tripplett, and Robinson,
as follows:
A. Compensatory damages for Plaintiff AB’s psychological and emotional distress and damages,
loss of standing in her community, damage to her reputation, and her family’s unreimbursed out
of pocket expenses incurred in response to these circumstances;
B. Punitive damages;
C. Injunctive relief requiring Defendant School District to take effective steps to prevent sexbased discrimination and harassment, including sexual assault, in its education programs; fully
investigate conduct that may constitute sex-based harassment and /or sexual assault;
appropriately respond to all conduct that may constitute sex-based harassment and /or sexual
assault; and mitigate the effects of harassment and/or assault including by eliminating any hostile
environment that may arise from or contribute to it.
D. Statutory interest;
E. Costs; and
F. Reasonable attorney fees.
JURY DEMAND
Now Comes the Plaintiffs, AB and Sharee Brooks, by and through their attorney, Bruch
Law Offices, PLLC, and demand a trial by jury.

32

 Case 1:17-cv-00093-RJJ-ESC ECF No. 7 filed 02/08/17 PageID.85 Page 33 of 33

BRUCH LAW OFFICES, PLLC
/s/ Marlo D. Bruch
_____________________________
Marlo D. Bruch (P70362)
Attorney for Plaintiffs
Bruch Law Offices, PLLC
229 E. Michigan Ave., Suite 245-A
Kalamazoo, MI 49007
Tele: (269) 312-8169
Fax (269) 743-1181

Dated: February 8, 2017

33