Professional Documents
Culture Documents
Former Seeley Swan Student Sues Over Alleged Harassment
Former Seeley Swan Student Sues Over Alleged Harassment
Lawrence E. Henke
David L. Vicevich
Vicevich Law
3738 Harrison Ave.
Butte, MT 59701
Telephone: (406) 782-1111
Fax No.: (406) 782-4000
[email protected]
[email protected]
State Bar of MT No. 42337024/4791
DEIDRE LECHOWSKI-MERCADO, )
and OWEN MERCADO, ) Cause No. __________
)
)
)
Plaintiffs, )
) COMPLAINT AND
vs. ) DEMAND FOR JURY TRIAL
)
SEELEY SWAN HIGH SCHOOL, )
and MISSOULA COUNTY PUBLIC )
SCHOOL DISTRICT, a department )
Of MISSOULA COUNTY, MT )
)
Defendants. )
)
by and through their counsel, Lawrence E. Henke, and for their Complaint against
I.
Parties
3. Defendant Seeley Swan High School is a public high school located at 456 Airport
Rd., P.O. Box 416, Seeley Lake, MT 59868, located in Missoula County, MT.
II.
Venue and Jurisdiction
28 U.S.C. § 1391(b)(2).
6. This Court has personal jurisdiction over the parties to this lawsuit because all
7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
8. All conditions precedent for demand to a county government agency have been
satisfied.
III.
Summary of the Lawsuit
and teachers alike at Seeley Swan High School (“SSHS”). These words have
10. SSHS and Missoula County Public School District (“MCPSD”) were made aware
of the student activity against Owen, eighteen (18) known offender students were
identified to SSHS and MCPSD, and they were advised further that at least three
(3) teachers were also discrimination perpetrators, and they – SSHS and MCPSD
– did not address the discrimination and harassment in accord with their duties
and the law, specifically, but not limited to the BULLY-FREE MONTANA ACT,
11. Both SSHS and MCPSD were negligent in the handling of the multiple reports of
his severe emotional distress, and predictable and foreseeable severe emotional
been engaging in a prolonged battle with SSHS and MCPSD to get them to
properly react to this discrimination and harassment, but all efforts have been met
12. SSHS and MCPSD both tolerated and actively participated in discrimination
against Owen that targeted (i) Owen’s race, (ii) Owen’s national origin, (iii)
person or government entity acting under the color of law; any such actor is
14. The Montana Constitution guarantees “[t]he dignity of the human being is
inviolable. No person shall be denied the equal protection of the laws. Neither
the state nor any person, firm, corporation, or institution shall discriminate
against any person in the exercise of his civil or political rights on account of
15. Defendants’ systemic tolerance of, and participation in, the ongoing
discrimination, and their negligent reaction and response to the reports of the
created for the explicit purpose of using the Internet, with a SSHS dedicated site,
17. The web-based harassment device – entitled “13C” for the SSHS athletic
intentional indifference; and, this site was even used by at least one school district
IV.
Background Facts
18. Owen was a minority adolescent who attended SSHS, which is a high school
19. At the time of his attendance as SSHS, Owen was a minor; he turned 18 in April
2020.
20. Owen is ¼ Afro-Caribbean, meaning that he is considered black for all intents
and purposes under the law; he is a member of a protected class under federal
21. In September 2018, SSHS Student HC called Owen a “NIGGER” while they
22. SSHS Principal, Dr. Pecora, was informed of the incident involving racial
25. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
26. The SSHS Administration did not make a referral of the conduct, which is a
27. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of such students
28. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
29. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
30. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
while they were on school property and during school hours, and the
and race, were reported to Dr. Kathleen Pecora and the MCPSD administration
law.
policy.
35. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
36. The SSHS Administration did not make a referral of the conduct, which is a
37. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of such students
38. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
39. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
40. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
41. In Fall semester of 2018, Students BS, TC, AS, HC, JL, SJ, and SM called
42. The comments from these students were coupled with derogatory and
43. This unwanted sexual harassment was reported to SSHS Coach Michael Haines
44. SSHS and Coach Haines’ response was merely to tell Owen to ignore the
45. Coach Haines did not investigate the matter, nor did he elevate the matter to the
SSHS Administration.
46. What Coach Haines did do, however, was to tacitly approve of the sexual
harassment of Owen, based on his gender, and gave approval to the sexual
nor did it properly respond to the harassment and discriminatory conduct of the
nor did it properly respond to the harassment and discriminatory conduct of the
49. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
50. The SSHS Administration did not make a referral of the conduct, which is a
51. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of BS, TC, AS,
52. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
53. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
54. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
55. In the Fall Semester of 2018, female Student AM2 sexually harassed Owen by
and “PIECE OF SHIT” when referring to Owen to other female students while
on school property.
57. Rather than report the incidents to the SSHS Administration as required by
policy, however, Ms. Quinn – a SSHS employee and teacher – further stoked
1
A fuckboy (sometimes stylized “fuckboi” or “fuccboi”) is a Millennial derogatory term for a straight male embodying
something akin to the “man whore“ label and considered disparaging or accusatory of being misogynistic.
nor did it properly respond to the harassment and discriminatory conduct of the
nor did it properly respond to the harassment and discriminatory conduct of the
61. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
62. The SSHS Administration did not make a referral of the conduct, which is a
63. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of AM2, if she
was a minor.
64. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
65. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
66. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
69. The theft was reported to Dr. Pecora by Deidre in person on the same week the
theft occurred.
70. Later, the shoes were found in a Facebook post belonging to SSHS female
71. The stolen property was reported to police by Owen; SSHS did not report the
theft.
73. SSHS school administrators did not investigate the theft, investigate the
possession of stolen property by a SSHS student, nor did it take any remedial
74. In April 2019, Students BS, TC, AS, HC, JL, SJ, and SM called Owen a
75. This unwanted sexual harassment was reported to Coach Haines by Owen in
person.
76. Coach Haines again responded by telling Owen to ignore the allegations and
the sexual harassment, now continuing unabated from the first reporting.
77. Coach Haines did not investigate the matter; he did not elevate the matter to the
administration.
78. Coach Haines did not take any remedial action against Students BS, TC, AS,
79. Coach Haines’ conduct tacitly approved of the sexual harassment of Owen,
based on his gender, and gave approval to the known sexual harassers to engage
nor did it properly respond to the harassment and discriminatory conduct of the
nor did it properly respond to the harassment and discriminatory conduct of the
83. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
84. The SSHS Administration did not make a referral of the conduct, which is a
85. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of BS, TC, AS,
86. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
87. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
88. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
conduct of the students, but failure to properly investigate and report the
90. In April 2019, female Student AM1 called Owen a “FUCKBOI” on multiple
occasions. Each of these occurrences occurred while AM1 and Owen were on
school property.
on Owen’s gender, were reported to teacher Carissa Quinn in the fall semester
92. Rather than investigate or report the gender discrimination, Ms. Quinn
conduct that evidenced the SSHS overt approval of the sexual harassment of
Owen, based on his gender, and gave approval to the known harassers to engage
94. On August 5, 2019, Deidre met in person with new Principal Kellen Palmer in
his SSHS office, where she reported to Mr. Palmer each of the Past Occurrences
(paragraphs 18 – 93, supra) and she expressed significant anger over the SSHS
and MCPSD’s non-reaction to the accepted and tolerated, pervasive pattern and
95. On this date, Deidre also advised Principal Palmer of Owen’s disability; Palmer
was specifically told that Owen suffered from clinical depression – a recognized
amended.
96. Deidre made the reasonable accommodation request of SSHS, through a direct
plea that the Principal take actions to eliminate the known harassing
and identified harassers as of that date, HC, BH1, DW, BH2, BS, TC, AS, JL,
97. SSHS violated Title IX, state law, and the internal policies of MCPSD in failing
prohibited by Title IX, the ADA, District policy, and Montana law.
98. SSHS violated the ADA and the Part 35 Nondiscrimination on the Basis of
Disability in State and Local Government Services (as amended by the final
property and by school students, and in at least three cases, by SSHS employees.
100. On August 12, 2019, Owen’s car was vandalized in the SSHS parking lot while
101. The car vandalism was both a criminal damage of another person’s property on
102. The word “FAGGOT” was written on the car and there were multiple penises
103. The vandalism was witnessed by SSHS Coach Jared Crum, who sent a text
message to Owen stating: “Dude, you u have [sic] pornography art on ur [sic]
car.”
104. This was an inappropriate response to a crime having been committed against
105. The failure of SSHS Coach Crum to investigate or report the sexual harassment
106. The continued and escalating nature of the harassment was a foreseeable
107. The continued and escalating nature of the harassment was a foreseeable
discrimination by at least two, and now a third SSHS employee and against
Owen, while on school property, during school hours, and while participating
108. The incident of sexual harassment and vandalism against Owen was not
109. Under Montana law, M.C.A. § 45-5-221, a person commits the offense of
offend:
M.C.A. § 45-5-221.
110. The criminal conduct on school property was reported to SSHS; however, no
111. SSHS Principal Palmer merely responded to the reported harassing conduct by
explaining to the complainant that, inexplicably, the security cameras were not
working in the area otherwise covered by security cameras, but he would “look
112. The SSHS inaction was, in fact, a demonstrated approval of the continuing, and
nor did it properly respond to the harassment and discriminatory conduct of the
nor did it properly respond to the harassment and discriminatory conduct of the
117. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
118. The SSHS Administration did not make a referral of the conduct, which is a
appropriate jurisdiction.
119. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian the students, if
120. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
121. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
122. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
accepting the gender discrimination against Owen, nor did it properly respond
124. SSHS and MCPSD’s continued failure to properly investigate and react to the
125. In September of 2019, for a second time, SSHS Student HC called Owen a
126. This unwanted racial discrimination was reported, for a second time, to
127. The SSHS Administration, for a second time, conducted no investigation of the
racial discrimination, nor did it properly respond to the racial bigotry and
130. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
131. Under Montana law, M.C.A. § 45-5-220, a person commits the offense of
directed at a specific person and knows or should know that the course of
(a) fear for the person's own safety or the safety of a third person; or
(b) suffer other substantial emotional distress.
second time, to Principal Palmer in September 2019, was prima facia evidence
victim student was identified to Palmer; and, the suspect student was identified
to Palmer.
133. The SSHS Administration did not make a referral of the conduct, which is a
appropriate jurisdiction.
134. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of HC, now a
135. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
exacerbated in this instance by the fact that the offender was a repeat offender.
136. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
137. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
138. The SSHS inaction was, in fact, a demonstrated approval of the continuing, and
the known and repeat offender student harasser – HC – who was the reported
offender for the same racial discrimination in September 2018, and the SSHS
discriminatory conduct.
139. In September of 2019, Students DG, CG, BH2, CH, and HD call Owen a
“NIGGER” on multiple occasions; all are students and all occurrences occurred
140. This unwanted racial discrimination was reported to Principal Palmer and
September 2019.
141. Neither SSHS nor MCPSD responded in accord with state law, federal law, and
District policy.
145. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
146. The SSHS Administration did not make a referral of the conduct, which is a
147. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of DG, CG, BH2,
148. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
149. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
150. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
151. The continued and escalating nature of the harassment was a foreseeable
identified cadre of over a dozen students and against Owen, while on school
activities.
152. The incident of racial discrimination against Owen was not investigated by
Principal Palmer; it was not investigated by MCPSD; and, neither SSHS nor
MCPSD did any type of Title VI follow up or response to the reported racial
discrimination, despite the fact that the racial harassment was persistent, severe,
and/or repeated, and despite the fact the perpetrators were identified.
153. In the Fall Semester of 2019, female student AM2 continued, for now a second
Owen to other female students while on school property during school hours.
reported to and witnessed by Ms. Quinn, for a second time, as this generally
155. Ms. Quinn, for a second time, did not dissuade the conduct, she did not report
the harassment to the SSHS Administration, nor did she punish AM2.
nor did it properly respond to the sexual harassment, racial bigotry and
and gender discrimination, nor did it properly respond to the sexual harassment
159. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
160. Under Montana law, M.C.A. § 45-5-220, a person commits the offense of
directed at a specific person and knows or should know that the course of
(a) fear for the person's own safety or the safety of a third person; or
(b) suffer other substantial emotional distress.
161. Under Montana law, M.C.A. § 45-5-220 (2), course of conduct is defined as
two or more acts, including but not limited to acts in which the offender directly
162. The unwanted, second offense of sexual harassment by AM2 reported, for a
second time, to Principal Kellen Palmer in the Fall of 2019, was prima facia
student; the victim student was identified to Palmer; and, the suspect female
163. The SSHS Administration did not make a referral of the conduct, which is a
164. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of AM2, now a
165. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
exacerbated in this instance by the fact that the offender was a repeat offender.
166. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
167. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
168. The incident of sexual harassment against Owen was not investigated by SSHS
due to SSHS employee conduct and inaction; it was not investigated by MCPSD
due to SSHS failing to properly supervise its teachers; and, neither SSHS nor
MCPSD did any type of Title IX follow up or response to the known sexual
169. On November 7, 2019, Owen’s car was again vandalized, for a second time,
while parked on SSHS property, and then, for a second time, subjected to
170. Owen’s car was drenched in milk and soda, creating the debris base for the
171. This second incident of criminal vandalism and sexual harassment was reported
p.m..
172. The SSHS Administration conducted no investigation of the criminal act or the
sexual harassment, nor did it properly respond to the criminal act, the racial
174. The SSHS Administration conducted no investigation of the criminal act or the
175. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
176. The SSHS Administration did not make a referral of the conduct, which is a
177. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of the student or
178. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
exacerbated in this instance by the fact that the offender was a repeat offender.
179. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
180. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
181. This second incident of sexual harassment and criminal vandalism was the
employees and an identified cadre of over a dozen students and against Owen,
while on school property, during school hours, and while participating in school
sponsored activities.
182. The incident of sexual discrimination against Owen, and the second such event
not investigated by MCPSD; and, neither SSHS nor MCPSD did any type of
discrimination.
183. On November 12, 2019, SSHS Student SJ was in a class on SSHS property with
184. The photo was electronically sent to at least two other people, SSHS Student
SM (15 years old) and Owen (17 years old), with a technologically added
185. The manual insertion of the penis on the photograph by SSHS student SJ was
M.C.A. § 45-5-625
186. Under Montana law, M.C.A. § 45-5-625, a person commits the offense of
sexual abuse of children if the person knowingly employs, uses, or permits the
188. Under Montana law, M.C.A. § 45-8-201, a person commits the offense of
obscenity when, with knowledge of the obscene nature of the material, the
M.C.A. § 45-8-201.
190. Under Montana law, M.C.A. § 45-8-213, a person commits the offense of
191. The photographing incident (para. 185) was reported to Principal Palmer by
15, 2020 by email established prima facia evidence to Palmer that a crime(s)
had occurred on SSHS property and Owen was the victim; the photographing
SSHS property and SM was the victim; and the photographing incident reported
facia evidence to Palmer that a crime(s) had occurred on SSHS property and SJ
193. The SSHS Administration conducted no investigation of the criminal act or the
sexual harassment, nor did it properly respond to the criminal act, the racial
194. No actions were taken against SJ for the act of sexual harassment against Owen;
196. The SSHS Administration conducted no investigation of the criminal act or the
197. The SSHS Administration did not make a determination whether the reported
discriminatory act was subject to the jurisdiction of the school district or another
198. The SSHS Administration did not make a referral of the conduct, which is a
jurisdiction.
199. The SSHS Administration did not make prompt notification of the alleged
victim and the alleged perpetrator, or the parents or guardian of the student or
200. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
exacerbated in this instance by the fact that the offender was a repeat offender.
201. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
202. The SSHS Administration did not follow the District procedure, if any such
procedure exists, for the use of appropriate intervention and remediation for
203. On December 27, 2019, the subject matter of the Occurrences identified in the
Deidre by email.
204. MCPSD did not investigate the thirteen (13) individual prior incidents of
205. Under Montana law, M.C.A. § 45-5-220, a person commits the offense of
directed at a specific person and knows or should know that the course of
(a) fear for the person's own safety or the safety of a third person; or
(b) suffer other substantial emotional distress.
206. MCPSD did not investigate the SSHS involvement in prior incidents of reported
conduct.
207. MCSD did not conduct any Title IX investigations, or any investigation
conducted was done so negligently, in that the procedural and civil rights
208. These numerous acts against Owen constitute severe, pervasive, and objectively
SSHS teacher, which violate Title IX and violate Owen’s federal civil rights.
209. On January 16, 2020, Owen was accosted and attacked by 8th Grade Student
210. The January 16, 2020 incident involved aggressive conduct by CH toward
211. The January 16, 2020 attack on Owen, premised upon the continued and
escalating nature of the past known and reported harassment of Owen by SSHS
at least three SSHS employees and an identified cadre of over a dozen students
and against Owen, while on school property, during school hours, and while
212. The SSHS inaction was, as it turns out, a demonstrated approval of the
offender HC, for the same type of racial discrimination in September 2018, and
213. The racially and sexually motivated January 16, 2020 attack on Owen was
against Owen, see paragraph 184, supra, and it was known or knowable that
214. The racially and sexually motivated January 16, 2020 attack on Owen was
known of and discovered by SSHS Coach Jared Crum on the date of the
incident.
215. Coach Crum failed to properly investigate the incident, he failed to follow
216. Following the January 16, 2020 racially and sexually motivated incident started
by white students, with a history of past racial discrimination against this Afro-
217. Those students were gathered by Coach Crum, who then engaged in racially
of the January 16, 2020 incident by inducing the witnesses to provide false
statements.
218. Since the incident, four (4) of the ten (10) student witnesses have either recanted
their prior statements entirely or stated that what happened did not have the
219. The January 16, 2020 incident was initially investigated by Principal Palmer,
220. The racially motivated assault by CH, however, was not properly investigated;
the school violated its own policies; and, SSHS violated Owen’s civil rights in
the process.
221. The racially motivated conduct by Coach Crum was not properly investigated;
the school violated its own policies; and, SSHS violated Owen’s civil rights in
the process.
222. At the conclusion of the Palmer investigation and report, Owen was given a
223. The suspension was not supported by the facts of the incident; it reflected a
discriminatory and retaliatory motivation; and, the suspension decision did not
address the mitigating factors of the racially motivated intent of the attacker,
suspension indefinitely.
225. As a result of Principal Palmer’s decision, Owen was not allowed on School
grounds for the remainder of the school year and he was unjustly deprived of
the benefits of an education, the ability to participate in sports, and given the
226. The suspension violated Owen’s civil rights; it was racially motivated; and, the
actions taken by SSHS violated Owen’s due process rights under Title IX and
the required process protections established by Goss v. Lopez, 419 U.S. 565
(1975).
227. Due to the school administrators’ wanton and reckless disregard of Owen’s
Constitutional Rights and the Title IX due process protections that were
violated, such as the right to know the evidence used against him, failure to use
complainant, failing to state that Owen was presumed innocent of all the
charges, the right to be free from retaliation, that was unreasonable in light of
the circumstances, the School was negligent in the suspension action(s) taken.
228. Owen has suffered from severe emotional distress as a result of, including but
racial bigotry thrust upon him by SSHS Students, eighteen (18) identified and
others not, racial bigotry and harassment condoned and practiced by SSHS
diagnoses of professional mental health care providers who have treated Owen:
231. The SSHS systematic tolerance of this student activity, and in three cases a
(i) investigating, (ii) responding to, and (iii) preventing future harassing conduct
M.C.A. § 49-1-102.
and mandates under other statutes and regulations, as well as the common law,
234. MCPSD had been advised of at least nineteen (19) specific incidents of sexual
faculty and administration, and at least seven (7) criminal acts perpetrated
against Owen.
235. MCPSD was on notice of the issues involving the discrimination, harassment,
criminal acts, and violation of civil rights by SSHS and against Owen.
236. MCPSD was negligent in response to the nineteen (19) reported incidents.
239. MCPSD was negligent in the performance if its Title IX obligations required
by statute.
240. MCPSD has by action and/or inaction, MCSD violated Owen’s federal civil
rights. MCSD has by action and/or inaction violated Owen’s state guaranteed
discriminatory conduct.
241. MCPSD has caused Owen severe emotional distress; MCSD has caused Deidre
243. SSHS was notified of Owen’s disabilities on August 5, 2019 by Deidre when
244. Deidre specifically told Principal Palmer that Owen suffered from anxiety and
and discrimination and she asked for a dispute resolution process to be initiated
that would result in a safe, discrimination free school environment for her son,
Owen.
247. Prior to the request for reasonable accommodations, Owen had been the victim
248. Prior to the request for reasonable accommodations, Owen and Deidre had
249. The reported incidents were not properly investigated by SSHS; the student
harassing activity.
251. The reported criminal incidents were not properly investigated by SSHS; the
dissuaded from future discriminatory and/or harassing activity, and SSHS did
enforcement.
252. On August 5, 2019 the request for SSHS to provide a safe school for Owen was
conduct and the likelihood for future harassment and discrimination; Not
surprisingly, and in prophetic fashion, on August 12, 2019 the next act of
253. SSHS/Palmer did not react to the incidents of verbal bigotry, harassment and
reporting and knowledge of SSHS. Exactly one week after being forewarned
conduct – to which he refused and/or failed to react – yet another criminal act
254. Since the request for reasonable accommodation was made, an additional eight
repeat offenders as reported and identified to Palmer before the request for
reasonable accommodation.
34 CFR § 300.101.
256. Because SSHS was informed of the diagnoses of Owen as a disabled person,
the school knew about as of August 5, 2019, that triggered SSHS’ duty to
257. The cause of Owen’s emotional distress was known and reported to SSHS.
2
FAPE is Free Appropriate Public Education for disabled students, which was an amendment to the Individuals
with Disabilities Education Act (“IDEA”). Section 504 of the Rehabilitation Act of 1973.
258. The result of the discrimination and harassment were the triggers for the
259. Owen’s medical diagnosis stated that his disabilities were in response to
which SSHS was aware, and responsible for indirectly in the failure to supervise
teachers/coaches.
260. The SSHS and/or MCPSD reaction to these reported incidents, or the lack
thereof, was negligent and Defendants breached their duties to Owen and
Deidre, while also causing severe emotional distress by their actions and/or
inaction.
261. The additional incidents after the request for reasonable accommodations,
coupled with the already permitted harm from prior incidents resulted in an
262. On November 10, 2019, Deidre made a second plea for reasonable
and
263. SSHS (Principal Palmer) and MCPSD (Julie Robitaille) ignored Deidre’s
264. SSHS failed by, including but not limited to, not providing an Individualized
should have been discussed with the parent and utilized by the school.
265. Principal Palmer and Ms. Robitaille offered no response to nor explanation why
the School (SSHS and Palmer) and the District (Robitaille) allowed the ongoing
266. SSHS had been on notice from at least October 2018 that Owen suffered from
267. Because if its knowledge, and premised at least in part on statutory obligations,
268. SSHS and MCSD have violated the ADA, IDEA, FAPE, and Section 504 of the
Rehabilitation Act of 1973 and infringed Owen’s civil rights that provide he be
269. On February 10, 2020 Deidre made a third formal request for reasonable
accommodation for Owen from Principal Palmer that (i) sought rectification of
response to Owen’s depression and severe anxiety in its educational plan, and
(iii) treatment for Owen’s depression and severe anxiety caused by SSHS.
270. SSHS (Principal Palmer) and MCSD (Julie Robitaille) responded that (i) the
Seely Swan school is too small to offer services for Owen and his depression
(in violation of FAPE since SSHS is a recipient of federal funds), but (ii) offered
no response nor explanation for the ongoing harassment which is the genesis of
271. The SSHS response to this, the third, request for reasonable accommodation
and Title IX treatment, was to send Owen to the Willard School and The
272. SSHS and MCPSD failed to provide the proper response, according to IDEA
guidance, which is to make every effort to help a disabled child by keeping the
involved with this referral. Likewise, it was detrimental to Owen to refer him
to the Learning Lab and Willard School when that institution is not the
accommodation that was needed nor requested; the referral was, in fact,
retaliatory.
273. SSHS and MCPSD violated 20 U.S.C. § 1415(b)(1)(C) by not notifying Deidre
274. 20 U.S.C. § 1415(b)(1)(C) requires that parents must receive prior written
feasible.
276. SSHS violated the ADA, in that it provided no response to the ongoing
feasible.
278. The improvident SSHS referral of Owen to the Willard School, without an IEP,
the negligence by SSHS in dealing with the ongoing racial discrimination and
sexual harassment at SSHS, and the “knee jerk” reaction SSHS had to this entire
situation.
279. MCPSD (Julie Robitaille) and SSHS (Principal Palmer) sent Owen to the
“Learning Lab” with no explanation why he could not stay at SSHS; with no
rational basis as to how this transfer would diminish the pervasive harassing
knowledge as to how this transfer would serve to mitigate the emotional distress
and severe anxiety disability Owen already suffered from due to the SSHS
280. Deidre was given no opportunity to participate in this decision about her
281. The SSHS and MCPSD decision was not a joint school-parental action plan,
282. Deidre was not given the chance to appeal the school’s unilateral decision of
283. MCPSD (Julie Robitaille), without consultation from the parent, arranged for a
one-on-one tutor for Owen where he was kept out of the general population at
SSHS, which is an additional violation of IDEA that requires that a parent must
284. SSHS and MCSD have discriminated against Owen in the terms and conditions
M.C.A. § 49-1-102.
285. The severe emotional distress was a foreseeable and predictable consequence
of the nature, prevalence, and sheer abhorrence of the racial bigotry Owen
286. SSHS and MCPSD displayed a severe degree of malfeasance and misfeasance
SSHS to such a degree that (i) it was pervasive and seen as approved conduct
288. 13C Meme page specifically mentions Owen and depicts the fact that the
individual that created the meme wishes to keep Owen out of the SSHS school.
289. According to Instagram™ account information, the post was created by BH,
290. BH created the post, presumably with the additional text inserted onto the
photo/meme, and submitted the meme post to 13C Meme page via direct
13c_meme_page account.
293. What this demonstrates is that the harassment and ridicule of students at SSHS
has become so accepted and tolerated by the SSHS Administration that it – the
practice of harassing students – has gotten its own web site to facilitate the
SSHS practice.
294. The harm created by the existence of this web site, dedicated to the SSHS
the fact that, upon information and belief, the site is known to and used by SSHS
SSHS employee(s).
the harassment directly related to Seely Swan High School, was seen by and
296. The level of distribution of this site includes the 266 followers who can view
the post, the 116 followers of the post, and the 80 different people on this site
an employee of SSHS.
The employee site and the 13C Meme page
Redacted SSHS are both used by SSHS students, and there
Employee Information is a commonality of the user “ryland692” on
both pages.
299. Upon information and belief, SSHS by and through this employee has actively
discrimination and harassment, despite each and every act being premised on
the protected class status of Owen, created such a pervasive and permissive
in at least three cases the employees of SSHS, to commit an act forbidden under
301. The continued and permitted discrimination and harassment at the SSHS
unknown, and by at least three SSHS employed, was so expansive and endured
so long that it is by definition persistent, severe and repeated, such that the
302. The continued and permitted discrimination and harassment at the SSHS
unknown, and by at least three SSHS employed, was so expansive and endured
so long that it is by definition persistent, severe and repeated, such that the
conduct, and inaction of SSHS that it aided, abetted, compelled, or coerced the
Students, and in at least three cases the employees of SSHS, to commit acts of
303. Each and every one of the crimes ignored by SSHS, committed against Owen,
and perpetrated by known and reported SSHS Students, was also subject to
sentence enhancement under the “Hate Crimes” enhancing statute M.C.A. § 45-
5-222, which generally provides for an additional sentence for acts committed
V.
Claims and Causes of Action
COUNT 1
NEGLIGENCE :
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT:
BREACH IN FAILING TO PROVIDE AN EDUCATIONAL INSTITUTION FREE FROM RACIAL
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM
RACIAL DISCRIMINATION
304. Plaintiff herein realleges paragraphs 1 through 303 above as though fully set
forth herein.
305. SSHS and MCPSD owed a duty to Owen to provide a safe, discrimination free,
306. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen based on the protected
307. SSHS, after knowing about harassment and discrimination, failed to respond to
the known and reported acts of racial bigotry, discrimination and harassment;
to the known and reported acts of racial bigotry, discrimination and harassment.
308. Neither SSHS nor MCPSD responded to the racial discrimination in accord
309. The SSHS Administration and/or the MCPSD conducted no investigation of the
racially motivated harassment, nor did they properly respond to the harassment
law.
312. The SSHS Administration and/or MCPSD did not make a determination
whether the reported discriminatory act was subject to the jurisdiction of the
313. The SSHS Administration and/or MCPSD did not make a referral of the racial
314. The SSHS Administration and/or MCPSD did not make prompt notification of
the alleged victim and the alleged perpetrator, or the parents or guardian of the
315. The SSHS Administration and/or MCPSD did not enact the District procedure,
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
316. The SSHS Administration and/or MCPSD did not enforce the disciplinary
MONTANA ACT.
317. The SSHS Administration and/or MCPSD did not follow the District procedure,
if any such procedure exists, for the use of appropriate intervention and
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT.
318. The continued and escalating nature of the harassment was a foreseeable
employees and an identified cadre of over a dozen students and against Owen,
while on school property, during school hours, and while participating in school
sponsored activities.
319. The incidents of racial discrimination against Owen were not investigated by
Principal Palmer; they were not investigated by MCPSD; and, neither SSHS
nor MCPSD did any type of Title IX follow up or response to the reported racial
discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
320. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
321. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 2
NEGLIGENCE:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT:
BREACH IN FAILING TO PROVIDE AN EDUCATIONAL INSTITUTION FREE FROM RACIAL
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM
DISCRIMINATION BASED ON COLOR
322. Plaintiff herein realleges paragraphs 1 through 321 above as though fully set
forth herein.
323. SSHS and MCPSD owed a duty to Owen to provide a safe, discrimination free,
324. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen based on the protected
325. SSHS, after knowing about harassment and discrimination, failed to respond to
the known and reported acts of racial bigotry, discrimination and harassment;
to the known and reported acts of racial bigotry, discrimination and harassment
326. Neither SSHS nor MCPSD responded to the racial/skin color discrimination in
327. The SSHS Administration and/or the MCPSD conducted no investigation of the
racially motivated harassment, nor did they properly respond to the harassment
law.
330. The SSHS Administration and/or MCPSD did not make a determination
whether the reported discriminatory act was subject to the jurisdiction of the
331. The SSHS Administration and/or MCPSD did not make a referral of the
332. The SSHS Administration and/or MCPSD did not make prompt notification of
the alleged victim and the alleged perpetrator, or the parents or guardian of the
333. The SSHS Administration and/or MCPSD did not enact the District procedure,
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
334. The SSHS Administration and/or MCPSD did not enforce the disciplinary
MONTANA ACT.
335. The SSHS Administration and/or MCPSD did not follow the District procedure,
if any such procedure exists, for the use of appropriate intervention and
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT.
336. The continued and escalating nature of the harassment was a foreseeable
employees and an identified cadre of over a dozen students and against Owen,
while on school property, during school hours, and while participating in school
sponsored activities.
337. The incidents of racial discrimination against Owen were not investigated by
Principal Palmer; they were not investigated by MCPSD; and, neither SSHS
nor MCPSD did any type of Title IX follow up or response to the reported racial
discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
338. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
339. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 3
NEGLIGENCE:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT:
BREACH IN FAILING TO PROVIDE AN EDUCATIONAL INSTITUTION FREE FROM RACIAL
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM DISCRIMINATION
BASED ON NATIONAL ORIGIN
340. Plaintiff herein realleges paragraphs 1 through 339 above as though fully set
forth herein.
341. SSHS and MCPSD owed a duty to Owen to provide a safe, discrimination free,
342. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen based on the protected
343. SSHS, after knowing about harassment and discrimination, failed to respond to
the known and reported acts of racial bigotry, discrimination and harassment;
to the known and reported acts of racial bigotry, discrimination and harassment
discrimination in accord with state law, federal law, and District policy.
345. The SSHS Administration and/or the MCPSD conducted no investigation of the
racially motivated harassment, nor did they properly respond to the harassment
law.
348. The SSHS Administration and/or MCPSD did not make a determination
whether the reported discriminatory act was subject to the jurisdiction of the
349. The SSHS Administration and/or MCPSD did not make a referral of the
350. The SSHS Administration and/or MCPSD did not make prompt notification of
the alleged victim and the alleged perpetrator, or the parents or guardian of the
351. The SSHS Administration and/or MCPSD did not enact the District procedure,
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
352. The SSHS Administration and/or MCPSD did not enforce the disciplinary
MONTANA ACT.
353. The SSHS Administration and/or MCPSD did not follow the District procedure,
if any such procedure exists, for the use of appropriate intervention and
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT.
354. The continued and escalating nature of the harassment was a foreseeable
employees and an identified cadre of over a dozen students and against Owen,
while on school property, during school hours, and while participating in school
sponsored activities.
355. The incidents of racial discrimination against Owen were not investigated by
Principal Palmer; they were not investigated by MCPSD; and, neither SSHS
nor MCPSD did any type of Title IX follow up or response to the reported racial
discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
356. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
357. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 4
NEGLIGENCE:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT:
BREACH IN FAILING TO PROVIDE AN EDUCATIONAL INSTITUTION FREE FROM RACIAL
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM DISCRIMINATION
BASED ON GENDER
358. Plaintiff herein realleges paragraphs 1 through 357 above as though fully set
forth herein.
359. SSHS and MCPSD owed a duty to Owen to provide a safe, discrimination free,
360. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen based on the protected class
status of gender.
361. SSHS, after knowing about sexual harassment and discrimination, failed to
respond to the known and reported acts of racial bigotry, gender discrimination
and sexual harassment; MCPSD, after knowing about sexual harassment and
gender discrimination, failed to respond to the known and reported acts of racial
362. Neither SSHS nor MCPSD responded to the gender discrimination in accord
363. The SSHS Administration and/or the MCPSD conducted no investigation of the
gender motivated sexual harassment, nor did they properly respond to the
gender motivated sexual harassment, nor did it properly respond to the sexual
policy.
366. The SSHS Administration and/or MCPSD did not make a determination
whether the reported discriminatory act was subject to the jurisdiction of the
367. The SSHS Administration and/or MCPSD did not make a referral of the gender
368. The SSHS Administration and/or MCPSD did not make prompt notification of
the alleged victim and the alleged perpetrator, or the parents or guardian of the
369. The SSHS Administration and/or MCPSD did not enact the District procedure,
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
370. The SSHS Administration and/or MCPSD did not enforce the disciplinary
MONTANA ACT.
371. The SSHS Administration and/or MCPSD did not follow the District procedure,
if any such procedure exists, for the use of appropriate intervention and
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT.
372. The continued and escalating nature of the harassment was a foreseeable
employees and an identified cadre of over a dozen students and against Owen,
while on school property, during school hours, and while participating in school
sponsored activities.
373. The incidents of racial discrimination against Owen were not investigated by
Principal Palmer; they were not investigated by MCPSD; and, neither SSHS
nor MCPSD did any type of Title VI follow up or response to the reported racial
discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
374. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
375. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 5
NEGLIGENCE:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
IN FAILING TO SUPERVISE STUDENTS
376. Plaintiff herein realleges paragraphs 1 through 375 above as though fully set
forth herein.
377. SSHS and MCPSD had a duty to supervise students and act as a reasonable and
378. SSHS and MCPSD had a duty to adopt policies to deter persistent threatening,
379. SSHS and MCPSD had a duty to supervise students and act as a reasonable and
and online.
380. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least eighteen (18) identified SSHS
Students.
381. SSHS, after knowing about harassment, discrimination, and/or criminal conduct
failed to respond to the known and reported acts of racial bigotry, discrimination,
SSHS Students, failed to respond to the known and reported acts of racial bigotry,
Owen.
382. Neither SSHS nor MCPSD responded to the pervasive discrimination and
student criminal conduct in accord with state law, federal law, and District
policy.
383. The SSHS Administration and/or the MCPSD conducted no investigation of the
nor did they, jointly and severally, or individually, properly respond to the acts
students.
nor did they properly respond to the acts of racial bigotry, discrimination,
by state law.
students, nor did it properly respond to the acts of racial bigotry, discrimination,
386. The SSHS Administration and/or MCPSD did not make a determination
conduct was subject to the jurisdiction of the school district or another public
387. The SSHS Administration and/or MCPSD did not make a referral of the acts of
appropriate jurisdiction.
388. The SSHS Administration and/or MCPSD did not make prompt notification of
the alleged victim and the alleged perpetrator, or the parents or guardian of the
389. The SSHS Administration and/or MCPSD did not enact the District procedure,
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
390. The SSHS Administration and/or MCPSD did not enforce the disciplinary
MONTANA ACT.
391. The SSHS Administration and/or MCPSD did not follow the District procedure,
if any such procedure exists, for the use of appropriate intervention and
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT,
392. The continued and escalating nature of the harassment was a foreseeable
criminal acts by at least three SSHS employees and an identified cadre of over
a dozen students and against Owen, while on school property, during school
Palmer; they were not investigated by MCPSD; and, neither SSHS nor MCPSD
discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
394. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
395. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 6
NEGLIGENCE:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
IN FAILING TO SUPERVISE STAFF
396. Plaintiff herein realleges paragraphs 1 through 395 above as though fully set
forth herein.
397. SSHS and MCPSD had a duty to supervise teachers and coaches and act as a
activities, and online, as well as any instances of teachers and staff engaging in
the same activity or advocating for the bullying activity, or tacitly or overtly
398. SSHS and MCPSD had a duty to adopt policies to deter persistent threatening,
399. SSHS and MCPSD had a duty to supervise students and act as a reasonable and
and online.
400. SSHS and MCPSD had a duty to train teachers and coaches about SSHS and
401. SSHS and MCPSD had a duty to supervise teachers and coaches in the
directed against a student or students regardless of the under reason for such
conduct.
402. SSHS and MCPSD had a duty to supervise staff and act as a reasonable and
and online, combined with the obligation to report suspected criminal acts by
403. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS Staff
404. SSHS, after knowing about harassment, discrimination, and/or criminal conduct
failed to respond to the known and reported acts of racial bigotry, discrimination,
conduct by SSHS Staff Members, failed to respond to the known and reported
405. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
406. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
Staff Members, nor did they properly respond to the acts of racial bigotry,
Staff Members, nor did it properly respond to the acts of racial bigotry,
409. The SSHS Administration and/or MCPSD did not make a determination
conduct of SSHS Staff Members was subject to the jurisdiction of the school
410. The SSHS Administration and/or MCPSD did not make a referral of the acts of
411. The SSHS Administration and/or MCPSD did not make prompt notification of
the alleged victim and the alleged perpetrator, or the parents or guardian of the
Staff Members.
412. The SSHS Administration and/or MCPSD did not enact the District procedure,
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
413. The SSHS Administration and/or MCPSD did not enforce the disciplinary
MONTANA ACT.
414. The SSHS Administration and/or MCPSD did not follow the District procedure,
if any such procedure exists, for the use of appropriate intervention and
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT,
415. The continued and escalating nature of the harassment was a foreseeable
criminal acts by at least three SSHS employees and an identified cadre of over
a dozen students and against Owen, while on school property, during school
Principal Palmer; they were not investigated by MCPSD; and, neither SSHS
nor MCPSD did any type of Title IX follow up or response to the reported racial
discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
417. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
418. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
419. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 6
NEGLIGENCE:
MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
IN FAILING TO SUPERVISE SEELY SWAN HIGH SCHOOL ADMINISTRATION
420. Plaintiff herein realleges paragraphs 1 through 419 above as though fully set
forth herein.
421. MCPSD had a duty to supervise SSHS Administrators, including but not limited
to Principals Kathleen Pecora and Kellen Palmer, and a duty to act as a reasonable
online.
instances of teachers and staff engaging in the same activity or advocating for the
staff engaging in the same activity or advocating for the bullying activity, or
425. MCPSD had a duty to adopt policies to deter persistent threatening, insulting, or
426. MCPSD had a duty to supervise students and act as a reasonable and prudent
427. MCPSD had a duty to train administrators about SSHS and MCPSD policies to
directed against a student or students regardless of the under reason for such
conduct.
428. MCPSD had a duty to supervise administrators, teachers and coaches in the
directed against a student or students regardless of the under reason for such
conduct.
429. MCPSD had a duty to supervise SSHS Administrators and act as a reasonable and
and online, combined with the obligation to report suspected criminal acts by
430. MCPSD was made aware the continued harassment and discrimination that was
being directed towards Owen, based on his status as a protected class member,
and perpetrated by at least three (3) identified SSHS Staff Members (2 coaches
and 1 teacher).
431. MCPSD, after knowing about acts of racial bigotry, discrimination, harassment
and criminal conduct by SSHS Students, and the apparent approval of those
actions by the SSHS Administration, failed to respond to the known and reported
432. MCPSD, after knowing about acts of racial bigotry, discrimination, harassment
and criminal conduct by SSHS Staff Members, and the apparent approval of those
actions by the SSHS Administration, failed to respond to the known and reported
433. MCPSD did not respond to the discrimination and staff member conduct in
harassment and criminal conduct by SSHS Staff Members, and the apparent
approval of those actions by the SSHS Administration, nor did they, jointly and
harassment and criminal conduct by SSHS Staff Members, and the apparent
approval of those actions by the SSHS Administration, nor did they properly
harassment and criminal conduct by SSHS Staff Members, and the apparent
437. MCPSD did not make a determination whether the reported discriminatory
actions, harassing actions, or criminal conduct of SSHS Staff Members, and the
the jurisdiction of the school district or another public agency, including law
enforcement.
438. MCPSD did not make a referral of the acts of racial bigotry, discrimination,
harassment and criminal conduct by SSHS Staff Members, and the apparent
appropriate jurisdiction.
conduct by SSHS Staff Members against Owen, and the apparent approval of
and, MCPSD did any type of Title IX follow up or response to the reported
racial discrimination, despite the fact that the harassment was persistent, severe,
and/or repeated.
440. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
441. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
442. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 8
VIOLATION OF FEDERAL CONSTITUTIONAL RIGHTS UNDER 42 U.S.C. § 1983:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
443. Plaintiffs herein reallege paragraphs 1 through 442 above as though fully set
forth herein
444. Under the Fourteenth Amendment to the United States Constitution, individual
445. This United States Constitutional Right includes the right be free from
government property.
person or government entity acting under the color of law; any such actor is
447. The Defendants have continually violated the rights of Owen set forth in the
448. SSHS and MCPSD had a duty to supervise administrators, teachers, coaches and
teachers and staff engaging in the same activity or advocating for the bullying
449. SSHS and MCPSD had a regulatory duty to adopt policies to deter persistent
450. SSHS and MCPSD had a duty to train administrators, teachers and coaches about
451. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS Staff
Members (2 coaches and 1 teacher), eighteen (18) identified SSHS Students, and
452. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
identified SSHS Staff Members (2 coaches and 1 teacher), eighteen (18) identified
453. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
454. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
455. The SSHS Administration and/or MCPSD did not make a referral of the acts of
456. The actions and inactions of SSHS and MCPSD violated Owen’s U.S.
457. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
458. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress due to the violation of her
459. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 9
VIOLATIONS OF MONTANA STATE CONSTITUTIONAL RIGHTS
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
460. Plaintiffs herein reallege paragraphs 1 through 459 above as though fully set
forth herein
461. Under Article II, Section 4, of the Montana Constitution, individuals have the
462. The Montana Constitution grants the right of individuals within the State of
463. The Defendants have continually violated the rights of Owen set forth in the
464. SSHS and MCPSD had a duty to supervise administrators, teachers, coaches and
teachers and staff engaging in the same activity or advocating for the bullying
465. SSHS and MCPSD had a regulatory duty to adopt policies to deter persistent
against a student or students regardless of the under reason for such conduct.
466. SSHS and MCPSD had a duty to train administrators, teachers and coaches
467. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS
468. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
469. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
470. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
471. The SSHS Administration and/or MCPSD did not make a referral of the acts of
472. The actions and inactions of SSHS and MCPSD violated Owen’s US
473. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
474. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress due to the violation of her
475. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 10
DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
FAILING TO GRANT OWEN MERCADO A REASONABLE ACCOMMODATION
476. Plaintiffs herein reallege paragraphs 1 through 475 above as though fully set
forth herein.
477. Owen is disabled as that term is used and interpreted under the Americans with
478. SSHS and MCPSD were made aware of the Owen’s disabilities.
479. Upon having knowledge of the disabilities, SSHS and/or MCPSD were under a
duty to make reasonable accommodations to, among other things, help with the
request for SSHS and/or MCPSD take actions to eliminate the known
of at least three (3) identified SSHS Staff Members (2 coaches and 1 teacher),
480. The Defendants failed to meet this duty of care by completely ignoring the
481. This failure caused emotional and physical damage to Owen for which he may
482. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 11
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM PERSONAL INJURY UNDER
M.C.A. §§ 49-1-101 – 102:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
483. Plaintiffs herein reallege paragraphs 1 through 304 above as though fully set forth
herein.
484. M.C.A. § 49-1-101 provides that every person has the right of protection from
485. M.C.A. § 49-1-102 guarantees the right to be free from discrimination because
486. The Defendants have continually violated the rights of Owen set forth in
487. SSHS and MCPSD had a duty to supervise administrators, teachers, coaches and
teachers and staff engaging in the same activity or advocating for the bullying
488. SSHS and MCPSD had a regulatory duty to adopt policies to deter persistent
against a student or students regardless of the under reason for such conduct.
489. SSHS and MCPSD had a duty to train administrators, teachers and coaches
490. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS
491. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
492. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
493. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
494. The SSHS Administration and/or MCPSD did not make a referral of the acts of
495. The actions and inactions of SSHS and MCPSD violated Owen’s US
1-101 – 102.
496. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
497. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress due to the violation of her
498. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 12
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM DISCRIMINATION UNDER
M.C.A. § 49-1-102:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
499. Plaintiffs herein reallege paragraphs 1 through 499 above as though fully set forth
herein.
500. M.C.A. § 49-1-102 guarantees the right to be free from discrimination because
501. The Defendants have continually violated the rights of Owen set forth in
M.C.A. § 49-1-102.
502. SSHS and MCPSD had a duty to supervise administrators, teachers, coaches and
teachers and staff engaging in the same activity or advocating for the bullying
503. SSHS and MCPSD had a regulatory duty to adopt policies to deter persistent
against a student or students regardless of the under reason for such conduct.
504. SSHS and MCPSD had a duty to train administrators, teachers and coaches
505. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS
506. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
507. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
508. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
509. The SSHS Administration and/or MCPSD did not make a referral of the acts of
510. The actions and inactions of SSHS and MCPSD violated Owen’s US
102.
511. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
512. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress due to the violation of her
513. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 13
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM DISCRIMINATION IN
EDUCATION UNDER M.C.A. § 49-2-307:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
514. Plaintiffs herein reallege paragraphs 1 through 513 above as though fully set forth
herein.
516. The Defendants have continually violated the rights of Owen set forth in
M.C.A. § 49-2-307.
517. SSHS and MCPSD had a duty to supervise administrators, teachers, coaches and
teachers and staff engaging in the same activity or advocating for the bullying
518. SSHS and MCPSD had a regulatory duty to adopt policies to deter persistent
against a student or students regardless of the under reason for such conduct.
519. SSHS and MCPSD had a duty to train administrators, teachers and coaches
520. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS
521. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
522. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
523. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
524. The SSHS Administration and/or MCPSD did not make a referral of the acts of
525. The actions and inactions of SSHS and MCPSD violated Owen’s US
307.
526. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
527. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress due to the violation of her
528. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 14
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM RETALIATION FOR
REPORTING DISCRIMINATION IN EDUCATION UNDER M.C.A. § 49-2-301:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
529. Plaintiffs herein reallege paragraphs 1 through 528 above as though fully set forth
herein.
531. Owen and his mother Deidre have reported no less than nineteen (19) different
least three (3) identified SSHS Staff Members (2 coaches and 1 teacher), eighteen
532. In response to these complaints, Defendants have retaliated against Owen, and
Deidre, in contravention to the rights and protections set forth in M.C.A. § 49-2-
301.
533. SSHS and MCPSD were made aware the continued harassment and
discrimination that was being directed towards Owen, based on his status as a
protected class member, and perpetrated by at least three (3) identified SSHS
534. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
535. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
536. The SSHS Administration and/or the MCPSD conducted no investigation of the
Staff Members, nor did they, jointly and severally, or individually, properly
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
537. The SSHS Administration and/or MCPSD did not make a referral of the acts of
538. The actions and inactions of SSHS and MCPSD violated Owen’s US
301.
539. Owen was damaged emotionally and physically by losing years of his educational
life and capability to participate in athletics, his mental stability, and his overall
teachers.
540. Deidre was damaged emotionally and physically by the extreme and outrageous
conduct of SSHS, SSHS Students, SSHS faculty, and MCPSD, as well as the
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress due to the violation of her
541. Plaintiffs have sustained actual damages in an amount as yet not fully realized
in medical costs and treatment costs, but the total damages substantially exceed
COUNT 15
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
542. Plaintiffs herein reallege paragraphs 1 through 541 above as though fully set forth
herein.
544. Defendants acts and/or omissions were significant enough to make reasonably
545. As a direct result of Defendants’ conduct, Owen has suffered serious or severe
emotional distress manifesting itself by, among other things, suicide attempts,
546. As a direct result of Defendants’ conduct, Deidre has suffered serious or severe
emotional distress while having to watch her son go through this horrific ordeal
COUNT 16
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
SEELEY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
547. Plaintiffs herein reallege paragraphs 1 through 546 above as though fully set forth
herein.
549. Defendants acts and/or omissions were significant enough to make reasonably
550. As a direct result of Defendants’ conduct, Owen has suffered serious or severe
emotional distress manifesting itself by, among other things, suicide attempts,
551. As a direct result of Defendants’ conduct, Deidre has suffered serious or severe
emotional distress while having to watch her son go through this horrific ordeal
VI.
Damages
552. Plaintiff herein realleges paragraphs 1 through 551 above as though fully set
forth herein.
amount as yet not fully realized in medical costs and treatment costs, as well as
intangible special damages and punitive damages, but the total damages alleged
554. Plaintiffs’ damages under each Count 1 – 16, Section V, supra, generally
discrimination;
o. exemplary and punitive damage which cannot yet be quantified, but are
VII.
Attorney’s Fees and Costs
555. Plaintiff herein realleges paragraphs 1 through 554 above as though fully set forth
herein.
556. Under 42 U.S.C.A § 1988(b), it states that “in any action or proceeding to enforce
a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, Title
IX of Public law 92-318, [], the court in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs.”
Plaintiff, therefore, seeks the recovery of the attorney’s fees and costs for this
matter under, among other statutes, the Civil Rights Attorney's Fee Awards Act
557. Plaintiff seeks the recovery of the attorney’s fees and costs for this matter under,
among other statutes, 42 U.S.C. Code Section 12188(a)(1) which provides for
recovery of the remedies under § 204(a) of the federal Civil Rights Act of 1964
(Civil Rights Act), 42 U.S.C. § 2000a-3(a), including attorney’s fees and costs.
558. Plaintiff seeks the recovery of the attorney’s fees and costs for this matter under,
among other statutes, 42 U.S.C. § 12205, wherein the court may award
559. Plaintiffs, furthermore, seek the recovery of all reasonable attorney’s fees and
560. Plaintiffs, furthermore, seek the recovery of all reasonable attorney’s fees and
costs as permitted by the available equitable remedies any applicable under state
VIII.
Exemplary Damages
561. Plaintiff herein realleges paragraphs 1 through 560 above as though fully set forth
herein.
562. The continued and permitted discrimination and harassment at the SSHS
unknown, and by at least three SSHS employees, was so expansive and endured
so long that it is by definition persistent, severe and repeated, such that the
conduct, and inaction of SSHS that it aided, abetted, compelled, or coerced the
Students, and in at least three cases the employees of SSHS, to commit acts of
level of actual malice and/or actual fraud in breaching their duties to students and
evil intent or motive, which further entitles Plaintiff to punitive damages under
discrimination, which was based on race, color, sex, religion or national origin
under Title VII, entitling Plaintiffs to seek punitive damages under the 1991
Amendments to the Civil Rights Act of 1964 for the retaliatory motivation and
conduct by Defendants.
discrimination premised upon the Plaintiffs’ protected class status (race, color,
national origin, and gender), which entitles Plaintiffs to seek punitive damages
under the same theory advocated and approved under 42 U.S.C. § 1981a(b) and
which entitles Plaintiffs to seek punitive damages under the same theory
provision.
13. For any other relief the Court deems just under the circumstances.
COMES NOW the Plaintiffs, by and through their counsel, and hereby demand
a jury trial.