Former Seeley Swan Student Sues Over Alleged Harassment

Case 9:21-cv-00010-DLC Document 1 Filed 01/21/21 Page 1 of 127
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
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
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. )
)
COMES NOW the Plaintiffs, Deidre Lechowski-Mercado and Owen Mercado,
by and through their counsel, Lawrence E. Henke, and for their Complaint against
Defendants, asserts and alleges as follows:
COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 1 of 127

I.
Parties
1. Plaintiff Owen Mercado (“Owen”) is and was a resident of Missoula County, at
all times pertinent hereto.
2. Plaintiff Deidre Lechowski-Mercado (“Deidre”) is and was a resident of Missoula
County, at all times pertinent hereto.
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.
4. Defendant in Missoula County, MT.
II.
Venue and Jurisdiction
5. Venue is proper in Federal District Court, Missoula Division, pursuant to
28 U.S.C. § 1391(b)(2).
6. This Court has personal jurisdiction over the parties to this lawsuit because all
Defendants conduct their business in the State of Montana.
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
9. Verbal bigotry, such as “NIGGER”, “FAGGOT”, “FUCKBOI”, “FENCE
JUMPER” and/or “BORDER JUMPER” are words routinely used by students

and teachers alike at Seeley Swan High School (“SSHS”). These words have
been used as an ongoing, school sponsored, discriminative assault against Owen,
a minority student at SSHS.
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,
M.C.A. §§ 20-5-207 – 20-5-210.
11. Both SSHS and MCPSD were negligent in the handling of the multiple reports of
discrimination and harassment directed toward Plaintiff Owen, which resulted in
his severe emotional distress, and predictable and foreseeable severe emotional
distress of his mother, Plaintiff Deidre Lechowski-Mercado. In fact, Deidre has
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
with recalcitrance and deliberate indifference by SSHS and MCPSD.
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)
Owen’s gender, and (iv) Owen’s known and reported disability.

13. Under Federal law, a person’s Constitutional rights cannot be infringed by a
person or government entity acting under the color of law; any such actor is
liable to the individual who the actor “subjects, or causes to be subjected . . . to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983.
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
race, color, sex, culture, social origin or condition, or political or religious
ideas.” Mont. Const. art. II, § 4.
15. Defendants’ systemic tolerance of, and participation in, the ongoing
discrimination, and their negligent reaction and response to the reports of the
discrimination, displayed a systemic, school-wide pattern and practice of
discrimination against Owen in violation of the law.
16. Defendants’ chosen path of indifference to the discriminatory actions occurring
on school property, tolerance of student discriminatory attacks, acceptance of
cyberbullying, and, from at least three separate school employees, active
participation in the discriminatory actions, created an environment wherein the
discrimination was so tolerated that it became industrialized through the creation

of a SSHS specific web-site/Internet page (instagram.com/13c_meme_page/)
created for the explicit purpose of using the Internet, with a SSHS dedicated site,
to engage in harassment, discrimination, and degradation of students, including
the harassment of Owen.
17. The web-based harassment device – entitled “13C” for the SSHS athletic
competition district designation – was a direct result of the Defendants’
intentional indifference; and, this site was even used by at least one school district
employee to cyberbully Owen on the site.
IV.
Background Facts
18. Owen was a minority adolescent who attended SSHS, which is a high school
within the MCPSD, during the 2018-19 academic year.
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
and state law.
Discrimination based on race, color, physical disability,

national origin and mental disability
21. In September 2018, SSHS Student HC called Owen a “NIGGER” while they
both were on school property and during school hours.

22. SSHS Principal, Dr. Pecora, was informed of the incident involving racial
discrimination against Owen as reported by his mother, Deidre, during an in-
person meeting with Dr. Pecora.
23. The SSHS Administration conducted no investigation of the racial
discrimination, nor did it properly respond to the harassment and discriminatory
conduct of the students as required by state law.
conduct of the students as required by school policy.
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
public agency, including law enforcement.
26. The SSHS Administration did not make a referral of the conduct, which is a
violation of Montana law, M.C.A. § 20-5-209, BULLYING OF A STUDENT
PROHIBITED, to the law enforcement agency with appropriate jurisdiction.
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
if the students were minors.

28. The SSHS Administration did not enact the District procedure, if such
procedure exists, to protect the alleged victim of behavior prohibited under the
BULLY-FREE MONTANA ACT from further incidents of such behavior.
29. The SSHS Administration did not enforce the disciplinary procedure, if any
such procedure exists, establishing the consequences for students found to have
committed behavior prohibited under the BULLY-FREE MONTANA ACT.
30. The SSHS Administration 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.
31. In September 2018, Students DW and HC call Owen a “BORDER JUMPER”
or “FENCE JUMPER” on multiple occasions. Each of the occasions occurred
while they were on school property and during school hours, and the
discriminatory comment(s) were offensive and derogatory.
32. These unwanted discriminatory comments, premised on Owen’s national origin
and race, were reported to Dr. Kathleen Pecora and the MCPSD administration
by Deidre in October 2018 during in-person meetings with Dr. Pecora.
discrimination and national origin discrimination, nor did it properly respond to
the harassment and discriminatory conduct of the students as required by state
law.

discrimination and national origin discrimination, nor did it properly respond to
the harassment and discriminatory conduct of the students as required by school
policy.
victim and the alleged perpetrator, or the parents or guardian of such students
if the students were minors.

41. In Fall semester of 2018, Students BS, TC, AS, HC, JL, SJ, and SM called
Owen a “FAGGOT” on multiple occasions while they all were on school
property and during school hours.
42. The comments from these students were coupled with derogatory and
discriminatory accusations of homosexual activity, based on Owen’s gender,
which included, but were not limited to:
a. accusing Owen of having sex with male coaching staff

members;
b. stating “Owen gets on his knees for Mr. Haines” and

accusing him of providing a blow job to Coach Haines;
c. accusations of anal sexual intercourse between Owen and

Coach Haines; and
d. accusations of homosexual interactions between Owen and

other coaches describing the act of being “hit it from the
back” as a crude description of anal intercourse.
43. This unwanted sexual harassment was reported to SSHS Coach Michael Haines
in the Fall semester of 2018 by Owen in person.
44. SSHS and Coach Haines’ response was merely to tell Owen to ignore the
allegations and sexual harassment.
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
harassers to engage in more discriminatory conduct.
47. The SSHS Administration conducted no investigation of the sexual harassment,
nor did it properly respond to the harassment and discriminatory conduct of the
students as required by state law.
students as required by school policy.
victim and the alleged perpetrator, or the parents or guardian of BS, TC, AS,
HC, JL, SJ, and SM, if these students were minors.

55. In the Fall Semester of 2018, female Student AM2 sexually harassed Owen by
calling him a “FUCKBOI” 1 and “PLAYER” and “TOOL” and “ASSHOLE”
and “PIECE OF SHIT” when referring to Owen to other female students while
on school property.
56. These unwanted sexually demeaning and discriminatory comments were
reported to Ms. Quinn by the perpetrators themselves in a braggartry manner.
57. Rather than report the incidents to the SSHS Administration as required by
policy, however, Ms. Quinn – a SSHS employee and teacher – further stoked
the discriminatory comments by encouraging AM2 and her cohorts to continue
to make the references because “they were funny.”
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.

58. The SSHS Administration conducted no investigation of the sexual/gender
discrimination, nor did it properly respond to the sexual harassment and
discriminatory conduct of the students.
victim and the alleged perpetrator, or the parents or guardian of AM2, if she
was a minor.

67. The SSHS Administration conducted no investigation of the sexual/gender
discrimination, nor did it properly respond to the teacher’s involvement in the
sexual harassment and her overt discriminatory conduct.
68. In March/April of 2019, Owen reported a theft of personal property which
occurred on SSHS property; Owen’s basketball shoes and prescription goggles
were stolen from his SSHS locker.
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
student AM’s brother.
71. The stolen property was reported to police by Owen; SSHS did not report the

theft.
72. The shoes were later returned.
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
action against the thieves.
74. In April 2019, Students BS, TC, AS, HC, JL, SJ, and SM called Owen a
“FAGGOT” while they were all on school property.
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,
HC, JL, SJ, and SM.
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
in more discriminatory conduct.
80. The SSHS Administration conducted no investigation of the gender

victim and the alleged perpetrator, or the parents or guardian of BS, TC, AS,
HC, JL, SJ and SM, if these students were minors.

89. The SSHS Administration conducted no investigation of Coach Haines
acceptance of the gender discrimination against Owen, nor did it properly
respond to the teacher’s knowledge of the sexual harassment and discriminatory
conduct of the students, but failure to properly investigate and report the
harassment in accord with District policies.
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.
91. These unwanted sexually demeaning and discriminatory comments, premised
on Owen’s gender, were reported to teacher Carissa Quinn in the fall semester
of 2019 by AM1 in person to Ms. Quinn.
92. Rather than investigate or report the gender discrimination, Ms. Quinn
encouraged AM1 to continue engaging in the discriminatory comments. Ms.
Quinn made an approving comment(s) to the effect that it was “funny” or

“entertaining” to make fun of Owen.
93. In addition to encouraging sexual discrimination, Ms. Quinn engaged in
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
in more discriminatory conduct.
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
practice of harassment and discrimination, including the identification of the
SSHS Student Tortfeasors who had been positively identified as harassers.
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
disability under the AMERICANS WITH DISABILITIES ACT OF 1990 (“ADA”, as
amended.
96. Deidre made the reasonable accommodation request of SSHS, through a direct
plea that the Principal take actions to eliminate the known harassing
environment created by SSHS, including the tolerance of the actions of known
and identified harassers as of that date, HC, BH1, DW, BH2, BS, TC, AS, JL,
SJ, SM, AM1, AM2, Ms. Quinn, and Coach Haines.

97. SSHS violated Title IX, state law, and the internal policies of MCPSD in failing
to investigate, properly remediate, and reasonably accommodate Owen’s
previously known disability, through deliberate indifference, as defined and
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
rule published on August 11, 2016) in failing to investigate, properly remediate,
and reasonably accommodate Owen’s previously known disability, through
deliberate indifference, as defined and prohibited by the ADA.
99. SSHS violated the BULLY-FREE MONTANA ACT in failing to investigate,
properly remediate, and reasonably react to the reported bully activity, as
defined by M.C.A. § 20-5-208(1)(a) – (c), and under their obligations as
mandated by A.R.M. 10.55.719, STUDENT PROTECTION PROCEDURES,
demonstrating the SSHS deliberate indifference to the pervasive and severe
pattern and practice of discrimination and harassment occurring on school
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
Owen was at a SSHS-sponsored football camp.
101. The car vandalism was both a criminal damage of another person’s property on
school property, and an act of sexual harassment on school property.

102. The word “FAGGOT” was written on the car and there were multiple penises
drawn on the exterior.
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.”
Dude, u have pornography art

on ur car
Jared Crum, August 12, 2019
104. This was an inappropriate response to a crime having been committed against
Owen’s property while on school property, and it was an inappropriate response
to the obvious sexual harassment of Owen.
105. The failure of SSHS Coach Crum to investigate or report the sexual harassment
and criminal incident to the Administration was reported to Principal Palmer by
Deidre by e-mail on August 12, 2019.
106. The continued and escalating nature of the harassment was a foreseeable
consequence of the SSHS Administration’s failure to investigate and respond
to prior reports of sexual harassment, racial discrimination, and national origin
discrimination by SSHS students and against Owen, while on school property,

during school hours, and while participating in school sponsored activities.
consequence of the SSHS Administration’s failure to investigate and respond
to prior reports of sexual harassment, racial discrimination, and national origin
discrimination by at least two, and now a third SSHS employee and against
Owen, while on school property, during school hours, and while participating
in school sponsored activities.
108. The incident of sexual harassment and vandalism against Owen was not
investigated by Principal Palmer; no Title IX follow up was taken by SSHS.
109. Under Montana law, M.C.A. § 45-5-221, a person commits the offense of
malicious intimidation or harassment relating to civil or human rights when,
because of another person's race, creed, religion, color, national origin, or
involvement in civil rights or human rights activities, the person purposely or
knowingly, with the intent to terrify, intimidate, threaten, harass, annoy, or
offend:
(a) causes bodily injury to another;

(b) causes reasonable apprehension of bodily injury in another; or
(c) damages, destroys, or defaces any property of another or any public
property.
M.C.A. § 45-5-221.
110. The criminal conduct on school property was reported to SSHS; however, no
actions were taken against the student criminals.

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
into it” or vague words to that effect.
112. The SSHS inaction was, in fact, a demonstrated approval of the continuing, and
escalating, harassment of Owen, based on his gender which served to embolden
the known harassers to engage in more discriminatory conduct.
discrimination demonstrated by this act of vandalism, nor did it properly
respond to the sexual harassment and discriminatory conduct of the students.

PROHIBITED, or M.C.A. § 45-5-221, MALICIOUS INTIMIDATION OR HARASSMENT
RELATING TO CIVIL OR HUMAN RIGHTS to the law enforcement agency with
appropriate jurisdiction.
victim and the alleged perpetrator, or the parents or guardian the students, if
these students were minors.
123. The SSHS Administration conducted no investigation of Coach Crum’s

acceptance of the gender discrimination against Owen, the overt message of
accepting the gender discrimination against Owen, nor did it properly respond
to the coach/teacher’s knowledge of the sexual harassment and discriminatory
conduct of the students.
124. SSHS and MCPSD’s continued failure to properly investigate and react to the
harassment in accord with District policies created an environment of not only
accepted systemic discrimination, but of overt systemic discrimination by
teachers and coaches.
125. In September of 2019, for a second time, SSHS Student HC called Owen a
“NIGGER” while they both were on school property.
126. This unwanted racial discrimination was reported, for a second time, to
Principal Palmer by Deidre in person in September 2019.
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
discriminatory conduct of the student.
conduct of the student as required by state law.

conduct of the student as required by school policy.
stalking if the person purposely or knowingly engages in a course of conduct
directed at a specific person and knows or should know that the course of
conduct would cause a reasonable person to:
(a) fear for the person's own safety or the safety of a third person; or
(b) suffer other substantial emotional distress.
M.C.A. § 45-5-220 (emphasis added)
132. The unwanted, second offense of racial discrimination by HC reported, for a
second time, to Principal Palmer in September 2019, was prima facia evidence
of a crime having been committed on SSHS property by an SSHS student; the
victim student was identified to Palmer; and, the suspect student was identified
to Palmer.
PROHIBITED, or § 45-5-220, STALKING, to the law enforcement agency with

victim and the alleged perpetrator, or the parents or guardian of HC, now a
repeat offender, if this student was a minor.
BULLY-FREE MONTANA ACT from further incidents of such behavior,
exacerbated in this instance by the fact that the offender was a repeat offender.
138. The SSHS inaction was, in fact, a demonstrated approval of the continuing, and
escalating, harassment of Owen, based on his race which served to embolden
the known and repeat offender student harasser – HC – who was the reported
offender for the same racial discrimination in September 2018, and the SSHS
inaction then, as well as now, served to encourage HC to engage in more
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
while they were on school property.
140. This unwanted racial discrimination was reported to Principal Palmer and
MCPSD executive Julie Robitaille on multiple occasions throughout the Fall
Semester of 2019 by Deidre via in-person meetings and e-mails throughout
September 2019.
141. Neither SSHS nor MCPSD responded in accord with state law, federal law, and
District policy.
discrimination, nor did it properly respond to the racially motivated harassment
and discriminatory conduct of the students.
143. The SSHS Administration conducted no investigation of the racially motivated
harassment, nor did it properly respond to the harassment and discriminatory
conduct of the students as required by state law.
144. The SSHS Administration conducted no investigation of the racially motivated
harassment, nor did it properly respond to the harassment and discriminatory
conduct of the students as required by school policy.

victim and the alleged perpetrator, or the parents or guardian of DG, CG, BH2,
CH, and HD, if these students were minors.
consequence of the SSHS Administration’s past failure to investigate and
respond to prior reports of sexual harassment, racial discrimination, and
national origin discrimination by 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 participating in school sponsored
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
time, to sexually harass Owen by calling him a “FUCKBOI” when referring to
Owen to other female students while on school property during school hours.
154. These unwanted sexually demeaning and discriminatory comments were
reported to and witnessed by Ms. Quinn, for a second time, as this generally
occurred in her class.
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
discriminatory conduct of the student.
157. The SSHS Administration conducted no investigation of the sexual harassment
and gender discrimination, nor did it properly respond to the sexual harassment

and discriminatory conduct of the student as required by state law.
conduct of the student as required by school policy.
M.C.A. § 45-5-220 (emphasis added).
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
or indirectly, by any action, method, communication, or physical or electronic
devices or means, follows, monitors, observes, surveils, threatens, harasses, or
intimidates a person or interferes with a person's property. M.C.A. § 45-5-220.
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

evidence of a crime having been committed on SSHS property by an SSHS
student; the victim student was identified to Palmer; and, the suspect female
student – AM2 – was identified to Palmer.
PROHIBITED, or M.C.A. § 45-5-220, STALKING, to the law enforcement agency
with appropriate jurisdiction.
victim and the alleged perpetrator, or the parents or guardian of AM2, now a
repeat offender, if this student was a minor.

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
harassment and sexual discrimination.
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
sexually harassing damage and sexually motivated conduct.
170. Owen’s car was drenched in milk and soda, creating the debris base for the
writing of the word “FAGGOT”, again making a sexually harassing
commentary against Owen.
171. This second incident of criminal vandalism and sexual harassment was reported
to Principal Palmer by Deidre in an email dated on November 7, 2019 at 5:57
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
bigotry and discriminatory conduct of the student(s) responsible.
173. The SSHS Administration conducted no investigation of the criminal act or
discrimination, nor did it properly respond to the criminal act, racially
motivated hate crime, harassment and discriminatory conduct of the student as

required by state law.
sexually motivated and racially motivated discrimination, nor did it properly
respond to the harassment and discriminatory conduct of the student(s) as
required by school policy.
PROHIBITED, and M.C.A. § 45-6-101, CRIMINAL MISCHIEF, to the law
enforcement agency with appropriate jurisdiction.
victim and the alleged perpetrator, or the parents or guardian of the student or
students, if the students were minors.

181. This second incident of sexual harassment and criminal vandalism was the
natural consequence of the SSHS past pattern and practice of tolerating,
accepting, and participating in past acts of harassment and discrimination; it
demonstrated the foreseeable consequence of the SSHS Administration’s past
failure to investigate and respond to prior reports of sexual harassment, racial
discrimination, and national origin discrimination by 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 participating in school
sponsored activities.
182. The incident of sexual discrimination against Owen, and the second such event
of criminal vandalism on school property, was not investigated by SSHS; it was
not investigated by MCPSD; and, neither SSHS nor MCPSD did any type of
Title IX follow up or response to the reported sexual harassment and
discrimination.

183. On November 12, 2019, SSHS Student SJ was in a class on SSHS property with
Owen when he took a SnapChat™ photo of Owen in class.
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
drawing of a penis on Owen’s image in a classroom at SSHS in a class being
conducted by a SSHS teacher.
185. The manual insertion of the penis on the photograph by SSHS student SJ was
placed and positioned in a manner so as to indicate or simulate the sexual
conduct of oral penile penetration (a blow job) by Owen.
(1) A person commits the offense of sexual abuse of

Owen Mercado children if the person:
(a) knowingly employs, uses, or permits the
employment or use of a child in an exhibition of
sexual conduct, actual or simulated;
SM inserted a penis (b) knowingly photographs, films, videotapes,
simulating sexual develops or duplicates the photographs, films, or
videotapes, or records a child engaging in sexual
conduct. conduct, actual or simulated;
...
(e) knowingly possesses any visual or print
Sent by electronic medium, including a medium by use of
communication to electronic communication in which a child is
minors engaged in sexual conduct, actual or simulated;
M.C.A. § 45-5-625
sexual abuse of children if the person knowingly employs, uses, or permits the
employment or use of a child in an exhibition of sexual conduct, actual or
simulated (M.C.A. § 45-5-625(a)) or knowingly possesses any visual or print
medium, including a medium by use of electronic communication in which a
child is engaged in sexual conduct, actual or simulated (M.C.A. § 45-5-625 (e)).

187. As used in M.C.A. § 45-5-625, the following definitions apply:
(a) “Electronic communication” means a sign, signal, writing, image,

sound, data, or intelligence of any nature transmitted or created in
whole or in part by a wire, radio, electromagnetic, photoelectronic,
or photo-optical system.
(b) “Sexual conduct” means:

(i) actual or simulated:
(A) sexual intercourse, whether between persons of the
same or opposite sex;
(B) penetration of the vagina or rectum by any object,
except when done as part of a recognized medical
procedure;
(C) bestiality;
(D) masturbation;
(E) sadomasochistic abuse;
(F) lewd exhibition of the genitals, breasts, pubic or rectal
area, or other intimate parts of any person; or
(G) defecation or urination for the purpose of the sexual
stimulation of the viewer; or . . .
obscenity when, with knowledge of the obscene nature of the material, the
person purposely or knowingly:
(a) sells, delivers, or provides or offers or agrees to sell, deliver, or

provide any obscene writing, picture, record, or other representation
or embodiment of the obscene to anyone under 18 years of age;
(b) . . .
(c) publishes, exhibits, or otherwise makes available anything
obscene to anyone under 18 years of age;
M.C.A. § 45-8-201(emphasis added).
189. Under Montana law, M.C.A. § 45-8-201, a thing is obscene if:

(a)(i) it is a representation or description of perverted ultimate sexual acts,

actual or simulated;
(ii) it is a patently offensive representation or description of normal ultimate
sexual acts, actual or simulated; or
(iii) it is a patently offensive representation or description of masturbation,
excretory functions, or lewd exhibition of the genitals; and
(b) taken as a whole the material:
(i) applying contemporary community standards, appeals to the prurient

interest in sex;
(ii) portrays conduct described in subsection (2)(a)(i), (2)(a)(ii), or
(2)(a)(iii) in a patently offensive way; and
(iii) lacks serious literary, artistic, political, or scientific value.
M.C.A. § 45-8-201.
violating privacy in communications if the person knowingly or purposely:
(a) with the purpose to terrify, intimidate, threaten, harass, or injure,

communicates with a person by electronic communication and threatens
to inflict injury or physical harm to the person or property of the person
or makes repeated use of obscene, lewd, or profane language or
repeated lewd or lascivious suggestions;
. . . , or
(d) with the purpose to terrify, intimidate, threaten, harass, or injure,

publishes or distributes printed or electronic photographs, pictures, images,
or films of an identifiable person without the consent of the person depicted
that show:
(i) the visible genitals, anus, buttocks, or female breast if the nipple is
exposed; or
(ii) the person depicted engaged in a real or simulated sexual act.
M.C.A. § 45-8-213(emphasis added).
191. The photographing incident (para. 185) was reported to Principal Palmer by

Deidre on or about February 15, 2020 by email.
192. The photographing incident reported to Principal Palmer on or about February
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
incident reported to Principal Palmer on or about February 15, 2020 by email
established prima facia evidence to Palmer that a crime(s) had occurred on
SSHS property and SM was the victim; and the photographing incident reported
to Principal Palmer on or about February 15, 2020 by email established prima
facia evidence to Palmer that a crime(s) had occurred on SSHS property and SJ
was the suspect.
sexual harassment, nor did it properly respond to the criminal act, the racial
bigotry and discriminatory conduct of the student(s) responsible.
194. No actions were taken against SJ for the act of sexual harassment against Owen;
no Title IX investigation was conducted by SSHS; and, SSHS made no response
to the reported sexual harassment by an identified SSHS Student SJ and against
a SSHS Student Owen.
195. The SSHS Administration conducted no investigation of the criminal act or
discrimination, nor did it properly respond to the criminal act, racially
motivated hate crime, harassment and discriminatory conduct of the student as

required by state law.
sexually motivated and racially motivated discrimination, nor did it properly
respond to the harassment and discriminatory conduct of the student(s) as
PROHIBITED, or M.C.A. § 45-5-625, SEXUAL ABUSE OF CHILDREN M.C.A. 45-
6-101, or M.C.A. § 45-8-201, OBSCENITY, OR M.C.A § 45-8-213, VIOLATING
PRIVACY IN COMMUNICATIONS, to the law enforcement agency with appropriate
jurisdiction.
victim and the alleged perpetrator, or the parents or guardian of the student or
students, if the students were minors.

203. On December 27, 2019, the subject matter of the Occurrences identified in the
preceding paragraphs were reported to MCPSD Director Julie Robitaille by
Deidre by email.
204. MCPSD did not investigate the thirteen (13) individual prior incidents of
reported sexual harassment, racial discrimination, national origin
discrimination, cyberbullying, and criminal vandalism against Owen, despite
the fact that:
a. Ten (10) of the reports identified the student suspect;

b. Student HC was identified as the suspect in five (5) of the incidents;
c. Student SJ was identified as the suspect in three (3) of the incidents;
d. Student AM2 was identified as the suspect two (2) of the incidents;
e. Student BH2 was identified as the suspect two (2) of the incidents;
f. Student TC was identified as the suspect two (2) of the incidents; and
g. Student AS was identified as the suspect two (2) of the incidents.

M.C.A. § 45-5-220 (emphasis added).
206. MCPSD did not investigate the SSHS involvement in prior incidents of reported
sexual harassment, racial discrimination, national origin discrimination,
cyberbullying, and criminal vandalism against Owen, specifically in that at least
three SSHS coaches and teachers engaged in discrimination or were witness to
discrimination and took no action to report, investigate, or remediate against the
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
protections of Title IX were not undertaken nor observed by MCSD.
208. These numerous acts against Owen constitute severe, pervasive, and objectively
offensive discriminatory conduct by students, and in at least three instances, a
SSHS teacher, which violate Title IX and violate Owen’s federal civil rights.
The January 16, 2020 Incident
209. On January 16, 2020, Owen was accosted and attacked by 8th Grade Student
CH while on SSHS property.

210. The January 16, 2020 incident involved aggressive conduct by CH toward
Owen, which was either:
(i) fostered by SSHS,
(ii) implicitly permitted by SSHS given the prior history of racial

discrimination tolerated by SSHS against Owen,
(iii) implicitly permitted by SSHS given the prior history of national

origin discrimination tolerated by SSHS against Owen,
(iv) implicitly permitted by SSHS given the prior history of sexual

harassment tolerated by SSHS against Owen, or
(v) implicitly permitted by SSHS given the prior history of teacher

sexual harassment tolerated by SSHS and MCSD against Owen.
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
Students, teachers and coaches, was a foreseeable consequence of the SSHS
Administration’s past failure to investigate and respond to prior reports of
sexual harassment, racial discrimination, and national origin discrimination by
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
participating in school sponsored activities.
212. The SSHS inaction was, as it turns out, a demonstrated approval of the
continuing, and escalating, harassment of Owen, based on his race, which
served to embolden CH – who is a known associate of the prior reported

offender HC, for the same type of racial discrimination in September 2018, and
the SSHS inaction then, as well as now, served to encourage CH to engage in
this attack and discriminatory conduct.
213. The racially and sexually motivated January 16, 2020 attack on Owen was
committed by Student CH, who was a repeat offender of racial discrimination
against Owen, see paragraph 184, supra, and it was known or knowable that
CH was engaging in a pattern and practice of racial discrimination of Owen.
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
SSHS policy, and he engaged in racially motivated retaliatory conduct
following the incident.
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-
Caribbean student, the students involved were witnessed by Coach Crum
making racial slurs against Owen.
217. Those students were gathered by Coach Crum, who then engaged in racially
motivated retaliatory actions in creating a conspiratorial falsification of the facts
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
criminal characteristics that Coach Crum pushed them to report initially.
219. The January 16, 2020 incident was initially investigated by Principal Palmer,
with a finding of no wrongful conduct by Owen, specifically there was
insufficient evidence of any act of sexual assault against CH.
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
three-day school suspension.
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,
CH, nor the sexually harassing nature of the attack by CH.

The January 30th, 2020 Suspension
224. At the conclusion of Owen’s three-day suspension, SSHS/Palmer extended the
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
social stigma of being an “expelled” student.
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
exculpatory evidence, the right to cross-examine witnesses and/or the
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
not limited to, the following acts,:

(i) the SSHS overt tolerance of harassment and discrimination

running rampant in the school;
(ii) the SSHS allowance of continued harassment of Owen based on

his race;
(iii) the SSHS allowance of continued harassment of Owen based on

his color;
(iv) the SSHS allowance of continued harassment of Owen based on

his national origin;
(v) the SSHS allowance of the continued sexual harassment of Owen

based on his gender;
(vi) the SSHS allowance of the constant violation of Owen’s federal

constitutional rights;
(vii) the SSHS allowance of the constant violation of Owen’s state

constitutional rights;
(viii) the SSHS allowance of students to commit criminal acts against

Owen;
(ix) the SSHS allowance of the disability discrimination against

Owen in violation of the ADA; and
(x) the SSHS disallowance of Owen’s request for reasonable

accommodation.
229. Owen’s severe emotional distress was a foreseeable and predictable
consequence because of the nature, prevalence, and sheer abhorrence of the
racial bigotry thrust upon him by SSHS Students, eighteen (18) identified and
others not, racial bigotry and harassment condoned and practiced by SSHS
faculty, continued victimization by criminal conduct of SSHS Students, and

tolerance and purposeful ignorance of SSHS Administration, and MCPSD.
230. Owen’s severe emotional distress is clearly established by the medical
diagnoses of professional mental health care providers who have treated Owen:
a. Reported results of the school harassment: “Through no fault of

his own, [Owen] has been hazed, ostracized, and shut out of these
activities. This has taken its toll on his self-confidence, self-
worth and self-identity. He struggles with sleep, is anxious and
fearful much of the time, and is fighting for the normalcy that
others his age take for granted…It is not mine to judge those
responsible for Owen’s abhorrent treatment, although
accountability and repair would go a long way towards
reinstating this fine young man’s status in the high school sports
community.”
Phil Hamiton, LCSW January 12, 2021 Report
b. Causation summary: “Nonetheless, a very significant number of

physical and verbal incidents (e.g., name-calling, especially
sexually vulgar, and racial slurs, and aggressive physical contact
(“being grabbed”, being smacked “enthusiastically”, “ass-
slapped”, with a lot of force, repeatedly, by several team mates
on a crowded team bus, or in the locker room. Apparently, this
behavior is typically accepted in an athletic environment as team
bonding and encouragement. But for O.M., this attention also
included having his car vandalized, that is, painted with vulgar
words and pictures on it during practice. It was reported that the
football coach looked the other way, and inexplicably cut O.M.
out of post season awards. There is more context, but I believe
that it is impossible to NOT to see a serious and longstanding,
escalating bullying problem.”
Dr. Nadine Wisniewski Report dated August 14, 2020
c. Diagnosis: “[a]n Adjustment Disorder with Mixed Anxiety and

Depressed Mood indicates Owen developed emotional
symptoms (anxiety and depression) in response to identifiable
stressors (bullying, suspension, school charge for sexual assault).

These symptoms have caused significant impairment in social,

academic and other important areas of functioning.”
Dr. Scolatti’s June 20, 2020 Report
231. The SSHS systematic tolerance of this student activity, and in three cases a
teacher/coach, coupled with the SSHS administration’s sustained negligence in
(i) investigating, (ii) responding to, and (iii) preventing future harassing conduct
demonstrates an additional injury in the violation of Owen’s civil rights under
M.C.A. § 49-1-102.
232. The deliberate indifference of SSHS Administration in violation of Title IX
responsibilities and mandates, has also caused and/or significantly contributed
to Owen’s emotional distress and anxiety – recognized ADA disabilities.
233. The deliberate indifference of SSHS Administration in violation of A.R.M.
10.55.719: STUDENT PROTECTION PROCEDURES, the myriad of responsibilities
and mandates under other statutes and regulations, as well as the common law,
has also caused and/or significantly contributed to Owen’s emotional distress
and anxiety – recognized ADA disabilities.
234. MCPSD had been advised of at least nineteen (19) specific incidents of sexual
harassment, racial discrimination, and/or national origin discrimination, and
nineteen (19) separate incidents of either Title IX violations by SSHS Students,
faculty and administration, and/or Title VI violations by SSHS Students, faculty
and administration, and/or Section 504/ADA violations by SSHS Students,

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.
237. MCPSD was negligent in response to the apparent systemic discriminatory
conduct of SSHS students.
238. MCPSD was negligent in the supervision of SSHS.
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
civil rights; and, MCSD has violated M.C.A. § 49-1-102 by engaging in
discriminatory conduct.
241. MCPSD has caused Owen severe emotional distress; MCSD has caused Deidre
severe emotional distress.
Discrimination of Owen Mercado

under the Americans with Disabilities Act of 1990
242. Owen suffers from at least two recognized ADA disabilities:
a. Kim Heninger, LCPC diagnosed Owen with “Adjustment

Disorder with Anxiety” on 11/16/2018; and

b. On 10/31/2018 Owen was diagnosed with: current major

depressive disorder…; anxiety.
243. SSHS was notified of Owen’s disabilities on August 5, 2019 by Deidre when
she informed Principal Palmer, in person, that Owen was disabled.
244. Deidre specifically told Principal Palmer that Owen suffered from anxiety and
depression from the past harassing conduct at SSHS on August 5, 2019.
245. Deidre further requested the reasonable accommodation, specifically, in that
SSHS eliminate, mitigate, or at least properly respond to the past harassment
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.
246. SSHS/Palmer failed to attempt to meet the request for reasonable
accommodation; they did not investigate, remediate, or respond to the past
discrimination and harassment activity perpetrated against Owen.
247. Prior to the request for reasonable accommodations, Owen had been the victim
of seven (7) separate incidents of racial discrimination, national origin
discrimination, and sexual harassment.
248. Prior to the request for reasonable accommodations, Owen and Deidre had
reported multiple incidents to SSHS.
249. The reported incidents were not properly investigated by SSHS; the student
perpetrators of the harassment were not investigated, punished, nor dissuaded

from future discriminatory and/or harassing activity.
250. The reported incidents of teacher involvement in the harassment and
discrimination were not properly investigated by SSHS; the employee
perpetrators of the harassment and actors in discriminatory actions were not
investigated, punished, nor dissuaded from future discriminatory and/or
harassing activity.
251. The reported criminal incidents were not properly investigated by SSHS; the
student perpetrators of the harassment were not investigated, punished, nor
dissuaded from future discriminatory and/or harassing activity, and SSHS did
not follow its regulatory obligation of reporting criminal activity to law
enforcement.
252. On August 5, 2019 the request for SSHS to provide a safe school for Owen was
made based on the systemic past pattern of discriminatory and harassing
conduct and the likelihood for future harassment and discrimination; Not
surprisingly, and in prophetic fashion, on August 12, 2019 the next act of
vandalism and harassment and discrimination occurred on SSHS school
property as was reasonably predictable given the innumerable of reports made
by Owen and Deidre.
253. SSHS/Palmer did not react to the incidents of verbal bigotry, harassment and
discrimination in the past, and those reasonably predictable based on the

reporting and knowledge of SSHS. Exactly one week after being forewarned
of the risks, premised on the known systemic nature of the discriminatory
conduct – to which he refused and/or failed to react – yet another criminal act
of vandalism was perpetrated upon Owen while on school property.
254. Since the request for reasonable accommodation was made, an additional eight
(8) incidents of discrimination and harassment occurred, many by the same
repeat offenders as reported and identified to Palmer before the request for
reasonable accommodation.
255. Furthermore, SSHS/Palmer failed to initiate any Free Appropriate Public
Education (“FAPE”)2 program protections for Owen under the requirements of
34 CFR § 300.101.
256. Because SSHS was informed of the diagnoses of Owen as a disabled person,
that is he is regarded as having an impairment (Depression and Anxiety), which
the school knew about as of August 5, 2019, that triggered SSHS’ duty to
provide such things like an individualized education plan, evaluation and
testing, counseling, progress monitoring, and retention & social promotion
under Title IX and related education regulations, such as 34 CFR § 300.101.
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
emotional disorder symptoms (anxiety and depression).
259. Owen’s medical diagnosis stated that his disabilities were in response to
identifiable stressors (bullying, suspension, school charge for sexual assault) of
which SSHS was aware, and responsible for indirectly in the failure to supervise
students, but directly in the active harassment and discrimination by
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
aggravation of the emotional distress and disabilities suffered by Owen:
a. On March 12, 2020, Dr. Nadine M. Wisniewski opined that

Owen’s depression arose directly from the events at SSHS,
including the school’s failure to provide for a safe school
environment free from discrimination and/or harassment.
b. On June 13, 2020, Owen’s diagnoses were confirmed by Dr.

Michael Scolatti, who diagnosed Owen with: “309.28 (F43.23)
Adjustment Disorder with Mixed Anxiety and Depressed Mood”,
and all arising from the activities at SSHS.
262. On November 10, 2019, Deidre made a second plea for reasonable

accommodation from Principal Palmer that:
a. sought rectification of the ongoing harassment tolerated by the school,
and
b. sought treatment for Owen’s depression and severe anxiety.
263. SSHS (Principal Palmer) and MCPSD (Julie Robitaille) ignored Deidre’s
requests for reasonable accommodations for Owen’s reported disabilities and
the multiple incidents of harassment, discrimination, and failing to meet the
educational needs of a disabled student.
264. SSHS failed by, including but not limited to, not providing an Individualized
Education Plan (“IEP”) to accommodate Owen’s disabilities, which by statute
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
harassment and discrimination, which is the genesis of Owen’s severe anxiety
and depression and Deidre’s severe emotional distress.
266. SSHS had been on notice from at least October 2018 that Owen suffered from
depression and Deidre routinely informed Kellen Palmer of Owen’s
increasingly severe depression symptoms premised on the continued
harassment and discrimination occurring at SSHS by SSHS students while on
SSHS grounds during school hours.

267. Because if its knowledge, and premised at least in part on statutory obligations,
SSHS was under a duty to initiate IDEA/FAPE response techniques to mitigate
the harm to Owen’s appropriate education where he would not continue to be
harassed, but the school failed to do so.
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
able to enjoy a discrimination free school environment.
269. On February 10, 2020 Deidre made a third formal request for reasonable
accommodation for Owen from Principal Palmer that (i) sought rectification of
the ongoing harassment tolerated by the school, (ii) an appropriate institutional
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
the depression and other disabilities.
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
Learning Lab on or around February 20, 2020, which is not a reasonable

accommodation under 20 U.S.C. § 1412(5).
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
disabled child in a regular classroom due to the recognized humiliation factor
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
of the intended move of Owen to the Willard School.
274. 20 U.S.C. § 1415(b)(1)(C) requires that parents must receive prior written
notice when a school proposes or refuses to alter a placement of the student,
which said notice Deidre did not receive.
275. SSHS violated Section 504/IDEA/ADA, in that it provided no response to the
ongoing harassment and no explanation as to why the requested reasonable
accommodation – stopping the harassment and/or discrimination – was not
feasible.
276. SSHS violated the ADA, in that it provided no response to the ongoing
harassment and no explanation as to why the requested reasonable
accommodation – stopping the harassment and/or discrimination – was not

feasible.
277. SSHS violated Section 504/IDEA/ADA by sending Owen to a facility for
disabled and troubled children without an IEP.
278. The improvident SSHS referral of Owen to the Willard School, without an IEP,
demonstrates, among other things, the discriminatory motivation of the referral,
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
and discriminatory environment at SSHS; or, with no basis in medical
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
harassment and discrimination.
280. Deidre was given no opportunity to participate in this decision about her
disabled son’s education, which violates IDEA.
281. The SSHS and MCPSD decision was not a joint school-parental action plan,
which violates IDEA.
282. Deidre was not given the chance to appeal the school’s unilateral decision of

sending Owen to the “Learning Lab”, which violates IDEA.
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
know the plan for their child at school.
284. SSHS and MCSD have discriminated against Owen in the terms and conditions
of his educational experience based on his mental disability, which is
recognized as and declared to be a protected civil right under
M.C.A. § 49-1-102.
The persistent, severe, and/or repeated and permitted harassment and

discrimination at SSHS is so out of control that it has been
“industrialized”
285. The severe emotional distress was a foreseeable and predictable consequence
of the nature, prevalence, and sheer abhorrence of the racial bigotry Owen
suffered at the hands of SSHS and MCPSD.
286. SSHS and MCPSD displayed a severe degree of malfeasance and misfeasance
in the handling of past reported incidents of discrimination and harassment at
SSHS to such a degree that (i) it was pervasive and seen as approved conduct
by Students, (ii) it was practiced and participated in by teachers and coaches,
and (iii) it became industrialized on the Internet.
287. In December 2020, a meme was posted to an InstagramTM account

“13c_meme_page” (“13C Meme page”).
Reference to the Reference to

MHSA SSHS Athletic
Conference
266 people use Designation
this site
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.
13c Meme Page: a

dedicated web site for
posting about SSHS Seely Swan High School: the inserted addition of
students and premised on personalized language to the Internet photo
its athletic designation as a similar to the photo in ¶ 93, supra.
Class C school.
13c Meme Page: The Owen Mercado the inserted addition of

level of distribution (80 personalized language to the Internet photo
different people) on this similar to the photo in ¶ 93, supra.
site as of December 9,
2020.
289. According to Instagram™ account information, the post was created by BH,
who is a student at SSHS.
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
messaging (“DM”) technology.
291. The account owner of 13c_meme_page published the BH post on the
13c_meme_page account.
292. Once posted by the 13c_meme_page account owner, the Instagram™

technology then permits other 13c_meme_page account users to “like” the BH
post, which is understood to be in Internet parlance an “agreement” with the
harassing nature of the meme.
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
adopted practice of tolerating student-on-student harassment, is exacerbated by
the fact that, upon information and belief, the site is known to and used by SSHS
personnel for the same purpose of harassment – harassment of students by a
SSHS employee(s).
295. The above derogatory post of an Internet photograph (a “meme”), altered by
electronic means to be personalized against Owen and further altered to premise
the harassment directly related to Seely Swan High School, was seen by and
then liked by another Instagram TM account “lady.blackhawks”:

Seely Swan High School is known as the

blackhawks in Class C, District 13 athletics,
and lady.blackhawks is the official account
of the women’s sports at SSHS,
administered by, upon information and
belief, an SSHS employee.
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
who viewed the post and “clicked” on it as a “like” as of December 9, 2020.
297. Upon information and belief, the “lady.blackhawks” account is controlled by
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.
The 13C Meme page has predominantly

posted images of SSHS athletes on the
derogatory page; the SSHS employee is an
athletic coach at SSHS.

298. Upon information and belief, “lady.blackhawks” is sanctioned by SSHS as the
account for the Lady Blackhawks athletics.
299. Upon information and belief, SSHS by and through this employee has actively
engaged in on-line harassment of a student, Owen, as well as possible others.
300. The continued and unexplained failure to investigate the incidents of
discrimination and harassment, despite each and every act being premised on
the protected class status of Owen, created such a pervasive and permissive
environment of accepted discrimination and harassment that the SSHS
educational institution aided, abetted, compelled, or coerced the Students, and
in at least three cases the employees of SSHS, to commit an act forbidden under
M.C.A. Chapter 49, et seq., including but not limited to:
a. M.C.A. § 49-1-101: every person has the right of protection from

personal insult, defamation, and injury to the person’s personal
relations;
b. M.C.A. § 49-1-102: The right to be free from discrimination because of

race, creed, color, sex, physical or mental disability, age, or national
origin is recognized as and declared to be a civil right in Montana;
c. M.C.A. § 49-2-301: It is unlawful discriminatory practice for an

educational institution to discriminate against a person because that
person has opposed any practices forbidden under Chapter 49 because
the individual has filed a complaint or participated in any manner in any
investigation or proceeding involving discrimination.
d. M.C.A. § 49-2-307: It is an unlawful discriminatory practice for an

educational institution to exclude, expel, limit, or otherwise

discriminate against a person enrolled as a student in the terms,

conditions or privileges of the institution because of race, creed, color,
national origin, or disability.
301. The continued and permitted discrimination and harassment at the SSHS
educational institution, by Students, eighteen (18) identified to SSHS and others
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 violated the BULLY-FREE MONTANA ACT.
unknown, and by at least three SSHS employed, was so expansive and endured
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
overt, offensive, and disgusting discrimination and harassment that facially
required reporting to law enforcement for the investigation of potential criminal
acts, including but not limited to:
a. M.C.A. § 45-8-201: Obscenity;
b. M.C.A. § 45-6-101: Criminal mischief;
c. M.C.A. § 45-8-213: Privacy in communications;
d. M.C.A. § 45-5-221: Malicious intimidation or harassment relating to

civil or human rights;

e. M.C.A. § 45-5-625: Sexual abuse of Children.
f. M.C.A. § 45-5-220: Stalking;
g. M.C.A. § 49-2-302: Aiding, coercing, or attempting; and
h. M.C.A. § 45-5-222: Sentence enhancement – offense committed

because of victim’s race, creed, religion, color, national origin, or
involvement in civil rights or human rights activities.
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
because of the victim’s race, creed, religion, color, or national origin.
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,
place of schooling and a discrimination free education.
306. SSHS and MCPSD were made aware the continued harassment and

discrimination that was being directed towards Owen based on the protected
class status race.
307. SSHS, after knowing about harassment and discrimination, failed to respond to
the known and reported acts of racial bigotry, discrimination and harassment;
MCPSD, after knowing about harassment and discrimination, failed to respond
to the known and reported acts of racial bigotry, discrimination and harassment.
308. Neither SSHS nor MCPSD responded to the racial discrimination in accord
with state law, federal law, and District policy.
309. The SSHS Administration and/or the MCPSD conducted no investigation of the
racial discrimination, nor did they, jointly and severally, or individually,
properly respond to the racially motivated harassment and discriminatory
310. The SSHS Administration and/or MCPSD conducted no investigation of the
racially motivated harassment, nor did they properly respond to the harassment
and discriminatory conduct of the students and/or teachers as required by state
law.
racially motivated harassment, nor did it properly respond to the harassment
and discriminatory conduct of the students as required by school policy.
312. The SSHS Administration and/or MCPSD did not make a determination

whether the reported discriminatory act was subject to the jurisdiction of the
school district or another public agency, including law enforcement.
313. The SSHS Administration and/or MCPSD did not make a referral of the racial
discrimination conduct, which is a potential violation of Montana law, M.C.A.
§ 20-5-209, BULLYING OF A STUDENT PROHIBITED, or M.C.A. § 45-5-220,
STALKING, or M.C.A. § 45-8-201: OBSCENITY; or M.C.A. § 45-6-101:
CRIMINAL MISCHIEF; or M.C.A. § 45-8-213: PRIVACY IN COMMUNICATIONS; or
M.C.A. § 45-5-221: MALICIOUS INTIMIDATION OR HARASSMENT RELATING TO
CIVIL OR HUMAN RIGHTS; or M.C.A. § 45-5-625: SEXUAL ABUSE OF CHILDREN;
or M.C.A. § 49-2-302: AIDING, COERCING, OR ATTEMPTING, to the law
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
SSHS Students, if these students were minors.
315. The SSHS Administration and/or MCPSD did not enact the District procedure,
if such procedure exists, to protect the alleged victim of behavior prohibited
under the BULLY-FREE MONTANA ACT from further incidents of such behavior.
316. The SSHS Administration and/or MCPSD did not enforce the disciplinary
procedure, if any such procedure exists, establishing the consequences for

students found to have committed behavior prohibited under the BULLY-FREE
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.
consequence of the SSHS Administration’s and MCPSD’s past failure to
investigate and respond to prior reports of sexual harassment, racial
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
wellbeing to this unprovoked attack on who he is as a person; Deidre was

damaged emotionally and physically by the extreme and outrageous conduct of
SSHS, SSHS Students, SSHS faculty, and MCPSD.
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
the jurisdictional limits of this court.
COUNT 2
NEGLIGENCE:
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM
DISCRIMINATION BASED ON COLOR
forth herein.
class status of color.
to the known and reported acts of racial bigotry, discrimination and harassment
based on Owens’ skin color.

326. Neither SSHS nor MCPSD responded to the racial/skin color discrimination in
accord with state law, federal law, and District policy.
racial/skin color discrimination, nor did they, jointly and severally, or
individually, properly respond to the racially motivated harassment and
law.
331. The SSHS Administration and/or MCPSD did not make a referral of the
racial/skin color discrimination conduct, which is a potential violation of
Montana law, M.C.A. § 20-5-209, BULLYING OF A STUDENT PROHIBITED, or
M.C.A. § 45-5-220, STALKING, or M.C.A. § 45-8-201: OBSCENITY; or M.C.A.

§ 45-6-101: CRIMINAL MISCHIEF; or M.C.A. § 45-8-213: PRIVACY IN
COMMUNICATIONS; or M.C.A. § 45-5-221: MALICIOUS INTIMIDATION OR
HARASSMENT RELATING TO CIVIL OR HUMAN RIGHTS; or M.C.A. § 45-5-625:
SEXUAL ABUSE OF CHILDREN; or M.C.A. § 49-2-302: AIDING, COERCING, OR
ATTEMPTING, to the law enforcement agency with appropriate jurisdiction.
MONTANA ACT.

and/or repeated.

COUNT 3
NEGLIGENCE:
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM DISCRIMINATION
BASED ON NATIONAL ORIGIN
forth herein.
class status of national origin.
to the known and reported acts of racial bigotry, discrimination and harassment
based on Owens’ national origin.
344. Neither SSHS nor MCPSD responded to the racial/national origin
discrimination in accord with state law, federal law, and District policy.
racial/national origin discrimination, nor did they, jointly and severally, or
individually, properly respond to the racially motivated harassment and

law.
349. The SSHS Administration and/or MCPSD did not make a referral of the
racial/national origin discrimination conduct, which is a potential violation of
Montana law, M.C.A. § 20-5-209, BULLYING OF A STUDENT PROHIBITED, or
M.C.A. § 45-5-220, STALKING, or M.C.A. § 45-8-201: OBSCENITY; or M.C.A.
§ 45-6-101: CRIMINAL MISCHIEF; or M.C.A. § 45-8-213: PRIVACY IN
COMMUNICATIONS; or M.C.A. § 45-5-221: MALICIOUS INTIMIDATION OR
HARASSMENT RELATING TO CIVIL OR HUMAN RIGHTS; or M.C.A. § 45-5-625:
SEXUAL ABUSE OF CHILDREN; or M.C.A. § 49-2-302: AIDING, COERCING, OR
ATTEMPTING, to the law enforcement agency with appropriate jurisdiction.

MONTANA ACT.

and/or repeated.
COUNT 4
NEGLIGENCE:
DISCRIMINATION AND AN EDUCATIONAL OPPORTUNITY FREE FROM DISCRIMINATION
BASED ON GENDER
forth herein.

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
bigotry, gender discrimination and sexual harassment based on Owens’ gender.
362. Neither SSHS nor MCPSD responded to the gender discrimination in accord
with state law, federal law, and District policy.
gender discrimination, nor did they, jointly and severally, or individually,
properly respond to the gender motivated sexual harassment and discriminatory
gender motivated sexual harassment, nor did they properly respond to the
sexual harassment and discriminatory conduct of the students and/or teachers
as required by state law.
gender motivated sexual harassment, nor did it properly respond to the sexual

harassment and discriminatory conduct of the students as required by school
policy.
367. The SSHS Administration and/or MCPSD did not make a referral of the gender
discrimination conduct, which is a potential violation of Montana law, M.C.A.
§ 20-5-209, BULLYING OF A STUDENT PROHIBITED, or M.C.A. § 45-5-220,

MONTANA ACT.
nor MCPSD did any type of Title VI follow up or response to the reported racial
and/or repeated.

COUNT 5
NEGLIGENCE:
SEELY SWAN HIGH SCHOOL AND MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
IN FAILING TO SUPERVISE STUDENTS
forth herein.
377. SSHS and MCPSD had a duty to supervise students and act as a reasonable and
prudent educational institution in addressing, among other things, bulling
behavior in schools, on school buses, at school-sponsored activities, and online.
378. SSHS and MCPSD had a duty to adopt policies to deter persistent threatening,
insulting, or demeaning gestures or physical conduct, including an intentional
written, verbal, or electronic communication or threat directed against a student
or students regardless of the under reason for such conduct.
prudent educational institution in addressing, among other things, criminal

conduct of students in schools, on school buses, at school-sponsored activities,
and online.
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,
harassment and criminal conduct by SSHS Students; MCPSD, after knowing
about acts of racial bigotry, discrimination, harassment and criminal conduct by
SSHS Students, failed to respond to the known and reported acts of racial bigotry,
discrimination, harassment and criminal conduct by SSHS Students against
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.
acts of racial bigotry, discrimination, harassment and criminal conduct by SSHS,
nor did they, jointly and severally, or individually, properly respond to the acts
of racial bigotry, discrimination, harassment and criminal conduct by SSHS

students.
acts of racial bigotry, discrimination, harassment and criminal conduct by SSHS,
nor did they properly respond to the acts of racial bigotry, discrimination,
harassment and criminal conduct by SSHS students and/or teachers as required
by state law.
acts of racial bigotry, discrimination, harassment and criminal conduct by SSHS
students, nor did it properly respond to the acts of racial bigotry, discrimination,
harassment and criminal conduct by SSHS students as required by school policy.
whether the reported discriminatory actions, harassing actions, or criminal
conduct was subject to the jurisdiction of the school district or another public
agency, including law enforcement.
387. The SSHS Administration and/or MCPSD did not make a referral of the acts of
racial bigotry, discrimination, harassment and criminal conduct by SSHS
students, each of which is a potential violation of Montana law, M.C.A. § 20-5-
209, BULLYING OF A STUDENT PROHIBITED, or M.C.A. § 45-5-220, STALKING,
or M.C.A. § 45-8-201: OBSCENITY; or M.C.A. § 45-6-101: CRIMINAL MISCHIEF;
or M.C.A. § 45-8-213: PRIVACY IN COMMUNICATIONS; or M.C.A. § 45-5-221:

MALICIOUS INTIMIDATION OR HARASSMENT RELATING TO CIVIL OR HUMAN
RIGHTS; or M.C.A. § 45-5-625: SEXUAL ABUSE OF CHILDREN; or M.C.A. § 49-
2-302: AIDING, COERCING, OR ATTEMPTING, to the law enforcement agency with
Students, if these students were minors.
MONTANA ACT.
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT,
or the victims of criminal acts by SSHS students.

discrimination, national origin discrimination, gender discrimination, and/or
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
hours, and while participating in school sponsored activities.
393. The incidents/acts of racial bigotry, discrimination, harassment and criminal
conduct by SSHS students 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
and/or repeated.

COUNT 6
NEGLIGENCE:
IN FAILING TO SUPERVISE STAFF
forth herein.
397. SSHS and MCPSD had a duty to supervise teachers and coaches and act as a
reasonable and prudent educational institution in addressing, among other things,
student bulling behavior in schools, on school buses, at school-sponsored
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
approving of student bullying activity.
398. SSHS and MCPSD had a duty to adopt policies to deter persistent threatening,
insulting, or demeaning gestures or physical conduct, including an intentional
written, verbal, or electronic communication or threat directed against a student
or students regardless of the under reason for such conduct.
and online.
400. SSHS and MCPSD had a duty to train teachers and coaches about SSHS and
MCPSD policies to deter persistent threatening, insulting, or demeaning gestures

or physical conduct, including an intentional written, verbal, or electronic
communication or threat directed against a student or students regardless of the
under reason for such conduct.
401. SSHS and MCPSD had a duty to supervise teachers and coaches in the
enforcement and implementation of SSHS and MCPSD policies to deter
persistent threatening, insulting, or demeaning gestures or physical conduct,
including an intentional written, verbal, or electronic communication or threat
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
students to law enforcement.
protected class member, and perpetrated by at least three (3) identified SSHS Staff
Members (2 coaches and 1 teacher).
404. SSHS, after knowing about harassment, discrimination, and/or criminal conduct
failed to respond to the known and reported acts of racial bigotry, discrimination,

harassment and criminal conduct by SSHS Staff Members; MCPSD, after
knowing about acts of racial bigotry, discrimination, harassment and criminal
conduct by SSHS Staff Members, failed to respond to the known and reported
Staff Members against Owen.
405. Neither SSHS nor MCPSD responded to the discrimination and staff member
conduct in accord with state law, federal law, and District policy.
Staff Members, nor did they, jointly and severally, or individually, properly
respond to the acts of racial bigotry, discrimination, harassment and criminal
conduct by SSHS Staff Members.
Staff Members, nor did they properly respond to the acts of racial bigotry,
discrimination, harassment and criminal conduct by SSHS coaches and/or
teachers as required by state law.
Staff Members, nor did it properly respond to the acts of racial bigotry,

discrimination, harassment and criminal conduct by SSHS Staff Members as
whether the reported discriminatory actions, harassing actions, or criminal
conduct of SSHS Staff Members was subject to the jurisdiction of the school
district or another public agency, including law enforcement.
racial bigotry, discrimination, harassment and criminal conduct by SSHS Staff
Members, each of which is a potential violation of Montana law, M.C.A. § 20-
5-209, BULLYING OF A STUDENT PROHIBITED, or M.C.A. § 45-5-220,
Staff Members.

MONTANA ACT.
remediation for victims and perpetrators under the BULLY-FREE MONTANA ACT,
or the victims of criminal acts by SSHS Staff Members.
discrimination, national origin discrimination, gender discrimination, and/or
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
hours, and while participating in school sponsored activities.
conduct by SSHS Staff Members against Owen were not investigated by

and/or repeated.
wellbeing to this unprovoked attack on who he is as a person, as well as the
emotional distress caused by the institutional betrayal of trusted coaches and
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
emotional distress caused by the institutional betrayal of SSHS coaches and
teachers. In addition, Deidre was betrayed by the SSHS Administration, and the
betrayal damages caused severe emotional distress.
COUNT 6
NEGLIGENCE:
MISSOULA COUNTY PUBLIC SCHOOL DISTRICT
IN FAILING TO SUPERVISE SEELY SWAN HIGH SCHOOL ADMINISTRATION

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
and prudent educational institution in addressing, among other things, student
bulling behavior in schools, on school buses, at school-sponsored activities, and
online.
422. MCPSD had a duty to supervise administrator’s actions in response to any
instances of SSHS students engaging in bullying activity in schools, on school
buses, at school-sponsored activities, and online.
instances of teachers and staff engaging in the same activity or advocating for the
bullying activity, or tacitly or overtly approving of student bullying activity.
instances of ignoring SSHS students engaging in bullying activities in schools, on
school buses, at school-sponsored activities, and online , as well as teachers and
staff engaging in the same activity or advocating for the bullying activity, or
tacitly or overtly approving of student bullying activity.
425. MCPSD had a duty to adopt policies to deter persistent threatening, insulting, or
demeaning gestures or physical conduct, including an intentional written, verbal,
or electronic communication or threat directed against a student or students

regardless of the under reason for such conduct.
426. MCPSD had a duty to supervise students and act as a reasonable and prudent
educational institution in addressing, among other things, criminal conduct of
students in schools, on school buses, at school-sponsored activities, and online.
427. MCPSD had a duty to train administrators about SSHS and MCPSD policies to
deter persistent threatening, insulting, or demeaning gestures or physical conduct,
conduct.
428. MCPSD had a duty to supervise administrators, teachers and coaches in the
enforcement and implementation of SSHS and MCPSD policies to deter
persistent threatening, insulting, or demeaning gestures or physical conduct,
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
students to law enforcement.

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
accord with state law, federal law, and District policy.
434. MCPSD conducted no investigation of the acts of racial bigotry, discrimination,
harassment and criminal conduct by SSHS Staff Members, and the apparent
approval of those actions by the SSHS Administration, nor did they, jointly and
severally, or individually, properly respond to the acts of racial bigotry,

discrimination, harassment and criminal conduct by SSHS Staff Members.
approval of those actions by the SSHS Administration, nor did they properly
conduct by SSHS coaches and/or teachers as required by state law.
approval of those actions by the SSHS Administration, nor did it properly
conduct by SSHS Staff Members as required by school policy.
437. MCPSD did not make a determination whether the reported discriminatory
actions, harassing actions, or criminal conduct of SSHS Staff Members, and the
apparent approval of those actions by the SSHS Administration, was subject to
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,
approval of those actions by the SSHS Administration, each of which is a
potential violation of Montana law, M.C.A. § 20-5-209, BULLYING OF A

STUDENT PROHIBITED, or M.C.A. § 45-5-220, STALKING, or M.C.A. § 45-8-
201: OBSCENITY; or M.C.A. § 45-6-101: CRIMINAL MISCHIEF; or M.C.A. § 45-
8-213: PRIVACY IN COMMUNICATIONS; or M.C.A. § 45-5-221: MALICIOUS
INTIMIDATION OR HARASSMENT RELATING TO CIVIL OR HUMAN RIGHTS; or
M.C.A. § 45-5-625: SEXUAL ABUSE OF CHILDREN; or M.C.A. § 49-2-302:
AIDING, COERCING, OR ATTEMPTING, to the law enforcement agency with
conduct by SSHS Staff Members against Owen, and the apparent approval of
those actions by the SSHS Administration, were not investigated by MCPSD;
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.
teachers.

betrayal damages caused severe emotional distress.
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
have the right to equal protection under the law.
445. This United States Constitutional Right includes the right be free from
discrimination from any government entity as well as protection from others on
government property.
446. Under Federal law, a person’s Constitutional rights cannot be infringed by a
person or government entity acting under the color of law; any such actor is
liable to the individual who the actor “subjects, or causes to be subjected . . . to
the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983.

447. The Defendants have continually violated the rights of Owen set forth in the
Fourteenth Amendment and in violation of 42 U.S.C. § 1983.
448. SSHS and MCPSD had a duty to supervise administrators, teachers, coaches and
students while acting as a reasonable and prudent educational institution in
addressing, among other things, student bulling behavior in schools, on school
buses, at school-sponsored 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 approving of student bullying activity.
449. SSHS and MCPSD had a regulatory duty to adopt policies to deter persistent
threatening, insulting, or demeaning gestures or physical conduct, including an
intentional written, verbal, or electronic communication or threat directed against
a student or students regardless of the under reason for such conduct.
450. SSHS and MCPSD had a duty to train administrators, teachers and coaches about
SSHS and MCPSD policies to deter persistent threatening, insulting, or
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
activity by other unidentified students or actors on SSHS property.
452. SSHS and MDPSD, after knowing about harassment, discrimination, and/or
criminal conduct failed to respond to the known and reported acts of racial
bigotry, discrimination, harassment and criminal conduct by at least three (3)
identified SSHS Staff Members (2 coaches and 1 teacher), eighteen (18) identified
SSHS Students, and activity by other unidentified students or actors on SSHS
property against Owen.
conduct by at least three (3) identified SSHS Staff Members (2 coaches and 1
teacher), eighteen (18) identified SSHS Students, and activity by other
unidentified students or actors on SSHS property against Owen.

456. The actions and inactions of SSHS and MCPSD violated Owen’s U.S.
Constitutional Rights and violated the protections provided by 42 U.S.C. § 1983.
teachers.
betrayal damages caused severe emotional distress due to the violation of her
rights under 42 U.S.C. § 1983.

COUNT 9
VIOLATIONS OF MONTANA STATE CONSTITUTIONAL RIGHTS
forth herein
461. Under Article II, Section 4, of the Montana Constitution, individuals have the
right to equal protection under the law.
462. The Montana Constitution grants the right of individuals within the State of
Montana to be free from discrimination based on a person’s race, color, sex,
culture, social origin, or condition, or political or religious ideas.
463. The Defendants have continually violated the rights of Owen set forth in the
Article II, Section 4, of the Montana Constitution.

intentional written, verbal, or electronic communication or threat directed
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
about SSHS and MCPSD policies to deter persistent threatening, insulting, or
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 activity by other unidentified students or actors on SSHS property.
identified SSHS Staff Members (2 coaches and 1 teacher), eighteen (18)
identified SSHS Students, and activity by other unidentified students or actors
on SSHS property against Owen.

472. The actions and inactions of SSHS and MCPSD violated Owen’s US

Constitutional Rights and violated the protections provided by Article II,
Section 4, of the Montana Constitution.
teachers.
rights under Article II, Section 4, of the Montana Constitution.
COUNT 10
DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT:
FAILING TO GRANT OWEN MERCADO A REASONABLE ACCOMMODATION
forth herein.

477. Owen is disabled as that term is used and interpreted under the Americans with
Disabilities Act of 1990 (“ADA”).
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
learning and care of Owen, which included the reasonable accommodation
request for SSHS and/or MCPSD take actions to eliminate the known
harassing environment created by SSHS, including the tolerance of the actions
of at least three (3) identified SSHS Staff Members (2 coaches and 1 teacher),
eighteen (18) identified SSHS Students, and activity by other unidentified
students or actors on SSHS property against Owen.
480. The Defendants failed to meet this duty of care by completely ignoring the
requests of Deidre for a reasonable accommodation or the equal treatment of her
disabled son under the ADA.
481. This failure caused emotional and physical damage to Owen for which he may
never be able to fully recover.

COUNT 11
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM PERSONAL INJURY UNDER
M.C.A. §§ 49-1-101 – 102:
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
. . . personal insult, defamation, and injury to the person’s personal relations.
485. M.C.A. § 49-1-102 guarantees the right to be free from discrimination because
of race, creed, religion, color, sex, physical or mental disability, age, or
national origin is recognized as and declared to be a civil right.
486. The Defendants have continually violated the rights of Owen set forth in
M.C.A. §§ 49-1-101 – 102.


Constitutional Rights and violated the protections provided by M.C.A. §§ 49-
1-101 – 102.

teachers.
rights under M.C.A. §§ 49-1-101 – 102.
COUNT 12
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM DISCRIMINATION UNDER
M.C.A. § 49-1-102:
herein.
500. M.C.A. § 49-1-102 guarantees the right to be free from discrimination because
of race, creed, religion, color, sex, physical or mental disability, age, or
national origin is recognized as and declared to be a civil right.

M.C.A. § 49-1-102.


Constitutional Rights and violated the protections provided by M.C.A. § 49-1-
102.
teachers.

rights under M.C.A. § 49-1-102.
COUNT 13
VIOLATION OF OWEN MERCADO’S RIGHT TO BE FREE FROM DISCRIMINATION IN
EDUCATION UNDER M.C.A. § 49-2-307:
herein.
515. M.C.A. § 49-2-307 provides that it is an unlawful discriminatory practice for
an educational institution to exclude, expel, limit, or otherwise discriminate
against a person enrolled as a student in the terms, conditions or privileges of
the institution because of race, creed, color, national origin, or disability
M.C.A. § 49-2-307.



307.
teachers.
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:
herein.

530. M.C.A. § 49-2-301 provides that it is an unlawful discriminatory practice for
an educational institution to discriminate against an individual who has reported
discrimination under Chapter 49.
531. Owen and his mother Deidre have reported no less than nineteen (19) different
acts of racial bigotry, discrimination, harassment, and criminal conduct by at
least three (3) identified SSHS Staff Members (2 coaches and 1 teacher), eighteen
(18) identified SSHS Students, and activity by other unidentified students or
actors on SSHS property.
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.


301.
teachers.

COUNT 15
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
herein.
543. Defendants acts and/or omissions were negligent acts.
544. Defendants acts and/or omissions were significant enough to make reasonably
foreseeable the emotional distress caused by this conduct.
545. As a direct result of Defendants’ conduct, Owen has suffered serious or severe
emotional distress manifesting itself by, among other things, suicide attempts,
self-inflicted cutting wounds, depression, and severe anxiety.
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
for many years.
COUNT 16
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
herein.
548. Defendants acts and/or omissions were negligent acts.
549. Defendants acts and/or omissions were significant enough to make reasonably
foreseeable the emotional distress caused by this conduct.

550. As a direct result of Defendants’ conduct, Owen has suffered serious or severe
emotional distress manifesting itself by, among other things, suicide attempts,
self-inflicted cutting wounds, depression, and severe anxiety.
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
for many years.
VI.
Damages
forth herein.
553. As alleged in each Count, Plaintiffs have sustained actual damages in an
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
in this matter substantially exceeds the jurisdictional limits of this court.
554. Plaintiffs’ damages under each Count 1 – 16, Section V, supra, generally
include, but are not limited to:
a. the cost of past counseling;
b. the cost of past therapy;
c. past pain and suffering;
d. past emotional distress damages;
e. past costs of relocation and education;

f. the cost of future counseling;
g. the cost of future therapy;
h. the cost of future educational opportunities lost due to the
discrimination;
i. the future pain and suffering;
j. the future severe emotional distress;
k. the cost of experts and medical professionals;
l. litigation costs and attorney’s fees;
m. exemplary damages which are available under statute;
n. punitive damages which are available under statute;
o. exemplary and punitive damage which cannot yet be quantified, but are
the purview of the jury to determine.
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
of 1976, 42 U.S.C.A. § 1988(b).
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
attorneys’ fees at its discretion.
559. Plaintiffs, furthermore, seek the recovery of all reasonable attorney’s fees and
costs as permitted by any applicable statute, state or federal.
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
or federal judiciary discretion.
VIII.
Exemplary Damages
561. Plaintiff herein realleges paragraphs 1 through 560 above as though fully set forth
herein.
unknown, and by at least three SSHS employees, was so expansive and endured

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
overt, offensive, and disgusting discrimination and harassment that facially
required reporting to law enforcement for the investigation of potential criminal
acts, including but not limited to:
a. M.C.A. § 45-8-201: Obscenity;
b. M.C.A. § 45-6-101: Criminal mischief;
c. M.C.A. § 45-8-213: Privacy in communications;
d. M.C.A. § 45-5-221: Malicious intimidation or harassment relating to

civil or human rights;
e. M.C.A. § 45-5-625: Sexual abuse of Children.
f. M.C.A. § 45-5-220: Stalking;
g. M.C.A. § 49-2-302: Aiding, coercing, or attempting; and
h. M.C.A. § 45-5-222: Sentence enhancement – offense committed

because of victim’s race, creed, religion, color, national origin, or
involvement in civil rights or human rights activities.
563. Defendants conduct, individually, in concert, or in combination, demonstrates a
level of actual malice and/or actual fraud in breaching their duties to students and
parents, entitling the Plaintiffs to punitive damages under M.C.A. § 27-1-220.
564. Defendants conduct, individually, in concert, or in combination, demonstrates the
Defendants’ conduct was indifferent to the federally protected rights of others

and, the participation of SSHS employees in the harassment, at a minimum,
demonstrates the Defendants were motivated by an evil intent or motive, which
further entitles Plaintiff to punitive damages under 42 U.S.C. § 1983.
565. Defendants conduct, individually, in concert, or in combination, demonstrates the
Defendants’ conduct was reckless or callously indifferent to the federally
protected rights of others and, the participation of SSHS employees in the
harassment, at a minimum, demonstrates the Defendants were motivated by an
evil intent or motive, which further entitles Plaintiff to punitive damages under
42 U.S.C. § 1983, et seq.
566. Defendants conduct, individually, in concert, or in combination, and the manner
in which they failed to act demonstrates conscious indifference to the underlying
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.
567. Defendants conduct, individually, in concert, or in combination, and the manner
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

42 U.S.C. § 1981a(a)(3) in an amount not to exceed $300,000, as provided
under this statutory relief provision.
568. Defendants’ conduct, individually, in concert, or in combination, and the manner
discrimination premised upon the Plaintiffs’ protected class status (disabled),
which entitles Plaintiffs to seek punitive damages under the same theory
advocated and approved under 42 U.S.C. § 12177 and 42 U.S.C. § 1981a(a)(3)
in an amount not to exceed $300,000, as provided under this statutory relief
provision.
Prayer for Relief
WHEREFORE, Plaintiffs pray for relief as follows:
1. An award of the economic damages incurred as a result of the negligence

of Seeley Swan High School;
2. An award of the economic damages incurred as a result of the negligence

of Missoula County Public School District;
3. An award of the special damages incurred as a result of the negligence of

Seeley Swan High School and Missoula County Public School District;
4. An award of the special damages incurred as a result of the negligence of

Missoula County Public School District;
5. An award of the consequential damages incurred as a result of the

negligence of Seeley Swan High School and Missoula County Public
School District;
6. An award of the consequential damages incurred as a result of the

negligence of Missoula County Public School District;

7. An award of past emotional distress damages;
8. An award of future emotional distress damages;
9. An award of past medical expenses;
10. An award of future medical expenses;
11. An award of costs and attorney’s fees;
12. An award of punitive damages; and
13. For any other relief the Court deems just under the circumstances.
DATED this 21st day of January, 2021.
/s/ Lawrence E. Henke

LAWRENCE E. HENKE
Attorney for the Plaintiffs

DEMAND FOR JURY TRIAL
COMES NOW the Plaintiffs, by and through their counsel, and hereby demand
a jury trial.
DATED this 21st day of January, 2021.
/s/ Lawrence E. Henke

LAWRENCE E. HENKE
Attorney for the Plaintiffs



Former Seeley Swan Student Sues Over Alleged Harassment

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Former Seeley Swan Student Sues Over Alleged Harassment

Uploaded by

Copyright:

Available Formats

Case 9:21-cv-00010-DLC Document 1 Filed 01/21/21 Page 1 of 127

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

COMES NOW the Plaintiffs, Deidre Lechowski-Mercado and Owen Mercado,

Defendants, asserts and alleges as follows:

COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 1 of 127

1. Plaintiff Owen Mercado (“Owen”) is and was a resident of Missoula County, at

all times pertinent hereto.

2. Plaintiff Deidre Lechowski-Mercado (“Deidre”) is and was a resident of Missoula

County, at all times pertinent hereto.

4. Defendant in Missoula County, MT.

5. Venue is proper in Federal District Court, Missoula Division, pursuant to

Defendants conduct their business in the State of Montana.

9. Verbal bigotry, such as “NIGGER”, “FAGGOT”, “FUCKBOI”, “FENCE

JUMPER” and/or “BORDER JUMPER” are words routinely used by students

COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 2 of 127

been used as an ongoing, school sponsored, discriminative assault against Owen,

a minority student at SSHS.

M.C.A. §§ 20-5-207 – 20-5-210.

discrimination and harassment directed toward Plaintiff Owen, which resulted in

distress of his mother, Plaintiff Deidre Lechowski-Mercado. In fact, Deidre has

with recalcitrance and deliberate indifference by SSHS and MCPSD.

Owen’s gender, and (iv) Owen’s known and reported disability.

COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 3 of 127

13. Under Federal law, a person’s Constitutional rights cannot be infringed by a

liable to the individual who the actor “subjects, or causes to be subjected . . . to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983.

race, color, sex, culture, social origin or condition, or political or religious

ideas.” Mont. Const. art. II, § 4.

discrimination, displayed a systemic, school-wide pattern and practice of

discrimination against Owen in violation of the law.

16. Defendants’ chosen path of indifference to the discriminatory actions occurring

on school property, tolerance of student discriminatory attacks, acceptance of

cyberbullying, and, from at least three separate school employees, active

participation in the discriminatory actions, created an environment wherein the

discrimination was so tolerated that it became industrialized through the creation

COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 4 of 127

of a SSHS specific web-site/Internet page (instagram.com/13c_meme_page/)

to engage in harassment, discrimination, and degradation of students, including

the harassment of Owen.

competition district designation – was a direct result of the Defendants’

employee to cyberbully Owen on the site.

within the MCPSD, during the 2018-19 academic year.

and state law.

Discrimination based on race, color, physical disability,

both were on school property and during school hours.

COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 5 of 127

discrimination against Owen as reported by his mother, Deidre, during an in-

person meeting with Dr. Pecora.

23. The SSHS Administration conducted no investigation of the racial

discrimination, nor did it properly respond to the harassment and discriminatory

conduct of the students as required by state law.

24. The SSHS Administration conducted no investigation of the racial

discrimination, nor did it properly respond to the harassment and discriminatory

conduct of the students as required by school policy.

public agency, including law enforcement.

violation of Montana law, M.C.A. § 20-5-209, BULLYING OF A STUDENT

PROHIBITED, to the law enforcement agency with appropriate jurisdiction.

if the students were minors.

COMPLAINT AND DEMAND FOR JURY TRIAL -- Page 6 of 127

BULLY-FREE MONTANA ACT from further incidents of such behavior.