Doe V Miami Dade - Answer

Case 1:19-cv-20204-UU Document 36 Entered on FLSD Docket 05/15/2019 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:19-CV-20204-UU
JANE DOE, by and through

Her mother and next friend,
Mary Doe,
Plaintiff,
v.
THE SCHOOL BOARD OF

MIAMI DADE COUNTY
Defendant,
___________________________/
THE SCHOOL BOARD’S ANSWER AND AFFIRMATIVE DEFENSES TO

PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL
Defendant, The School Board of Miami Dade County (the “School Board”) by
and through its undersigned counsel, hereby files its Answer and Affirmative
Defenses to Plaintiff’s Complaint and Demand for Jury Trial, and states as follows:
Introduction
1. Admitted only to the extent that Jane was enrolled at Miami Carol
City High School as a minor at the time of the alleged incidents. All remaining
allegations are denied, including fn. 1.
2. Denied.
3. Denied.
4. Denied.
5. Denied.
6. Denied.
Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida
Case No. 1:19-cv-20204-UU
7. The School Board states that Paragraph 7 does not require a response.
To the extent that it does, The School Board denies the allegations of Paragraph 7.
Jurisdiction and Venue
8. Admitted only to the extent that Plaintiff has alleged a cause of action
within the federal question and supplemental jurisdiction of the Court. However, all
remaining allegations are denied.
9. The School Board admits only that Plaintiff has alleged a cause of
action accruing within the Southern District of Florida. However, all remaining
allegations are denied.
Parties
10. Admitted only to the extent that Jane was enrolled at Miami Carol
City High School as a minor at the time of the alleged incidents. The School Board
is without sufficient knowledge or information to form a belief as to the truth of the
remaining allegations in Paragraph 10, and therefore denies same.
11. Admitted only to the extent that The School Board is a political
subdivision of the state of Florida and receives federal funds. All remaining
12. Admitted only to the extent that the Superintendent is its secretary
and executive officer and is responsible for the administration and management of
schools and the supervision of instruction within the district. All remaining
2
13. Admitted only to the extent that the Superintendent is and was an
employee of The School Board. All remaining allegations are denied.
14. Denied as phrased.
Factual Assertions
15. The School Board is without sufficient knowledge or information to
form a belief as to the truth of the allegations in Paragraph 15, and therefore denies
the same.
the same.
the same.
the same.
the same.
the same.
3
the same.
the same.
the same.
the same.
the same.
the same.
the same.
4
the same.
29. Admitted only to the extent that someone other than Jane reported
allegations of sexual assault against Jane to Principal Dunn. All remaining
the same.
the same.
32. Denied.
33. Denied.
34. Admitted only to the extent that Jane was interviewed by Officer
Etienne regarding the alleged assaults. All remaining allegations are denied.
35. Admitted only to the extent that Jane wrote a statement as part of the
investigation into the allegations. All remaining allegations are denied.
36. Denied.
the same.
5
the same.
39. Admitted only to the extent that Jane saw a counselor. All remaining
40. Denied.
41. Denied.
the same.
the same.
the same.
45. Denied.
46. Denied.
47. Denied.
48. Denied.
49. Denied.
6
the same.
51. Admitted only to the extent that Jane agreed that she was a willing
participant and wasn’t really forced to engage in sexual acts. All remaining
the same.
53. Denied.
54. Denied.
55. Denied.
56. Denied.
57. Admitted only to the extent that school officials met with Jane’s
mother regarding the incidents. The School Board denies the remaining allegations
in Paragraph 57.
58. Admitted only to the extent that school officials met with Jane’s
mother regarding the incidents. The School Board denies the remaining allegations
in Paragraph 58.
59. Denied.
7
60. Admitted only to the extent that Assistant Principal Gaines informed
Jane and her mother that Jane would receive discipline for a violation of the Code of
Student Conduct. All remaining allegations of Paragraph 60 are denied.
61. Denied.
62. Admitted only to the extent that Jane received discipline for a violation
of the Code of Student Conduct. All remaining allegations of Paragraph 62 are
denied. Additionally, pursuant to the Family Educational Rights and Privacy Act,
20 U.S.C. § 1232g and implementing regulation 34 C.F.R. § 99.31(a)(9), The School
Board is prohibited from releasing personally identifiable information about
students [other than Jane] without a judicial order or lawfully issued subpoena, and
upon reasonable effort to notify the parent or eligible student of the order or
subpoena in advance of compliance.
63. Denied.
64. Denied.
65. Denied.
66. Denied.
67. Denied.
68. Denied.
69. Denied.
70. Denied.
71. Denied.
72. Denied.
8
73. Denied.
74. Denied.
75. Denied as to Paragraph 75; 75a, 75b, 75f, and 75g. The School Board
is without sufficient knowledge or information to form a belief as to the truth of the
allegations in Paragraph 75c, 75d, and 75e, and therefore denies the same.
76. Admitted.
77. Denied.
78. Denied.
79. Admitted to the extent that Jane and her mother were informed, at
their home, that Jane may have been exposed to human immunodeficiency virus
(HIV) and they were advised to get Jane tested at Jackson Memorial Hospital. All
remaining allegations in Paragraph are denied.
the same.
81. Admitted to the extent that Jane was escorted by school police officers
to a facility to receive an examination for possible exposure to sexually transmitted
diseases. The School Board is without sufficient knowledge or information to form a
belief as to the truth of the remainder of the allegations in Paragraph 81, and
therefore denies the same.
82. Denied.
9
the same.
84. Admitted to the extent that Jane was absent from school from
November 8, 2017 through March 1, 2018. All remaining allegations of Paragraph
84 are denied.
85. Denied.
86. Denied, including subparagraphs a through e.
87. Admitted to the extent that Assistant Principal Gaines contacted
Jane’s mother regarding Jane’s absence from school. All remaining allegations of
Paragraph 87 are denied.
88. Admitted to the extent that Jane’s mother went to Carol City High in
January 2018 to inquire about an alternate educational option for Jane. All
remaining allegations of Paragraph 88 are denied.
89. Denied.
90. Admitted to the extent that Jane’s mother was provided with a copy of
her statement. All remaining allegations of Paragraph 90 are denied.
the same.
10
the same.
the same.
94. Admitted to the extent that a WSVN employee contacted a school
district employee on January 29, 2018 inquiring about an allegation involving
students at Carol City High School in October 2017. All remaining allegations of
95. Admitted to the extent that Assistant Principal Gaines discussed with
Jane’s mother regarding her absence from school and makeup work for Jane. All
remaining allegations of Paragraph 95 are denied.
96. Admitted to the extent that Assistant Principal Gaines emailed Jane’s
mother a link with classwork for Jane. All remaining allegations of Paragraph 96
are denied.
97. Admitted to the extent that Channel 7 broadcasted a news story in
February 2018 involving the alleged incidents. All remaining allegations of
98. Denied.
11
99. Admitted to the extent that the allegations were referred to the
Juvenile Division of the State’s Attorney’s Office. All remaining allegations of
100. Admitted to the extent that a records correction process was conducted
at the request of Jane’s mother, through an attorney. All remaining allegations of
101. Admitted to the extent that the Regional Superintendent facilitated
Jane’s transfer to another school within the school district and arranged for
transportation. All remaining allegations of Paragraph 97 are denied.
102. Admitted to the extent that on or about March 6, 2018, Jane’s mother,
through an attorney, pursued a complaint against Officer Etienne with Schools
Police and that the complaint was investigated. All remaining allegations of
103. Denied.
104. Admitted only to the extent that Jane received mostly failing grades
for one grading period, but passed her courses for the year sufficiently to be
promoted to the tenth grade. The School Board is without sufficient knowledge or
information to form a belief as to the truth of Jane’s diligence, distress and fears
alleged in Paragraph 104, and therefore denies the same.
105. Denied.
106. Denied.
COUNT I
12
107. The School Board adopts and reasserts its responses to Paragraphs 1
through 106 as if fully set forth herein.
108. The School Board admits that Title IX prohibits discrimination and
harassment on the basis of sex.
109. Denied.
110. Denied as phrased.
111. Denied.
112. Denied.
113. Denied, including subparagraphs a through c.
114. Denied.
115. Denied.
COUNT II
117. Denied.
118. Denied.
COUNT III
119. The School Board states that Count III has been dismissed and that
Plaintiffs have not amended their Complaint within the timeframe allowed
by this Court. (D.E. 35).
13
14
COUNT IV1
128. The School Board admits that this Court has jurisdiction over
Plaintiff’s supplemental claim for negligence. All remaining allegations in
129. Denied.
130. The School Board admits that it has adopted policies and procedures
relating to harassment and bullying and had a duty of reasonable care to
protect the safety and well-being of students. All remaining allegations are
denied
131. The School Board admits that it had a duty of reasonable care to
protect the safety and well-being of students. All remaining allegations in
132. Denied. The School Board denies the allegations of Paragraph 132.
133. Denied.
134. Denied, including subparts a through p.
135. Denied.
COUNT V2
1Count IV has been dismissed as to Superintendent Carvalho with prejudice. (D.E.

35).
2Count V has been dismissed as to Superintendent Carvalho with prejudice. (D.E.

35).
15
137. The School Board admits that this Court has jurisdiction over
Plaintiff’s supplemental claim for negligence. All remaining allegations in
138. Admitted to the extent that Jane was enrolled at Carol City High
School in October – November 2017. All remaining allegations in Paragraph
138 are denied.
139. Denied.
140. Denied.
141. Denied, including sub-paragraphs a through m.
142. Denied.
COUNT VI
Count VI has been dismissed with prejudice and without leave to amend. (D.E. 35).
COUNT VII
Count VI has been withdrawn by Plaintiff. (D.E. 28, at ¶ 4.).
WHEREFORE, The School Board prays for judgment in its favor, and any
further relief deemed just and proper.
AFFIRMATIVE DEFENSES
1. The School Board is a political subdivision of the state of Florida, and
as such, to the extent that Plaintiff seeks to recover through s. 768.28, Florida
Statutes, such recovery is limited to the statutory caps and exclusions delineated
16
therein.
2. The School Board is a political subdivision of the state of Florida, and
as such, to the extent that Plaintiff seeks to recover through s. 768.28, Florida
Statutes, The School Board states it has not waived its sovereign immunity to suit
for any covered actions, except to the extent expressly provided therein.
3. The School Board is immune under section 768.28 to any conduct of its
agents or employees which was done in willful and wanton disregard of human life,
was performed in bad faith and outside the course and scope of the employee’s
position, and/or is self-serving in nature.
4. The School Board states that any recovery by Plaintiff is reduced or
barred by any settlement, judgment or payment of any kind, relating to the
incident described in Plaintiff’s Complaint, paid by any individual or entity,
including the state of Florida, its agencies or subdivisions.
5. The School Board states that Plaintiff’s damages were caused by the
acts and/or omissions of non-parties, including that of non-parties A.C, J.C, and
E.H to whom liability and damages should be apportioned under the doctrine of
Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), because the negligence of the non-
parties would reduce the responsibility of the School Board. See Fla. Stat. §
768.81(3); Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262 (Fla. 1996).
6. The School Board asserts, without admitting liability, that any award
in this case must be apportioned, barred or reduced accordingly by the principles of
comparative fault amongst any individuals who are deemed to have contributed to
17
the alleged injuries, according to Fla. Stat. Sec. 768.81.
7. The School Board states that Plaintiff has failed to set forth allegations
or facts sufficient to sustain a claim under Title IX, as well as to impute any
liability to the School Board for the alleged wrongful acts. The Plaintiff has failed
to establish that The School Board had actual knowledge that the incidents in
question constituted sexual assault, acted with deliberate indifference to sexual
harassment or retaliated against Plaintiff in connection with the alleged incidents.
Further, the School Board asserts that the Plaintiff was not excluded from
participating in, denied the benefits of, or subjected to discrimination under any of
Defendant’s educational programs or activities on the basis of sex.
8. The School Board asserts that Plaintiff has failed to set forth
allegations or facts sufficient to sustain a claim for negligence upon which relief
can be granted against the School Board.
9. The School Board asserts that Plaintiff has failed to set forth
allegations or facts sufficient to sustain a claim for negligent failure to train upon
which relief can be granted against the School Board.
10. The School Board maintains that it has sovereign immunity for
discretionary training functions.
11. The School Board states that any recovery by Plaintiff must be reduced
or barred by Plaintiff’s failure to mitigate her damages.
12. The School Board states that neither the School Board nor any of its
employees engaged in any conduct that proximately caused or contributed to
18
Plaintiff’s alleged injuries and damages.
13. The School Board states that any injury, loss or damage allegedly
suffered by the Plaintiff did not result from any policy, custom, or usage of the
School Board.
14. The School Board states it was not negligent in the implementation or
operation of trainings.
15. The School Board, is not liable for the acts or omissions of any of its
employees which were committed while acting outside the course and scope of their
employment or committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety or property of
Plaintiff.
16. The School Board states that it took prompt remedial action after
learning of the alleged incidents, including conducting a reasonable investigation
into the allegations, and in so doing did not act with deliberate indifference to
Plaintiff as alleged.
17. The School Board states that it offered to Jane compensatory tutoring
for academic subjects, as well as counseling by a specialist trained in childhood
sexual trauma, but that Jane did not avail herself of the offers.
18. In addition to the foregoing affirmative defenses, the School Board
hereby reserves its right to raise additional affirmative defenses, or to file any
additional applicable pleadings as discovery may reveal necessary or appropriate.
DEMAND FOR JURY TRIAL
19
The School Board denies that Plaintiff is entitled to a trial by jury on any of her
claims.
Dated: May 14, 2019
Respectfully submitted,
Walter J. Harvey HAMILTON, MILLER & BIRTHISEL

School Board Attorney Attorneys for The School Board
The School Board of Miami-Dade 150 SE 2nd Avenue, Suite 1200
County, Florida Miami, Florida 33131
1450 NE 2nd Avenue, Suite 430 Telephone: (305) 379-3686
Miami, Florida 33132 Facsimile: (305) 373-2294
/s/ Mary C. Lawson /s/ Schuyler A. Smith

MARY C. LAWSON, ESQ. SCHUYLER A. SMITH, ESQ.
Assistant School Board Attorney FBN: 70710
FBN: 584223 E-mail: ssmith@hamiltonmillerlaw.com
E-mail: mlawson@dadeschools.net Counsel for The School Board
Counsel for The Board
20
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 14, 2019, the foregoing was electronically
filed with the Clerk of Court via CM/ECF system, which will send a notice of
electronic filing to the counsel of record on the service list below.
/s/ Schuyler A. Smith

Schuyler A. Smith, Esq.
SERVICE LIST
LEWIS F. MURPHY, ESQUIRE ALLISON L. HERTOG, ESQUIRE

STROOCK & STROOCK & LAVAN, LLP MAKING SCHOOL WORK, P.L.
200 S. Biscayne Blvd., Suite 3100 1550 Madruga Avenue, Suite 333
Miami, FL 33133 Miami, FL 33146
(305) 789-9300 (305) 663-9233
lmurphy@stroock.com Allison@makingschoolwork.com
jsammataro@stroock.com Attorney for Plaintiff
crodriguez@stroock.com
Attorney for Plaintiff
ALICE K. NELSON, ESQUIRE EMILY MARTIN

NELSON LAW GROUP NEENA CHAUDHRY
14043 Shady Shores Drive SHIWALI PATEL
Tampa, FL 33613 ELIZABETH TANG
(813) 254-5517 NATIONAL WOMEN’S LAW CENTER
alice@nelsonlg.com 11 Dupont Circle, Suite 800
Attorney for Plaintiff Washington, D.C. 20036
(202) 588-5180
emartin@nwlc.org
nchaudhry@nwlc.org
spatel@nwlc.org
etang@nwlc.org
Attorney for Plaintiff
21

Doe V Miami Dade - Answer

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Doe V Miami Dade - Answer

Загружено:

Авторское право:

Доступные форматы

Case 1:19-cv-20204-UU Document 36 Entered on FLSD Docket 05/15/2019 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

CASE NO.: 1:19-CV-20204-UU

JANE DOE, by and through

THE SCHOOL BOARD OF

THE SCHOOL BOARD’S ANSWER AND AFFIRMATIVE DEFENSES TO

allegations are denied, including fn. 1.

Jurisdiction and Venue

remaining allegations are denied.

allegations are denied.

is without sufficient knowledge or information to form a belief as to the truth of the

remaining allegations in Paragraph 10, and therefore denies same.

allegations are denied.

allegations are denied.

employee of The School Board. All remaining allegations are denied.

14. Denied as phrased.

15. The School Board is without sufficient knowledge or information to

16. The School Board is without sufficient knowledge or information to

17. The School Board is without sufficient knowledge or information to

18. The School Board is without sufficient knowledge or information to

19. The School Board is without sufficient knowledge or information to

20. The School Board is without sufficient knowledge or information to

21. The School Board is without sufficient knowledge or information to

22. The School Board is without sufficient knowledge or information to

23. The School Board is without sufficient knowledge or information to

24. The School Board is without sufficient knowledge or information to

25. The School Board is without sufficient knowledge or information to

26. The School Board is without sufficient knowledge or information to

27. The School Board is without sufficient knowledge or information to

28. The School Board is without sufficient knowledge or information to

allegations of sexual assault against Jane to Principal Dunn. All remaining

allegations are denied.

30. The School Board is without sufficient knowledge or information to

31. The School Board is without sufficient knowledge or information to

investigation into the allegations. All remaining allegations are denied.

37. The School Board is without sufficient knowledge or information to

38. The School Board is without sufficient knowledge or information to

allegations are denied.

42. The School Board is without sufficient knowledge or information to

43. The School Board is without sufficient knowledge or information to

44. The School Board is without sufficient knowledge or information to

50. The School Board is without sufficient knowledge or information to

allegations are denied.

52. The School Board is without sufficient knowledge or information to

Student Conduct. All remaining allegations of Paragraph 60 are denied.

of the Code of Student Conduct. All remaining allegations of Paragraph 62 are

20 U.S.C. § 1232g and implementing regulation 34 C.F.R. § 99.31(a)(9), The School

Board is prohibited from releasing personally identifiable information about

subpoena in advance of compliance.

is without sufficient knowledge or information to form a belief as to the truth of the

remaining allegations in Paragraph are denied.

80. The School Board is without sufficient knowledge or information to

to a facility to receive an examination for possible exposure to sexually transmitted

diseases. The School Board is without sufficient knowledge or information to form a

therefore denies the same.

83. The School Board is without sufficient knowledge or information to

November 8, 2017 through March 1, 2018. All remaining allegations of Paragraph

86. Denied, including subparagraphs a through e.

87. Admitted to the extent that Assistant Principal Gaines contacted

Paragraph 87 are denied.

remaining allegations of Paragraph 88 are denied.

her statement. All remaining allegations of Paragraph 90 are denied.

91. The School Board is without sufficient knowledge or information to