ORDER ON DEFENDANT COTTA'S MOTION TO DISMISS
This case was removed from Kern County Superior Court on the basis of federal question jurisdiction. Plaintiff Alexandria Dyess ("Alexandria"), through her guardian ad litem, alleges five claims for relief against Tehachapi Unified School District ("TUSD") and its employees Rick Cotta ("Cotta"), Ed Cheek ("Cheek"), Cary Johnson ("Johnson"), Beverly Thompson ("Thompson"), Richard Swanson ("Swanson"), Ms. Skaggs ("Skaggs"), Dan Ingraham ("Ingraham"), and Ms. Guy ("Guy").*fn1 Alexandria's claims stem from conduct by her former teacher Cotta and the defendants' reaction to Cotta's conduct. Defendant Cotta moves to dismiss several causes of action alleged against him under Fed. R. Civ. P. 12(b)(6). For the reasons that follow, Cotta's motion will be granted.
From the FAC,*fn2 during the 2007-2008 school year: Alexandria was a student at Tehachapi High School ("the School"), Johnson was the principal of the School, Cheek and Thompson were Vice Principals of the School, Swanson was the Superintendent of TUSD, Cotta was a teacher, (who apparently taught Introduction to Agriculture) at the School, Skaggs, Ingraham, and Guy, were teachers at the School. See FAC ¶¶4-15.
Alexandria alleges that prior to the date she was first sexually harassed by Cotta, Cotta had engaged in prior misconduct toward, or sexual harassment of, students, and particularly female students. See FAC ¶17. In December 2007, during Cotta's Introduction to Agriculture class, Alexandria was checking her grades at the back of the classroom, when Cotta approached Alexandria and placed his right hand across the front of Alexandria's body to her lower left hip and his left hand on her lower right hip, spun her around, and pulled Alexandria against his body. See FAC ¶24. Cotta then placed his forehead on her forehead. Id. Alexandria attempted to step back, and Cotta forcefully pulled her against his body. Alexandria pushed Cotta away and Cotta stated: "You touch me like that again and I will send you to the office for assault on a teacher." Id.
In January 2008, during Cotta's Introduction to Agriculture class, Cotta grabbed Alexandria from behind, placed his arms around her, under her arms, and placed his hands on her chest and breasts. Id. at ¶25. Alexandria turned around, pushed him away, and said "Stop, how many times do I have to tell you not to touch me," or words to that effect. Cotta became visibly angry but eventually retreated to his office. Id.
Later during January 2008, Cotta's Introduction to Agriculture class was canceled and Alexandria was transferred to Guy's Earth Science class. Id. at ¶26. Cotta would "hang out" in Guy's Earth Science class "in order to view, ogle and leer at Plaintiff." Id. Alexandria alleges that Guy did not report Cotta's conduct to law enforcement, TUSD, the School, or any other teacher.
Later in January 2008, Alexandria attended an event for the School's Future Farmers of America ("FFA"). Id. at ¶27. Approximately one day prior to the FFA trip, Alexandria, Brittney Ryan ("Ryan"), Brooke Broyles ("Broyles"), Amanda Ward ("Ward"), went to Ingraham and requested that they ride with him because they were uncomfortable with Cotta. Id. During a stop at an ice cream parlor after the event, Cotta took photographs of only the female FFA participants, including Ryan, Broyles, Ward, and Alexandria. Cotta "photographed the girls when they were bending over, when they were eating cherries, and under the table." Id. The females students asked Cotta to stop taking the photographs. Id. Cotta became angry and refused to stop taking the photographs. Id. Cotta then said that he wanted the females to ride in his van with him. Id. The female students instead rode with Ingraham, another teacher who was accompanying the trip. Id. Ingraham witnessed Cotta's behavior and did not report Cotta's conduct and did not report Alexandria and the other female students' concerns of Cotta to either TUSD, the School, or any teacher. Id.*fn3
During February 2008, Alexandria was in a School office that Cotta shared with Ingraham. Id. at ¶28. Cotta entered the office, grabbed, and squeezed Alexandria's arm, and shook her violently, leaving a bruise on her arm Id. Cotta again tried to touch Alexandria and Alexandria said "Don't touch me, don't you get it, I'm not comfortable around you." Id. Ingraham witnessed Cotta's actions and did not report Cotta's conduct to anyone. Id.
On or about February 13, 2008, James Dyess*fn4 , Alexandria's father, saw the bruise on Alexandria's arm and asked how she got the bruise. Id. at ¶30. Alexandria told her father for the first time that Cotta had grabbed and bruised her arm. Id. That afternoon, James asked Cheek to investigate the incident and Cheek said that he would look into it. Id.
On or about, February 14, 2008, James asked Cheek if had spoken to Cotta about the bruised arm incident. Id. at ¶31. Cheek said that he had not, but would do so "later that evening." Id. On or about February 19, 2008, Cheek informed Alexandria that she was suspended from school for the rest of the week because of a purported incident the prior week, when Alexandria had allegedly argued with two other students. Id. at ¶32. Later that day, James asked Cheek about the suspension and whether the other two students had been suspended. Cheek told James that it was none of his business. Id. James asked Cheek if he had spoken to Cotta. Id. Cheek said that he had not. Id. James asked to speak with Johnson and Cheek told James that Johnson was gone for the day. Id.
On or about February 20, 2008, James spoke with Johnson and told him about Alexandria's suspension. Id. at ¶33. Johnson responded that he had told Cheek to suspend all three students and asked Cheek if he had done so. Id. Cheek said "not yet." Id. James then told Johnson that Alexandria had told him about several incidents of sexual harassment involving Cotta. Id. The FAC alleges that James had told Cheek about the sexual harassment and that Cheek responded that he had not spoken to Cotta yet.*fn5 Id. Johnson told James that Alexandria needed to fill out a complaint form against Cotta. Id. Later that day, James turned in the completed form to Cheek. Id. James told Johnson that he had just given the form to Cheek. Id. Johnson said that he would look into it and get back to James. Id.
On or about April 4, 2008, James had not heard anything about the complaint against Cotta. Id. at ¶34. James emailed Johnson to inquire about the investigation. Id. On or about April 14, 2008, Johnson said that he had never received the complaint form but that he and Cheek had spoken with Cotta and that Cotta's "story was different from [Alexandria's']. Id. at ¶35.
On or about April 15, 2008, James emailed Swanson and informed him that: (1) Alexandria had submitted a complaint form against Cotta on February 20, 2008, for inappropriate touching and sexually harassing Alexandria; (2) on April 14, 2008, James emailed Johnson asking for a response; (3) on April 15, 2008, Johnson responded that he had never received the complaint form, but that he had spoken with Cotta and he had a different story than Alexandria; and (4) James requested a meeting with Swanson. Id. at ¶36.
On or about April 16, 2008, James and Alexandria met with Swanson and told him what had happened to Alexandria and the handling of her complaint. Id. at ¶37. Swanson said he would respond within twenty-four hours. Id.
On or about April 16, 2008, Alexandria met with Johnson and Thompson. Id. at ¶38. Johnson told Alexandria that his office had lost her complaint form but had just found it. Id. Alexandria told Johnson and Thompson about what Cotta had done to her. Id. Thompson told Alexandria that she was misunderstanding what Cotta had done and that Cotta was a nice man and was not going to hurt her. Id.
On or about April 18, 2008, Johnson told James that Cotta had admitted to grabbing Alexandria and resting his forehead against her forehead. Id. at ¶39. Johnson said that Cotta was in a lot of trouble and that paperwork was being drawn up and that he thought the matter had already been handled.
During the week of April 21, 2008, James informed Swanson that Cotta was still on campus and was still harassing Alexandria. Id. at ¶40. Swanson told James that Cotta was still on campus because there was an appeals phase. Id. In late April 2008, James told Johnson about another incident involving Cotta and Alexandria. Id. at ¶41. James told Johnson that while Alexandria was passing Cotta in the hallway, Cotta raised both of his arms in the air and said "See, I'm not touching you." Id. Johnson said that he spoke to Cotta "who described the incident very differently." Id.
On or about May 8, 2009, James contacted the United States Department of Education, Office of Civil Rights ("OCR") about the sexual harassment. Id. at ¶44. On or about May 27, 2008, James sent an email to each member of the School Board of TUSD and informed them about the sexual harassment and the failure of defendants to appropriately respond to the sexual harassment. Id. at ¶45. James did not receive a response to his email. Id.
After James brought the sexual harassment to the further attention of TUSD and the School, teachers and other employees of TUSD and/or the School, including but not limited to Defendant Skaggs, said sexually discriminatory and harassing statements to Alexandria, including "Don't hug your students around Dyess or they will accuse you of sexual assault." Id. at ¶46. Teachers and employees made sexually harassing comments that Alexandria wore "low cut tops." Id. Alexandria was subjected to repeated student-on-student sexual harassment, including statements that Alexandria was a "whore," "a slut," that she "asked for it," and that she led [Cotta] on." Id. at ¶47.
On July 30, 2009, the OCR issued a letter that stated that it had determined that there was sufficient evidence to support a conclusion that Alexandria was subjected to sexual harassment by Cotta and that TUSD had failed to respond appropriately and effectively to the notice of harassment. Id. at ¶49. The OCR stated that the evidence demonstrated a pattern of sexual harassment that was sufficiently serious to create a hostile environment for female students, including Alexandria, in violation of Title IX, and that TUSD's response to notice of harassment was not in compliance with Title IX. Id. The OCR investigation additionally determined, and Alexandria alleges, that "almost all of the four female and two male students who were interviewed by OCR (not including Alexandria) reported that they themselves had ...