Case 4:16-cv-01167-O Document 1 Filed 12/22/16 Page 1 of 9 PageID 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

G.E., A MINOR, BY AND THROUGH

HER MOTHER,
ANASTASIA EVANGELISTA

Plaintiff,
v. CIVIL ACTION NO.

BIRDVILLE INDEPENDENT
SCHOOL DISTRICT

Defendant. JURY DEMAND

PLAINTIFFS ORIGINAL COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

Now Comes Anastasia Evangelista on behalf of G.E., a Minor, (hereinafter Plaintiff or

GE), and files this Original Petition, in support of which would respectfully show the following.

1. This is a case brought pursuant to Title IX for the harassment and assault of GE, a

student, by another student in Birdville Independent School District (BISD or Defendant).

PARTIES

2. Plaintiff is, and at all times mentioned in this Complaint was, a resident of North

Richland Hills, Tarrant County, Texas.

3. Defendant BISD is a municipality of the State of Texas. It may be served via its

Superintendent, Dr. Darrell G. Brown, at 6125 East Belknap, Haltom City, Tarrant County, Texas

76117.

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VENUE

4. Venue is proper in Tarrant County, Texas, as the county in which all or part of the cause of

action arose.

JURISDICTION

5. This Court has jurisdiction over these claims pursuant to 28 U.S.C. 1331.

FACTS

6. GE was a student at Snow Heights Elementary School (hereinafter Snow Heights) in the

Birdville Independent School District. She was in the fifth grade in 2015. There was another student

also in the fifth grade at that time who will hereinafter be referred to as TD.

7. While GE and TD were students at Snow Heights in 2015, the principal was Michael Dukes

and the Assistant Principal was Shawn Serviente.

8. TD was a troubled student. He had many documented disciplinary issues stretching from

kindergarten to the 2015-2016 school year. Although TD was homeschooled during his fourth grade

year and was shifted around between BISD schools, he was never placed in alternative schooling.

9. TD was frequently referred to Ms. Serviente for discipline as a result of acting out in class,

being disruptive, interrupting the learning environment, physical violence, threatening physical

violence, failing to follow instructions, defiance and failing to accept responsibility for his

conductall documented and kept in his file. TD had been a frequent disciplinary problem and

had received loss of privileges at school, detention, in school suspension and out of school

suspension.

10. Prior to the incident made the basis of this suit, TD was disciplined for stabbing a female

student in the third grade. TD was also previously disciplined for threatening to kill the brother

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of a classmate. Earlier in the 2015-2016 school year, Ms. Serviente suspended TD for

threatening to bring a rocket-propelled grenade to school to blow up his classroom.

11. TD had a long history of harassment of and physical aggression toward GE. Starting from

at least the beginning of the 2015-2016 school year, TD would single out GE and verbally harass

her by calling her worthless, stupid and bitch. He would also say that GE was never

going anywhere in life and that she wouldnt do anything about his harassment because she was

a scaredy-cat.

12. Much of TDs verbal harassment happened on the playground of the school during

recess. Each time that TD verbally harassed her in the manners described above, GE would

inform the multiple teachers on recess duty. However, each time that GE reported TD for

harassment, the teachers would only make him sit out of recess for 5 minutes. Once TD was

allowed to return to recess, he would continue verbally harassing GE.

13. GE reported TDs verbal harassment to the attending recess teachers, including Ms. Sarah

Culler, Mrs. Valerie Crisp and Mrs. Amy Haecker, GEs homeroom teacher, at least once per

week starting in early September 2015. On several occasions when GE attempted to lodge

complaints against TD, the teachers would respond by saying Were busy right now. Despite

GEs multiple complaints, TD was not physically separated from GE on school premises and

was not permanently or meaningfully kept separate from GE during recess.

14. When GE felt as if no one else at the school would listen, she would often voice her

displeasure with TDs harassment to Mr. Mike, the head janitor of Snow Heights. Although he

sympathized with her, Mr. Mike told GE that he could not do anything for her because he was

not a teacher.

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15. On one occasion prior to Halloween 2015, TD physically grabbed GE in the school

cafeteria and attempted to force GE to embrace him. GE repeatedly told TD to get off of her and

to get away. When GE told him this, TD became very upset and began yelling loudly, asking GE

why she would not hug him. TD was so loud that everyone in the cafeteria could hear him, which

greatly embarrassed GE. She explained to TD that she didnt like him and she didnt want

him touching [her].

16. On or around October 27, 2015, GE gave her phone number to a female classmate and

friend (hereinafter Jane) on a piece of paper. Jane, who sat near TD in class, placed the piece

of paper in a little pocket of her backpack, after which, GE and Jane went to recess. While GE

and Jane were at recess, TD accessed the piece of paper containing GEs number and stole it for

his own use.

17. The next day, TD called GE and pretended to be a male classmate and friend (hereinafter

John). When GE answered the phone and heard TD speak, she immediately knew that it was

TD and not John, despite the fact that TD insisted he was John. GE told TD that he was lying and

promptly hung up the phone. At this time, GE saved TDs number in her phone so that she would

know it was TD calling.

18. Between October 28 and October 31, 2015, TD called and left voicemails for GE on

approximately seven different occasions. On several occasions he would claim to be John. On

other occasions, TD would tell GE that he loved her and that he wanted to spend time talking to

her. On another call, TD made growling noises through the phone and vocalized suggestive,

heavy breathing. During his second to last call to GE, TD told her that he loved her and that she

should watch [her] head, because she didnt know what was going to happen. This scared GE,

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as she believed that TD was going to physically harm her. GE did not tell her mother about these

phone calls because she was afraid that her mother would be angry.

19. On November 2, 2015, GE and TD were both at morning recess. GE was walking around

with her friends when TD approached her and began shouting obscenities and insults at GE, as

usual. Several of GEs friends saw what was happening and came over to tell TD to stop this

behavior. GE ran away from TD with her friends, but he continued to stalk her throughout the

playground. When GE understood that he was not going to desist the verbal harassment and

stalking, she told TD that she was going to complain to the teachers on recess duty.

20. As GE was running to complain about TDs harassment, TD grabbed GE by her hair and

violently yanked her head back. With GEs hair still in his grip, TD pushed GEs head forward

and shockingly rammed the right side of her face and body into the concrete. After GE was on

the ground, she was terrified, in severe pain and worried that TD was going to continue

assaulting her. At this point, GEs friends rushed to her aid and Jane ran to the teachers on recess

duty to report what happened. The teachers took GE to the nurses office.

21. Mrs. Evangelista was on the way to see her parents when she received a call from the

school nurse, informing her that GE had sustained injuries to her face and body. However, the

nurse would not tell Mrs. Evangelista how the injuries had occurred. When Mrs. Evangelista

arrived at the nurses office, GE immediately told her that TD had caused her injuries and that he

had done so with purpose to harm her. Perplexingly, the school administrators did not call police

to investigate the incident and the school nurse did not seek additional medical attention for GE,

despite her obvious need.

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22. Distraught over the mangled condition of her daughters face and body, Mrs. Evangelista

told Ms. Serviente that she was taking her daughter to the emergency room and that she was

going to call the North Richland Hills police.

23. As a result of the violent attack, GE had to be taken to the emergency room at least six

different times. GE experienced, inter alia, severe hemorrhaging behind her eye, a concussion,

substantial bruising, chronic headaches and vision loss. In addition, GE has been diagnosed with

post-concussion syndrome and post-traumatic stress disorder (PTSD). GE has had to attend

regular PTSD counseling and therapy to address her constant fears of attending school or

walking in public where she may come into contact with her attacker.

24. Despite the severe physical, emotional and mental damage he inflicted upon GE, TD was

disciplined with a mere three day out of school suspension. When Mrs. Evangelista was told that

TD would be allowed to return to the same school environment as GE on November 2, 2015, she

had a meeting with Snow Heights principal Susan Nall. In this meeting, Mrs. Evangelista played

the stalking messages that TD left on GEs phone, but Ms. Nall would only agree to suspend TD

until December 2015. Specifically, Ms. Nall refused to have TD permanently removed from

Snow Heights or transferred to another school, a decision that would have been exceedingly

reasonable and within her power. Again, this was an unacceptable solution, as TD would be

allowed to return to the same learning environment as GE, who was suffering from PTSD and

recovering from the severe injuries TD had inflicted upon her.

25. In response to the negligent and callous disciplinary decisions of Ms. Nall, Mrs.

Evangelista took her concerns directly to Dr. Lorene Ownby, Executive Director of Elementary

Education and Campus Support for BISD. After speaking with Dr. Ownby, the district finally

decided to move TD to Holiday Heights Elementary. During this time, GE was attempting to

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recover emotionally, physically and mentally from the attack and she was terrified at the

prospect of returning to a school where TD would also be present.

26. Shortly after being moved to Holiday Heights Elementary, TD was involved in another

serious disciplinary incident. During the investigation of this incident, a suicide letter written by

TD was discovered, which prompted his placement in a mental hospital for treatment. Upon

release from the mental hospital, TD was homeschooled for the remainder of the 2015-2016

school year.

27. Prior to the start of the 2016-2017 school year, GE and her mother became aware that,

despite having seven district middle schools and an alternative education center, BISD made the

deliberate decision to have TD attend North Richland Middle School, where GE was also

registered to attend. When GE became aware that she would have to attend the same school as

TD again, she was emotionally distraught and inconsolable. At this time, it became apparent to

Mrs. Evangelista that, despite full knowledge of TDs violent history toward GE, BISD had no

intention of taking any lasting actions to protect and separate her daughter from her harasser and

attacker. With GEs fragile mental state and physical wellbeing in mind, Mrs. Evangelista

removed her daughter from BISD and enrolled her in charter schooling.

TITLE IX CAUSE OF ACTION

28. Plaintiff incorporates paragraphs 6 through 26.

29. Plaintiff brings suit under Title IX of the Education Amendments of 1972, as codified at

20 U.S.C. 1681. At the time of the incidents in question, Defendant was a recipient of federal

funding, had power over the harasser and was deliberately indifferent to the harassers conduct to

the extent that it made GE vulnerable to harassment and assault and effectively denied her of an

educational benefit or opportunity.

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30. The victim and the harasser both attended Snow Heights Elementary School in BISD.

Both the principal and the vice-principal were aware of facts from which the inference could be

drawn that a substantial risk of serious harm existed. They were both aware that the harasser had

a significant, lengthy and well-documented history of physical violence. The harasser was a

known disciplinary problem and known to act inappropriately on many occasions. He was

defiant and did not respond appropriately to prior discipline. Both the principal and vice-

principal knew that disciplinary measures, such as in school suspension and even out of school

suspension, had little, if any, effect on him.

31. The teachers to whom GE regularly issued complaints regarding TD had direct and

substantial knowledge of TDs pattern of harassment as it related to GE. Despite that knowledge,

as well as TDs long history of inappropriateness, behavior problems and discipline problems, no

school employee took corrective and preventative measures to ensure that TD was kept safe and

separate from GE on school premises. Instead, minimal discipline was provided, which had

proven ineffective on many prior occasions.

32. Knowing that TD was belligerent, defiant, violent and an ongoing discipline problem,

and knowing that TD had harassed GE on numerous occasions, the principal, vice-principal and

teachers were deliberately indifferent to the rights of GE and to her vulnerability to assault by

TD.

33. Defendant had substantial control over both TD and GE in the context of both the

continued harassment and the physical assault. Both the verbal harassment and the physical

assault were severe and offensive. The physical assault and BISDs failure to place TD in a

different school than GE had such an effect on GE that it effectively barred her access to an

educational opportunity or benefit. First, GE was so upset, terrified, humiliated and anxious

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about the event that she required mental counseling for post-traumatic stress disorder. Second,

when GE discovered that BISD would make her attend the same school as TD again, she became

so distraught that her mother was forced to remove her from BISD and enroll her at a charter

school.

34. As a direct result of BISDs unreasonable actions and inaction, GE has suffered severe

emotional distress and loss of enjoyment of life in the past that will continue into the future. She

seeks recovery of monetary damages for past and future compensatory damages, as well as

recovery of reasonable and necessary attorney fees for the prosecution, including appeal, of this

cause of action pursuant to 42 U.S.C. 1988.

DEMAND FOR JURY

Plaintiff respectfully requests a trial by jury.

FOR THE REASONS STATED, Plaintiff prays for judgment against Defendant,

monetary damages, attorney fees and such further relief, in law or in equity, to which Plaintiff may

be justly entitled.

Respectfully submitted,

s/Susan E. Hutchison
SUSAN E. HUTCHISON
State Bar No. 10354100
hutch@hsjustice.com
CHRISTOPHER E. STOY
State Bar No. 24075125
cstoy@hsjustice.com

HUTCHISON & STOY, PLLC

509 Pecan Street
Suite 201
Fort Worth, Texas 76102
817-820-0100
817.820.0111 Fax

ATTORNEYS FOR PLAINTIFF

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