Defendant's Attorney: Beth PLass and Karen M. Vickers

Description: Eugene, Oregon civil rights lawyers represented the Plaintiff who sued the Defendants on civil rights violation theories.

Plaintiff L.O.K. is a twelve-year-old child who is intersex and non-binary. L.O.K. Decl. ¶ 1. ECF No. 34. Plaintiff uses they/them pronouns. L.O.K. Decl. ¶ 1. Plaintiff was a student at Oak Grove Elementary School (“Oak Grove”) beginning in 2015, which was their second-grade year. Ans. ¶ 8, ECF No. 8; L.O.K. Decl. ¶ 2. Plaintiff's guardian and next friend is their mother, Elaine Kelsey. Kelsey Decl. ¶ 1. ECF No. 35.

Defendant Greater Albany Public School District 8J (the “District”) is a public school district in Albany, Oregon. Ans. ¶ 5. The District receives state and federal funding and operates schools, including Oak Grove. Id.

Defendant Jerrie Matuszak was the principal of Oak Grove during the relevant period. Ans. ¶ 6.

Defendant Mark Gullickson was Plaintiff's teacher in third grade. L.O.K. Decl. ¶ 3. In addition to teaching, Gullickson was the volunteer coach of the LEGO robotics team at Oak Grove. Vickers Decl. Ex. 3, at 2. ECF No. 29.

Plaintiff first identified as genderfluid while in third grade, but later began to identify as nonbinary. L.O.K. Decl. ¶ 4. Plaintiff did not initially use they/them pronouns, but “did gradually start coming out as genderfluid” in the spring of 2017. Id. at ¶ 5. Plaintiff wrote that they “wanted to be a boy in an assignment for Mr. Gullickson,” as a way of “letting him know that I am genderfluid and testing the waters.” Id.; L.O.K. Decl. Ex. 1. Plaintiff did not directly discuss being genderfluid or nonbinary with any adult other than their mother during their third grade year. Vickers Decl. Ex. 2, at 4. Kelsey told Gullickson directly that Plaintiff was genderfluid during a parent-teacher conference in the spring of 2017. Kelsey Decl. ¶ 11. Midway through the school year, Plaintiff stopped wearing dresses and skirts and began to wear clothes from the boys' section of the store. Kelsey Decl. ¶ 6. At his deposition, Gullickson testified that he was not aware of Plaintiff being genderfluid or nonbinary, or that they used they/them pronouns until he was served with the Complaint in this case. Vickers Decl. Ex. 3, at 3-4.

After writing in the assignment that they wanted to be a boy, Plaintiff perceived that Gullickson became distant, dismissive, and “started treating me like I was stupid.” L.O.K. Decl. ¶ 6. Plaintiff was assigned a “helper” and made to sit in a desk next to Gullickson's desk. Id. at ¶ 6. Plaintiff “got in trouble for things that other kids did not get in trouble for.” Id. at ¶ 6. Gullickson emailed Kelsey to report behavioral issues with Plaintiff while they were in his class. Kelsey Decl. ¶¶ 7-8. Kelsey told Gullickson that Plaintiff's issues might be related to their stepparent's issues with mental illness and that Plaintiff was seeing a counselor. Vickers Decl. Ex. 1, at 30-33. Gullickson also told Kelsey that Plaintiff was “was doing badly in both math and reading,” but Kelsey felt that Plaintiff “had never struggled in either math or reading and their grades did not reflect any deficiency in performance.” Kelsey Decl. ¶ 9.

Plaintiff also began to experience hostility from their classmates, including the use of slurs and other abusive language related to Plaintiff's gender expression. L.O.K. Decl. ¶ 7. Plaintiff was bullied “on the bus, cafeteria, and on the playground,” and the supervising adults did not intervene. Id. at ¶ 8. Plaintiff and some of their classmates discussed the possibility of going on strike and would “stop going to class to make a statement that what was happening was wrong.” Id. Matuszak learned of the planned protest and called Plaintiff and their friends to the school office and told them that their behavior was unacceptable. Id. The bullying continued. Id.

Plaintiff was interested in joining the school robotics team and both Plaintiff and Kelsey expressed this interest to Gullickson in the spring of 2017. L.O.K. Decl. ¶¶ 9-10. During a parent-teacher conference, Kelsey raised the issue of the robotics team with Gullickson and was told “that kids sign up at the end of the year and that he would contact us in the fall when the team was starting.” Kelsey Decl. ¶ 11. Gullickson did not give Kelsey any paperwork, nor did he mention an application to join the team. Id. Gullickson told Plaintiff that he would be in touch with them in the fall but did not tell them about a parent information packet or filling out an application to join the team. L.O.K. Decl. ¶ 10. One of Plaintiff's friends was invited to join the robotics team over the summer, but Gullickson did not contact Plaintiff. Id. at ¶ 12. Plaintiff did not fill out an application to join the robotics team. Vickers Decl. Ex. 2, at 6-7. Plaintiff was not aware of any students who requested an application and had their request denied. Second Vickers Decl. Ex. 2, at 3. ECF No. 40. The robotics team was announced as part of school assemblies. Id. at 2. In the
fall of 2017, Plaintiff learned that that the season had begun without their being offered an opportunity to join the team. L.O.K. Decl. ¶ 12.

When Kelsey contacted Gullickson to ask about the robotics team in the fall of 2017, Gullickson told Kelsey that Plaintiff “was supposed to have contacted him at the beginning of the school year to apply.” Kelsey Decl. ¶ 13. Kelsey maintains that this was not what Gullickson told her at the parent teacher conference in the spring of 2017. Id. Kelsey forwarded her correspondence with Gullickson to Matuszak and raised her belief that Gullickson was excluding Plaintiff from the team. Id. at ¶ 15. Matuszak spoke with Gullickson and told Kelsey that Plaintiff “could not be on the girls' team because they did not fill out the application or show enough initiative.” Id. at ¶ 16. Kelsey did not make any complaint about Gullickson during Plaintiff's third grade year. Second Vickers Decl. Ex. 1, at 2.

Another parent showed Kelsey a screenshot of a social media conversation in which parents of students on Gullickson's robotics team discussed why they did not want Plaintiff to join the team due to “the preference of team members and their parents for a strongly feminine aesthetic.” Kelsey Decl. ¶ 17. During the 2017-2018 school year, the Oak Grove girls' robotics team wore pink t-shirts, bows, and tutu skirts while competing. Second Vickers Decl. Ex. 3, at 14-17. Kelsey reported the issue to Matuszak. Kelsey Decl. ¶ 17. In his deposition, Gullickson testified that he did not consult with the parents of members of the robotics team about applications to join the team unless the parent was registered as a co-coach. Second Vickers Decl. Ex. 3, at 4.

Kelsey ultimately started her own robotics team so that Plaintiff could participate. Kelsey Decl. ¶ 14. Kelsey reached out to Gullickson for advice about coaching, but Gullickson declined to meet with Kelsey, telling her that he was no longer coaching. Id. Kelsey later learned that Gullickson continued to coach the school robotics team. Id.

Gullickson did not contact Plaintiff about the robotics team prior to Plaintiff's fifth grade year, 2018-2019, although Plaintiff saw Gullickson invite another student to join the robotics team while Plaintiff was standing nearby. L.O.K. Decl. ¶¶ 13, 20. Plaintiff did not apply to join the robotics team during their fifth grade year. Vickers Decl. Ex. 2, at 15. Plaintiff continued to participate in their mother's robotics team because Kelsey did not want Plaintiff to interact directly with Gullickson. Id.

Beginning in the fourth grade, in 2017-2018, Plaintiff resolved to begin using they/them pronouns, but “didn't tell anyone at first.” L.O.K. Decl. ¶ 11. Plaintiff continued to experience hostility from some of their peers as a result of their gender expression. Id. at ¶ 14. “The class was divided: You were either against gay people or you were going to get bullied.” Id. Plaintiff confided these issues to their mother and Kelsey reported them to Matuszak. Kelsey Decl. ¶ 19.

Towards the end of Plaintiff's fourth grade year, their class took a field trip to study the Oregon Trail and students were encouraged to dress like pioneers. L.O.K. Decl. ¶ 15. Plaintiff wanted to wear pants and suspenders on the field trip but their teacher “said that I was a lady, so I had to be the mother of the household, which meant wearing a dress.” Id. Kelsey spoke with Plaintiff's teachers about the issue and was told they “did not want [Plaintiff] to dress like a boy because the local newspaper would be taking pictures of the kids.” Kelsey Decl. ¶ 22. Plaintiff was ultimately allowed to wear pants and suspenders after their mother spoke with Plaintiff's teachers “[b]ut the experience made me feel again like I could not trust teachers and adults at Oak Grove to respect my gender identity.” L.O.K. Decl. ¶ 16. Kelsey reported the issue to Matuszak. Kelsey Decl. ¶ 23.

Between fourth and fifth grade, Plaintiff told their mother that they wanted to begin using they/them pronouns, but they “decided that it would not be safe” to use gender neutral pronouns at school. L.O.K. Decl. ¶¶ 17-18.

In 2018, the Oregon Department of Education instituted a policy change allowing students to register as non-binary in the 2018-2019 school year. Mitchell Decl. Ex. 3. ECF No. 37. During the summer of 2018, Kelsey registered Plaintiff for fifth grade at Oak Grove and found that there was no option for registering them as non-binary and that Plaintiff was already listed as female. Kelsey Decl. ¶ 24. When Kelsey contacted Matuszak to ask about non-binary registration, she was told the system was not in place yet. Id. at ¶ 25. Kelsey affirms that the following exchange occurred:

Then [Matuszak] looked at me and asked: “But do you really want to do this?” I asked her what she meant. She shrugged and said, “Well you know, you're [Plaintiff's] parent, it's your job to keep her safe.” I asked her why changing [Plaintiff's] gender on the form would not be safe. She didn't really answer, just shrugged again.

Kelsey Decl. ¶ 25.

Kelsey also asked Matuszak about Plaintiff's use of they/them pronouns and was told “some teachers would be fine with it, but other teachers might not be due to religious beliefs.” Kelsey Decl. ¶ 26. Matuszak was equivocal on whether it would be safe for Plaintiff to use gender neutral pronouns. Id.

Plaintiff believes that they told their fifth grade teachers that they were genderfluid at the beginning of the year. L.O.K. Decl. ¶ 18. Plaintiff spoke to their fifth grade teachers about their preferred pronouns and asked their teachers to use they/them pronouns in private, but not in class because Plaintiff was concerned about how their classmates would react. Vickers Decl. Ex. 2, at 12. Plaintiff continued to use she/her pronouns while in class. Id.; Ex. 5, at 3. Plaintiff felt that their teachers responded appropriately to the request. Vickers. Decl. Ex. 2, at 12. Plaintiff's teachers told Kelsey “that they would not be able to protect [Plaintiff] from bullying that took place outside of their classroom,” and Matuszak told Kelsey that Plaintiff “would not be protected on the playground, on the bus, in the halls, and in the cafeteria.” Kelsey Decl. ¶ 28; Riley Decl. ¶ 9. ECF No. 36.

Plaintiff asserts that, while Plaintiff was in the fifth grade, Gullickson “started acting strangely” towards them while Plaintiff waited for the school bus. L.O.K. Decl. ¶ 20. Gullickson would stand “uncomfortably close to me, within half an arm's length, and stare at me in a hostile way, not saying anything,” while at other times he would ignore Plaintiff entirely. Id. Plaintiff found the experience intimidating, stressful, and frightening. Id. Plaintiff reported Gullickson's behavior to their mother, who reported the matter to Matuszak, but Plaintiff affirms that Gullickson's behavior continued unchanged. L.O.K. Decl. ¶ 21; Kelsey Decl. ¶ 29. Matuszak testified in her deposition that she told Gullickson that if he was engaging in the reported behavior, he should stop and that he should be aware of his conduct in Plaintiff's presence. Vickers Decl. Ex. 4, at 3. Gullickson denied that he had glared or stared at Plaintiff. Id. During a PTA meeting in September 2018, Kelsey told Matuszak that Gullickson “was continuing to approach [Plaintiff].” Kelsey Decl. ¶ 30. Matuszak was apologetic and told Kelsey “Gullickson was not listening to her and that she wasn't sure what else she could do about it.” Id.

Plaintiff describes their fifth grade experience as “a really rough time.” L.O.K. Decl. ¶ 20.

The bullying got worse in fifth grade. Kids constantly told me that I and other LGBTQ people were disgusting and gross. They said other really mean, hurtful things to me: for example, they told me that by being myself I was hurting other people, that God hated me, that I was going to hell, that I was the devil's spawn, and that they were going to turn all the other kids against me and teach them to hate LGBTQ people too. They told me I was menace to society and a hinderance for being the way I was. They constantly dismissed me and told me my opinion wasn't valid about a math or science question because I was queer. They didn't say “LGBTQ” but used words like “faggot.” They also did things like cut me on the lunch lines. I played trumpet in orchestra, and they opened the clasps on the instrument case so that my instrument would fall on the floor. They told me that they did these things to me because I'm queer . . . I regularly found religious pamphlets in my backpack. I don't know who put them there. I tried to throw them out without looking at them.

L.O.K. Decl. ¶¶ 22, 24.

Plaintiff did not report these incidents directly to the school authorities. Second Vickers Decl. Ex. 2, at 4-7. Plaintiff told their mother about the bullying and Kelsey spoke with Matuzak and Plaintiff's teachers, but Plaintiff observed that “nothing changed.” L.O.K. Decl. ¶ 25; Kelsey Decl. ¶ 31. Kelsey reported incidents of bullying to Plaintiff's teacher, Beth Riley, who took the reports “very seriously,” and forwarded them to Matuszak. Riley Decl. ¶¶ 10-12. Riley believed it was Matuszak's “responsibility to investigate and respond to [Kelsey's] reports because the bullying was taking place outside my classroom, and involved not only children, but also parents.” Riley Decl. ¶ 12. Matuszak did not speak to Plaintiff about the bullying and harassment they were experiencing. L.O.K. Decl. ¶ 25.

Plaintiff “started to feel really, really bad,” and “felt disconnected from my environment-liked if I didn't disconnect from everything around me, I would hurt myself.” L.O.K. Decl. ¶ 26. Kelsey also received a hostile anonymous email from the parents of one of Plaintiff's classmates. Kelsey Decl. ¶ 32.

Plaintiff reported to their mother that “another student threatened to remove their clothing to inspect their genitals, to see if they were a boy or girl.” Kelsey Decl. ¶ 37. Kelsey told Matuszak immediately but was told “‘what do you expect us to do,' and ‘we can't intervene unless there is actually violence, not just threats.'” Id. Kelsey concluded that making reports to Matuszak was not improving conditions at Oak Grove the “situation could escalate and that [Plaintiff] was in physical danger.” Id. at ¶ 38.

Beginning in November 2018, Plaintiff transferred from Oak Grove to Albany Online. L.O.K. Decl. ¶ 26. Kelsey hoped that the transfer to Albany Online would be temporary while the District addressed the situation at Oak Grove. Kelsey Decl. ¶ 39. Kelsey reported the situation at Oak Grove to District administrators, but they “did not connect me with anyone who could help.” Id. at ¶ 40. Kelsey also asked about counseling for Plaintiff and was told that counseling could not be provided. Id.

Plaintiff struggled with online classes, especially after one of their teachers did not respond to Plaintiffs email disclosing that they were nonbinary and preferred to use they/them pronouns. L.O.K. Decl. ¶ 28. The teacher later told Kelsey that she believed Plaintiffs email was private and that the teacher had not received training on working with nonbinary children. Kelsey Decl. ¶ 43. Albany Online administrators declined to provide training for Plaintiffs teacher. Id. at ¶ 44.

Plaintiff continued to attend Oak Grove for extracurricular activities, including orchestra practice. L.O.K. Decl. ¶ 29. Plaintiff observed that Gullickson would circle the orchestra room looking into the windows and when Gullickson entered the room he would speak to and compliment other students while ignoring Plaintiff. Id. On other occasions, he would stare at Plaintiff “in a hostile way, saying nothing.” Id. Plaintiff affirms that this happened multiple times per week and that it left Plaintiff feeling frightened and intimidated. Id.[1] Kelsey reported the issue to the Albany Online administrators. Kelsey Decl. ¶ 46. Matuszak investigated the report and found that Gullickson had gone to the orchestra room to speak with the school behavioral specialist who was in the room. Vickers Decl. Ex. 4, at 7-8.

Plaintiff began to feel disconnected and unable to focus and “started thinking about hurting myself again.” L.O.K. Decl. ¶¶ 29-30. Plaintiff “was unable to study without adult supervision and again expressed hopelessness and suicidal thoughts.”

Kelsey Decl. ¶ 47. Plaintiff “stopped logging into the [Albany Online] system and would not complete assignments.” Id. Kelsey hired a tutor for Plaintiff, but the tutor quit after Plaintiff began joking about committing suicide. Id. at ¶ 48. Kelsey attempted to secure mental health services for Plaintiff. Id. The District sought a referral for a counselor for Plaintiff and was able to secure a paid referral to a counselor from the county mental health service. Second Vickers Decl. Ex. 7, at 2.

Plaintiff did not have an assigned Albany Online teacher for approximately three months. Kelsey Decl. ¶ 51. When Plaintiff took an in-person standardized test, an Albany Online test facilitator misgendered Plaintiff. L.O.K. Decl. ¶ 31. When Kelsey complained about the interaction, Albany Online administrators told her that “if [Plaintiff] wanted teachers to use gender-neutral pronouns they should change their name to something that ‘sounded less like a girl's name.'” Kelsey Decl. ¶ 51. Kelsey was also told “This is Linn County. You can't expect people to be accepting of a non-binary person here.” Id. In March, the Albany Online administrators suggested that Kelsey transfer Plaintiff out of the District. Id. at ¶ 54. The administrators also threated to involve truancy officers because Plaintiff was not participating in the online school. Id.

In March 2019, Kelsey attempted to make a Title IX complaint, but when she called the number listed on the District's website, she was told that she needed to speak the superintendent. Kelsey Decl. ¶ 52. When Kelsey attempted to contact the superintendent, she was told that he could not assist her because he was only the interim superintendent and that Kelsey's complaint was outside of the scope of authority for the assistant superintendent. Id. Kelsey's messages were not returned and the District did not tell Kelsey that there was a Title IX coordinator for the District or that the Title IX coordinator was the person would could address Kelsey's complaint. Id. at ¶¶ 52-53.

Near the end of Plaintiff's fifth grade year, Plaintiff transferred to Mountain View Elementary School in the nearby Corvallis School District on an emergency basis. L.O.K. Decl. ¶ 32; Kelsey Decl. ¶ 55. At their new school, Plaintiff was able to use they/them pronouns and they have not experienced the sort of bullying and harassment in Corvallis that they experienced while they were a student of the District. L.O.K. Decl. ¶ 32. Plaintiff's emergency transfer to the Corvallis School District did not guarantee Plaintiff a place in the new school district indefinitely and Plaintiff was not eligible to take a school bus. Kelsey Decl. ¶ 56. The school's distance from Plaintiff's home imposed additional hardships on Plaintiff's mother, who had to drive Plaintiff to school each day. Id.

Kelsey filed a grievance with the District school board in October 2019 but she did not receive a response to the grievance.

Outcome: 09/27/2023 95 JUDGMENT: Based on the verdict of the jury following trial 90 , judgment is for Plaintiff. Plaintiff is awarded $42,353.00 in economic damages and $275,000.00 in non-economic damages. Signed on 9/27/2023 by Judge Ann L. Aiken. (ck) (Main Document 95 replaced on 9/27/2023) (cw). (Entered: 09/27/2023)

09/27/2023 96 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding 95 Judgment. A Clerical error has been discovered in the case record: The awards of economic damages and non-economic damages were incorrect. The following corrections were made to the record: A corrected PDF has been uploaded to replace the incorrect one. The Notice of Electronic Filing (NEF) will be regenerated to all parties. (cw) (Entered: 09/27/2023)

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