SEELEY LAKE - Former Seeley-Swan High School (SSHS) student Owen Mercado and his mother Deidre Lechowski-Mercado are suing the school and the Missoula County Public School District (MCPS) alleging that the school and its staff members were made aware of discriminatory behavior and were negligent in the handling of multiple harassment reports. MCPS largely denied that reports were made on the family’s part addressing discrimination that took place on school grounds.
The lawsuit was filed in Federal Court Jan. 21. Three students, a deputy county attorney and Internet service providers have been issued subpoenas in an attempt to preserve evidence. The plaintiffs hope to get a jury trial.
In the complaint, Mercado was allegedly targeted for his race, national origin, gender and disability. Mercado is a quarter Afro-Caribbean. He attended SSHS beginning his freshman year in 2017 through January 2020 when he was suspended indefinitely.
In the suit the Mercados accused multiple students of routinely using slurs like “nigger,” “faggot,” “border jumper” and “fence jumper” in addition to others. This prolonged discrimination allegedly resulted in “severe emotional distress” for Mercado as well as “predictable and foreseeable severe emotional distress” for Lechowski-Mercado.
In their response filed Feb. 12, MCPS “affirmatively” denies that the District was aware of the racially intolerant behavior taking place. They claim that they have anti-discrimination and anti-bullying policies in place to deter this behavior and that the plantiffs did not invoke the required procedures to take to action under these policies. The document stated that no reports were made to the District or its agents regarding the verbal assaults.
The complaint stated that in fall 2018 fellow students allegedly made homophobic remarks towards Mercado stating that he was engaging in homosexual interactions with male coaching staff. It alleged that when Mercado reported the sexual harassment to coaching staff, a staff member advised him to ignore the remarks and did not report the incidents to the school administration.
MCPS responded to these allegations stating that no report of the incidents described was made to the District or its agents. “To the extent not admitted herein” the document, the District denied the allegations. They also said that Lechowski-Mercado “repeatedly praised” the staff member even stating that he was, “such a good man to [her] son.”
The lawsuit also alleged that in fall 2018 a female student referred to Mercado as a “player,” “f***boi,” “a**hole,” “piece of s***,” and “tool” to another female student. This was allegedly followed by a female staff member encouraging the behavior by saying that “they were funny.”
For this particular incident, MCPS not only denied awareness of the incident with no report but also suggested that Mercado and his family “indicated their appreciation for [the staff member] and her instruction of Owen and mentorship of another member of his family.” According to their response, these indications can be found in communications via email, in person and in recorded voicemails.
According to the complaint, in spring 2019 Mercado reported to a staff member that his basketball shoes and prescription goggles were stolen from his locker on school property. These items were allegedly found in a Facebook post belonging to a student’s brother. Mercado reported the stolen property to the police but SSHS allegedly did not report the theft nor conducted an investigation or took action against the alleged thieves. The shoes were later returned.
In their response, MCPS rebutted stating that a staff member advised and assisted Mercado with filing a police report. The District claimed SSHS Principal at the time Dr. Kathleen Pecora inquired as to whether the District had insurance that would cover the loss, which it did not. Lechowski-Mercado was advised to file a police report and check with her homeowner’s insurance. They also claimed that Lechowski-Mercado indicated that her son had later “donated” the shoes to the former student who was found in possession of them.
In her complaint, Lechowski-Mercado claimed to have met with now SSHS Principal Kellen Palmer in person to report these past occurrences and expressed anger over the District’s lack of reaction. The District responded that Lechowski-Mercado disclosed that she was not being treated well by other community members and was involved in another lawsuit with a resident at the time. MCPS denied that she directly or indirectly mentioned a pattern of harassment against Mercado at the school.
In fall 2019, Mercado’s car was allegedly vandalized twice with homophobic slurs and sexual imagery. A coach who allegedly witnessed the results of the first incident proceeded to text Mercado. The response was considered inappropriate in the complaint.
The District stated that school was not in session Aug. 12, 2019 when the first alleged vandalism took place and therefore did not occur during a school-sponsored event or activity. They admitted that no action was taken against the alleged perpetrators because it bore no responsibility to investigate or punish the conduct of unknown individuals that occurred while school was inactive.
MCPS also alleged that Palmer investigated the second incident involving Mercado’s car which took place Nov. 7, 2019. He reviewed camera footage but Mercado’s car was parked out of the camera’s view. They further state that Palmer contacted Lechowski-Mercado about the footage and offered to search for any perpetrators to which she allegedly responded, “It’s okay. We have much to be thankful for today and Owen wants to let it go....But I really appreciate you trying.”
Mercado’s complaint alleged continued racial slurs hurled at Mercado by other students in 2018 and 2019. A sexually inappropriate Snapchat image that featured Mercado was also allegedly shared by a student to at least two other people Nov. 12, 2019.
The school denied that they received any reports addressing the racial slurs but Palmer did receive an email from Lechowski-Mercado addressing the Snapchat in February. Lechowski-Mercado said that she had submitted her evidence to “the proper authorities” indicating that a report had been properly filed.
The complaint stated that in January 2020 Mercado was allegedly accosted and attacked by an eighth grader while on SSHS property. A SSHS coach allegedly failed to properly investigate the incident and falsified facts of the situation to conspire against Mercado by persuading witnesses to provide false statements. According to the document since the incident, four out of the 10 student witnesses have either recanted their prior statements entirely or stated that what happened did not have the criminal characteristics initially reported.
The complaint stated that Palmer investigated the incident. He found no wrongful conduct done by Mercado for his role in the incident due to insufficient evidence of sexual assault against the eighth grader. Following the school investigation, Mercado was given a three-day school suspension. After the initial suspension, the school extended it indefinitely Jan. 30, 2020.
This prevented Mercado from entering school grounds for the remainder of the school year. The complaint stated that 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.”
In response to the allegations, the District stated that a SSHS coach had witnessed Mercado physically restraining a smaller student and denies that the coach knew of the alleged attack against Mercado. The coach reported the incident to Palmer who began investigating the younger student’s claim that Mercado assaulted him in the locker room. Palmer determined that there was insufficient evidence supporting the claim that Mercado was sexually assaulted by the student but had determined that there was inappropriate behavior on Mercado’s part resulting in his prohibition from contacting the student.
The District stated that in addition to the three-day suspension, Mercado was also suspended from athletics for 20 days. The extension of the suspension was in response to new allegations and disclosure of criminal charges against Mercado. They stated that they attempted to develop a plan for Mercado’s return to SSHS but then worked with the family to find alternative school arrangements after the family “refused to permit” him to return to the school. They further alleged that the proposed arrangements were not acceptable to Lechowski-Mercado. Ultimately the involved parties agreed to provide Mercado with a homebound tutor through the remainder of the school year even after the school was closed to student attendance in March due to COVID-19.
After the indefinite suspension, the plaintiffs alleged that a student posted a meme, poking fun at Mercado being removed from SSHS, on an Instagram page called 13c_meme_page. The post was then liked by a school sanctioned sports account allegedly run by a staff member.
The District denied that the page is sponsored or sanctioned by the school.
In fall 2018, Mercado was diagnosed with “adjustment disorder with anxiety” as well as “current major depressive disorder.” Lechowski-Mercado claimed that SSHS and MCPS ignored “reasonable” accommodation requests for her son’s reported disabilities.
MCPS denied that they received any disability-related requests for reasonable accommodation from the family despite Lechowski-Mercado being routinely in touch with Mercado’s teachers regarding his class performance.
Phil Hamilton, a licensed clinical social worker in Missoula, was quoted among other mental health providers in the complaint. He stated Mercado was “hazed, ostracized and shut out of ... activities.”
“This has taken its toll on his self-confidence, self-worth and self-identity,” Hamilton said in the complaint. “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.”
The Mercados and their legal representation claimed SSHS and MCPSD engaged in a total of 16 counts, almost half of which have to do with negligence. They are seeking economic compensation of $2.4 million for SSHS’s alleged negligence, MCPS’s alleged negligence, alleged emotional distress past and future, alleged medical expenses past and future, attorney fees, punitive damages and any other relief the Court deems just.
To read the full complaint visit https://www.seeleylake.com/home/customer_files/article_documents/mercado_complaint.pdf. MCPS's response is available at https://www.seeleylake.com/home/customer_files/article_documents/mcps_response.pdf
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