Judge tosses lawsuit against SSHS and MCPS

MISSOULA – The discrimination lawsuit against Missoula County Public Schools (MCPS) was dismissed last week. In February 2022, MCPS filed a request for summary judgment to dismiss the suit brought against Seeley-Swan High School (SSHS) and MCPS by Owen Mercado and his mother Deidre Lechowski-Mercado in January 2021. The plaintiffs sought $2.4 million in damages.

Dana L. Christensen, United States District Court Judge for the District of Montana Missoula Division, stated in a brief filed Aug. 15 that the disputed facts need not be reviewed since the defendants’ motion rests on law rather than facts. In oral arguments presented at the hearing July 15, it was stated that the plaintiffs did not exhaust administrative remedies related to the alleged incidents of discrimination before filing their lawsuit.

A summary judgment motion requests the presiding judge review the case without the need for a jury. MCPS Attorney Elizabeth O’Halloran and Plaintiffs’ Attorney Lawrence Henke presented oral arguments July 15 in Missoula. This was a reiteration of written arguments filed by MCPS in February 2022 and the plaintiffs’ response in March of 2022.

Plaintiff attorney Henke, in his response to the motion, stated this should be decided by a jury. In the original complaint filed January 2021, Mercado was allegedly targeted by his peers and the school administration for his race, national origin, gender and disability. He 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.

Mercado is a quarter Afro-Caribbean. He attended SSHS beginning his first year in 2017 through January 2020 when he was suspended indefinitely after an investigation as stated in the motion.

Mercado and Lechowski-Mercado alleged the school and its staff members were made aware of discriminatory behavior and were negligent in the handling of multiple harassment reports.

The court determined the plaintiffs’ lawsuit had many legal defects and shortcomings. The court found that the Mercados did not exercise their right to file discrimination complaints as required by Montana Human Rights Act. The court brief stated that, although it did not intend to minimize the difficulties Mercado experienced while a student at SSHS, “Coming of age is a difficult experience only made more difficult by challenging interactions with one’s peers. Based on the foregoing, however, the Court has no basis for affording legal relief in this case.”

In her motion, O’Halloran stated Mercado did not have standing to assert claims of color or national origin discrimination as alleged in the plaintiffs’ complaint since Mercado acknowledges he was born in the United States as were both his parents. Moreover, although Mercado claims Puerto Rican heritage, no such claim can be made since Puerto Rico is a territory of the US and its citizens enjoy the rights, privileges and immunities of the US.

Lechowski-Mercado also does not have a standing to assert discrimination as a protected class, she is a white woman and the mother of an adult whose claims have been independently asserted on his own behalf. Though Mercado claims multi-racial heritage by virtue of his father’s lineage, Lechowski-Mercado does not have standing to assert claims for damages she suffered by virtue of discrimination against another person.

In arguments for dismal, MCPS’s main point was that Mercado and his mother admitted in deposition they did not seek remedy for discrimination complaints by filing a complaint with the Human Rights Bureau (HRB). In not filing a complaint the brief states the Plaintiffs forfeited all claims under Montana Human Rights Acts (MHRA) for failure to exhaust administrative remedies which serve as mandated prerequisite to filing discrimination claims in federal court. Given that Plaintiffs have not exhausted their relief under the MHRA, they are foreclosed from seeking relief here under the exclusivity and exhaustion clause of the MHRA. Moreover, Plaintiffs are time-barred from filing under the MHRA, having failed to file complaints of sex, race, national origin and disability discrimination within 180 days after the alleged unlawful discriminatory practice occurred, as required by Mont. Code Ann. § 49-2-501(4). Plaintiffs are time barred from doing so now. In oral arguments, Henke requested the court ignore this “get out of jail free” card being played by the defendants. Henke stated, the district was aware of the rules for filing discrimination complaints but did not provide such information to the defendants.

Henke referred to the plaintiffs’ as “unsophisticated regarding the HRB laws.”

The court agreed with the district and, in its brief, pointed to other cases such as Brenda Rhoten vs. Rocking J. Ranch, LLC, 2021. In summary, the court concluded that all of plaintiffs’ state law claims are bound by the exclusivity procedures of the MHRA. This presents a significant impediment to plaintiffs’ ability to prosecute those claims in this court. This is because the MHRA requires such claims to be brought “in conformance with the procedures set forth in the MHRA.” The court specifically cited Montana Code Annotated 49-2-512(1)). The MHRA only permits the advancement of MHRA claims in a court of law after a complaint has timely been submitted to and rejected by the Montana Human Rights Commission.

The MCPS also stated there is a scarcity of evidence that the plaintiffs’ emotional distress was severe. In court documents it stated Mercado has not prioritized participating in therapy. Lechowski-Mercado therapy concluded in 2019 and was related to other circumstances. Mercado completed his GED, has held a job and enrolled at Providence University in Great Falls and participated on the Men’s Basketball team his freshman year.

Prior to filing the lawsuit, Lechowski-Mercado’s correspondence through hundreds of emails was to discuss the district’s acknowledgement or lack of acknowledgement regarding Mercado’s athletic accomplishments. Court documents stated that the district did make accommodations for Mercado’s education after March of 2020 when it received notice of a disability. The motion further states the SSHS went above and beyond normal accommodations for other students.

The court addressed claims regarding Individuals with Education Disabilities Act (IEDA) and American Disabilities. In its comments the court found that although the plaintiffs were aware of the need to exhaust claims outside the court, they want to be excused from the requirements of law. Christensen again stated the law is clear on the process and must not be ignored.

In MCPS’s motion to dismiss, O’Halloran cited the criminal case, “Owen was criminally prosecuted for assaulting an eighth grader at the high school in January 2020 and for disorderly conduct with reference to his behavior toward another student at SSHS. Prior to Owen’s acknowledgement of liability for these crimes, SSHS initiated two investigations into the incidents and determined that Owen had violated Title IX by engaging in sexual harassment. Only after the investigations started, Deidre defended Owen by submitting documentation against Owen’s accusers.”

The plaintiff argued in its brief that SSHS Principal at the time Kellen Palmer acknowledged he didn’t investigate certain complaints. Two incidents cited where upon Mercado’s car was vandalized on school property, the first incident happened outside of school activities, August of 2019 and the second, which was reported in November 2019, was investigated until Lechowski-Mercado advised Palmer to stop.

The district responded that the plaintiffs downplayed complaints Palmer did address during his tenure and failed to acknowledge he could not respond or address complaints that may or may not have been made prior to school year 2019-2020.

Based on the summary judgment all counts of the lawsuit and motions filed are closed. The plaintiffs have 30 days to appeal the decision.


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