UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KIMBERLY TOOLEY, as N/F of SETH 

TOOLEY, 

Plaintiffs, Honorable Avern Cohn 

 Magistrate David R. Grand 

vs. No. 14-13466 

VAN BUREN PUBLIC SCHOOLS, et al, 

Defendants. 

______________________________________/ 

JAMES B. RASOR (P43476) 

JONATHAN R. MARKO (P72450) 

SARAH MARIE THOMAS (P76481) 

RASOR LAW FIRM, PLLC 

Attorneys for Plaintiffs

201 E. 4th Street 

Royal Oak, MI 48067 

(248) 543-9000 

jbr@rasorlawfirm.com 

jrm@rasorlawfirm.com 

smt@rasorlawfirm.com 

KEVIN T. SUTTON (P65364) 

LUSK & ALBERTSON, PLC 

Attorney for Wyandotte Schools Defendants 

40950 Woodward Avenue, Ste. 350 

Bloomfield Hills, MI 48304-5129 

(248) 988-5695 

ksutton@luskalbertson.com 

GEORGE P. BUTLER, III (P43692) 

CARMEN L. DORRIS (P77747) 

DICKINSON WRIGHT, PLLC 

Attorneys for Van Buren Defendants 

500 Woodward Ave., Ste. 4000 

Detroit, MI 48226 

(313) 223-3500 

gbutler@dickinsonwright.com 

cdorris@dickinsonwright.com 

TIMOTHY J. MULLINS (P28021) 

GIARMARCO, MULLINS & HORTON, P.C. 

Attorney for Defendants, Dearborn Heights 

 School District No. 7, Jeffrey Bartold, Jon 

 Znamierowski and Claudia Portscheller 

101 W. Big Beaver Road, 10th Floor 

Troy, MI 48084-5280 

(248) 457-7020 

tmullins@gmhlaw.com 

ROY H. HENLEY (P39921) 

JENNIFER K. JOHNSTON (P74093) 

THRUN LAW FIRM P.C. 

Attorneys for Alison Cancilliari 

2900 West Road, Ste. 400 

P.O. Box 2575 

East Lansing, MI 48826 

(517) 484-8000 

rhenley@thrunlaw.com 

GEORGE P. BUTLER, III (P43692) 

SHERRY D. O’NEAL TAYLOR (P62288) 

DICKINSON WRIGHT, PLLC 

Attorneys for Summit Academy North and 

 Board of Directors 

500 Woodward Ave., Ste. 4000 

Detroit, MI 48226 

(313) 223-3500 

gbutler@dickinsonwright.com 

soneal@dickinsonwright.com 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 1 of 31 Pg ID 228
2 

ANSWER TO FIRST AMENDED COMPLAINT 

 Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, 

JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, by and through their attorneys, GIARMARCO, MULLINS & 

HORTON, P.C., state their answer to Plaintiffs’ Complaint as follows: 

INTRODUCTION 

1. In answer to paragraph 1, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

2. In answer to paragraph 2, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

3. In answer to paragraph 3, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

PARTIES 

4. In answer to paragraph 4, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

5. In answer to paragraph 5, Defendants neither admit nor deny the 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 2 of 31 Pg ID 229
3 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

6. In answer to paragraph 6, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

7. In answer to paragraph 7, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

8. In answer to paragraph 8, Defendant admits that Best Middle School 

is a Michigan Public School District performing a governmental function in Wayne 

County, Michigan, to wit, providing a free and appropriate public education for the 

students thereof and, as such, Defendants are immune from suit herein. 

COMMON FACTUAL ALLEGATIONS

1. In answer to paragraph 1, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

2. In answer to paragraph 2, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

3. In answer to paragraph 3, Defendants neither admit nor deny the 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 3 of 31 Pg ID 230
4 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

4. In answer to paragraph 4, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

5. In answer to paragraph 5, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

6. In answer to paragraph 6, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

7. In answer to paragraph 7, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

8. In answer to paragraph 8, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

9. In answer to paragraph 9, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 4 of 31 Pg ID 231
5 

10. In answer to paragraph 10, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

11. In answer to paragraph 11, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

12. In answer to paragraph 12, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

13. In answer to paragraph 13, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

14. In answer to paragraph 14, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

15. In answer to paragraph 15, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

16. In answer to paragraph 16, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 5 of 31 Pg ID 232
6 

and, therefore, leave Plaintiffs to their proofs. 

17. In answer to paragraph 17, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

18. In answer to paragraph 18, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

19. In answer to paragraph 19, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

20. In answer to paragraph 20, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

21. In answer to paragraph 21, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

22. In answer to paragraph 22, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

23. In answer to paragraph 23, Defendants neither admit nor deny the 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 6 of 31 Pg ID 233
7 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

24. In answer to paragraph 24, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

25. In answer to paragraph 25, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

26. In answer to paragraph 26, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

27. In answer to paragraph 27, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

28. In answer to paragraph 28, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

29. In answer to paragraph 29, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 7 of 31 Pg ID 234
8 

30. In answer to paragraph 30, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

31. In answer to paragraph 31, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

32. In answer to paragraph 32, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

33. In answer to paragraph 33, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

34. In answer to paragraph 34, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

35. In answer to paragraph 35, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

36. In answer to paragraph 36, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 8 of 31 Pg ID 235
9 

and, therefore, leave Plaintiffs to their proofs. 

37. In answer to paragraph 37, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

38. In answer to paragraph 38, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

39. In answer to paragraph 39, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

40. In answer to paragraph 40, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

41. In answer to paragraph 41, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

42. In answer to paragraph 42, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

43. In answer to paragraph 43, Defendants neither admit nor deny the 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 9 of 31 Pg ID 236
10 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

44. In answer to paragraph 44, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

45. In answer to paragraph 45, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

46. In answer to paragraph 46, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

47. In answer to paragraph 47, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

48. In answer to paragraph 48, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

49. In answer to paragraph 49, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 10 of 31 Pg ID 237
11 

50. In answer to paragraph 50, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

51. In answer to paragraph 51, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

52. In answer to paragraph 52, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

53. In answer to paragraph 53, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

54. In answer to paragraph 54, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

55. In answer to paragraph 55, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

56. In answer to paragraph 56, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 11 of 31 Pg ID 238
12 

and, therefore, leave Plaintiffs to their proofs. 

57. In answer to paragraph 57, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

58. In answer to paragraph 58, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

59. In answer to paragraph 59, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

60. In answer to paragraph 60, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

61. In answer to paragraph 61, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

62. In answer to paragraph 62, Defendants admit that Plaintiff student 

attended Best Middle School for a period of time. Defendants neither admit nor 

deny the remaining allegations contained therein for lack of knowledge upon 

which to form a belief and, therefore, leave Plaintiffs to their proofs. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 12 of 31 Pg ID 239
13 

63. In answer to paragraph 63, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

64. In answer to paragraph 64, Defendants admit that Plaintiff student was 

accepted by the staff. Defendants neither admit nor deny the remaining allegations 

contained therein for the reason that they constitute conclusions of law, rather than 

allegations of fact, which are either incorrect or inapplicable as applied to the case 

herein and, therefore, leave Plaintiffs to their proofs. 

65. In answer to paragraph 65, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

66. In answer to paragraph 66, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

67. In answer to paragraph 67, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

68. In answer to paragraph 68, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

69. In answer to paragraph 69, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

70. In answer to paragraph 70, Defendants deny the allegations contained 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 13 of 31 Pg ID 240
14 

therein for the reason that they are untrue. 

71. In answer to paragraph 71, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

COUNT I 

VIOLATIONS OF 42 U.S.C. § 1983 et seq 

72. In answer to paragraph 72, Defendants hereby incorporate by 

reference their responses contained in paragraphs 1 through 71 inclusive, as if fully 

set forth herein. 

73. In answer to paragraph 73, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

74. In answer to paragraph 74, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

75. In answer to paragraph 75, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

76. In answer to paragraph 76, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

77. In answer to paragraph 77, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

78. In answer to paragraph 78, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

79. In answer to paragraph 79, Defendants deny the allegations contained 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 14 of 31 Pg ID 241
15 

therein for the reason that they are untrue. 

80. In answer to paragraph 80, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

81. In answer to paragraph 81, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

82. In answer to paragraph 82, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

83. In answer to paragraph 83, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT II 

SEX/GENDER DISCRIMINATION UNDER TITLE IX 

20 U.S.C. § 1681 et seq 

84. In answer to paragraph 84, Defendants hereby incorporate by 

reference their responses contained in paragraphs 1 through 83 inclusive, as if fully 

set forth herein. 

85. In answer to paragraph 85, Defendants neither admit nor deny the 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 15 of 31 Pg ID 242
16 

allegations contained therein for the reason that they constitute conclusions of law, 

rather than allegations of fact, which are either incorrect or inapplicable as applied 

to the case herein and, therefore, leave Plaintiffs to their proofs. 

86. In answer to paragraph 86, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

87. In answer to paragraph 87, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

88. In answer to paragraph 88, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT III 

SEX-BASED HARASSMENT UNDER TITLE IV 

 OF THE CIVIL RIGHTS ACT OF 1964 

42 U.S.C. §§ 2000c – 2000c-9 

89. In answer to paragraph 89, Defendants hereby incorporate by 

reference their responses contained in paragraphs 1 through 88 inclusive, as if fully 

set forth herein. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 16 of 31 Pg ID 243
17 

90. In answer to paragraph 90, Defendants neither admit nor deny the 

allegations contained therein for the reason that they constitute conclusions of law, 

rather than allegations of fact, which are either incorrect or inapplicable as applied 

to the case herein and, therefore, leave Plaintiffs to their proofs. 

91. In answer to paragraph 91, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT IV 

VIOLATION OF MICHIGAN ELLIOTT LARSEN CIVIL RIGHTS ACT 

68. In answer to paragraph 68, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

69. In answer to paragraph 69, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

70. In answer to paragraph 70, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

71. In answer to paragraph 71, Defendants deny the allegations contained 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 17 of 31 Pg ID 244
18 

therein for the reason that they are untrue. 

72. In answer to paragraph 72, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

73. In answer to paragraph 73, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

74. In answer to paragraph 74, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT V 

VIOLATION OF THE 14TH AMENDMENT 

75. In answer to paragraph 75, Defendants hereby incorporate by 

reference their responses to the foregoing paragraphs as if fully set forth herein. 

76. In answer to paragraph 76, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

77. In answer to paragraph 77, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

78. In answer to paragraph 78, Defendants deny the allegations contained 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 18 of 31 Pg ID 245
19 

therein for the reason that they are untrue. 

79. In answer to paragraph 79, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT VI 

FIRST AMENDMENT RIGHTS 

80. In answer to paragraph 80, Defendants hereby incorporate by 

reference their responses to the foregoing paragraphs as if fully set forth herein. 

81. In answer to paragraph 81, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

82. In answer to paragraph 82, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

83. In answer to paragraph 83, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 19 of 31 Pg ID 246
20 

84. In answer to paragraph 84, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

85. In answer to paragraph 85, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT VII 

VIOLATION OF EQUAL PROTECTION RIGHTS UNDER 

THE MICHIGAN CONSTITUTION 

86. In answer to paragraph 86, Defendants hereby incorporate by 

reference their responses to the foregoing paragraphs as if fully set forth herein. 

87. In answer to paragraph 87, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

88. In answer to paragraph 88, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

89. In answer to paragraph 89, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

90. In answer to paragraph 90, Defendants deny the allegations contained 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 20 of 31 Pg ID 247
21 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT VIII 

GROSS NEGLIGENCE 

91. In answer to paragraph 91, Defendants hereby incorporate by 

reference their responses to the foregoing paragraphs as if fully set forth herein. 

92. In answer to paragraph 92, Defendants neither admit nor deny the 

allegations contained therein for lack of knowledge upon which to form a belief 

and, therefore, leave Plaintiffs to their proofs. 

93. In answer to paragraph 93 (a) –(e), Defendants deny the allegations 

contained therein for the reason that they are untrue. 

94. In answer to paragraph 94, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 21 of 31 Pg ID 248
22 

wrongfully sustained. 

COUNT IX 

42 U.S.C. 1983 VIOLATION PURSUANT TO MONELL 

95. In answer to paragraph 95, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

96. In answer to paragraph 96, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

97. In answer to paragraph 97, Defendants deny the allegations contained 

therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

COUNT X 

42 U.S.C. 1983 – VIOLATION OF CIVIL RIGHTS THROUGH 

SUPERVISION, CUSTOMS, POLICIES, ACQUIESCENCE 

AND TRAINING 

98. In answer to paragraph 98, Defendants hereby incorporate by 

reference their responses to the foregoing paragraphs as if fully set forth herein. 

99. In answer to paragraph 99, Defendants neither admit nor deny the 

allegations contained therein for the reason that they constitute conclusions of law, 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 22 of 31 Pg ID 249
23 

rather than allegations of fact, which are either incorrect or inapplicable as applied 

to the case herein and, therefore, leave Plaintiffs to their proofs. 

100. In answer to paragraph 100, Defendants neither admit nor deny the 

allegations contained therein for the reason that they constitute conclusions of law, 

rather than allegations of fact, which are either incorrect or inapplicable as applied 

to the case herein and, therefore, leave Plaintiffs to their proofs. 

101. In answer to paragraph 101, Defendants deny the allegations 

contained therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

CLAIMS FOR RELIEF 

102. In answer to paragraph 102 Defendants hereby incorporate by 

reference their responses to the foregoing paragraphs as if fully set forth herein., 

103. In answer to paragraph 103, Defendants deny the allegations 

contained therein for the reason that they are untrue. 

104. In answer to paragraph 104, Defendants deny the allegations 

contained therein for the reason that they are untrue. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 23 of 31 Pg ID 250
24 

105. In answer to paragraph 105, Defendants deny the allegations 

contained therein for the reason that they are untrue. 

106. In answer to paragraph 106, Defendants deny the allegations 

contained therein for the reason that they are untrue. 

107. In answer to paragraph 107, Defendants deny the allegations 

contained therein for the reason that they are untrue. 

WHEREFORE, Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7, JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, respectfully request that this Honorable Court enter an order of 

no cause of action as to Defendants, together with costs and attorney fees so 

wrongfully sustained. 

s/TIMOTHY J. MULLINS 

GIARMARCO, MULLINS & HORTON, PC 

Attorney for Defendants, Dearborn Heights 

 School District No. 7, Jeffrey Bartold, Jon 

 Znamierowski and Claudia Portscheller 

101 W. Big Beaver Road, 10th Floor 

Troy, MI 48084-5280 

(248) 457-7020 

tmullins@gmhlaw.com 

P28021 

DATED: December 19, 2014 

 

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25 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KIMBERLY TOOLEY, as N/F of SETH 

TOOLEY, 

Plaintiffs, Honorable Avern Cohn 

 Magistrate David R. Grand 

vs. No. 14-13466 

VAN BUREN PUBLIC SCHOOLS, et al, 

Defendants. 

______________________________________/ 

AFFIRMATIVE DEFENSES 

 Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, 

JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, by and through their attorneys, GIARMARCO, MULLINS & 

HORTON, P.C., state their Affirmative Defenses as follows: 

1. DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, as a 

governmental entity, is entitled to governmental immunity because it was 

performing a governmental function. 

2. Defendants, JEFFREY BARTOLD, JON ZNAMIEROWSKI and 

CLAUDIA PORTSCHELLER, are entitled to governmental immunity. Plaintiffs’ 

allegations in the complaint for disability based harassment fails as a matter of law 

because Plaintiffs lack any evidence that they, or anyone on their behalf, notified 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 25 of 31 Pg ID 252
26 

Defendants of any harassment. 

3. Plaintiffs’ claims against Defendants failed because Plaintiffs cannot 

show that Defendants acted with deliberate indifference regarding Plaintiff 

student’s allegations of harassment. 

4. Plaintiffs have failed to exhaust their administrative remedies 

generally and specifically with the Individuals With Disabilities Education Act, the 

Americans With Disabilities Act, and Section 504 of the Rehabilitation Act. 

5. Plaintiffs’ claims under the Persons with Disability Act are precluded 

by the Michigan Special Education Act, MCL 380.1701. 

6. Defendants are entitled to qualified immunity. 

7. Defendants are entitled to absolute immunity. 

8. Plaintiff student is not a protected person under Title IX. 

9. Plaintiffs have not alleged that Plaintiff student was harassed solely 

because of any protected classification. 

10. Any harassment was not sufficiently severe or pervasive that it altered 

the condition of Plaintiff student’s education. 

11. Defendants did not have actual notice of any harassment. 

12. Defendants were not deliberately indifferent to the harassment. 

13. Plaintiffs’ claims are barred because Defendants and their 

representatives exercised reasonable care to prevent and promptly correct any 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 26 of 31 Pg ID 253
27 

allegedly harassing behavior. 

14. Plaintiffs’ cause of action is barred because Plaintiff unreasonably 

failed to take advantage of any preventative or corrective opportunities provided 

Defendants to avoid harm. 

15. Defendants have not violated any clearly established constitutional or 

statutory right. 

16. Plaintiffs’ ADA and Section 504 claim are preempted by the IDEA. 

17. Plaintiffs’ claim is barred because Plaintiffs did not notify Defendants 

of the actions complained of. 

18. Plaintiffs’ claim is barred by the Statute of Limitations. 

19. Defendants will show at the time of trial that all actions or activities 

complained of by Plaintiffs were voluntary or consensual on the part of Plaintiffs. 

20. Defendants will show at the time of trial that there was no 

discriminatory intent. 

21. As a matter of law, DEARBORN HEIGHTS SCHOOL DISTRICT 

NO. 7 and its administrators cannot be held vicariously liable for its employees’ 

intentional torts. 

22. Plaintiffs have failed to mitigate their damages, if any. 

23. Plaintiffs have failed to satisfy a condition precedent to filing this 

lawsuit. 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 27 of 31 Pg ID 254
28 

24. Defendants strictly observed all legal duties and obligations imposed 

by operation of law and otherwise, and all actions of their agents, servants, and/or 

employees were careful, prudent, proper, and lawful. 

25. Plaintiffs have failed to state a cause of action. 

26. Plaintiffs’ comparative negligence may act to bar this claim in whole 

or in part. 

27. Any injury complained of by Plaintiffs was not proximately caused by 

Defendants. 

28. The Court lacks jurisdiction over Plaintiffs’ state law claims because 

the state law claims substantially predominate the federal claims. 

29. Plaintiffs’ claims are barred because Defendants took prompt, 

remedial, and corrective action to all known acts of harassment. 

30. Plaintiffs’ claims are barred because Plaintiff and Plaintiff’s Next 

Friend lack capacity to sue. 

31. Plaintiffs’ claim fails as a matter of law and fact because Defendants 

were not required to protect Plaintiff from the private violence or other mishaps 

that are not attributed to the conduct of its employees. 

32. Plaintiffs’ claims are barred because they did not comply with and/or 

satisfy relevant and applicable conditions precedent. 

33. Plaintiffs’ claimed are barred, in whole or in part, under the doctrine 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 28 of 31 Pg ID 255
29 

of estoppel/waiver. 

34. Plaintiffs have failed to mitigate damages. 

35. Plaintiffs have failed to join a necessary party. 

36. Defendants are entitled to Eleventh Amendment immunity. 

37. Defendants will show at trial that any injury complained of by 

Plaintiffs was preexistent and/or proximately caused by the acts of third persons 

not under the control of Defendants. 

38. Defendants will show and rely upon at the time of trial that Plaintiff 

student’s sexual identity is not a protected classification. 

39. Defendants reserve the right to amend their Answer, including 

additional Affirmative Defenses, upon completion of investigation and discovery 

of this cause. 

s/TIMOTHY J. MULLINS 

GIARMARCO, MULLINS & HORTON, PC 

Attorney for Defendants, Dearborn Heights 

 School District No. 7, Jeffrey Bartold, Jon 

 Znamierowski and Claudia Portscheller 

101 W. Big Beaver Road, 10th Floor 

Troy, MI 48084-5280 

(248) 457-7020 

tmullins@gmhlaw.com 

P28021 

DATED: December 19, 2014 

 

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30 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KIMBERLY TOOLEY, as N/F of SETH 

TOOLEY, 

Plaintiffs, Honorable Avern Cohn 

 Magistrate David R. Grand 

vs. No. 14-13466 

VAN BUREN PUBLIC SCHOOLS, et al, 

Defendants. 

______________________________________/ 

RELIANCE UPON JURY DEMAND 

 Defendants, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, 

JEFFREY BARTOLD, JON ZNAMIEROWSKI and CLAUDIA 

PORTSCHELLER, by and through their attorneys, GIARMARCO, MULLINS & 

HORTON, P.C., hereby rely upon the jury demand previously filed by Plaintiffs as 

to all issues of trial. 

s/TIMOTHY J. MULLINS 

GIARMARCO, MULLINS & HORTON, PC 

Attorney for Defendants, Dearborn Heights 

 School District No. 7, Jeffrey Bartold, Jon 

 Znamierowski and Claudia Portscheller 

101 W. Big Beaver Road, 10th Floor 

Troy, MI 48084-5280 

(248) 457-7020 

tmullins@gmhlaw.com 

P28021 

DATED: December 19, 2014 

 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 30 of 31 Pg ID 257
31 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KIMBERLY TOOLEY, as N/F of SETH 

TOOLEY, 

Plaintiffs, Honorable Avern Cohn 

 Magistrate David R. Grand 

vs. No. 14-13466 

VAN BUREN PUBLIC SCHOOLS, et al, 

Defendants. 

______________________________________/ 

CERTIFICATE OF ELECTRONIC SERVICE 

TIMOTHY J. MULLINS states that on December 19, 2014, he did serve a 

copy of the Answer to First Amended Complaint, Affirmative Defenses and 

Jury Demand via the United States District Court electronic transmission on the 

aforementioned date. 

s/TIMOTHY J. MULLINS 

GIARMARCO, MULLINS & HORTON, PC 

Attorney for Defendants, Dearborn Heights 

 School District No. 7, Jeffrey Bartold, Jon 

 Znamierowski and Claudia Portscheller 

101 W. Big Beaver Road, 10th Floor 

Troy, MI 48084-5280 

(248) 457-7020 

tmullins@gmhlaw.com 

P28021 

2:14-cv-13466-AC-DRG Doc # 25 Filed 12/19/14 Pg 31 of 31 Pg ID 258