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holding defendant not deliberately indifferent where defendant asked victim to prepare a written statement, notified parents of harassing students, suspended two of harassing students for five days, and transferred student who inappropriately touched victim to different classroom
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01 CV 4961 (JG).
October 27, 2004
SUSAN PENNY BERNSTEIN, Cronin Byczek, LLP Lake Success, New York, Attorneys for Plaintiff.
MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, New York, By: Kimberly Conway, Assistant Corporation Counsel, Attorneys for Defendant.
MEMORANDUM AND ORDER
Plaintiff Maribel Garcia, on her own behalf and on behalf of her daughter, Plaintiff Stephanie Soriano, brings this sexual harassment and civil rights suit under Title IX of the Education Law of 1972, 20 U.S.C. § 1681 et seq., and under 42 U.S.C. § 1983, against the Board of Education of the City of New York, the City of New York, Community School District 28, and Public School 40 (the municipal defendants); and Judith Tyler, Jecrois Jean-Baptiste, Harold O. Levy, Neil Kreinik, Etta F. Carter, and Rita Glaramita (the individual defendants), seeking money damages. Plaintiffs allege that Stephanie Soriano, while in the fourth grade, was twice the victim of sexual harassment by other students in her elementary school, and that defendants failed to adequately respond to these incidents, in violation of both Title IX and the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also bring claims under New York law; specifically, plaintiffs allege a claim pursuant to Educational Law § 3201-a against the municipal defendants, and a negligent supervision claim against all defendants.
N.Y. Education Law § 3201-a, entitled "Discrimination on account of sex," reads, in pertinent part: "Notwithstanding any general, special, local law or rule or regulation of the education department to the contrary, no person shall be refused admission into or be excluded from any course of instruction offered in the state public and high school systems by reason of that person's sex."
Defendants now move for summary judgment on the grounds that (1) Garcia does not have standing to bring an action under Title IX on her own behalf or on behalf of her daughter; (2) plaintiffs' claims under Title IX lack merit as a matter of law; (3) plaintiffs have no cause of action under Title IX against the individual defendants; (4) plaintiffs' claims under § 1983 are precluded; (5) plaintiffs' claims under § 1983 lack merit as a matter of law; (6) the individual defendants are immune from liability under the doctrine of qualified immunity; (7) the individual defendants were not personally involved in the events giving rise to plaintiffs' case; (8) this Court should not exercise supplemental jurisdiction to hear plaintiffs' state law claims; and (9) plaintiffs' state law claims lack merit as a matter of law. For the following reasons, the motion for summary judgment is granted. Specifically, the federal claims are dismissed, and I decline to exercise supplemental jurisdiction with respect to plaintiffs' state claims.
At oral argument, plaintiffs' counsel conceded that Maribel Garcia, as an individual, did not have standing to bring a claim under either Title IX or § 1983. To the extent such claims were presented by plaintiffs, they are dismissed on consent. I will, however, continue to refer to plaintiffs in the plural for the purposes of this motion. In addition, plaintiffs' counsel explicitly abandoned claims brought against individuals under Title IX and § 1983. Counsel vacillated as to whether plaintiffs were abandoning the § 1983 claims against the municipal defendants, which they had failed to address in their opposition to the summary judgment motion except in connection with an issue of standing. Even if such claims have not been abandoned, they are dismissed as a matter of law. In order to maintain a § 1983 action against a municipality for the unconstitutional acts of a municipal employee below the policymaking level, a plaintiff must establish that a municipal custom or policy caused the violation of her constitutional rights. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (citing Monell v. Dep't of Social Servs., 435 U.S. 658, 694 (1978)). Plaintiffs have presented no evidence that would suggest that there was a municipal policy or custom that deprived Stephanie Garcia of her constitutional rights. To the contrary, both at oral argument and in their papers, plaintiffs relied on defendants' alleged violation of the New York City Board of Education's disciplinary policy to buttress their argument that defendants had been deliberately indifferent to the student-on-student harassment giving rise to the case. Because plaintiffs have failed to meet their evidentiary burden under Rule 56, the § 1983 claims against the municipal defendants are dismissed. See Fed.R.Civ.P. 56 (an adverse party must "set forth specific facts showing that there is a genuine issue for trial.").
In sum, in light of plaintiffs' concessions and the failure of the Monell claim as a matter of law, the only federal claim remaining is the claim addressed below, i.e., plaintiffs' claim against the municipal defendants under Title IX.
BACKGROUND
The facts of this case, viewed in the light most favorable to Garcia and Stephanie Soriano ("Stephanie"), are as follows: In the fall of 1999 and the spring of 2000, Stephanie was in the fourth grade at Public School 40 in Jamaica, Queens. On two occasions, once in November 1999 and the other in May 2000, Stephanie was sexually harassed by another student.1. The November 30, 1999 Incident
On November 30, 1999, three male fourth-grade students approached Stephanie in the cafeteria of P.S. 40. One of the boys, Michael, sat next to Stephanie. Two other boys, Cory and Sean, told Michael to "rape her." Michael subsequently touched Stephanie's vagina over her skirt against her will. Stephanie pushed Michael's hand away and slapped and pinched Michael. Michael then pinched Stephanie's arm, leaving a bruise on her arm. Stephanie did not see any lunch aides around to whom to report the attack, and she did not report the incident to the principal or to any teachers.
After school, Stephanie told her aunt (who is also a student at P.S. 40) about the incident. The next day, she told her parents. On December 2, 1999, Garcia's husband, Luis Garcia ("Luis"), reported the incident to the principal of P.S. 40. An administrator of P.S. 40 told Luis that she was going to take care of the situation by suspending or expelling the boys, and by speaking to the parents of the students involved.
Luis recalls that he spoke to Judith Tyler about this incident. Tyler, however, did not begin working at P.S. 40 as principal until March 2000.
That day, the administrator instructed Stephanie, Michael, Cory, and Sean to prepare written statements describing the incident. The administrator also informed Luis that he had the option of contacting the police. Luis subsequently reported the incident to the police, who investigated the claim, sending a detective to the Garcia home. While the police were there, Garcia, Luis, and the police spoke with Cory and Cory's mother about the incident. On December 6, 1999, Michael and Cory were both suspended from school, and Michael was subsequently transferred to another classroom. From December 1, 1999 through May 23, 2000, Stephanie did not complain to Garcia of any subsequent harassment.
At oral argument, plaintiffs' counsel asserted that factual disputes exist regarding (1) whether Cory was suspended; and (2) whether, and for how long, Michael was transferred out of Stephanie's class.
On the merits, these arguments are baseless. First, Exhibit L to the Declaration of Kimberly Conway includes (1) the school's December 6, 1999 letter to Michael's parents notifying them of his five-day suspension for "engaging in sexual aggression"; and (2) its December 6, 1999 letter to Cory's parents notifying them of his five-day suspension for "using slurs based on gender." Second, plaintiffs' own Rule 56.1 statement asserts (at ¶ 42) that Cory was disciplined, and Stephanie, Garcia, and Luis all testified at their depositions that Michael was transferred out of Stephanie's classroom, at least for a time. See Defendants' Rule 56.1 Statement at ¶ 15 (citing deposition transcripts).
Procedurally, plaintiffs' counsel's attempt to use oral argument to establish a genuine issue of fact about these events misapprehends counsels obligation in fending off a motion for summary judgment. The defendants' Rule 5.1 statement, at paragraphs 14 and 15, clearly asserts, with citations to admissible evidence, i.e., the school's letters and Stephanie's testimony, that Michael and Cory were suspended and Michael was transferred to another classroom. To establish a triable issue with regard to those assertions, plaintiffs were required to controvert the defendants' assertions in their own Rule 56.1 Statement, followed by citations to admissible evidence. Local Rule 56.1(b)-(d). Here, plaintiffs' opposing statement failed to controvert defendants' assertions about the disciplining of Michael and Cory, and thus they are deemed to have admitted those assertions. Local Rule 56.1(c). The mere incantation by counsel at oral argument that facts are disputed is not a substitute for the specific, evidence-based showing required by the rule.
Finally, plaintiffs' counsel suggests that one of the letters in Exhibit L to the Conway Declaration — the letter from the school to Cory's parents — was not provided in discovery. I need not resolve the dispute between counsel on that issue because plaintiffs' counsel does not even attempt to argue that the allegedly belated disclosure has prejudiced plaintiffs, or that there is even the slightest doubt as to the authenticity of the letter.
2. May 24, 2000 Incident
On May 24, 2000, Darnell, a fourth-grade student in Stephanie's class, sat next to Stephanie and slapped her buttocks. He also put his arms around her and started "sweet talking" to her, saying "baby baby," among other words. Darnell had slapped Stephanie on the buttocks on another occasion prior to this incident. In response to this earlier incident, Stephanie had slapped Darnell in the face and then hid behind a teacher. The teacher told Darnell to leave Stephanie alone. Around the time of the incident on May 24, Judith Tyler, the principal of P.S. 40, was aware that Darnell had a history of disciplinary problems.
Plaintiffs date this incident as on or about May 31, 2000, but the documentary evidence provided by defendants establishes that May 24, 2000, is the appropriate date. For the purposes of this motion, the May 24 date will be adopted. The date of the incident has no bearing on the outcome of this motion.
After school on the day of the May 24 incident, Stephanie told Garcia about Darnell's harassive behavior. The next day, Garcia reported the incident to Tyler. Subsequently, Tyler met individually with Stephanie, Darnell and the teachers allegedly present during the incident, Ms. Vails and Ms. Post. Tyler instructed them to prepare written statements describing the incident. On May 26, 2000, Garcia met with Tyler and Paul Arroyo, the Director of Pupil Personnel Services to discuss what to do about the May 24 incident. On June 1, 2000, Tyler met with Garcia and police officers from the New York City Police Department, including officers from the special victim's unit. On June 6, 2000, Tyler met with Luis, who informed Tyler that he was going to remove his children from the school. Subsequently, Luis removed Stephanie and other members of the family from the school.
After these incidents of harassment, Stephanie had various problems, including being afraid to go out and play, getting lower grades, and having nightmares. At some point, Stephanie began to see a therapist.
Plaintiffs allege that Stephanie's grades suffered because of these incidents. Defendants have submitted Stephanie's report card, however, which shows that her grades remained consistent throughout the fourth, fifth, and sixth grades. See Declaration of Kimberley Conway, Ex. I.
DISCUSSION
A. The Rule 56 Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Id.
Moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted); see also, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000) ("[W]e . . . view [the facts] in the light most favorable to, and draw inferences in favor of, the non-moving party. . . ."). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e), emphasis in original).
B. Title IX Claim Against the Municipal Defendants
Defendants initially suggested that because Stephanie's claim was being brought on her behalf by her mother, Stephanie lacked standing. Defendants have apparently not pursued that argument. In any event, it is without merit.
Title IX provides, with certain exceptions not at issue here, that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ." § 20 U.S.C. 1681(a). A school board receiving federal funding can be held liable under Title IX for student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). To establish such a claim, a plaintiff must demonstrate that: (1) the school authorities had actual knowledge of the harassment; (2) they were deliberately indifferent to the harassment; and (3) the harassment was "so severe, pervasive, and objectively offensive" that it deprived the plaintiff of "access to the educational opportunities or benefits provided by the school." Id. at 650.
Defendants do not contest that the New York City Board of Education is a recipient of federal education funding that could be held liable under Title IX.
a. Actual Notice
To prevail in a claim bought pursuant to title IX, a plaintiff must demonstrate that someone "vested with authority to address the alleged discrimination and to institute corrective measures" on behalf of the funding recipient had actual knowledge, as opposed to constructive knowledge, of the discrimination. Hayut v. State Univ. of New York, 352 F.3d 733, 750 (2d Cir. 2003). (internal quotations omitted). The actual knowledge requirement imposes a significant evidentiary burden on a Title IX claimant. Id. In Hayut, for example, plaintiff alleged that she was harassed by a professor at SUNY New Paltz during the fall semester. Id. at 738. Hayut did not complain about the harassment to any of the SUNY defendants, however, until late in the semester. Id. at 751. Accordingly, the Second Circuit held that the SUNY defendants could not be held liable under Title IX for any harassment that occurred prior to the date that she made her complaint. Id.
Here, plaintiffs have made no claim that Stephanie was subjected to harassment prior to November 30, 1999, or that anyone reported any incidents of harassment prior to Luis Garcia's initial report to an administrator at P.S. 40 on December 2, 1999. Instead, plaintiffs claim, first, that defendants were on notice because of the alleged perception that the school as a whole was undisciplined, and plaintiffs have submitted newspaper articles and television news reports to buttress their claim. Even if school administrators perceived the student body as a whole to be undisciplined, however, such a perception is insufficient to place those administrators on actual notice of sexual harassment of a particular student by another student. Second, plaintiffs apparently claim that defendants had actual notice of Michael's "known reputation for inappropriate sexual conduct." Pl.'s Rule 56.1 Statement, ¶ 20. In support of this proposition, plaintiffs rely on Garcia's deposition testimony that Stephanie complained to her that Michael "would just kiss like the girls and the other girls would let them touch him. He would go to a girl, they would let him touch their butt or any other part of the body, and they liked it. They let him do it." 88:17-23. Garcia does not recall, however, when Stephanie made these complaints to her, Id. at 88:24-89:3, nor do plaintiffs provide any evidence that any school administrator had actual notice of Michael's behavior. Accordingly, because defendants did not have actual notice of harassment prior to December 2, 1999, they cannot be held liable for any harassment that occurred prior to that date.
Defendants argue, in a different context, that the newspaper articles and televised news reports are hearsay, and not admissible for the truth of the matters asserted in them. See Defs.' Mem. of Law in Further Supp. of Mot. for Summary Judgment, at 6. I assume for the purposes of this motion that the news reports are admissible circumstantial evidence of the school administrators' awareness of the reported disciplinary problems.
Whether defendants had actual knowledge of harassment by Darnell against Stephanie prior to the May 24, 2000 incident presents a closer question. Stephanie testified that sometime prior to the May 24, 2000 incident, Darnell slapped her buttocks. Stephanie responded to this initial incident by slapping Darnell in the face, and then hiding behind a teacher. The teacher then told Darnell to leave Stephanie alone. Defendants correctly argue that Stephanie testified to a difference between the two incidents in the way Darnell touched her buttocks, and that it is uncertain whether such behavior from a fourth grader rises to the level of sexual harassment. In addition, it is undisputed that Stephanie told neither her mother nor the principal about the pre-May 24 incident with Darnell. However, drawing all inferences in favor of the non-moving party, I cannot say that there is no genuine issue of material fact with regard to this element of plaintiffs' claim. Stephanie told her teacher about Darnell slapping her in the buttocks prior to the May 24, 2000 incident. Although she was unclear during her deposition about which teacher she spoke to, or what she said to the teacher, Stephanie was a twelve-year-old testifying about events that happened several years earlier, and as such is entitled to a fair degree of latitude. A rational juror could conclude that Stephanie's statement to the teacher was sufficient to place defendants on actual notice of Darnell's harassive behavior towards Stephanie.
b. Deliberate Indifference
The muncipal defendants may be held liable for a Title IX claim of student-on-student sexual harassment only where the school's "response to the harassment or lack thereof is clearly unreasonable in the light of known circumstances." Davis, 526 U.S. at 648. The Supreme Court made clear that it wanted to preserve flexibility for school administrators, noting that "courts should refrain from second-guessing the disciplinary decisions made by school administrators." Id. (citation omitted). "Clearly unreasonable" is not a "mere" reasonableness standard, and there is "no reason why courts, on a motion . . . for summary judgment . . . could not identify a response as not "clearly unreasonable" as a matter of law. Id. at 648-49. For the following reasons, I find that, as a matter of law, defendants response to both the November 1999 and May 2000 incidents was not clearly unreasonable.
Plaintiffs fail to offer any specific facts to controvert defendants' assertions that, upon notice of the November 30, 1999 incident: a school administrator informed Luis Garcia of his right to contact the police; a school administrator instructed Stephanie and the harassing students involved to prepare written statements describing the incident, which the students prepared; the adminstrator contacted the parents of the harassing students; two of the those students were suspended for five days; and the student who had inappropriately touched Stephanie was transferred to another classroom, at least for a time. It is also undisputed that none of the students involved in the November 1999 incident harassed Stephanie again. Plaintiffs claim that the administrators were indifferent because, among other things, they failed to promptly respond to the first incident by contacting police, and failed to take measures to secure Stephanie's safety. While plaintiffs may have preferred a different response from the school administrators, the standard is not whether the administrators responded in a particular manner, but whether their response was clearly unreasonable in light of all the known circumstances. Here, no reasonable jury could conclude that the administrators' response to the November 30, 1999 incident was clearly unreasonable, and consequently the defendants cannot be held liable under Title IX for that incident.
With respect to the May 24, 2000 incident, plaintiffs also fail to controvert defendants' evidence that after plaintiffs complained to Principal Tyler: Tyler instructed Stephanie, Darnell, and the teachers allegedly present during the incident to prepare written statements describing it; Tyler and Raul Arroyo, the Director of Pupil Personnel Services, met with Garcia to discuss how to respond to the incident; Tyler recommended that Darnell be suspended from school; Tyler met with Garcia and police officers from the New York City Police Department, including officers from the special victims unit, to discuss the incident; and Tyler met with Luis Garcia regarding the incident. Subsequent to this meeting between Tyler and Luis Garcia, Luis removed all his children, including Stephanie, from P.S. 40.
In lieu of proffering specific facts to support their argument of deliberate indifference by the school administrators, plaintiffs' again point to several newspaper articles and television news reports as evidence that defendants were "clearly indifferent to the health and safety of the students," and that the school was in total chaos. Even if this evidence was admissible for its truth, which is uncertain at best, it demonstrates only that the school was in deplorably bad condition; it does not provide specific facts to demonstrate that plaintiffs' response to Stephanie's harassment was clearly unreasonable. Given the undisputed actions taken by the school authorities in response to the incident, I conclude as a matter of law that their response was not clearly unreasonable in light of the known circumstances. Accordingly, the defendants may not be held liable under Title IX for any harassment related to the May 24, 2000 incident.
c. Depriving Stephanie of Access to Educational Opportunities or Benefits
Plaintiffs claim also fails because they have not pointed to specific facts to create a genuine issue for trial as to whether the harassive behavior was "so severe, pervasive, and objectively offensive that it can be said to [have] deprive[d] the victim of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650. The Davis Court noted that it would be unlikely that a single instance of peer-on-peer harassment would be sufficiently severe to rise to the level where relief is appropriate "in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment." Id. at 652-53. Instead, private damages actions under Title IX are limited to cases having a systemic effect of denying the victim equal access to an educational program or activity. Id.
In Davis, for example, the Court found allegations of harassment sufficient to survive a motion to dismiss where the victim alleged that she had been subject to repeated acts of sexual harassment by one student over a five-month period; the harassment included numerous acts of objectively offensive touching; the harasser student ultimately pleaded guilty to criminal sexual misconduct; multiple victims of the harasser's conduct unsuccessfully sought the assistance of the school principal; and the harassment had a concrete negative effect on the victim's ability to receive an education. Id. at 653-54.
Here, plaintiffs have not presented any facts that suggest the existence of a genuine issue requiring trial with respect to this prong of the Title IX analysis. They have alleged two instances of sexual harassment by two different fourth-graders taking place nearly six months apart. Both involved discrete encounters, one involving a boy touching Stephanie's vagina through her skirt, and the second involving a slap on her buttocks. These are strikingly offensive acts indeed, but plaintiffs have failed to demonstrate that they rise to the level of pervasive harassment such that Stephanie was deprived of "equal access to an institution's resources and opportunities." Davis, 526 U.S. at 651.
The allegations that Stephanie was afraid to go out and play, had nightmares and declining grades, and had to see a therapist, though disturbing, do not produce a contrary result. Stephanie faced no harrasive behavior between November 30, 1999 and May 24, 2000. Shortly after the May 24, 2000 incident, Garcia and her husband removed Stephanie from the school. This sequence of events does not reflect a denial of access to the school's resources and benefits, which is a further reason why plaintiffs' Title IX claim fails.
In sum, plaintiffs have failed to create a genuine issue of fact as to (1) whether defendants had actual notice of the November 30, 1999 incident; (2) whether the defendants response to either of the incidents of harassment was clearly unreasonable in the light of known circumstances; and (3) whether the harassment was so pervasive that it amounted to the effective denial of equal access to the school's resources and benefits. Accordingly, the motion for summary judgment is granted with respect to the Title IX claims.
C. Claims Under New York Law
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction if the court has dismissed all claims over which it had original jurisdiction. Dismissal of such claims is committed to the district judge's discretion. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Because I have dismissed all federal claims brought by plaintiffs, I decline to exercise supplemental jurisdiction over the remaining state law claims. Accordingly, plaintiffs' state law claims are dismissed as well.
CONCLUSION
The defendants' motion for summary judgment is granted in its entirety, and the action is dismissed.
So Ordered.