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COHEN v. LITT

December 12, 1995

EVELYN COHEN, Plaintiff, against JEFFREY LITT, ROBERT HENRY and COMMUNITY SCHOOL BOARD 12, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendants, school principal Jeffrey Litt ("Litt"), district superintendent Robert Henry ("Henry"), and Community School Board 12 ("CSB 12") (collectively, the "Defendants"), have moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P., to dismiss the action for alleged violations of the equal protection and due process clauses of the Fourteenth Amendment under 42 U.S.C. § 1983 and for statutory violations of New York Executive Law §§ 290, et seq. In the alternative, to the extent their motion to dismiss is denied, Defendants move for a stay of this proceeding pending resolution of Cohen's administrative appeal of her union grievance of her dismissal.

 For the reasons set forth below, the motion for judgment on the pleadings is granted.

 Parties

 Cohen, prior to July 1, 1994, was a probationary provisional elementary school teacher, employed by the New York City Board of Education.

 Litt is, and at all relevant times was, the principal of Community School 67 ("CS 67"), having been appointed by CSB 12.

 Henry is, and at all relevant times was, the superintendent of Community School District 12 ("District 12"), having been appointed by CSB 12.

 CSB 12 is a local school board, elected by the voters of District 12 and having jurisdiction over CS 67.

 Prior Proceedings

 Plaintiff Cohen originally brought this action in New York Supreme Court, Bronx County, by a summons and complaint served on or about November 30, 1994. On December 20, 1994, Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441, et seq. Defendants served and filed their answer to the complaint on December 22, 1994.

 On June 28, 1995, Defendants filed notice of this motion on the following grounds: (1) Cohen fails to state a claim of sexual harassment based on a hostile environment theory; (2) Cohen fails to state a claim of sexual harassment based on a quid pro quo theory, as she fails to allege either unwelcome sexual conduct or that her reaction to that conduct was used as a basis for affecting the compensation, terms, and/or conditions of her employment; (3) Cohen fails to state a violation of due process under the Fourteenth Amendment; and (4) Plaintiff's allegations do not state a claim against Henry or CSB 12. Oral argument was waived by the parties, and the matter was deemed fully submitted on September 20, 1995.

 Facts as Alleged

 For purposes of a motion for judgment on the pleadings, all factual allegations of the non-moving party will be taken as true. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989) (Rule 12(b)(6) motion). The following summarizes the allegations of Cohen's complaint, but represents neither findings of fact nor an opinion about the accuracy of the allegations or their sufficiency in the face of contrary testimony.

 "On or about" October 1993, Litt made a sexual advance toward Cohen, saying, "My penis stretches from here to District 1." At some later time, Litt made "another improper statement" to her. Cohen did not submit to what she terms Litt's "sexual advances" and, because of this refusal, Litt gave her an unsatisfactory rating in a performance evaluation completed on or about June 16, 1994. Litt's stated reason for this unsatisfactory rating, Cohen's seven absences during the year, was a pretext. Other teachers with far more frequent absences received satisfactory ratings. Finally, because Cohen did not submit to Litt's sexual advances, Litt discharged her on or about June 30, 1994, causing loss of employment, injured reputation, and emotional distress. At all times, Litt acted under color of state law.

 Cohen told Henry about Litt's behavior and also informed him that her unsatisfactory rating was the result of her refusal to submit to Litt's "sexual demands." In reply Henry stated, "This is deja vu," and assured Cohen he would reverse the rating. Henry did not reverse the rating and subsequently wrote a letter indicating that he had not made the statements Cohen attributes to him.

 Defendants deny each of Cohen's allegations, except that they admit that Cohen's employment was terminated on or about June 30, 1994. They affirmatively state that Cohen was a provisional probationary teacher and that, given this status, several unexcused absences, and repeated warnings ...


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