employment action taken by the College in the nature of a constructive discharge, the Title VII claims must be and hereby are dismissed.
Insofar as concerns the Title IX claims of both plaintiffs, this Court concludes that on the undisputed facts no reasonable trial juror could find liability on the part of the College, because the College upon learning of plaintiff's sexual harassment allegations took appropriate remedial action and to the extent that it was unable to or failed to take appropriate remedial action the College was prevented from doing so by the failure and active refusal of the plaintiffs to cooperate with the College administration in pressing formal charges and testifying at the necessary faculty hearing to terminate Palma's tenure upon the required finding of gross misconduct.
Our Court of Appeals has concluded that "in a Title IX case for gender discrimination based upon the sexual harassment of a student, an educational institution may be held liable under standards similar to those applied in cases under Title VII. Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2nd. Cir. 1995). While formulating this rule, the Murray court did not have occasion to determine what standard of constructive notice should be applied in Title IX cases. In a commercial context under Title VII, an employee's conduct will be imputed to the employer where (1) the employee is in a supervisory role and uses actual or apparent authority to further the harassment or if the supervisor was otherwise aided in accomplishing the harassment by the existence of an agency relationship; (2) the employer provided no reasonable avenue of complaint; or (3) that the employer knew of the complaint but did nothing about it. Tomka v. Seiler Corp, 66 F.3d 1295, 1305 (2nd Cir. 1995).
Under agency principles, Professor Palma obviously did not have actual authority of the college to act as he allegedly did. Nor would it have been reasonable for the plaintiff's to have believed that Professor Palma was acting with apparent authority. Accepting the allegations as true, it is clear that Professor Palma was acting adversely to the institution itself, unlawfully, and in contravention of its express, detailed published policies previously noted. Under these circumstances, this Court concludes that any alleged harassment in the present case was not furthered by Professor Palma's actual or apparent authority nor was he otherwise aided by the existence of an agency relationship
and thus no liability should attach to the college on that basis. Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391 (D.C. Cir. 1995); Bouton v. BMW of North America, Inc., 29 F.3d 103 (3rd Cir. 1994); Watts v. City of New York Police Department, 724 F. Supp. 99, 106 (S.D.N.Y. 1989) (Sweet, J.).
That a faculty member on occasion will violate the published policies of an institution and do so clandestinely, as here, is not a basis for students or employees who have eschewed the established procedures for rectifying the wrong done to them, to run instead to the courts, to mulct the charitable funds of a non-profit teaching institution. Those funds could be used better for the instruction of other students.
While our Court of Appeals on occasion has applied Title VII precedent to Title IX claims, the question of whether the "employer", here the teaching institution, either failed to provide a reasonable remedy or knew of the harassment but did nothing about it, remains an issue in such cases, which must be proved by plaintiff. See, Murray v. New York University College of Dentistry, supra. Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2nd Cir. 1992). The institution of higher learning satisfies its legal obligation under facts similar to these cases unless it provided no reasonable avenue for complaint or knew of the harassment but did nothing about it. Kotcher, 957 F.2d at 63. See 34 C.F.R. § 1604.11(d).
Iona College complied in full with its obligations under the law by providing a policy against sexual harassment and a complaint procedure, copies of which were properly provided to all students and faculty. The College responded adequately to the complaints, which as to Pallett were somewhat late in arriving.
That rumors may have circulated prior thereto, as plaintiffs claim but have not proved, does not substitute for actual or constructive notice of the existence of the problem, nor do rumors trigger a duty to respond. Immediately upon receiving notice, the College responded to these cases promptly, effectively and sympathetically. As noted earlier, in the context of these cases we cannot fault a college administrator placed under the seal of confidentiality by a student from adhering to the obligation of confidentiality thereby imposed.
The conflict between the obligations of a teaching institution under Title IX and its obligations to its faculty members under the First and Fourteenth Amendment and the principles of academic freedom which necessitate faculty tenure, were known to Congress in enacting Title IX and are a part of the historical and factual background against which the adequacy of the response of the College is to be judged. As noted earlier, the College did all it could, and was, and indeed remains, powerless to do anything more about terminating Professor Palma, absent further voluntary participation of the victims. This has not been forthcoming because litigation for money damages in this Court appears to be more attractive to them.
Defendant Palma is not a proper party either as an employer or a teaching institution. The federal claims against him are dismissed on the Court's own motion. Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir. 1995).
The motions by Iona College for summary judgment are granted in each of these consolidated cases.
The various pendent state law claims alleged are each dismissed without prejudice.
The Clerk shall enter a final judgment.
Dated: White Plains, New York
January 19, 1996
Charles L. Brieant, U.S.D.J.