C. Intimidating, Hostile, Abusive or Offensive Educational Environment
In the third argument, Bruneau asserts that false testimony of the eight child witnesses who still attend the School prevented her from establishing the necessary element that she suffered from an intimidating, hostile, abusive, or offensive educational environment. As discussed earlier, Bruneau does not offer any evidence in support of her claim that eight child witnesses testified falsely, only her conclusion to that effect. In addition, it is possible that the jurors found that the plaintiff had in fact met the burden of proving this element yet failed in another. This argument alone is not sufficient to grant a new trial.
D. Actual or Constructive Notice
Bruneau argues that the Court erred in holding that the proper standard of notice in this case is actual rather than constructive notice. Plaintiff submits that in Title IX cases, the proper standard is constructive notice and it was improper to apply the Title VII standard of actual notice in this case. As set forth in the Court's Memorandum-Decision and Order, dated July 24, 1996, Title VII elements were applied to this Title IX case. Bruneau v. South Kortright Central School Dist., 935 F. Supp. 162, 174 (N.D.N.Y. 1996). As Chief Judge McAvoy determined, the "reasoning for applying constructive notice to Title VII claims arises out of agency principles . . . [and] although an employee is an agent of an employer, a student, of an educational institution, is not, per se an agent of that institution." Memorandum-Decision and Order at 19 (citing Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57, 72, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). The plaintiff has provided no governing authority that warrants a departure from the requirement that the plaintiff prove actual notice.
Plaintiff further submits that the Court erred in excluding certain School employees from a list of individuals to whom knowledge of the alleged harassment would constitute actual notice to the School. The jury was instructed that knowledge on the part of Parker, Race, and Debra Joyal-Reinish ("Joyal-Reinish"), the plaintiff's guidance counselor, would establish actual notice on the part of the School. However, plaintiff argues that knowledge on the part of Patrick Clark ("Clark"), a School counselor, Richard Stinson ("Stinson"), a School Board member, and Donna Chinchen ("Chinchen"), Parker's teaching assistant, should also have been imputed to the School. In addition, Bruneau argues that knowledge on the part of three other individuals, specifically Bonnie Denison ("Denison"), a gym teacher, Lucy Kelly ("Kelly"), a fourth grade teacher, and Ann Cole ("Cole"), a student intern in the counseling office, should also be imputed to the School.
This subject was debated at length at both the pre-trial conference and during the trial itself. In the motion papers for a new trial, plaintiff's counsel expresses confusion over why notice to the first three individuals constitutes notice to the School yet notice to the remaining six does not. The answer is very simple: the six people who plaintiff contends should be included are too far removed to have actual knowledge of the events to impute knowledge to the School. Parker, Race, and Joyal-Reinish each had direct contact and exposure to the alleged events. As the plaintiff's teacher, Parker was the individual with the most knowledge. Race had direct contact with the plaintiff's guardian during the events in question and was Parker's direct supervisor. Joyal-Reinish also had first-hand knowledge of the events since the plaintiff approached her for guidance in the School counseling office.
On the other hand, Clark was only employed by the School for one month before Bruneau withdrew and he testified that he never spoke with her about sexual harassment in Parker's class. Stinson, although a School Board member, did not have any first-hand knowledge of the events that occurred in Parker's classroom other than what the plaintiff's guardian had informed him shortly before Bruneau's departure. Chinchen, while in Parker's class as an assistant, did not have the authority to remedy any situation which may have existed. While plaintiff may have discussed problems in Parker's class with Denison, her gym teacher, Denison was too far removed from the situation to substantiate any allegations or act in a remedial capacity. Kelly, plaintiff's fourth grade teacher, was also too far removed to act in a remedial capacity. Finally, Cole, as a student intern, lacked any official capacity whatsoever. Thus, there is no evidence presented by the plaintiff that the Court committed a clear error of law that would warrant a new trial. Furthermore, there has been no showing that the holding prejudiced the plaintiff. Once again, the jury may have reached the conclusion that the School did in fact have actual notice but determined that the plaintiff failed to meet her burden on one of the other remaining elements of her cause of action.
Finally, plaintiff asserts that the Court erred in declining to admit into evidence a memorandum written by Race which describe her encounter with Pat Schofield, the plaintiff's guardian. Bruneau contends that the memorandum sets forth the specific concerns of the events occurring in the classroom and constitutes actual notice on its face. The memorandum in question is dated June 9, 1994, months after Bruneau left the School. Furthermore, the letter does not present any new or different information than what was revealed at trial. The letter offers only cumulative testimony to what Race testified subject to cross-examination. See Fed. R. Evid. 403.
Therefore, the letter was properly excluded.
E. "Corrective Action to Remedy the Situation"
In the final argument for a new trial, plaintiff asserts that the Court improperly restricted counsel from using the appropriate legal language throughout the trial when arguing that the School failed to take corrective action. Specifically, Bruneau argues that even though the Court used broader language in the jury charge, counsel was restricted to using the term "corrective action to remedy the situation" at trial. Plaintiff further contends that they did indeed show that the School failed to take corrective action and therefore the jury verdict is clearly erroneous.
In the jury charge, the term used was: "corrective action to remedy the discriminatory conduct and hostile learning environment." There is little difference between that term and the term that counsel used during the trial and it is very unlikely that any confusion on the part of the jury resulted. Plaintiff's counsel was permitted to use the terms discriminatory conduct and hostile learning environment throughout the trial in varying contexts. There has been no showing by the plaintiff that there was prejudice or that the ruling was erroneous. Therefore, on that ground, a new trial cannot be granted.
Plaintiff's contention that the vast weight of the evidence at trial confirmed that the School took no appropriate corrective action to remedy any problems that existed is simply not true. There were conflicting accounts of the corrective action taken by the defendants in this case. Plaintiff argued that the School actually exacerbated the problem and the defendants argued that any misbehavior was quickly and effectively handled. Once again, it was the jury's responsibility to resolve this question of fact. It would be improper for this Court to substitute its opinion for that of the jury when there are two conflicting presentations of fact. See Sorlucco, 971 F.2d at 875.
Accordingly, it is
ORDERED that the plaintiff's motion for a new trial is DENIED; and it is further
ORDERED that the Clerk of the court shall serve a copy of this order on all parties by regular mail.
IT IS SO ORDERED.
Honorable Lawrence E. Kahn
United States District Judge
Dated: March 19, 1997
Albany, New York.