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BUCKLEY v. ARCHDIOCESE OF ROCKVILLE CENTRE

February 5, 1998

LAUREN BUCKLEY, Plaintiff,
v.
ARCHDIOCESE OF ROCKVILLE CENTRE, ST. ANTHONY'S HIGH SCHOOL, SOUTH HUNTINGTON FREE SCHOOL DISTRICT, BROTHER HAROLD HARVERS, FRANCISCAN BROTHERS OF BROOKLYN, BROTHER PETER DAWSON, BROTHER JAMES McVEIGH, BROTHER THOMAS GRADY, JOHN FITZGERALD and DR. VIRGINIA UPTON, Defendants.



The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 The plaintiff, a former student at St. Anthony's High School ("St. Anthony's"), alleges that during her tenure as a student at the school, she was subjected to a campaign of sexual harassment by Brother Harold Harvers, a teacher at St. Anthony's. St. Anthony's is a Catholic high school operated by the Franciscan Brothers of Brooklyn ("the Brothers"). Liability as to St. Anthony's and the Brothers is predicated upon allegations that they failed to properly supervise Brother Harold and failed to respond effectively to complaints regarding his behavior. Liability as to the Archdiocese of Rockville Centre ("the Diocese") is premised upon allegations that it owned and/or supervised St. Anthony's and its employees, either directly or through the Brothers.

 Brother Peter Dawson, Brother James McVeigh, and Brother Thomas Grady were, respectively, the Principal of St. Anthony's, the Dean of Admissions of St. Anthony's, and the Supervisor General of the Brothers during the time the plaintiff was a student at the school. Dr. Virginia Upton was a school psychologist working at St. Anthony's at the time the plaintiff was a student there, but she was an employee of the South Huntington Union Free School District ("the District"), a public agency. The remaining individual defendant, John Fitzgerald, is alleged to have been a guidance counselor at St. Anthony's when the plaintiff was a student there. In the complaint, and in the briefing on the instant motion, it is not made clear who exactly employs Fitzgerald. The individual defendants are alleged either to have been negligent with respect to the supervision of Brother Harold or to have failed to respond appropriately to complaints regarding his behavior. Liability is alleged to lie as to the District because of its employment of Dr. Upton.

 The plaintiff alleges that "(t)his is an action arising under Title IX of the Education Amendments of 1972 (amending the Higher Education Act of 1965), 20 U.S.C. §§ 1681 et seq. " P 1. *fn1" The plaintiff has also asserted five common law claims, which are as follows: "Intentional Infliction of Emotional Harm" against all defendants; "Negligent Supervision" against the Diocese, the Brothers and St. Anthony's; "Breach of Contract" against the Diocese, the Brothers and St. Anthony's; "Denial of Educational Opportunity" against all defendants; and "Unwelcome and Offensive Touching" against Brother Harold. Since there is not diversity of citizenship, see 28 U.S.C. § 1332, federal subject matter jurisdiction is asserted pursuant to 28 U.S.C. § 1331, based upon the Title IX claim, which is the only federal claim asserted. At a pretrial conference before me on July 29, 1997, I directed the parties to brief the issue of subject matter jurisdiction and they have now done so.

 As a threshold matter, even though raised sua sponte by the Court, and even though raised at a developed stage of the litigation, there is no question that it is proper to conduct this review of the issue of subject matter jurisdiction. "It is common ground that in our federal system of limited jurisdiction any party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction." United Food Local 919 v. Centermark Properties, 30 F.3d 298, 301 (2d Cir. 1994) (citation omitted). See Federal Rule of Civil Procedure 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action").

 A. Title IX Claims.

 In relevant part, Title IX provides as follows:

 
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, . . .

 20 U.S.C. § 1681(a). Pursuant to 20 U.S.C. § 1687, Title IX applies to an entire education program or activity if "any part" of such program or activity "is extended Federal financial assistance." *fn2" Pursuant to regulation, "recipient" for the purposes of Title IX is defined as follows:

 
"(A)ny State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any private agency, institution or organization, or other entity, or any other person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee or transferee.

 34 C.F.R. § 106.2(h).

 As already stated, the plaintiff has asserted Title IX claims against all defendants, but has alleged that only one, the District, is a recipient of federal funding, which allegation the District admits. At the July 29 pretrial conference, held more than two and one-half years after the institution of the litigation, the plaintiff's counsel was unable to articulate any basis for holding that any defendant but the District receives federal funding. However, in her briefing on the question of subject matter jurisdiction, the plaintiff now argues that the funding that the District receives may be imputed to all other defendants through the agency of Dr. Upton so as to make all of them subject to Title IX liability.

 It is undisputed that Dr. Upton is an employee of the District and that she works at St. Anthony's. The plaintiff, however, has made little effort to detail the precise nature of the relationship between St. Anthony's and Dr. Upton. The plaintiff cites deposition testimony to the effect that Dr. Upton provides psychological counseling services to St. Anthony's pursuant to law, but there is no reference in the record as to which law that might be. Further, whatever other arrangements, contractual or otherwise, that might govern her work at ...


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