MEMORANDUM — DECISION & ORDER
Plaintiffs Pamela Niles and Tender Murphy commenced the instant
litigation against Defendants asserting claims pursuant to
20 U.S.C. § 1681, et. seq. ("Title IX") (Counts 1, 3, 5 and 7)
and state law claims of the intentional infliction of emotional
distress (Counts 2, 4, and 6), and negligence (Count 8).
Presently before the Court is Defendants' motion for summary
judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of
the First, Second, Fifth, Sixth, Seventh, and Eighth Causes of
Action asserted in the Amended Complaint.*fn1
Because this is a motion for summary judgment by Defendants,
the following facts are presented in the light most favorable
to Plaintiff. See Ertman v. United States, 165 F.3d 204, 206
(2d Cir. 1999).
Plaintiff Tender Murphy ("Murphy") is the daughter of Plaintiff
Pamela Niles ("Niles"). Murphy was a student attending school
in the Hancock Central School District during the 1994-1995
school year. At that time, Murphy was fourteen years old and in
the ninth grade. Among other classes, Murphy was taking a
German I class from Defendant Peter Nelson, a teacher with the
Hancock Central School District.
The Complaint alleges that Nelson exercised little control over
the German class and permitted male students to make
inappropriate sexual comments about Murphy
and other females in the class. Plaintiffs allege that Nelson
also made inappropriate sexual comments and joined with the
male students's improper conduct. Plaintiffs complain that
Nelson and the male students used the terms "tits" or
"breasts;" the male students would frequently comment on the
female students's physical appearance, including commenting on
their anatomy; Nelson permitted other students to use profanity
in the classroom; and that Nelson and the male students would
comment whether particular girls looked "nice" or "had a good
body." Plaintiffs also complain of an instance whereby Peetz,
another student in the class, inquired of Nelson whether a
particular female teacher had a tattoo on her crotch and
whether Nelson had engaged in sexual intercourse*fn2 with
her. Nelson purportedly responded that he had engaged in sexual
relations with the other teacher and that she did have a tattoo
on her crotch. Plaintiffs further contend that Nelson treated
the female students academically different from the males as
evidenced by Nelson calling on male students before calling on
female students and Nelson's offering immediate assistance to
male students who were having difficulty in class, whereas he
is alleged to have advised female students to wait a few days
before he would provide them with extra assistance.
Plaintiffs contend that Murphy and other girls in the class
repeatedly complained to Nelson about the inappropriate
conversations and comments and requested that it be stopped. On
or about May 10, 1995, Murphy and the other females were
removed from the class and brought to the school's main office
where they were interviewed regarding the allegations of sexual
discrimination and harassment in the classroom. Murphy and the
other females were not permitted to return to the German class
for the remainder of the school year.
On or about May 16, 1995, Murphy complained to Defendant
Richard Dillon, the Superintendent and Title IX compliance
officer, about Nelson's behavior, that she had been improperly
removed from class, and that Peetz had engaged in a course of
retaliation against her for complaining about his and Nelson's
activities in class.
Dillon commenced an investigation into Murphy's allegations.
The matter was referred to School District Attorney John Lynch,
Esq. for investigation. Lynch investigated the matter and
determined that Murphy's allegations of sexual harassment were
false, and recommended that the School District consider
initiating disciplinary proceedings against Murphy, among
others, for filing false complaints.
The School District adopted Lynch's recommendations and
instituted disciplinary proceedings against Murphy and others
pursuant to N.Y. EDUC. LAW § 3214. Hearings were held, at which
Murphy was represented by counsel. A hearing officer found
Murphy guilty of the charge of making a false report. Murphy
was then given a four day out-of-school suspension. Murphy
appealed the suspension to the Board of Education, which upheld
Plaintiffs commenced the instant litigation against Defendants
on October 13, 1998, and filed an Amended Complaint on May 11,
1999, asserting state law claims of negligence, and the
intentional infliction of emotional distress, and asserting
claims of sexual discrimination and retaliation pursuant to
Title IX. Presently before the Court is Defendants's motion for
summary judgment pursuant to FED. R. CIV. P. 56 seeking
dismissal of the Amended Complaint against them in its
A. Summary Judgment Standard
The standard for summary judgment in discrimination cases is
need not be restated here. This Court has set forth the
appropriate standard to be applied in numerous published
decisions, see Roman v. Cornell Univ., 53 F. Supp.2d 223,
232-33 (N.D.N.Y. 1999); Phipps v. New York State Dep't of
Labor, 53 F. Supp.2d 551 (N.D.N.Y. June 24, 1999); Riley v.
Town of Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999), and
will apply the same standard discussed in those cases to
Defendant's motion for summary judgment.
B. Whether the Individual Defendants May Be Held Liable
Under Title IX
Defendants first move to dismiss the claims against them in
their individual capacities on the ground that individuals may
not be held liable under Title IX. In response, Plaintiff urges
this Court to adopt the reasoning in Mennone v. Gordon,
889 F. Supp. 53 (D.Conn. 1995).
The Mennone case stands alone in its holding that individuals
may be liable under Title IX. This Court has been unable to
locate a single case agreeing with Mennone's holding in this
regard. Although the Second Circuit has not addressed this
issue, all other circuit courts and district courts that have
addressed the issue (including District Courts within the
Second Circuit) have found that individuals may not be liable
under Title IX. See Smith v. Metropolitan School Dist.,
128 F.3d 1014, 1019-1020 (7th Cir. 1997), cert. denied, ___ U.S.
___, 118 S.Ct. 2367, 141 L.Ed.2d 736 (1998); Kinman v. Omaha
Pub. Sch. Dist., 171 F.3d 607, 611 (8th Cir. 1999); Floyd v.
Waiters, 133 F.3d 786 (11th Cir.), vacated and remanded, ___
U.S. ___, 119 S.Ct. 33, 142 L.Ed.2d 25 (1998), reinstated,
171 F.3d 1264 (1999), cert. denied, ___ U.S. ___, 120 S.Ct.
215, ___ L.Ed.2d ___ (1999); Lipsett v. University of Puerto
Rico, 864 F.2d 881, 901 (1st Cir. 1988); Doe v. School Admin.
Dist. No. 19, 66 F. Supp.2d 57, 59 (D.Me. 1999); Communities
for Equity v. Michigan High School Athletic Ass'n.,
26 F. Supp.2d 1001, 1009 (W.D.Mich. 1998); Petrone v. Cleveland
State Univ., 993 F. Supp. 1119, 1125 (N.D.Ohio 1998); Buckley
v. Archdiocese of Rockville Centre, 992 F. Supp. 586, 588 n. 3
(E.D.N.Y. 1998); Burrow v. Postville Community Sch. Dist.,
929 F. Supp. 1193, 1207 (N.D.Iowa 1996); Nelson v. Temple
Univ., 920 F. Supp. 633, 636-37 (E.D.Pa. 1996); Pallett v.
Palma, 914 F. Supp. 1018, 1025 (S.D.N.Y. 1996), rev'd on other
grounds, 119 F.3d 80 (2d Cir. 1997); Torres v. New York
Univ., 1996 WL 15691 at *2 (S.D.N.Y. Jan 17, 1996).
Indeed, such a holding seems consistent with the Supreme
Court's statement in Davis v. Monroe County Bd. of Educ.,
526 U.S. 629, ___, 119 S.Ct. 1661, 1670, 143 L.Ed.2d 839 (1999)
that "we have not extended damages liability under Title IX to
parties outside the scope of [the government's enforcement]
power." The government's enforcement power under Title IX
primarily consists of withholding federal funds from the
recipient, which is the school district, not, for example, an
individual teacher or school board member. See 20 U.S.C. § 1682.
Accordingly, the Court adopts the reasoning in the
above-cited cases and finds that a Title IX claim may not be
brought against an individual.*fn3 The Title IX claims
against the individual Defendants, therefore, are dismissed.
C. Whether the State Law Tort Claims are Subsumed in the
Title IX Claims
Defendants next move to dismiss the state law tort claims of
negligence and the intentional infliction of emotional distress
arguing that Title IX is the exclusive remedy for sex
discrimination and sexual harassment under the circumstances of
this case. Plaintiffs respond that Title IX does not preclude
tort claims against the