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NILES v. NELSON

October 25, 1999

PAMELA NILES AND TENDER MURPHY, PLAINTIFFS,
v.
PETER NELSON; ANTHONY PEETZ; AND THE HANCOCK CENTRAL SCHOOL BOARD OF EDUCATION; RICHARD DILLON, INDIVIDUALLY AND AS SUPERINTENDENT OF SCHOOLS OF THE HANCOCK CENTRAL SCHOOL DISTRICT; AND ROBERT WRIGHTER, SR., TERRY WHITT, HARVEY ENGLISH, FRANK BROWN, MAUREEN HUNT, AND RUTH VITALE, INDIVIDUALLY AND AS MEMBERS OF THE HANCOCK CENTRAL SCHOOL BOARD OF EDUCATION; AND THEIR AGENTS, EMPLOYEES, SUCCESSORS IN OFFICE, ASSISTANCE AND ALL PERSONS ACTING IN CONCERT OR COOPERATION WITH THEM OR AT THEIR DIRECTION OR UNDER THEIR CONTROL, DEFENDANTS.



The opinion of the court was delivered by: McAVOY, Chief Judge.

  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

I. BACKGROUND

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 the suspension.

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 entirety.

II. DISCUSSION

A. Summary Judgment Standard

  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 individual defendants that also may arise out of the same facts and circumstances giving rise to the Title IX claims. According to Plaintiff, adoption of Defendants's rationale would insulate individuals from any liability for sexual discrimination ...


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