The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Marie O'Neill Manfredi brings this action on behalf of her
minor daughter, Frances O'Neill, a student at Pennington Grimes School,
an elementary school administered by Defendant Mount Vernon Board of
Education. During the period relevant to this litigation, Defendant
Thomas Pesce was the principal of Pennington Grimes. Defendant Cheryl
Wirchen was minor Plaintiffs second-grade teacher.
Plaintiff brings a claim under Title IX, 20 U.S.C. § 1681 et.
seq., as well as a pendent state claim based on common law negligence, on
the ground that Frances was sexually harassed by a second grade boy while
she was a second grader at Pennington Grimes. Plaintiff, through her
mother, contends that the school administrators demonstrated deliberate
indifference to the harassment and that the harassment resulted in a
denial of her right to education.*fn1
Defendants together moved for summary judgment on the ground that
Plaintiff has failed to raise a genuine issue of material fact as to
whether her daughter was subjected to sexual harassment. In addition, the
Individual Defendants argue that no action may be maintained against
individuals under Title IX. The Individual Defendants argue in the
alternative that they are entitled to qualified immunity.
Because I find that no rational trier of fact could conclude anything
except that what took place between two second graders at Pennington
Grimes was not "sexual harassment," Defendants' motion for summary
judgment is granted and all federal claims against the Defendants are
dismissed. The Court declines to exercise jurisdiction over the State law
The following are the facts, based on the deposition testimony of
Plaintiff and her daughter and on the Plaintiffs Rule 56.1 statement of
undisputed material facts.
In the school year 1995-1996, Frances O'Neill was a seven-year-old
student enrolled in the second grade at Pennington Grimes School, a
public elementary school located in Mount Vernon, New York. Pennington
Grimes is within the jurisdiction of Defendant Mount Vernon School
Frances alleges that a boy in her class, Lamar M., "maintained a
continuous wrongful course of conduct directed against the minor
Plaintiff of hitting, pushing and tormenting, verbally abusing,
harassing, spitting, and sexually abusing the infant plaintiff."
(Complaint ¶ 8). Ms. Manfredi testified that the allegations were
based on a series of events during the 1995-96 school year, which she
testified her daughter had related to her. At some point, Ms. Manfredi
prepared her own chronology of events based on her conversations with her
daughter. Both she and Frances used the chronology to refresh their
recollections during their deposition testimony. (Defs Aff. Exh. D at
78.) The events are summarized as follows:
November: Lamar "pushed her down in the school
yard." As a result, Frances "fell on
her backside and scraped her elbow."
January 9: Lamar teased her and threw little papers
January 16: Lamar "teased" her.
January 23: Lamar punched her and spit on her
February 14: Lamar "tormented" her.
March 5: Lamar "teased" her.
March 14: Lamar "bothered" her, causing her to scream
at him and have the teacher send her out of
April: Lamar pushed her friend, causing Frances to
yell at him and again have the teacher send her
out of the classroom.
May 21: Lamar "grabbed her calf."
May 23: Lamar "touched her private spot."
(Manfredi Dep. at 9, 14; Defs 56.1 Statement.)
Regarding the school yard pushing, Manfredi testified that her daughter
told her about the incident and showed her the scrapes and bruises on her
arm and backside. Frances did not tell Ms. Wirchen about the incident.
Ms. Manfredi testified that the day after the incident she told Mr. Pesce
about the pushing. According to Ms. Manfredi, Pesce responded, "well.
you're not the first parent that complained about him, he's a troubled
kid, troubled boy, and I'll look into this matter for you." (Manfredi
Dep. at 12.) Manfredi testified that she never heard from Pesce again
regarding the incident. (Id. at 13.)
The first "teasing" incident in January allegedly took place in the
classroom in the presence of Wirchen and other students. Manfredi
testified that her daughter was "distraught" and did not want to go back
to school after this teasing. Frances did not suffer any physical
injuries. Manfredi said that the next clay she spoke with Wirchen and
told her, "Look, he already pushed her on the floor, I spoke to Mr.
Pearce about it. Now he's tormenting her in your classroom and I want
something done about it." (Manfredi Dep. at 16.) According to Manfredi,
Wirchen stated that she had already experienced problems ...