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MANFREDI v. MOUNT VERNON BD. OF EDUC.

April 12, 2000

MARIE O'NEILL MANFREDI, AS NATURAL PARENT AND GUARDIAN AD LITEM OF FRANCES O'NEILL, AN INFANT UNDER THE AGE OF TEN YEARS, PLAINTIFFS,
V.
THE MOUNT VERNON BOARD OF EDUCATION, THOMAS A. PESCE, INDIVIDUALLY, AND IN HIS CAPACITY AS PRINCIPAL OF THE PENNINGTON GRIMES SCHOOL, CHERYL WIRCHEN, INDIVIDUALLY AND IN HER CAPACITY AS A TEACHER EMPLOYED BY THE MOUNT VERNON BOARD OF EDUCATION, DEFENDANTS.



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 claim.

Factual Background

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 District.

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:

1995

November: Lamar "pushed her down in the school yard." As a result, Frances "fell on her backside and scraped her elbow."

1996

January 9: Lamar teased her and threw little papers at her.

January 16: Lamar "teased" her.

January 23: Lamar punched her and spit on her hand.

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 the classroom.
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 ...


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