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March 13, 2003


The opinion of the court was delivered by: I. Leo Glasser, United States District Judge



Plaintiff was a teacher at a New York City public school. On December 18, 2000, she was attending a school-sponsored party held at a local establishment when fellow teacher Brian Dalton ("Dalton") emerged from the women's restroom and collided with her. Compl. ¶ 12. He wrapped his arms around her, ignoring her requests to be let go, and said to her "I want you, I want you now, fuck my girlfriend, I want you." Compl. ¶ 13. Two other women rushed out of the women's restroom at about the same time, shouting that Dalton had followed them in to the restroom and thrown one of them into a bathroom stall. Compl. ¶ 14. Dalton continued his sexually suggestive comments and off-color language while grabbing plaintiff by the hair and throat. He touched her breast and then pressed his face into her pelvis, saying he wanted to have oral sex with her. He rubbed his fingers, through her clothes, into her vagina and anus, and then pulled the front of her shirt off. Compl. ¶ 15. Plaintiff was finally able to escape when a co-worker pulled Dalton off of her. Compl. ¶ 16.

The next day, plaintiff filed a complaint with the school, and informed the school's principal. Steven Callari ("Callari") of the incident. Callari told her that two other women had complained about Dalton's behavior the night before, and that Dalton would be disciplined and removed from the school. Compl. ¶ 18. Callari also informed the school's superintendent, Matthew Bromme ("Bromme"), of the incident. Compl. ¶ 19.

The following day, plaintiff called Callari before school to tell him that she intended to file a police report of the incident. Callari responded angrily, saying that he had thought she was not going to file a police report and instead keep the matter within the school. Compl. ¶ 20.

Around January, 2001, the School's Office of Equal Opportunity investigated plaintiff's complaint. That investigation resulted in a finding, dated January 21, that Dalton had sexually assaulted the plaintiff Compl. ¶ 21. Nevertheless, Dalton resumed his teaching position at the school just a short time later. Compl. ¶ 22. About that same time, Callari told plaintiff that the two other women who had complained about Dalton's behavior that night had withdrawn their complaints. Shortly thereafter, both women were promoted. Compl. ¶ 23. Plaintiff, meanwhile, found herself ostracized by her colleagues. Compl. ¶ 24. She was written up for minor infractions of rules which were not being enforced against the women who had withdrawn their complaints. Compl. ¶ 25. The school refused to pay her medical expenses incurred as a result of the incident with Dalton. Compl. ¶ 26. She was transferred from a class where she was teaching gifted children to one comprised of children in the lower percentages of the grade. Compl. ¶ 27. Around June of that year, plaintiff was informed that her assigned classroom was to be changed from one in the main school building to one in the satellite school building, in an area close to where Dalton worked when not teaching. Compl. ¶ 28. Plaintiff complained about her treatment to the school's assistant principal, Dino Biannconotti ("Biannconotti"), who told her that he would speak to Callari, and not to worry. Compl. ¶ 30.

The day after making this complaint, the plaintiff was notified by Callari that she was scheduled for a disciplinary hearing. She again complained to Biannconotti, who again informed her that he would speak to Callari. Compl. ¶ 31. When she attended this hearing, she was shown a letter purportedly from Biannconnotti, claiming that she had threatened him with going to the press and having Dalton arrested. Compl. ¶ 32.

By August of that year. plaintiff decided that her working conditions were intolerable, and tendered her resignation. Compl. ¶ 33. The following month, Dalton was promoted to the position of guidance counselor. Compl. ¶ 34.


Prior to filing this complaint, plaintiff filed a charge of discrimination with the EEOC on either November 8 or November 18, 2001.*fn1 In December of 2001, plaintiff brought this action alleging assault and battery against Dalton. and violations of 42 U.S.C. § 1981, 1983, 1985 and 1986 and the Equal Protection Clause as well as a claim for negligent retention against the other defendants. She named as defendants New York City, The NYC Board of Education, Bromme, Callari. Biannconotti (collectively the "individual defendants") and Dalton. All defendants (absent Dalton) moved to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). On May 21, 2002, plaintiff received a right-to sue letter from the EEOC. Plaintiff now moves for leave to amend the complaint under Fed.R.Civ.P. 15(a), to include claims under Title VII, 42 U.S.C. § 2000(e) et. seq., Title IX, 20 U.S.C. § 1681 et. seq., New York State Human Rights Law, N.Y. Exec. Law §§ 290 et. seq. and N.Y.C. Admin. Code Title 8-101 et. seq. For the following reasons, some of the motions to dismiss are granted. while others are denied, and the motion to amend is granted in part.


Motion to dismiss

1. Standard of Review

On a Rule 12(b)(6) motion, the Court must accept as true the factual allegations of the complaint, and view the complaint in the light most favorable to the non-moving party. Bolt Elec. Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995). Dismissal is warranted only if "it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

2. Plaintiff's claims against the City of New York

These claims must be dismissed, since the Board of Education is an entity separate from the City itself, see, e.g., Campbell v. City of New York, 611 N.Y.S.2d 248, 249 (2d Dept. 1994), and the City is not liable for torts committed by that Board. Titusville Iron Co. v. City of New York, 207 N.Y. ...

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