The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action asserting racial discrimination and civil rights claims pursuant to 42 U.S.C. §§ 1981 & 1983, and supplemental state tort and constitutional violation claims, for conduct occurring in the Guilderland Central School District. See generally Compl. [doc. # 1]. The Court previously addressed this case in a decision on Defendants' motion pursuant to FED. R. CIV. P. 12(c) & 56 and dismissed certain state law claims and all claims against Defendant Brinkman. See Barmore v. Aidala, 419 F. Supp. 2d 193 (N.D.N.Y. 2005). Familiarity with this prior decision is presumed. Presently before the Court is Defendants' second motion for summary judgment pursuant to FED. R. CIV. P. 56.
It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). While the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d. Cir. 1998). As one legal treatise has succinctly stated, summary judgment requires the parties to "put up or shut up." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)(quoting Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure 150 (2d ed. 1977)).
The Local Rules of the Northern District provide a mechanism for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This mechanism places the onus on the parties to marshal the evidence that either supports, or defeats, the motion. Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Court's Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts."). The competing Local Rule 7.1(a)(3) statements are where the parties are to present the evidence that either supports or defeats a motion for summary judgment. Facts that are not in these statements or not supported by specific citations to the record need not be considered. See id. (The Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted); Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that FED. R. CIV. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.")(citations omitted). "The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. It does not, however, include attorney's affidavits." N.D.N.Y.L.R. 7.1(a)(3). An attorney's affidavit, to the extent it is based upon hearsay, is of no evidentiary value on the motion for summary judgment. See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)( A party "cannot rely on inadmissible hearsay in opposing a motion for summary judgment ... absent a showing that admissible evidence will be available at trial." )(citations omitted); see also Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999), abrogated on other grounds, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)( "A court may [ ] strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." ).
Unless indicated otherwise, the following facts are derived from the parties' properly supported and/or properly opposed Statements of Material Facts ("SOMF"),*fn1 and from the parties' Revised Joint Pretrial Stipulation ("JPS"). See JPS dkt. # 142. Where a dispute exists, the facts are set forth in the light most favorable to Plaintiff.
Plaintiff Garrett Barmore was an eighteen-year-old African-American senior at the Guilderland High School ("GHS") when he commenced this action in April of 2004. As discussed more fully below, this case arises primarily from racially charged incidents by a fellow student that occurred in October of 2003 during Plaintiff's Senior year at GHS (2003-2004), but also includes events that occurred during his Freshmen (2000-2001) and Junior (2002-2003) years at GHS. The Guilderland Central School District ("the District") has had a Racial Harassment Policy in effect since June of 1995, and instituted an Anti-Bullying Policy in June of 2003. JPS ¶¶ 34-38. The Anti-Bullying policy cross- references the Racial Harassment Policy, and both explain the regulations and complaint procedures for conduct that violates the policies. Id. In addition, the District publishes its policies annually in the Student Handbook which is provided to students at the start of each year, and supplies information on making complaints under these polices in the District's Calendar which is distributed to each student's household each year. Id. ¶¶ 36, 41. Plaintiff received a copy of the 2003-2004 GHS Student Handbook at the beginning of the 2003-2004 academic year. JPS ¶ 8. At least during Plaintiff's last two years at GHS, he was aware of the District's policies against racism, bullying, and harassment by other students. Def. SOMF ¶¶ 10, 53,*fn2 71, JPS ¶¶ 8-9. In addition, during Plaintiff's Freshman, Sophomore, and Junior years at GHS, Plaintiff participated in the National Coalition Building Institute ("NCBI") program,*fn3 and was a member of the School District's Students and Teachers Against Racism ("STAR") program. Def. SOMF ¶ 4, 7. Both programs were designed to combat racism and discrimination at GHS and in the District. Id.; JPS ¶ 5.
Plaintiff contends that while he was a student at GHS, students regularly made racial and religious derogatory statements in the presence of hall monitors, teachers, or bus drivers. Pl. SOMF ¶ 75. However, except for the incidents set forth below, the record does not support that any of these statements were directed at or to Plaintiff, or that he made any formal complaints to school officials regarding racism, harassment or bullying occurring at GHS. See Def. SOMF ¶ 72; Barmore Dep. (Pltf. Ex. 1) p. 80.
In the fall of 2000, during Plaintiff's Freshman year, Plaintiff was subjected to two racially derogatory incidents by two teammates while at football practice. Def. SOMF ¶ 72; Barmore Dep. (Def. Ex. Q) pp. 65-71. Plaintiff reported both incidents to the coaches. The first incident involved a racial epithet directed to Plaintiff and two other students by a special education student who was a member of the Freshmen Football Team. Barmore 50-h Hearing Dep. (Pltf. Ex. 1), pp. 151-154; Spector Aff. ¶¶ 4-5 [dkt. # 86]. While Plaintiff testified that he believed the coach "brush[ed the complaint] under the carpet" because the student had "problems," 50-h Hearing Dep., pp. 152-153, Plaintiff also testified that he did not recall if the coach did anything in response to the complaint. See Barmore Dep. p. 68. The coach asserted that upon being advised of the incident he reported the incident to the Athletic Director who in turn advised the coach to speak to the parents of both students. Spector Aff. ¶¶ 4-5. After speaking with the parents, it was determined that the student would be suspended from playing football for a certain period of time as punishment for his statement. Id. It was the Coach's understanding that Plaintiff's mother believed the punishment to be appropriate. Id. ¶ 5.
The second incident resulted from an altercation between Plaintiff and a Varsity Football Team player that occurred after Plaintiff said something to a Varsity player after the Varsity Football Team lost a game. See Barmore 50-h hearing Trans. p. 149 (not recalling exactly what he said but thought it was something to lift the Varsity player's spirits); Swan Aff. ¶ 4 (contending that Plaintiff was teasing the Varsity player about the loss) . During the altercation, the Varsity player uttered a racial epithet at, and spit on, Plaintiff. Barmore 50-h hearing Trans. p. 149; Swan Aff. ¶ 4. The Varsity player was suspended from playing in the following two football games and "the situation was monitored." Swan Aff. ¶ 4; see Barmore Dep. p. 69. The Varsity student also apologized to Plaintiff in a "mediation" arranged by the coach. Barmore Dep. pp. 69-70. Plaintiff played on GHS football teams each of the 4 years of high school. Def. SOMF ¶ 3. The behavior by these two students involved in the two incidents never occurred again. Def. SOMF ¶ 72. There is no indication of other racially-based comments or incidents occurring at football practices or games.
On October 25, 2002, during Plaintiff's Junior year, one of Plaintiff's African-American friends, A.D., was involved in a racially-charged incident at GHS with a Caucasian student, J.P. See Pl. SOMF ¶ 83. J.P. had a history of racially-charged incidents at GHS that resulted in disciplinary action by GHS and District officials. See id. at ¶¶ 80-85. On Halloween night 2002, shortly after the in-school incident between J.P. and A.D., Plaintiff and A.D. were walking through a residential section of Guilderland when a vehicle drove past them. See Barmore Dep. (Def. Ex. Q) pp. 45 -57. J.P., one of the vehicle's occupants, shouted a racial epithet out of the window. Id. Even though (a) Plaintiff had never had any unpleasant interactions with J.P. prior to that date, see JPS ¶ 11, (b) the racial epithet was in the singular, see Barmore Dep. p. 50, and (c) Plaintiff was aware that the A.D. and J.P. had an on-going feud arising from the fact that A.D.'s bother had previously beaten up J.P., see id. at pp. 51-52, Plaintiff believed that the racial epithet was directed at him and A.D. Id. at p. 50. Moments later, Plaintiff and A.D. encountered Brian Forte. Id. Forte was a Resource Officer at GHS and a Guilderland Police Officer. Def. SOMF ¶ 43. Forte knew Plaintiff well because Plaintiff stopped by Forte's office at GHS on almost a daily basis to talk about Plaintiff's interest in becoming a police officer. Forte Aff. ¶ 3. At the time that Plaintiff and A.D. encountered Forte, Forte was on patrol as a Guilderland Police Officer. Barmore Dep. (Def. Ex. Q) p. 52 -55. Plaintiff and A.D. reported to Forte what had occurred, and Forte instructed the pair to come to his office at GHS the following school day to fill out a police report. Id.
The following school day, Plaintiff and A.D. met with Forte and filled out a police report. Id. They also reported the incident to Defendant Floyd Douglas, an Assistant Principal at GHS Id. On behalf of GHS, Defendant Brian McCann commenced an investigation regarding the incident.
McCann's investigation included an interview with J. P. J.P. readily admitted shouting the racial epithet at A.D., but attempted to justify his action by claiming that A.D.'s older brother had previously assaulted him and that A.D. regularly teased him about the assault. McCann Aff., ¶ 5. GHS officials suspended J.P. from school for two months despite the fact that the harassment occurred off of GHS's grounds. Def. SOMF ¶ 42; McCann Aff. ¶ 5; JPS ¶ 12. Plaintiff claims to have no knowledge of J.P.'s suspension,*fn4 but Plaintiff does not recall seeing J.P. at GHS during the two month period following the 2002 Halloween incident.
Approximately one year later, on October 11, 2003, while Plaintiff, A.D., and two other students were walking to the GHS Homecoming Dance and while on GHS property, a vehicle owned by J.P. drove past the group. The vehicle had two or three occupants. One of the occupants shouted a racial epithet out of the vehicle's window. Plaintiff assumed that it was J.P. who shouted the racial epithet. Barmore 50-h Hearing Dep., pp. 58-60 (testifying that he did not see J.P. but "assumed" J.P. shouted the epithet because it came from J.P.'s automobile); Barmore Dep., pp. 161-162 (testifying that he could not identify any of the occupants, but "presumed" that J.P. made the statement because it came from his vehicle). Plaintiff and A.D. immediately reported the incident to Forte and McCann who were both chaperoning the dance. Forte and McCann told the two to come to their offices the following school day to file reports.
On the following Monday, Plaintiff and A.D. filed reports with Forte and McCann. McCann immediately commenced an investigation on behalf of GHS. McCann Aff. ¶ 7. He interviewed all of the students walking with Plaintiff to the dance, but concluded that none of the students, including Plaintiff, could positively identify J.P. as the occupant who shouted the racial epithet. Id. Instead, he found the students to have "conflicting stories" as to what occurred. Id.; see also Pltf. Ex. 26 (McCann's notes of the investigation). McCann also interviewed J.P. and another student who admitted to being in the vehicle with J.P. McCann Aff. ¶ 7. J.P. and this other student denied that any racial epithets were shouted from the vehicle. Id. Instead, J.P. contended that he was being "set up" by A.D. and that A.D. had been taunting him since the October 2002 incident and his ensuing two month suspension. Id. McCann deemed the results of the investigation "inconclusive" because no one could positively identify the person who made the statement. Id. McCann asked Forte to conduct an independent investigation into the incident. Id. Forte conducted a similar investigation but also deemed his investigation inconclusive because he also found that none of the students could positively identify the person who shouted the racial epithet. Forte Aff. ¶ 7.
McCann contends that after his investigation, he spoke to Plaintiff and A.D., advised them of the results of the investigations, and told the two to report to him if they had any additional information or if any other incidents occurred. McCann Aff. ¶ 9. Plaintiff asserts that McCann talked to him, A.D., and J.P. and told all of them to "cut it out" before someone got hurt, but Plaintiff was "confused" by the admonition because he believed he had done nothing wrong and therefore had nothing to "cut out." See Barmore 50-h Hear. Trans. p. 103. Forte also contends that after his investigation he spoke to all the students involved and conveyed the message that racial remarks would not be tolerated in school or on school grounds, and advised that if anyone had any additional information, or if any other incidents occurred, they should report their information to him immediately. Forte Aff. ¶ 7. Plaintiff disputes that McCann and Forte affirmatively advised him to return with any additional evidence, but there is no dispute that Defendants and other school officials never refused to communicate with Plaintiff while he was a student at GHS. See Def. SOMF ¶ 28.
On October 29, 2003, while in one of the GHS's cafeterias, J.P. uttered a racial epithet to Plaintiff as the two passed each other. See Barmore 50-h Hear. Trans. p. 107. Plaintiff confronted J.P. at one of the lunch tables and asked him "what was his deal?" Id. Another student also confronted J.P. Id. at 108. Although Plaintiff considered engaging in a physical confrontation with J.P. that day, he chose not to do so "due in part to his fear that doing so would jeopardize his participation in the last interscholastic football contest of the season under the GHS Athletic Code of Conduct." Def. SOMF ¶ 14; see id. ¶ 38 ("On October 29, 2003, Plaintiff confronted [J.P.] in a GHS cafeteria and thought about a physical confrontation, but chose not to fight [J.P.] because he wanted to play in GHS's last interscholastic varsity football game on ...