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Mislin v. City of Tonawanda School Dist.

March 28, 2007


The opinion of the court was delivered by: William M. Skretny United States District Judge



Presently before this Court are the defendants' Motions for Summary Judgment. Defendants City of Tonawanda School District ("School District"), the Board of Education of the City of Tonawanda School District ("the Board") and Superintendent Diana D. Greene (collectively the "Tonawanda Defendants") filed a Motion for Summary Judgment on November 15, 2005.*fn1 Defendant Andrew Freedman, who is represented by separate counsel, also filed a Motion for Summary Judgment on that same date.*fn2 After full briefing, this Court heard oral argument on May 31, 2006, and reserved decision at that time. For the reasons stated below, the motions are granted as to the federal claims, and this Court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims.


A. Facts

Theodore Mislin, Jr. ("Mislin"), a Caucasian male, was a senior at Tonawanda High School during the 2000-2001 school year. (Plaintiffs' Statement,*fn3 ¶ 1; Tonawanda Defendants' Statement,*fn4 ¶¶ 6, 10.) Green was the Superintendent of the School District. (Plaintiffs' Statement, ¶ 2.) Patrick J. Slavin was the Principal of Tonawanda High School and Larry Badgley was the Vice-Principal.*fn5 (Plaintiffs' Statement, ¶ 2.)

1. Racial Incidents Involving Tonawanda High School Football Players

Racial tension at Tonawanda High School began to rise during a pep rally held before the Tonawanda-North Tonawanda football game in October of 2000. (Freedman's Statement,*fn6 ¶ 5.) Mislin was a "star athlete" and starter on the football team. (Freedman's Statement, ¶ 9; Roshia Aff., Exhibit R.) It is a tradition at Tonawanda High School for the football players who are seniors to give the varsity cheerleaders a rose during the pep rally. (Freedman's Statement, ¶ 5.) The football players also traditionally pick one cheerleader to tease, usually one of the captains of the squad. (Freedman's Statement, ¶ 6.) At the pep rally in October of 2000, however, the football players allegedly yelled "don't give the nigger a rose," referring to the only African-American cheerleader. (Freedman's Statement, ¶ 7.)

In November of 2000, another racially charged incident occurred at a home game for Tonawanda against Lackawanna. (Freedman's Statement, ¶ 8.) At the time, Tonawanda High School had few minority students and few minority football players, in contrast to Lackawanna High School, which had many minority students and players. (Freedman's Statement, ¶¶ 10, 11.) During the game, Tonawanda's players (and some of the fans) directed racial slurs at the visiting Lackawanna team. (Freedman's Statement, ¶ 11.)

After the football game, Tonawanda High School issued "Deportments" (written reprimands) to Mislin and several other football players based on their behavior during the game. (Freedman's Statement, ¶ 12.) No suspensions or other discipline was imposed. (Freedman's Statement, ¶ 12.)

2. Francesca Boykins' Complaints

In November of 2000, Francesca Boykins, an African-American student in her senior year, complained to Slavin and Badgley that Mislin racially harassed her. (Plaintiffs' Statement, ¶ 3.) Badgley immediately spoke to Mislin about Boykins' allegations. (Plaintiffs' Statement, ¶ 3.) Shortly thereafter, on November 14, 2000, Badgley and Slavin issued Mislin a Deportment instructing him not to make racial comments in school. (Plaintiffs' Statement, ¶ 3; Fleming Affirm., Exhibit A.) After Badgley and Slavin's intervention, Boykins again complained that Mislin asked, "Am I offending you?" (Plaintiffs' Statement, ¶ 4.) Badgley and Slavin spoke with Mislin a second time and advised him to stay away from Boykins. (Plaintiffs' Statement, ¶ 4.)Boykins then complained that Mislin yelled "N-Bomb" in the hallway, but it was determined that a different student was responsible. (Plaintiffs' Statement, ¶ 4.)

Perceiving that Badgley and Slavin were too lenient with Mislin, Boykins sent a formal complaint to the Board on December 6, 2000. (Freedman's Statement, ¶ 14; Tonawanda Defendants' Statement, ¶ 11.) Therein, Boykins complained that Mislin and others were "getting away with" making racist and derogatory statements to and about students in the school. (Freedman's Statement, ¶ 15.) Boykins complained that on November 8, 2000, Mislin, Steve Mosich and Rob Fisher yelled "all the fags should be put in a camp and killed like the Jews" while standing at their lockers. (Plaintiffs' Statement, ¶ 5.) Boykins alleged that three teachers witnessed this event and did nothing about it. (Plaintiffs' Statement, ¶ 5.) Boykins also complained about the football players' conduct at the October 2000 pep rally and during the November 2000 Lackawanna-Tonawanda football game. (Plaintiffs' Statement, ¶ 5.) Boykins' written complaint was as follows:

I am writing this to express my disgust for the students and faculty of Tonawanda Senior High School. I don't understand how anyone can listen to the students of this school make racist and derogitory [sic] statements to and about the students of this school and let them get away with it. November 8, 2000, before homeroom, Ted Mislin, Steve Mosich and Rob Fisher were standing at their lockers, screaming at the top of their lungs "All the fags should be put in a camp and killed like the Jews." Three teachers heard them say this, and yet no one did anything about it. My locker is across from theirs and I have to listen to this everyday. Another example of this is in the 7th period Senior Study Hall that I am in. The students Ted Mislin, Bryan Strauss, Rachael Burkett and Rich Brumfield were talking about the Lackawanna football game. They all kept chanting N-bomb (which means nigger). Rachael Burkett stands up and starts yelling N-bomb and then starts saying racist remarks about blacks. Three teachers were in the copying room across the hall, heard the whole thing and did nothing about it.

I also don't [sic] understand why none of the football players were disciplined for their behavior at the T-NT Pep Assembly and at the Lackawanna football game. The football players can call an African American Varsity Cheerleader a nigger and get away with it, yet a student can almost get suspended for throwing a roll of toilet paper at an underclassmen [sic]. Maybe if the football players were disciplined for their actions, the incident at the Lackawanna football game would not have happened. If the football players can disrespect members of their own school and community then of course they will disrespect people of another school and community. They seem to think that since they are on the football team everyone should "bow down" to them and they can get away with anything and everything. Someone should tell them that it will not always be that way. They shouldn't be honored, they should be disciplined. I would like it if you were to take some sort of action in our school because these so called authority figures in our school will not do so.

Since I am an African American student, this all offends me and it also offends students who aren't African American.


Francesca Boykins A Tonawanda High School Senior (Roshia Aff., Exhibit H.)

Upon receiving Boykins' complaint, Greene, on behalf of the Board, hired Freedman to conduct an investigation. (Plaintiffs' Statement, ¶ 6; Freedman's Statement, ¶ 16; Tonawanda Defendants' Statement, ¶ 12.) Freedman began his investigation on December 6, 2000, the day he received the complaint. (Freedman's Statement, ¶ 18.)

2. Freedman's Investigation

Freedman is an attorney employed by Norton, Radin and Freedman, a law firm that represents a number of school districts in the Western New York area. (Freedman's Statement, ¶¶ 1, 3, 4.) He graduated from law school in 1996 and was a 5th year associate at the time of the investigation. (Tonawanda Defendants' Statement, ¶¶ 15, 18.) Freedman was not employed by the Board or School District, although Norton, Radin and Freedman had represented the School District for many years. (Freedman's Statement, ¶ 2; Tonawanda Defendants' Statement, ¶¶ 13, 16.) Prior to the time of this incident, Freedman had handled other student discipline matters, had assisted the School District with special education compliance, had conducted Superintendent hearings, had handled Family Educational Rights Privacy Act issues, and had generally provided legal advice on a variety of other matters. (Tonawanda Defendants' Statement, ¶¶ 17, 18.) He did this for other students as well. (Fleming Affirm., Exhibit B.)

On December 6, 2000, Freedman went to Tonawanda High School and interviewed Boykins. (Plaintiffs' Statement, ¶ 7; Freedman's Statement, ¶ 19.) Freedman asked Slavin to bring Boykins to the interview, which took place in a conference room next to Slavin's office. (Freedman's Statement, ¶¶ 20, 21.) Freedman recorded the interview, with the recorder in full view on the table.*fn7 (Freedman's Statement, ¶¶ 23, 24.) During the interview, Boykins voiced her complaints about, among other things, her allegation that it was Mislin and Mosich who yelled "don't give the nigger a rose" at the pep rally. (Plaintiffs' Statement, ¶ 7.) She also complained of harassment by Fisher, Amanda Reimer, Rich Brumfield, Brian Strauss and Rachel Burkett. (Freedman's Statement, ¶ 28.) Because Boykins expressed some fear of retribution for making her complaints, Freedman gave her his business card and told her to call him if she needed anything. (Freedman's Statement, ¶¶ 25, 26.)

On December 15, 2000, Freedman returned to Tonawanda High School and interviewed several of Boykins' friends, including Theresa Maugans, Michael Dieb, Karen Ruch, Tracey Curtis, and Timothy Stuff. (Plaintiffs' Statement, ¶ 8; Freedman's Statement, ¶ 30.) Maugans reported that Andrew Beggins used the words "N-Bomb" and "nigger" in her physics and government classes. (Plaintiffs' Statement, ¶ 9.) In addition, Boykins and her friends identified Fisher, Jeff Babasuto, Sean McDonald, Adam Hayes, Cori Villetti, Chris Sampson, Beggins, Ryan Herrsome, Ken Mallick and Jeff Bernet as having used the words "N-Bomb," "nigger," "monkey," "fag," and "faggot." (Plaintiffs' Statement, ¶ 17.) Two of Boykins' friends -- Vicki Medina and Brett Taggart -- reported to Freedman that Jeff Berasoto*fn8 yelled, "sit down you fat fucking niggers" to two black students who were dancing at the pep rally. (Plaintiffs' Statement, ¶ 17.)

Freedman did not interview Beggins, Fisher, Babasuto, McDonald, Hayes, Villetti, Sampson, Herrsome, Mallick or Bernet about the allegations made against them. (Plaintiffs' Statement, ¶¶ 9, 18.) However, he did eventually interview Mislin for 20 minutes on January 16, 2001, and also interviewed Mosich, Reimer and Barkett. (Plaintiffs' Statement, ¶¶ 10, 11; Tonawanda Defendants' Statement, ¶ 22; Freedman's Statement, ¶ 31.) During the interview, Mislin never asked to leave the room, did not ask to call his parents, and did not become emotionally upset or cry. (Tonawanda Defendants' Statement, ¶ 23.)

The day after the interview (January 17, 2001), Boykins called Freedman and told him that Mislin referred to him as a "fag" in a conversation that he was having about the investigation with Burkett. (Plaintiffs' Statement, ¶ 12.) Freedman immediately returned to Tonawanda High School and re-interviewed Boykins with Slavin present. (Plaintiffs' Statement, ¶ 12.) Boykins told Freedman that Mislin's discussion of the investigation angered her, but Mislin was not directly harassing her. (Plaintiffs' Statement, ¶ 14.) Freedman then inquired of Boykins whether Mislin's discussion of the investigation was continued harassment against her. (Plaintiffs' Statement, ¶ 14.) Although somewhat unclear, it appears that Freedman also met briefly with Mislin again. (Roshia Aff., Exhibit N; Tr. at 22-23*fn9 .)

Later that day, Slavin issued Mislin a 2-day out-of-school suspension for insubordination because he violated Freedman's directive to refrain from discussing the investigation. (Plaintiffs' Statement, ¶ 13; Freedman's Statement, ¶¶ 34, 35; Tonawanda Defendants' Statement, ¶¶ 24, 28, 30; Roshia Aff., Exhibit M.) Mislin denied that Freedman ever directed him not to discuss the investigation.*fn10 (Plaintiffs' Statement, ¶ 15.) In fact, Plaintiffs assert that Freedman did not prohibit any other student from discussing the investigation. (Plaintiffs' Statement, ¶ 16.) For example, Burkett, who was allegedly discussing the investigation with Mislin, was not disciplined. (Plaintiffs' Statement, ¶ 16.) Freedman, however, maintains that after each of the interviews, he instructed the students not to discuss the investigation. (Freedman's Statement, ¶ 32.) Mislin did not appeal to either the Superintendent or the Board, and served his 2-day suspension on January 18 and 19, 2001, without incident. (Tonawanda Defendants' Statement, ¶¶ 31, 32, 33.)

At the conclusion of the investigation, Freedman determined that Mislin engaged in several acts of harassment, including making the "all the fags should be put in a camp and killed like the Jews" and the "don't give the nigger a rose" comments. (Plaintiffs' Statement, ¶¶ 19, 20; Tonawanda Defendants' Statement, ¶ 35; Roshia Aff., Exhibit N.) Freedman also determined that Reimer, Mosich, Barkett, Brumfield and Strauss should be disciplined. (Roshia Aff., Exhibit N.)

Freedman prepared his final report and provided it to Greene on February 26, 2001, with copies to the Board. (Freedman's Statement, ¶ 36; Roshia Aff., Exhibit N.) Therein, Freedman recommended that Greene impose 5 days of in-school suspension*fn11 on Mislin. (Plaintiffs' Statement, ¶ 23; Freedman's Statement, ¶ 38; Roshia Aff., Exhibit N.) He also recommended that Reimer and Mosich each receive 2 days of in-school suspension, and that Burkett, Strauss and Brumfield each receive 1 day of in-school suspension. (Plaintiffs' Statement, ¶ 23; Freedman's Statement, ¶ 38; Roshia Aff., Exhibit N.) Slavin, however, objected to the discipline because of the length of time between the conduct and the punishment, approximately 6 months. (Plaintiffs' Statement, ¶ 25.)

The School District and the Board were free to accept or reject Freedman's conclusions and recommendations. (Freedman's Statement, ¶ 39.) In fact, Freedman's recommendation as to Mislin was not followed. (Freedman's Statement, ¶ 39.) On April 2, 2001, Bagdley informed Plaintiffs that Mislin would receive a 4-day in-school suspension, which was 1 day less than what Freedman recommended. (Plaintiffs' Statement, ¶ 24; Freedman's Statement, ¶ 39; Tonawanda Defendants' Statement, ¶ 36.) Badgley advised Plaintiffs that Mislin was being suspended based on Freedman's conclusion that he had committed racial and homosexual harassment. (Plaintiffs' Statement, ¶ 36.)

Because Slavin was out of town on the day the discipline was imposed, Freedman joined Badgley for a meeting with Plaintiffs and Mislin to discuss the punishment, which took place on April 3, 2001. (Freedman's Statement, ¶¶ 40, 41; Tonawanda Defendants' Statement, ¶ 38.) Mislin served the 4-day suspension from April 3-6, 2001. (Plaintiffs' Statement, ¶ 27; Tonawanda Defendants' Statement, ¶ 39; Roshia Aff., Exhibit O.)

Plaintiffs and Mislin repeatedly requested that the School District remove the written Deportment from Mislin's student record, but the School District refused. (Plaintiffs' Statement, ¶ 27.) Plaintiffs wanted the Deportment removed so that Mislin could join the United States Marines after graduation. (Plaintiffs' Statement, ¶ 27.) Plaintiffs appealed the School District's refusal to remove the written Deportment and requested an Education Law Hearing. (Plaintiffs' Statement, ¶ 28.) A hearing was scheduled for June 18, 2001, but it never took place. (Plaintiffs' Statement, ¶ 28.) On June 12, 2001, six days before the scheduled hearing, Mislin took his own life. (Freedman's Statement, ¶ 49; Tonawanda Defendants' Statement, ¶ 7.)

On the morning of his death, Mislin "cut school" and attended a party at Matt Meyers' house with some of his friends, at which they were drinking vodka. (Freedman's Statement, ¶ 45; Tonawanda Defendants' Statement, ¶¶ 8, 44, 50-52.) Several students were involved in an automobile accident as they left the party. (Freedman's Statement, ¶ 46; Tonawanda Defendants' Statement, ¶ 9.) They too had been drinking. (Tonawanda Defendants' Statement, ¶ 9.) Mislin witnessed the accident, but was not involved in it. (Freedman's Statement, ¶ 46; Tonawanda Defendants' Statement, ¶¶ 9, 53.) When the police arrived and began to question Mislin, he was uncooperative and intoxicated. (Freedman's Statement, ¶ 46, McClaren Decl., Exhibit O.) Officer Michael Falzone testified that Mislin had an odor of alcohol on his breath, had glassy and blood-shot eyes, had slurred speech and was "very belligerent." (Tonawanda Defendants' Statement, ¶ 42; McClaren Decl., Exhibit O.) Because Mislin was causing problems at the accident scene by impeding the investigation and the administration of first aid to the driver of the vehicle, members of the fire department requested that Mislin be removed. (Tonawanda Defendants' Statement, ¶ 43.) Police officers took Mislin to the police station. (Freedman's Statement, ¶ 47; Tonawanda Defendants' Statement, ¶¶ 9, 43; McClaren Decl., Exhibit O.)

At the police station, Mislin asked that his Marine recruiter be contacted. (Tonawanda Defendants' Statement, ¶ 45.) Officers also called Mislin's father. (Tonawanda Defendants' Statement, ¶ 47.) Mislin left the station at Noon on June 12, 2001, with his father and the Marine recruiter. (Freedman's Statement, ¶ 48; Tonawanda Defendants' Statement, ¶¶ 9, 47, 48.) Several hours later, Mislin shot himself at his home. (Freedman's Statement, ¶ 49; Tonawanda Defendants' Statement, ¶ 55.) Mislin did not attend any classes on the day of his death, nor was he ever on school grounds. (Tonawanda Defendants' Statement, ¶¶ 50, 52, 54.) Mislin's suicide note stated, "I'm sorry for all the shit I've put you through." (Plaintiffs' Statement, ¶ 42.)

B. Procedural History

Plaintiffs instituted this action on April 10, 2002, by filing a Complaint in the United States District Court for the Western District of New York. They filed an Amended Complaint on August 16, 2002. The defendants filed Motions to Dismiss on August 23, 2002, which this Court granted in part and denied in part on March 30, 2003. The parties then completed discovery, and on November 15, 2005, the defendants filed the Motions for Summary Judgment currently at bar. After the completion of briefing, this Court held oral argument on May 31, 2006, and reserved decision thereafter.


A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.

In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence ...

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