The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff C.G., an infant under the age of fourteen years at the time of the events giving rise to this lawsuit, through her guardian T.Z.,*fn1 commenced this action on November 1, 2005 against defendants City of New York ("City"), the New York City Department of Education, Frank DiFranco ("DiFranco"),*fn2 and Robert Raskin ("Raskin"), in connection with an alleged sexual assault of C.G. by two fellow students in a classroom while defendant Raskin was present. Plaintiff alleges violations under 42 U.S.C. §§ 1981, 1983, and 1985; 20 U.S.C. § 1681; as well as state law claims of negligence and infliction of emotional distress.*fn3
Plaintiff seeks compensatory and punitive damages, in addition to attorneys' fees. Now before this Court are (1) the City Defendants' motion for summary judgment, (2) defendant Raskin's motion for summary judgment and (3) plaintiff's cross motion for partial summary judgment as to liability only. For the reasons set forth below, the City Defendants' motion is granted in part and denied in part, Raskin's motion is denied, and plaintiff's motion is denied. Plaintiff has made no arguments as to the § 1981, § 1985, or infliction of emotional distress claims, or the fifth "cause of action." Since the motion is not denominated a motion for partial summary judgment, I deem these claims abandoned.
The following facts are taken from plaintiff's Complaint and the submissions of the parties in connection with this motion.
Plaintiff C.G. is a minor, born on June 28, 1991. At all times relevant to this action, C.G. was enrolled at Junior High School 278 ("JHS 278") as a special needs student. JHS 278 is located in Kings County, New York.
Defendant City of New York is a municipal corporation existing under the laws of the State of New York. Defendant New York City Department of Education is an agency of defendant City, with control over the City's public schools. Defendant Education Department receives federal financial assistance. Defendant Raskin is a teacher employed at JHS 278 and is an employee of the City and the Education Department. Defendant DiFranco was an assistant principal at JHS 278 and was employed by the City and the Education Department at the time of the events giving rise to the complaint.
Plaintiff was a seventh-grade student at JHS 278 during the 2004-2005 school year, and was enrolled in defendant Raskin's third period computer class. Deposition of C.G. at 14, 42 ("C.G. Dep."). There were approximately 27 to 29 students in the class. Deposition of Robert Raskin at 120 ("Raskin Dep."). Plaintiff alleges that on November 9, 2004, during Raskin's computer class, she was sexually assaulted by two fellow students in the back of the classroom while Raskin was present, and that although she called for help, Raskin did not assist her. Plaintiff further states that, five weeks after this assault, she was suspended from school for five days following a fight with a male student, which she alleges was unfair given that the male student was not disciplined, and was imposed in retaliation against her for asserting her rights. In support of her argument that the school administration and City were at fault with respect to her assault, plaintiff refers to two earlier incidents in which female students were assaulted at JHS 278, one in 2000 that took place in the school schoolyard and one in 2003 that took place in Raskin's classroom. These incidents are described in further detail below.
Configuration of Raskin's Computer Classroom and Rules
During the times relevant to this litigation, Raskin's computer classroom was located in Room 204 at JHS 278. Raskin Dep. at 65. There were 35 student computer work stations in the room. Id. at 66. The computer systems were set on four rows of tables running from the front to the back of the room. Id. at 67. Each system consisted of a six inch tall computer base with a monitor on top. Id. at 73. Raskin's desk was situated at the front of the rectangular classroom, toward the right corner of the room, next to the front door. Ha Decl. Ex. B (drawing made by plaintiff of the classroom). At the back of the room were two tables and several storage cabinets. Id. Raskin often provided "one-on-one" assistance to students at their workstations, which sometimes required sitting down at the work station. Raskin Dep. at 75-76, 108. Due to the height of the computer monitors, Raskin's line of sight was obscured when he was sitting at a work station. Id. at 79.
With limited exceptions, Raskin required students to stay in their seats and not talk during class or to limit their talking during class. C.G. Dep. at 16-17. On occasion, when a student came back from being out of the classroom or near the end of a class period, Raskin allowed the student to take a break and sit away from his or her computer or sit and talk to another student. Raskin Dep. at 212-213. On some occasions, close to the holidays and close to the end of a class period, Raskin would permit a few students at a time to play cards in the back of the classroom if they were finished with their work. Raskin Dep. at 93.
November 9, 2004 Incident
At some time during Raskin's third period computer class, C.G. left class to speak to her guidance counselor. C.G. Dep. at 56, 59-60. C.G. states that she returned to class with 25 minutes left in the class period; Raskin states that she returned with no more than ten minutes left in the period. C.G. Dep. at 73-74; Raskin Dep. at 211. C.G. testified that when she returned, a number of students were standing up and talking loudly. C.G. Dep. at 75. C.G. saw Raskin working on his computer at his desk. Id. at 71. Raskin told members of the class to sit down and be quiet more than once. Id. at 78-79.
C.G. next saw Laurie Touzalin ("Laurie") and Tamaine Wallace ("Tamaine") touching a student named Shanique on her breasts over her shirt. C.G. Dep. at 61. The students were located towards the back of the room. Id. Shanique was telling Laurie and Tamaine to stop, while giggling as if being tickled. Id. at 62, 69. C.G. approached Laurie and Tamaine and told them to leave Shanique alone; she did not tell Raskin what had happened to Shanique, and C.G. saw no indication that Raskin knew what was happening. Id. at 65, 68. With Raskin's permission, C.G. then sat down in the back corner of the room to talk to Shanique and another friend. Raskin Dep. at 213; Id. at 70. After C.G. talked to Shanique for five or six minutes, Tamaine began chasing her around the room.
C.G. Dep. at 75. C.G. told Raskin to make Tamaine leave her alone but Raskin instead told her to sit down. Id. at 75-76. C.G. returned to sitting with Shanique and her friend in the back corner of the room, where she could not see Raskin because the computers on the tables blocked the view of the front of the classroom. Id. at 77-78.
Laurie approached C.G. and asked her for a hug; C.G. refused. C.G. Dep. at 79. Laurie hugged C.G. from behind and began touching her breasts while she tried to fight him off by kicking and biting. Id. at 81. C.G. was facing the back of the room at this time. Id. at 85. Next, Tamaine walked up to plaintiff and told Laurie to hold down plaintiffs legs as he began touching her breasts. Id. at 86. Tamaine then touched C.G. on her vagina and buttocks outside of her clothing, after which he pulled her pants down and caressed her buttocks. Id. at 86-89. By this time there was a crowd of students around plaintiff, who was slouched down in her chair. Id. at 92-93, 88. C.G. was yelling loudly for help, but did not call out to Raskin in particular. Id. at 83, 88, 97. The incident ended when C.G.'s friend Natalia pushed everyone out of the way and pulled Tamaine away from her. Id. It is not clear how long the incident lasted.*fn5 Afterwards, plaintiff was crying in Natalia's lap, at which point Raskin approached and told her to get up and go to her seat. Id. at 90. C.G. did not tell Raskin what happened to her. Id.
Raskin states that in the last 10 minutes of class, he was walking around the room and helping students with problems. Raskin Dep. at 214. At some point he returned to the front of the room to open the door for two students returning from the counselor's office. Id. at 217. He then saw a student in the third seat in the first row, which was near the front side of the room by the door, raise her hand for help. Id. at 221-222. He found that her computer was frozen and she was in danger of losing her work; he attempted to help her at her desk, but was unsuccessful, after which he returned to his own work station to recover the file. Id. at 224-225. Soon afterwards, the end of class bell rang. Id. at 226. Raskin states that he did not see and was not aware of the alleged assault on C.G. while it was happening, and did not learn of it until a week later. Raskin Dep. at 230, 194-195. Raskin further states that no one in the classroom told him about the alleged assault at the time. Id. at 227.
After the incident, C.G. went to her homeroom class, but did not tell either of her teachers what had happened. C.G. Dep. at 101-102. After C.G. described to Natalia and Shanique what had happened, Natalia informed her homeroom teacher of the incident. Id. at 104-105. The teacher approached C.G. and asked that she write down a statement, after which C.G. met with the assistant principal and the police and C.G.'s family were called. Id. at 105-108. After being informed of the incident, defendant assistant principal DiFranco asked C.G. to write another statement, interviewed witnesses to the incident, and asked the students to write statements. Deposition of Frank DiFranco at 109, Cavalieri Ex. G ("DiFranco Dep.").
Eight students gave statements on the day of the incident describing what they had seen in the classroom. Each narrative stated that C.G. had been held down and assaulted by Tamaine and Laurie. Ha Decl. Ex. G.*fn6
Principal Garofalo determined that Raskin had not provided a safe environment for his students and that C.G. had been assaulted due to Raskin's negligence. Bryer Aff., Ex. J. at 150. Raskin received no discipline other than having a letter put in his file, in which Garofalo directed him to circulate the room at all times when teaching class and to make phone calls home to parents who were not following classroom rules. Id.
Regarding any prior behavior that could have indicated to Raskin that C.G. was under threat of sexual assault in his classroom, Raskin stated that C.G. had previously "tak[en] issue with some things or gestures boys may have said or made towards her in the classroom but it was a thing of the moment easily stopped." Raskin Dep. at 185. The gestures included grunting and sounds, but were not of a sexual nature. Id. at 185-186.
After the incident, Laurie and Tamaine were taken out of C.G.'s class and were never in the same class as C.G. again. C.G. Dep. at 114, 116. C.G. testified at suspension hearings for Laurie and Tamaine, who were as a result suspended for 87 days. Garofalo Dep. at 194-195, Cavalieri Ex. H. After serving their suspension, Laurie and Tamaine returned to JHS 278 on April 18, 2005. Bryer Aff., Ex. J at 148. They were transferred out of the school in October, 2005. Id. After his return to school, Laurie would stare at C.G. when he saw her. C.G. Dep. at 116. During eighth grade, after the boys were transferred out of the school, plaintiff saw Tamaine by the front desk and had a panic attack. Id. at 117.
Following the incident, C.G.'s grades in seventh grade dropped from an average of 72 to an average of 64. Bryer Aff., Ex. J at 161. However, her grades improved again in eighth grade. C.G. Dep. at 182. C.G. had 29 absences from school in the spring term after the assault, compared to 28 for the entire previous year. Id. C.G. entered psychotherapy as a result of the assault and was diagnosed with post-traumatic stress disorder. Id. at 22. C.G. suffered self-cutting, nightmares, flashbacks, panic attacks, loss of concentration, loss of energy, impulsive aggression against boys, and difficulty sleeping. Id. at 1-6.
December 13, 2004 Incident
On December 7, 2004, C.G. and fellow student Daniel Douglas ("Daniel") got into an argument in the classroom and hit each other several times. C.G. Dep. at 130. C.G. told Daniel that she was going to "get him" after school on the bus and warned him to "watch out." Id. at 131. On the bus, Daniel pushed C.G. and she hit him repeatedly in the back of the head and neck. Id. at 136-137. Daniel began to cry. C.G. Dep. at 137. Daniel and C.G. got off the bus, after which Daniel's mother saw them in the street, screamed at him for letting himself be beaten by a girl, and told him to hit her back. Id. at 138-39. Daniel then punched C.G. and she punched him back several times. Id. The school guidance counselor stated that Daniel told her that C.G. hit him with an umbrella on the bus. Deposition of Elyse Epstein at 221, Bryer Aff. Ex. F. After the school was informed of the fight, assistant principal DiFranco took statements and set up a meeting with C.G., Daniel, and their mothers. DiFranco Dep. at 157. During the meeting, DiFranco called C.G. "not a victim but a thug." Pl. 56.1 Statement at ¶ 65. Meeting Tape. Based on the severity of the fight and the fact that Daniel did not fight back on the bus, school officials, including Principal Garofalo, agreed that C.G. would be suspended for five days on school grounds. DiFranco Dep. at 183; Bryer Ex. J. at 132. C.G. testified that Mr. Montalbano, another school official, had decided that she should receive the suspension. C.G. Dep. at 142. Both Principal Garofalo and DiFranco stated in their Letters to File that school officials agreed to a five-day suspension "as opposed to a Superintendent suspension," which is a more serious penalty. Bryer Ex. J at 131, -132. In addition, DiFranco gave as a reason for the outcome the fact that C.G. "brutally beat" Daniel. DiFranco Dep. at 188. Daniel was not suspended, and received only verbal reprimands. Garofalo Dep. at 137.
December, 2003 Classroom Incident
On December 12, 2003, students reported that two male students held down a female student in Raskin's computer classroom while a third male student attempted to put his penis into her mouth. Bryer Aff. Ex. J at 645 (incident report), 858 (testimony of female student at suspension hearing). The female student was lying flat on the floor during the incident. Id. at 858. Raskin was in the room when this sexual assault occurred. Raskin Dep. at 110-111. At the time, the children were talking loudly and Raskin did not hear anyone calling out for help. Garofalo Dep. at 219.
After the incident, Principal Garofalo summoned Raskin to a meeting at which he stated that he found it difficult to believe that the assault could have occurred. Raskin Dep. at 110-11. Principal Garofalo determined that a sexual assault had occurred, and was concerned about the safety and welfare of the students as a result of the incident. Garofalo Dep. at 166, 223. Garofalo reported to the local institutional superintendent that a girl was held down by two boys but not that there was a sexual assault. Deposition of Wendy Karp at 24 ("Karp Dep."). She placed a letter in Raskin's file and instructed him to be more vigilant about circulating around his classroom in the future. Id. at 178, 182. She advised him to have less direct student involvement at work stations, to stand up more, and to have students describe their difficulties so that he would not need to sit down at computers to help students directly. Raskin Dep. at 107. Garofalo determined that additional supervision of Raskin himself was unnecessary. Id. at 230.
Wendy Karp, who was Principal Garofalo's supervisor at the time, testified that it was Garofalo's responsibility to determine whether or not an incident occurred and whether or not disciplinary action was warranted for a teacher who was present. Id. at 27. Karp stated that, had she been informed of the nature of the assault, she might have advised Garofalo to call the regional attorney. Id. at 33. As principal, Garofalo retained authority to determine what discipline was warranted following a disciplinary conference with Raskin. Id. at 30, 36, 39.
June, 2000 Schoolyard Incident
On June 9, 2000, 35 teachers at JHS 278 unexpectedly took a day off, leaving then Principal Quigley very short-staffed, as substitutes were not available. Report to Chancellor Harold Levy at 1, Bryer Aff. Ex. K. The principal declared an "extended recess" and sent hundreds of students into the schoolyard without adequate faculty supervision. Id. at 2. During this recess, at least eight female students were sexually molested and groped by male students. Id. at 3-4. School officials directed the victims of the assaults to give written statements and then sent them back outside. Id. at 5. Two teachers, including defendant DiFranco, attempted to locate the boys involved. Id. at 5. The police were not called until the following Monday. Id. at 5. As a result of the incident, a letter was put in DiFranco's file; the letter was expunged after three years. DiFranco Dep. at 29; Bryer Aff. Ex. J. at 1557. A report by the Special Commissioner for Investigation for the New York City school district found that school officials, including defendant DiFranco, were at fault for mishandling the incident and being insensitive to the victims. Bryer Aff. Ex. K. at 7-8.
Other Prior Sexual Assaults at JHS 278
Plaintiff has submitted evidence of six instances of inappropriate touching by male students of female students at the school. The first three are documented by incident reports: a male student exposed himself to a female student, a male student touched a female student on the breasts in the classroom, and a male student touched a female student's breast. Bryer Aff. Ex. J at 646, 647, 651, 1194. The latter three are not documented by incident reports, but instead are attested to by C.G., who reported in the suspension hearing following her assault that she had been told of the assaults*fn7 by her guidance counselor. Bryer Aff., Ex. B. at 84-86.
I. Summary Judgment Standard
A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2003). A fact is material when it "might affect the outcome of the suit under the governing law." Id. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a "metaphysical doubt" as to the material facts. See Matsushita, 475 U.S. at 586; Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Rather, the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 ...