The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
The present case arises from a long history of acrimony and litigation between the involved parties. Presently before the Court is defendants' motion for summary judgment dismissing plaintiffs' second amended complaint which asserts various state law causes of action as well as claims for sexual harassment and retaliation under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"). The following constitutes the Court's decision in this matter.
II. FACTUAL AND PROCEDURAL BACKGROUND
Since litigation of this matter has been protracted and has involved at least four attorneys retained on behalf of plaintiffs, the Court will briefly reiterate the facts and procedural history pertinent to plaintiffs' claims.*fn1 In May 1998, plaintiffs, Daniel Papelino and Michael Yu were enrolled as full-time pharmacy students at defendant Albany College of Pharmacy ("ACP"), and expected to receive their diplomas in June 1999. Through an administrative process, ACP made a determination in May 1998, that plaintiffs and Basile had violated ACP's student honor code by cheating in various courses during their tenure as pharmacy students. As a result of the Student Honor Code Committee's administrative determination of cheating, plaintiff Papelino and Basile received failing grades in the classes they were found to have cheated in and were expelled from the college. Plaintiff Yu received a failing grade in only one class and was offered the opportunity to repeat the class but was not expelled.
In September 1998, plaintiffs and Basile commenced an Article 78 proceeding in New York State Supreme Court challenging ACP's administrative determination and seeking reinstatement of their previous unblemished academic standing. While the trial court upheld ACP's administrative decision, the Appellate Division, Third Department, reversed on January 11, 2001, finding no rational basis to support ACP's determination that plaintiffs and Basile had cheated.*fn2 ACP's application for leave to appeal to the New York State Court of Appeals was denied on April 3, 2001. ACP did not attempt to repeat Student Honor Code proceedings against plaintiffs and Basile. Rather, in April 2001, ACP awarded plaintiff Papelino and Basile their diplomas.*fn3
Following the award of diplomas to Papelino and Basile, ACP advised them that the college would not certify their character, or personal, professional and ethical competence to any professional licensing authority. Moreover, ACP advised plaintiff Papelino that it would not provide certification of his pharmacy education to the State of Florida Board of Pharmacy without attaching copies of the decisions of the Supreme Court and Appellate Division concerning the afore referenced Article 78 petition. In addition, ACP advised Papelino that along with certifying the award of his degree in pharmacy to the Florida Board, the college would advise the Florida Board of the pendency of the present federal lawsuit which might "result in the revocation of Mr. Papelino's degree." Defendant ACP did provide the Florida Board of Pharmacy with certification of plaintiff Yu's pharmacy degree and also apparently provided the New York Board of Pharmacy with certification as to plaintiff's Yu's character and fitness for professional licensing.
In May 2001, plaintiffs filed a complaint in New York State Supreme Court alleging various New York state law claims against defendants including breach of contract, negligent and intentional infliction of emotional distress and prima facie tort. In addition, plaintiff Papelino sought compensatory and punitive damages against defendants for alleged sexual harassment and unlawful retaliation under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX").*fn4 To wit, plaintiff Papelino asserted that he was sexually harassed by a female professor at ACP and when he complained about it to the Dean of Students, he and his fellow plaintiffs were accused of cheating in retaliation for his complaint. Plaintiff Papelino alleged that ACP further retaliated against him by refusing to certify his degree to the Florida Board of Pharmacy after he filed the present action under Title IX.
Defendants removed the action to federal court in July 2001. Plaintiffs filed an amended complaint in September 2001. Plaintiff Yu alleged inter alia that defendants' various unlawful actions resulted in delay of his ability to become licenced as a pharmacist in New York State. Plaintiff Papelino alleged inter alia that defendants' various unlawful actions resulted in delay of his ability to become licenced as a pharmacist in Florida and/or any other jurisdiction. In addition, plaintiff Papelino alleged that defendants discriminated against him unlawfully on the basis of his sex and retaliated against him after he took steps to protect himself from said discrimination.
Plaintiff Papelino also sought to enjoin permanently defendants from taking further unlawful actions against him and compel ACP to issue certification of his degree in pharmacy to the Florida Board of Pharmacy without reference to any litigation concerning ACP's allegations of cheating.
In September 2001, plaintiff Papelino filed an Order to Show Cause seeking a preliminary injunction to compel ACP to complete the aforementioned Certificate of Pharmacy Education for the Florida Board of Pharmacy and to prohibit defendant ACP from adding information to and/or conditioning the Certificate. Defendants moved to dismiss the amended complaint pursuant to Rule 12(b) of the Fed. R. Civ. P.. The Court denied plaintiff's motion for a preliminary injunction and granted in part defendants' motion to dismiss each of the state law claims in the amended complaint as well as plaintiff Papelino's claim for sexual harassment based on a hostile education environment. Plaintiffs' subsequent motion for reconsideration of the Court's decision to dismiss portions of the amended complaint was denied but the Court deemed plaintiffs' application as a motion for leave to file a second amended complaint and granted said request.
In March 2005, the Court granted in part and denied in part plaintiffs' motion to file a second amended complaint which revived two of plaintiffs' state law breach of contract claims, and two general tort claims against defendants. Also remaining is one claim by plaintiff Papelino for quid pro quo sexual harassment and two claims of retaliation under Title IX. In the March 2005, order, the Court denied defendants' then pending first motion for summary judgment without prejudice based on the filing of the second amended complaint. In March 2007, the Court adopted a Report and Recommendation authored by Magistrate Judge David E. Peebles which recommended dismissal of plaintiff's claims against defendant Albert White, deceased former Associate Dean of Students at ACP based on plaintiffs' failure to move for substitution of an appropriate estate representative. Defendants have now filed their second motion for summary judgment alleging various legal defenses to plaintiffs' claims. Plaintiffs oppose defendants' motion.
A. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325.
Once the movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e). A trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, see Ramseur v. Chase Manhattan Bank, 865 F.2d Cir. 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New York, 762 F.2d Cir. 243, 249 (2d Cir. 1985). It is with these considerations in mind that the Court addresses defendants' motion for summary judgment.
In order to state a claim under Title IX, a plaintiff must allege that he has been "excluded from participation in, . . . denied the benefits of, or . . . subjected to discrimination under" any educational program receiving federal funding on the basis of gender. 20 U.S.C. § 1681(a). "Discrimination" is defined as disparate provision of programs, aid, benefits or services or inequitable application of rules or sanctions. See 45 C.F.R. § 86.31. It includes quid pro quo sexual harassment as well as claims for unlawful retaliation. In a Title IX suit for gender discrimination, an educational institution may be held liable under standards similar to those applied in employment discrimination cases under Title VII. See Torres v. Pisano, 116 F.3d 625, 630 n. 3 (2nd Cir.), cert. denied, 522 U.S. 997 (1997); Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 248 (2d Cir. 1995).
1. Quid Pro Quo Sexual Harassment
In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998), the Supreme Court explained that "[w]hen a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII." A tangible employment action, as defined by the Supreme Court, "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761. See also Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999) (defining quid pro quo harassment as occurring "when some benefit or adverse action, such as change in salary at work or a grade in school, is made to depend on providing sexual favors to someone in authority ....").
The heart of plaintiff Papelino's quid pro quo claim is that Professor Nowak attempted to manipulate and coerce him into having a sexual or other relationship with her by making sexual advances and offering what he deemed unwarranted academic praise for his work. In response, plaintiff Papelino asserts that he told Dean White about Nowak's alleged harassing conduct. The Court presumes plaintiff Papelino's quid pro quo harassment claim is premised on the doctrine of respondeat superior or constructive notice; that is, his complaint to White is sufficient to render ACP liable for Nowak's actions under Title IX.
It is settled, however, that it would "'frustrate the purposes' of Title IX to permit a damages recovery against a school district for a teacher's sexual harassment of a student based on principles of respondeat superior or constructive notice . . . without actual notice to a school district official." Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 285 (1998). Indeed, a damages remedy will not lie under Title IX "unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond." Id. at 290. In Gebser, the Supreme Court added:
We think, moreover, that the response must amount to deliberate indifference to discrimination. The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference.
Thus, to survive summary judgment on his quid pro quo sexual harassment claim, plaintiff Papelino must demonstrate that someone at ACP in a position of authority to remedy the alleged harassment was deliberately indifferent to his plight. Plaintiff Papelino has failed to demonstrate that anyone employed by ACP, with the exception of former defendant Dean White, knew of Nowak's alleged harassment of him. Thus, plaintiff's entire claim for quid pro quo harassment rests on the allegations that he informed Dean White regarding Nowak's offensive behavior and White did nothing to stop it. These claims beg the questions - what did Dean White know about Nowak's alleged harassment of plaintiff and based on what he knew, did White's actions or inactions rise to the level of deliberate indifference? There is a glaring absence of actual evidence in the record concerning what plaintiff told Dean White during their one or possibly two alleged conversations concerning Deanne Nowak. Throughout his opposition papers, plaintiff's counsel avers that he "reported the sexual harassment to Dean White." This much is conceded by defendants. But what, exactly, did plaintiff report? The parties do not discuss or point to any evidence on this issue. The Court observes that plaintiff Papelino appears to have assumed he presented proof on the subject and defendants have not questioned this presumption.
It is true that plaintiff Papelino testified at length about the various things Nowak allegedly did that he considered inappropriate as set forth in subparagraphs a-f of paragraph 116 in the second amended complaint. Specifically, plaintiff Papelino asserts that in November 1997 Nowak gave him extra points on an exam when other students who petitioned for extra credit were denied. Papelino alleges that Nowak told him that "not everyone" got extra points, they had "to earn them." Papelino claims Nowak then said "[Y]ou know what I mean don't you Dan?" and that her comments were "laced with sexual innuendo." Papelino also asserts that in November 1997, Nowak gave him high praise for an essay he wrote whereas his classmates gave his work only mediocre reviews. In January 1998, Papelino claims that when he asked Nowak for advice about a project, she said "I appreciate a man who is good with his hands, if you know what I mean." Papelino also said Nowak told him "You know I am always here for you handsome." On February 18, 1998, Papelino claims that Nowak "stroked" his "crotch area" during a meeting in her office and asked him if he knew "how lonely" she had been lately. Plaintiff Papelino alleges that on March 23, 1998, Nowak asked him to remain after class and suggested they go to an ACP function together where she could "teach him to dance" and on April 6, 1998, Papelino asserts that Nowak asked him to go out with her to celebrate her birthday.
Plaintiff Papelino also testified that Nowak was constantly "smiling" and "winking" at him and giving him "sexual" looks that made him "uncomfortable." Papelino said he felt uneasy when Professor Nowak sat on his table close to him while teaching a class and asked for his assistance in answering a chemistry question. Papelino testified that due to the unwanted advances and attention from Nowak, he experienced nervousness, stress, acid reflux and difficulty sleeping. Nevertheless, Papelino, along with his roommate, former plaintiff Basile, decided to make homemade fudge for Nowak and another professor before Valentine's Day in 1998. Papelino was alarmed when, after summoning the courage to deliver the fudge to Nowak, she said really "melt[ed] for a man who knows how to bake."
The Court found Papelino's allegation that he informed Dean White of the above-referenced incidents sufficient at the pleading stage to state a claim for quid pro quo sexual harassment. However, now that the case has proceeded to summary judgment stage, it is not readily apparent from the record that Dean White was aware or informed of any or all of the above incidents or other conduct referenced in Papelino's second amended complaint prior to the time Papelino elected to file a formal charge of sexual harassment with ACP.
After reviewing the entire record for evidence in any form of what information was presented by plaintiff Papelino to Dean White concerning Professor Nowak the Court notes the following: * In the second amended complaint, plaintiff alleges that on April 6, 1998, he met with Dean White and "explained in detail the events of the past months and the improper, intimidating and harassing behavior of Professor Nowak which was causing him serious stress and interfering with his studies." (emphasis added). The pleading further alleges that "Dean White acknowledged the seriousness of the accusations and stated he would take care of the situation." The Court notes that the phrase "explained in detail" is conclusory. Moreover, the second amended complaint is unverified and the allegations therein, standing alone, are insufficient to defeat a summary judgment motion. * During plaintiff Papelino's first deposition he was asked about his meeting with Dean White on April 6, 1998. Defense counsel asked "And the conversation that you say happened occurred within his office?" Papelino answered "Yes." Plaintiff also testified that he had a second conversation with Dean White "one or two weeks after" the initial meeting on April 6, 1998. Papelino testified that this second conversation took place "in the hallway." Papelino was not asked about nor did he offer any details concerning his alleged conversation(s) with Dean White.
Papelino transcript, June 5, 2003, p. 102.
* Papelino was also asked if he had a belief as to why Professor Nowak "spearheaded" cheating charges against him and he replied "Because I told Dean White. I reported to Dean White the events that took place." Nowhere, however, does Papelino outline any of the "events" he allegedly informed White about.
Papelino transcript, June 5, 2003, p. 108.
* During his second deposition, Papelino testified about his meeting with Dean White as follows:
Q: Now, isn't it correct that on April 6th when you told Dean White about the situation, you told him to handle it without a formal complaint?
Papelino transcript, July 17, 2003, p. 34. Nowhere in his testimony does Papelino elaborate on "the situation" that he allegedly discussed with White nor does he describe what was intended by the alleged agreement to handle the situation informally. * During his second deposition, plaintiff Papelino was again asked about his conversation with Dean White on April 6, 1998:
Q: When you spoke with Dean White, did he ever say anything to indicate that he had been aware of the alleged conduct?
[objection by plaintiff's counsel]
Q: At any time. At the April 6th, the first time.
A: The first time I spoke to Dean White?
Q: Yes. Did he say or do anything which led you to believe that he had been aware of the alleged conduct?
A: That I can recall, no.
Papelino transcript, July 17, 2003, pp. 26-27. * In plaintiff Papelino's verified response to defendants' second set of interrogatories, he asserts that he "ma[d]e a sexual harassment complaint to Dean White on April 6, 1998. When Dean White told [him] he would resolve the problem with Nowak, [he] felt somewhat relieved." Again, however, the Court notes that the phrases "sexual harassment complaint" and "the problem with Nowak" are vague and/or conclusory. * In the unverified, uncertified, unauthenticated transcript of a secretly recorded conversation that occurred on May 8, 1998, between Daniel Papelino, Carl Basile and Deanne Nowak, Papelino is alleged to have asked Nowak in connection with her having raised cheating charges against plaintiffs, "I mean, all this because I told Dean White?" Assuming the Court were to overlook the evidentiary deficiencies in the transcript, the glaring question "Told Dean White what?" is not answered. Nor in the transcript does Nowak answer or comment on Papelino's statement regarding Dean White. * During his deposition when questioned about his conversation(s) with plaintiff Papelino, Dean White stated he prepared a two-page document, dated April 6, 1998, representing notes of what he and Papelino discussed. Dean White referred to and was asked about this document (Exhibit #17) during his deposition. However, these notes are not in the record submitted by the parties. * Dean White testified that he prepared a document entitled "summary notes," on May 21, 2001, after receiving a copy of plaintiffs' original complaint. These notes have been submitted by the parties and are authenticated. They are in proper evidentiary form inasmuch as they were identified by Dean White during his deposition. Two copies of White's "summary notes" were marked during his deposition as Exhibits 18 and 19. Dean White was not questioned about these documents in detail during his deposition, but he did testify that the numbered "items" listed in the notes corresponded to the paragraph numbers of plaintiffs' original complaint and that notes next to each number were his "comments" about the allegations in the enumerated paragraphs. To wit, with regard to paragraph 65 of the complaint, Dean White commented about plaintiff Papelino's allegation that he (White) said he would "take care of the situation." White wrote that he "informed Papelino of ACP's procedure in regards to use of Faculty Ombudsman person. Students being treated unfairly by faculty." Later in these "summary notes," Dean White wrote in connection with paragraph 82 of the original complaint that "Plaintiff not informed of sexual harassment procedure. Informed about Ombudsman by White." With respect to paragraph 83 of the complaint, Dean White noted "Did not investigate (White) No written report of incidents turned in to Associate Dean as requested and required." As to the allegations in paragraph 88 of the complaint, Dean White wrote "Did not speak to Prof. Nowak about complaints (White). No other investigations. Not involved (White)." Finally, in regard to the allegations in paragraph 91 of the original complaint, Dean White noted "Never actively participated in Honor Code Hearing. No knowledge of extent of sexual harassment problems. Proposition, etc." * Dean White seemed confused during portions of his deposition about dates and the order of events, and when he learned of Papelino's complaint of sexual harassment. For example, while he testified that he spoke to plaintiff Papelino on April 6, 1998, in the hallway at ACP, and that this was the "first time [he] knew about the harassment," he also testified that he knew "nothing about the harassment thing until after [the Honor Code proceeding which occurred in May 1998] was all done . . . after [he] knew that they were found guilty." White transcript, pp. 21, 28. White also testified that he was "not aware" he had been designated as a witness by ACP to testify about a claim of sexual harassment made by plaintiff Papelino against Professor Nowak:
Q: You're not aware of that?
A: Not at all. Did not know that until he saw me in the hallway. And I kept it quiet from there.
A: (cont'd.) Kept it quiet from there, expecting a report, ...