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Daniel R. Papelino and Michael Yu v. Albany College of Pharmacy of Union University

January 24, 2011


Appeal from a final judgment of the United States District Court for the Northern District of New York (Mordue, Chief Judge) dismissing plaintiffs-appellants' sexual harassment and retaliation claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and their breach of contract and tort claims under New York law.

The opinion of the court was delivered by: Chin, Circuit Judge:


Papelino v. ACP

Argued: August 24, 2010

Before: WINTER, CABRANES, and CHIN, Circuit Judges.

AFFIRMED in part, REVERSED in part, and REMANDED.

In this case, plaintiff-appellant Daniel Papelino alleges that he was sexually harassed by a professor when he was enrolled as a student at the defendant-appellee Albany College of Pharmacy (the "College"). He complained to the Associate Dean of Student Affairs. Shortly thereafter, the College accused Papelino and his two roommates, plaintiff-appellant Michael Yu and plaintiff Carl Basile, of cheating on exams. All three were disciplined, and Papelino and Basile were expelled.

The three students successfully brought an Article 78 proceeding in state court to challenge the College's decisions. The Appellate Division, Third Department, held that the College's determination that the students had cheated was "arbitrary and capricious" and lacked a "rational basis."

Papelino, Basile, and Yu brought this case asserting sexual harassment and retaliation claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), and breach of contract and tort claims under New York common law. In a decision dated February 5, 2003, the district court (Norman A. Mordue, Chief Judge), dismissed all but two of plaintiffs' claims. In a memorandum decision dated March 28, 2005, the district court granted plaintiffs leave to reinstate certain claims but denied leave to reinstate four claims. And in a memorandum decision dated September 11, 2009, the district court granted summary judgment dismissing all plaintiffs' remaining claims. Final judgment was entered the same day. This appeal followed.

We affirm in part and reverse in part. We conclude that while the district court properly dismissed certain claims, plaintiffs demonstrated the existence of genuine issues of material fact for trial with respect to their claims for sexual harassment, retaliation, breach of contract, and negligent supervision. Accordingly, we remand for further proceedings.


A. The Facts*fn1

In 1997, Papelino, Yu, and Basile were pharmacy students at the College. They were roommates, study partners, and friends. All three were enrolled in a year-long Medicinal Chemistry course taught by Professor Deanne Nowak.

In the fall of 1997, Nowak began to flirt with Papelino in and out of class. She would wink and smile at him. She sat on the edge of his desk during one class, and gave him excessive praise for his work.

In October 1997, after the first Medicinal Chemistry exam, many students, including Papelino, petitioned Nowak for additional points. When Papelino went to Nowak's office to pick up his exam, she informed him that she had awarded him extra points, and told him, in what Papelino described as a voice "laced with sexual innuendo": "[N]ot everyone got extra points, they truly have to earn them. You know what I mean, don't you Dan?"

In January 1998, Papelino again visited Nowak's office, this time to discuss a class project. Nowak stated in a flirtatious manner: "I can really appreciate a man who is good with his hands, if you know what I mean." As Papelino tried to leave, she stated: "You know I am always here for you handsome."

A month later, in February 1998, Papelino visited Nowak's office a third time, to ask a question about class material. Nowak invited Papelino to sit down. As Papelino began to ask his question, Nowak stood up, and then bent down in front of him so that her backside was in Papelino's face. As Nowak looked over some papers on the floor, she directed Papelino to pick up a book from the shelf above her. When Papelino moved to pick up the book, Nowak stood up and Papelino "felt her hand rub against [his] crotch." Papelino asked: "What was that for[?]" Nowak responded, with a "grin on her face": "It's an accident," and then, "Do you know how lonely I've been lately?" When Papelino asked why she was telling him that, Nowak replied: "I thought you might be interested in knowing that." Papelino told her that she had him "all wrong," and left the office.

In March 1998, Nowak asked Papelino to stay after class. Nowak invited Papelino to attend a college-sponsored party with her so that she could "teach [him] to dance." When Papelino declined, Nowak said: "So that means you are going to make me go alone?"

Finally, on April 6, 1998, Papelino and his classmates attended a "poster session" in the school gymnasium, where groups of students presented posters and pamphlets of information about different prescription drugs. Nowak approached Papelino and asked him to go out with her the next day to celebrate her birthday. According to Papelino, the following ensued:

I told her, "I thought I made it clear that I am not interested in any kind of personal relationship." Nowak said, "C'mon, what are you worried about?" I said, "I have a girlfriend, you are married, and I'm not interested!" Nowak then persisted and stated: "I wouldn't be too concerned about my husband, he's in Ohio." I told her that if she couldn't take "NO" for an answer, I think Dean White might be interested in hearing about this. Nowak's attitude changed and sternly told me that doing so would be a "big mistake." She then said, "Well, if you think it's necessary, go ahead and try it and see what happens!"

Papelino immediately reported Nowak's sexual advances to the College's Associate Dean for Student Affairs, Albert White. As defendants conceded below, Papelino spoke to White "on or about April 6, 1998" about Nowak, when he sought advice about Nowak's "sexual overtures." According to Papelino, White reported back to him in late April 1998, stating that he had "spoken to Nowak" and that the matter had been "taken care of." Dean White testified at his deposition, however, that he "never spoke to anybody" about the situation, nor did he "go to any member of the administration . . . 'cause [he] didn't want to let it out." Around that time, Papelino noticed a change in Nowak's behavior, as she started to act cold and unfriendly toward him.

On or about May 6, 1998, Nowak told Elisabeth Vines, the Faculty Advisor to the Student Honor Code Committee, that she believed Papelino and Basile had cheated in her Medicinal Chemistry course, as well as in a Pharmacology course taught by Nowak's roommate, Professor Diane Sylvester. Nowak testified at her deposition that she first decided to look into whether Papelino and Basile had been cheating in early December 1997 when she received an "anonymous note" slipped under the door to her office. She thereafter told Sylvester that she thought Papelino *fn2 and Basile "were cheating" and she asked Sylvester to check her exams. At some point she approached other instructors as well, including Professor Jeffrey Voight, who had Papelino and Basile in their classes, asking them to look at their exams to see whether the students had cheated.

On May 8, 1998, just two days after Nowak spoke to Vines, Papelino and Basile received e-mail notices that they had been accused of violating the College Honor Code. Over the next week, Yu was also charged with cheating, and the number of courses in which Papelino and Basile were accused of cheating grew to nine. *fn3

A hearing was held on May 20, 1998. In support of the charges, Nowak presented evidence, which consisted primarily of "statistical" charts that she had prepared based on her review of exams taken by Papelino, Basile, and Yu in various courses. Papelino, Basile, and Yu countered with (1) the lack of evidence of the means by which the three might have managed to cheat; (2) the fact that the three studied together, and therefore had similar knowledge bases; and (3) the lack of validity of the "statistical" evidence. During the hearing, Nowak leaned over while showing a document to plaintiffs, "whereby her shirt fell forward and plaintiffs were exposed to her bare breasts." The Student Honor Code Committee found Papelino guilty of cheating in three classes, Basile guilty of cheating in six classes, and Yu guilty of cheating in one class.

The three students appealed the decision to the College Honor Code Appellate Board, but the Board declined to hear the appeal. The students received failing grades in the classes in which they were found to have cheated. In August 1998, Papelino and Basile were expelled, and Yu was permitted to retake the one class.

In September 1998, plaintiffs commenced an Article 78 proceeding in New York State Supreme Court, Albany County. They sought to annul the Honor Code Committee decision. The Supreme Court dismissed their petition, but on appeal, the Third Department reversed and held that the College's determinations to expel Basile and Papelino and to award Yu a failing grade were "arbitrary and capricious" and lacked a "rational basis." Basile v. Albany Coll. of Pharmacy of Union Univ., 279 A.D.2d 770, 771 (3d Dep't), leave to appeal denied, 96 N.Y.2d 708 (2001). Specifically, the Third Department concluded that the Honor Code Committee's determinations were based "solely" on a "statistical compilation" that was based upon "false assumptions" and did not provide "a rational basis to conclude that petitioners cheated." 279 A.D.2d at 771. The Third Department also held that as "the same statistical methodology" was used to evaluate the charges, there was "no rational explanation" for why Basile was found guilty of cheating in six out of nine courses, Papelino in three out of nine courses, and Yu in one out of seven courses. Id. at 772. Finally, the Third Department held that the allegations of cheating were based on "either hearsay anonymous notes or . . . sheer speculation," and that "it was irrational of the Committee to determine that it could rely solely on the inference of cheating raised by the statistical compilation, particularly when faced with proof that petitioners took these examinations in separate rooms and under the watchful eye of a proctor, who discerned no evidence of cheating." Id.

After the Article 78 proceedings, the College faculty voted in May 2001 to award Papelino and Basile their diplomas. Yu had already received his diploma after having retaken the one course. According to the President of the College, Papelino's diploma was issued "without notation or qualification," and it was back-dated to Papelino's originally-planned graduation date. On May 1, 2001, the College sent Papelino's transcripts to the Division of ...

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