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Pilar Romero, As Biological Mother and Lawful Guardian of Jane Doe, A Minor v. City of New York; New York City Department of Education; New York City

March 16, 2012

PILAR ROMERO, AS BIOLOGICAL MOTHER AND LAWFUL GUARDIAN OF JANE DOE, A MINOR,
PLAINTIFFS,
v.
CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY DEPARTMENT OF INVESTIGATION, SPECIAL COMMISSIONER OF INVESTIGATION FOR THE NEW YORK CITY SCHOOL DISTRICT; ANDRE JENKINS; JULIO CESARE BENAVIDES, AND JACK ROE AND JILL ROE 1 THROUGH 48,
DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

On June 25, 2008, plaintiff Pilar Romero commenced this action as the biological mother and legal guardian of her then-minor daughter Jane Doe (together with Pilar Romero, "plaintiffs") against defendants the City of New York (the "City"); the New York City Department of Education ("the NYCDOE"); the Special Commissioner of Investigation for the New York City School District ("SCI"), a subdivision of the New York City Department of Investigation; Andre Jenkins ("Investigator Jenkins") in his official capacity as an investigator employed by SCI; Julio Cesare Benavides, individually and in his official capacity as a teacher employed by the NYCDOE; and unknown defendants Jack Roe and Jill Roe 1 through 48 (collectively, "defendants"). (See ECF No. 87, Second Amended Complaint ("Compl.") at ¶¶ 1-9.) The action arises out of an illegal sexual relationship that pro se defendant Mr. Benavides conducted with plaintiff Jane Doe when she was a fourteen-year-old freshman high school student in Mr. Benavides' mathematics class.

Plaintiffs allege two federal claims against all defendants: (1) that defendants engaged in sex discrimination against Ms. Doe in violation of Title IX of the Education Amendments of 1972, codified as 20 U.S.C. §§ 1681 et seq.; and (2) that defendants deprived Ms. Doe of her constitutional rights in violation of 42 U.S.C. § 1983. (Id. ¶¶ 30-34.) In addition, plaintiffs bring five state law claims alleging that the City and the NYCDOE, either themselves or through their employees, engaged in intentional infliction of emotional distress, negligent infliction of emotional distress, sexual assault and battery of a child, negligent hiring, and negligent retention. (Id. ¶¶ 35-40, 46-60.) Finally, plaintiffs allege that all defendants engaged in sexual harassment in violation of New York State Human Rights Laws (the "NYSHRL") pursuant to New York Executive Law § 296, which is the sixth state law claim. (Id. ¶¶ 41-45.) For all these claims, plaintiffs seek in excess of $50 million in compensatory, special, and punitive damages as well as costs and attorneys' fees. (Id. at 15.) The court has original federal-question jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).

Presently before the court are defendants' motions for summary judgment on all of plaintiffs' claims pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the motions for summary judgment by the City, the NYCDOE, SCI, and Investigator Jenkins are granted in their entirety on all claims against them. The court grants in part and denies in part Mr. Benavides' motion for summary judgment as follows: (1) grants Mr. Benavides summary judgment on plaintiffs' Title IX claims; (2) grants Mr. Benavides summary judgment on plaintiffs' Section 1983 claims against him in his official capacity, and on Ms. Romero's Section 1983 claim against him in his individual capacity; (3) denies Mr. Benavides summary judgment on Ms. Doe's Section 1983 claim against him in his individual capacity for violations of Ms. Doe's constitutional rights to bodily integrity and to an educational environment free of sexual harassment; (4) grants Mr. Benavides summary judgment on Ms. Romero's negligent infliction of emotional distress claim; (5) denies Mr. Benavides summary judgment on Ms. Doe's negligent infliction of emotional distress claim; and (6) grants Mr. Benavides summary judgment on plaintiffs' NYSHRL claims.

BACKGROUND

On June 25, 2008, plaintiff Pilar Romero commenced this action as the biological mother and legal guardian of her then-minor daughter Jane Doe against the City, the NYCDOE, Mr. Benavides, and Jack Roe 1 through 10 and Jill Roe 1 through 10. (See ECF No. 1, Complaint.) Plaintiffs then filed an amended complaint on July 16, 2008, adding certain claims against the City, the NYCDOE, and Mr. Benavides. (See ECF No. 2, Amended Complaint.) After fact discovery was completed on December 9, 2010 (see Minute Entry dated December 9, 2010), plaintiffs filed the Second Amended Complaint on April 1, 2011, dropping certain claims and adding defendants SCI and Investigator Jenkins.

On July 18, 2011, the City, the NYCDOE, SCI, and Investigator Jenkins (collectively, the "City Defendants") filed the pending summary judgment motion with respect to all of plaintiffs' claims. (See ECF No. 102, City Defendants' Memorandum of Law in Support of Motion for Summary Judgment ("City Defs. Mem.").) On July 20, 2011, pro se defendant Mr. Benavides filed a motion for summary judgment with respect to plaintiffs' claims against him, which include claims under Title IX, Section 1983, and New York Executive Law § 296. (See ECF No. 110-3, Benavides' Memorandum of Law in Support of Motion for Summary Judgment ("Benavides Mem.").) Plaintiffs oppose both the City Defendants' and Mr. Benavides' respective motions for summary judgment. (See ECF No. 107, Memorandum in Opposition to City Defendants' Summary Judgment Motion ("Pls. City Opp'n"); ECF No. 111, Memorandum of Law in Opposition to Julio C. Benavides' Summary Judgment Motion ("Pls. Benavides Opp'n").) Finally, the City Defendants and Mr. Benavides filed reply memoranda and supplemental reply memoranda in support of their motions for summary judgment because plaintiffs failed to serve defendants with a copy of their Local Civil Rule 56.1 Counter-Statement of Material Facts. (See Order dated July 22, 2011; ECF No. 105, City Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment ("City Defs. Reply"); ECF No. 119, City Defendants' Supplemental Reply Memorandum of Law in Further Support of Motion for Summary Judgment ("City Defs. Suppl. Reply"); ECF No. 113, Benavides' Reply Memorandum of Law in Support of Motion for Summary Judgment ("Benavides Reply"); ECF No. 121, Benavides' Supplemental Reply in Further Support of Motion for Summary Judgment ("Benavides Suppl. Reply").)

STATEMENT OF FACTS

The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1 and accompanying exhibits, are undisputed unless otherwise indicated. (See generally ECF No. 100-2, City Defendants' Local Rule 56.1 Statement of Material Facts ("City 56.1 Stmt."); ECF No. 107-2, Plaintiffs' Local Rule 56.1 Statement of Material Facts relating to City Defendants 5 ("Pls. City 56.1 Stmt."); ECF No. 110-2, Benavides' Statement of Facts ("Benavides 56.1 Stmt."); ECF No. 111-2, Plaintiffs' Local Rule 56.1 Statement of Material Facts relating to Defendant Benavides ("Pls. Benavides 56.1 Stmt.").) The court has considered whether the parties have proffered admissible evidence in support of their factual statements and has viewed the facts in the light most favorable to the nonmoving plaintiffs. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that, in determining the appropriateness of a grant of summary judgment, . . . the district court in awarding summary judgment, may rely only on admissible evidence." (citations and quotation marks omitted)); Scotto v. Brady, 410 Fed. App'x 355, 361 (2d Cir. 2010) ("'[A] district court deciding a summary judgment motion has broad discretion in choosing whether to admit evidence,' and that '[t]he principles governing admissibility of evidence do not change on a motion for summary judgment.'" (quoting Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009))). Finally, the court has also considered other materials in the record that have not been cited by the parties. See Fed. R. Civ. P. 56(c)(3).

During the 2006-2007 school year, plaintiff Jane Doe ("Ms. Doe") was a 14-year-old ninth-grade student*fn1 attending Richmond Hill High School ("Richmond Hill") in Richmond Hill, Queens, New York, and pro se defendant Julio Benavides ("Mr. Benavides") was a 28-year-old mathematics teacher at Richmond Hill employed by the NYCDOE.*fn2 (City 56.1 Stmt. ¶¶ 1-3; Pls. City 56.1 Stmt. ¶ 2; Benavides 56.1 Stmt. ¶¶ 1-3.) Ms. Doe was a student in Mr. Benavides' mathematics class in the Fall Semester of the 2006-2007 school year. (City 56.1 Stmt. ¶ 4; Benavides 56.1 Stmt. ¶¶ 4-5.)

In or around November 2006, after having communicated outside of class via instant messenger, Mr. Benavides told Ms. Doe -- a minor at the time -- that he loved her and that he wanted to spend time with her. (Benavides 56.1 Stmt. ¶ 6; Transcript of Deposition of Jane Doe dated April 29, 2009 (attached as Exhibit C to ECF No. 108, Declaration of Plaintiffs' Counsel in Opposition to City Defendants' Motion for Summary Judgment ("Pls. Decl.")) ("04/29/09 Doe Dep. Tr.") at 9-10.) Over subsequent months, Mr. Benavides proceeded to spend time with Ms. Doe, promising her love and affection and the two exchanged small gifts. (04/29/09 Doe Dep. Tr. at 10-13, 36-37.) In addition to class time, and in view of other students and school staff, none of whom were identified by name, Mr. Benavides and Ms. Doe also began to spend significant time together during the school day on a regular basis by having lunch together, walking together in the hallway, and sitting together in a secluded area of the library. (Id. 58-60.) In addition, Mr. Benavides touched and kissed Ms. Doe on the campus of Richmond Hill, including in the library, in classrooms, and on the stairs, however, there is no evidence that anyone saw Ms. Doe and Mr. Benavides touching or kissing. Ms. Doe also visited Mr. Benavides at his mother's home and his apartment. (Id. at 13-19, 26-29; Benavides 56.1 Stmt. ¶ 8.)

Jane Doe had refused Mr. Benavides' requests to have sexual intercourse until January 2007 when Mr. Benavides and Ms. Doe had sexual intercourse for the first time at his apartment. (04/29/09 Doe Dep. Tr. at 13, 27, 30; City 56.1 Stmt. ¶ 6.) During their illegal sexual relationship, Mr. Benavides and Ms. Doe had sexual intercourse four or five times between January and June of 2007, when Mr. Benavides was removed from Richmond Hill because of this conduct. (City 56.1 Stmt. ¶¶ 7, 31-32.) During their entire relationship, Mr. Benavides knew that Ms. Doe was a minor, and Ms. Doe did not receive any special favors from Mr. Benavides as her teacher, always had the same academic responsibilities as other students in his class, and her academic work was never treated differently than other students' work. (Benavides 56.1 Stmt. ¶¶ 14-16.)

Mr. Benavides and Ms. Doe took affirmative actions to maintain the secrecy of their relationship and to avoid detection. (City 56.1 Stmt. ¶¶ 8-13.) From the first day of their relationship, Mr. Benavides instructed Ms. Doe not to tell anyone about the relationship because he could get into trouble, and, indeed, Ms. Doe did not tell anyone - including her friends - about any aspect of the relationship while it was ongoing. (Id. ¶¶ 8-9.) Ms. Doe and Mr. Benavides would also not go out in public together, would wait until everyone had left Richmond Hill -- including the janitor - to go to Mr. Benavides' classroom and kiss, and Ms. Doe had telephone conversations with Mr. Benavides on a pay phone, even alternating the pay phone that she used to speak with him. (Id. ¶ 10.) In the library, Mr. Benavides and Ms. Doe would sit in an "isolated" area at a back table behind two bookshelves and computers, and Mr. Benavides would touch Ms. Doe's hand or leg under the table, but they did not kiss. (04/29/09 Doe Dep. Tr. at 14-17.) If they were in the stairway of Richmond Hill kissing and heard someone coming toward the stairs, Mr. Benavides and Ms. Doe would immediately stop kissing and separate to avoid detection. (Id. at 19-22.) Additionally, when Ms. Doe visited Mr. Benavides, once at his mother's house, he directed Ms. Doe to take a taxi to a location several blocks away from the house and to walk to the house. (City 56.1 Stmt. ¶ 11; 04/29/09 Doe Dep. Tr. at 26-27.) Similarly, when Ms. Doe visited Mr. Benavides at an apartment to which he subsequently moved, he gave her directions while she was in a taxi using a private phone number that would not be recorded on Ms. Doe's cell phone. (City 56.1 Stmt. ¶ 12.) Finally, Mr. Benavides also left the door to his apartment open so that Ms. Doe could walk inside because he did not want anyone to see him meeting her at the front door. (Id. ¶ 13.)

At an unspecified time prior to June 2007, rumors that Mr. Benavides was Ms. Doe's boyfriend began to circulate among the students at Richmond Hill. (Id. ¶ 14.) Ms. Doe responded to this rumor by saying it was a lie and denying the rumor because she was scared something bad would happen to Mr. Benavides if anyone learned of their relationship. (Id. ¶ 15.) On Wednesday, June 6, 2007, one of Ms. Doe's friends ("Student A") informed Raffaella Mottola, Ms. Doe's global studies teacher, about a relationship between Ms. Doe and Mr. Benavides. (Id. ¶ 17.) Specifically, at the beginning of the class period, Student A told Ms. Mottola that (1) Ms. Doe was in trouble with her mother because she had exceeded the minutes on her cell phone, (2) there was a blocked or restricted number on Ms. Doe's phone, (3) Mr. Benavides was the person who was calling Ms. Doe, and (4) Mr. Benavides and Ms. Doe were dating. (Id. ¶¶ 18-19.) That same day, immediately after the class period ended, Ms. Mottola informed Kimberly Himonides, the assistant principal of guidance, about her conversation with Student A. (Id. ¶ 21.) Ms. Mottola and Assistant Principal Himonides then immediately spoke with Principal Frances De Sanctis regarding what Student A had told Ms. Mottola, and Principal De Sanctis immediately called the Office of the Special Commissioner of Investigation for the New York City School District ("SCI") to report what Ms. Mottola had told her. (Id. ¶¶ 22-23.) Ms. Mottola and Principal De Sanctis stated in their depositions that they never had any suspicion that there was an inappropriate relationship between Ms. Doe and Mr. Benavides prior to the conversation with Student A. (ECF No. 103-4, Transcript of Deposition of Raffaella Mottola dated June 3, 2009 ("Mottola Dep. Tr.") at 42-44, 51, 60; ECF No. 103-5, Transcript of Deposition of Frances De Sanctis dated June 2, 2009 ("De Sanctis Dep. Tr.") at 45, 49.)

On Thursday, June 7, 2007, based on the intake complaint from Principal De Sanctis that Ms. Mottola had informed her that Mr. Benavides and Ms. Doe were "together" and in "inappropriate relations," SCI Investigator Andre Jenkins contacted Principal De Sanctis to schedule interviews that he and another investigator would perform at the school the next day. (City 56.1 Stmt. ¶¶ 24-25; Transcript of Deposition of Andrew Jenkins dated November 30, 2009 (attached as Exhibit B to Pls. Decl.) ("Jenkins Dep. Tr.") at 27-28, 33-35.)*fn3 On Friday, June 8, 2007, Investigator Jenkins interviewed Ms. Doe, Mr. Benavides, Principal De Sanctis, Ms. Mottola, Student A, and two other students at Richmond Hill.*fn4 (City 56.1 Stmt. ¶ 26; Jenkins Dep. Tr. at 27-28.) Although Ms. Doe initially denied having a sexual relationship with Mr. Benavides during her interview with Investigator Jenkins, Ms. Doe ultimately admitted it. (City 56.1 Stmt. ¶ 28.) Mr. Benavides also admitted to having a sexual relationship with Ms. Doe during his interview with Investigator Jenkins. (Jenkins Dep. Tr. at 49-50.) Based on the information he learned from the interviews on June 8, Investigator Jenkins concluded that Mr. Benavides and Ms. Doe were involved in an illegal sexual relationship. (City 56.1 Stmt. ¶ 27.) On the same day, after the interviews took place, plaintiff Pilar Romero, Ms. Doe's mother, was informed at a meeting at the school of the illegal sexual relationship between her daughter and Mr. Benavides. (Id. ¶ 29.) Ms. Doe had not previously informed her mother about the relationship. (04/29/09 Doe Dep. Tr. at 57.)

Further, on June 8, 2007, after the SCI interviews had concluded, Principal De Sanctis ordered the removal of Mr. Benavides from all of his teaching responsibilities at Richmond Hill. By the following Monday, June 11, 2007, another teacher had taken over teaching Mr. Benavides' classes. (City 56.1 Stmt. ¶¶ 31-32.) Mr. Benavides was transferred to a regional NYCDOE reassignment center at which he had no interaction with children as a teacher*fn5 ; and he did not teach another NYCDOE class or return to Richmond Hill after June 8, 2007. (Id. ¶ 33-35.) Finally, Mr. Benavides was officially terminated from his position as a NYCDOE teacher in or around December 2007. (Id. ¶ 36.)

After the interviews, on June 8, 2007, Investigator Jenkins called his supervisors and advised them of what he had learned, and he was instructed "not to do anything" at that moment because the matter would be decided at a later date. (Id. ¶ 37; Pls. City 56.1 Stmt. ¶ 37; Jenkins Dep. Tr. at 52, 59-61.)*fn6

Between June 8 and June 13, 2007, there is no evidence or any assertion that Ms. Doe and Mr. Benavides saw or spoke to one another. After June 8, 2007, Investigator Jenkins continued to gather evidence regarding his investigation by subpoenaing the appropriate telephone records. (City 56.1 Stmt. ¶ 38; Jenkins Dep. Tr. at 51.) He collected this additional evidence to corroborate his conclusion that there was an illegal sexual relationship between Mr. Benavides and Ms. Doe and to ensure that the government had as much evidence as possible in the event that a criminal court excluded certain evidence. (City 56.1 Stmt. ¶ 39.) Other than his interviews of Principal De Sanctis, Ms. Mottola, and Mr. Benavides on June 8, 2007, Investigator Jenkins did not conduct any additional interviews of teachers, security officers, or other staff at Richmond Hill because he "didn't think it was necessary" as school staff members and security personnel are mandated to report any suspicious behavior observed. (Pls. City 56.1 Stmt. ¶ 39; Jenkins Dep. Tr. at 77-78.)

On June 13, 2007, pursuant to his power to arrest the subject of his investigation under N.Y. Crim. Proc. Law §§ 2.10(27), 2.20(1)(a), 140.25(1)(b) and New York City Administrative Code § 14-106(e), Investigator Jenkins arrested Mr. Benavides, and he was charged with Rape in the Second Degree, Criminal Sexual Acts in the Second Degree, and Endangering the Welfare of a Child. (City 56.1 Stmt. ¶¶ 40, 42, 48; Jenkins Dep. Tr. at 22.) The Criminal Court of the City of New York in Queens County also entered an Order of Protection on June 13, 2007, prohibiting Mr. Benavides from having any contact with Ms. Doe or visiting her home or school. (See ECF 103-7, Statement of Investigator Jenkins to the New York State Criminal Court, Queens County, dated October 17, 2007 ("Jenkins Stmt.").) After he was arrested and released on bail, Mr. Benavides saw Ms. Doe on four occasions on three distinct days, thereby violating the terms of the Order of Protection. (City 56.1 Stmt. ¶ 48.) Mr. Benavides saw Ms. Doe on these four occasions at locations not associated with the NYCDOE, including near Ms. Doe's house, outside a hair salon, at a friend's house, and at a Starbucks at LaGuardia Airport, the last of which meeting occurred on July 6, 2007. (Id. ¶ 49; Pls. City 56.1 Stmt. ¶ 49; see also 04/29/09 Doe Dep. Tr. at 46-49; Jenkins Stmt.) As a result of the violation of the Order of Protection, Investigator Jenkins arrested Mr. Benavides a second time. (City 56.1 Stmt. ¶ 50.) Mr. Benavides subsequently pleaded guilty to a statutory rape charge and served a prison term beginning in or around December 2007 and ending in a parole release in November 2009. (Id. ¶ 51.)

SCI generally contacts the New York City Police Department (the "NYPD") if the initial complaint of wrongful conduct to SCI suggests that criminal activity may be occurring, and the NYPD will then determine whether it will conduct the investigation. (Id. ¶ 43; see also Jenkins Dep. Tr. at 56 ("[I]f there's an allegation made, and there's a clear indication [of] a sexual relationship between a [NYCDOE] employee and any male or female under the age of seventeen, we automatically refer that case to the [NYPD].").) Where, as in the instant case, the initial complaint to SCI does not necessarily allege conduct that would constitute a crime but SCI later determines that a crime has been committed during the course of its investigation, SCI has the discretion to handle the investigation and effect the arrest. (City 56.1 Stmt. ¶ 44-45; Jenkins Dep. Tr. at 56-60.) Here, the classification of the initial complaint, based on the information reported to SCI intake over the phone by Principal De Sanctis on June 6, 2007, was an "inappropriate relationship," a non-criminal classification, rather than a criminal classification such as "rape" or "sexual relationship."*fn7

Consequently, SCI conducted the investigation and effected the arrest after determining that Mr. Benavides was involved in an illegal sexual relationship, rather than referring the case to the NYPD. (City 56.1 Stmt. ¶ 46; Jenkins Dep. Tr. at 33-34, 57-58.)

Plaintiffs appear to dispute the City Defendants' assertions that they would have referred the case to the NYPD if the initial intake complaint was classified as criminal, citing testimony by Investigator Jenkins in which he states that, when he called his supervisors following the interviews on June 8, 2006 regarding the case, "there would not have been any discussion about calling the police, because we have arrest powers, and at [that] time, if it was decided to do an arrest at whatever point, we were going to do it." (Pls. City 56.1 Stmt.

¶¶ 43-44 (citing Jenkins Dep. Tr. at 66).) Plaintiffs do not dispute, however, that SCI generally does not contact the NYPD when an active investigation ultimately reveals that a crime has been committed. (City 56.1 Stmt. ¶ 47; Pls. City 56.1 Stmt. ¶ 47.) There is no evidence that plaintiff Pilar Romero was prevented by defendants from calling the police at any time after she learned of her daughter's illegal relationship sexual relationship on June 8, 2007.

DISCUSSION

I.Summary Judgment Standard

The court shall grant summary judgment only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A fact is 'material' for these purposes when it 'might affect the outcome of the suit under the governing law.'" Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Anderson, 477 U.S. at 248). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (citation omitted). Moreover, no genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the moving party. Id. Nevertheless, the nonmoving party may not rest merely on allegations or denials but must instead set out specific facts, supported by admissible evidence, showing a genuine issue for trial. See id. ("To defeat a summary judgment motion, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." (citations omitted)).

II. Application

A.Claims Against the City and Dismissal of Claims Against SCI, a Non-Suable Entity

Before reaching the substance of defendants' motions for summary judgment, the court notes that the NYCDOE*fn8 is a separate legal entity from the City and "the City cannot be liable for the acts of [the NYCDOE] or its employees." Chapman v. City of New York, No. 06-CV-3153(ENV)(JMA), 2011 U.S. Dist. LEXIS 34221, at *13-16 (E.D.N.Y. Mar. 25, 2011) (quoting Moore v. City of New York, No. 08 Civ. 8879, 2010 U.S. Dist. LEXIS 19183, at *15-16 (S.D.N.Y. Mar. 2, 2010)); Fierro v. City of New York, 591 F. Supp. 2d 431, 446 (S.D.N.Y. 2008) ("Courts in this circuit as well as the New York State courts have made clear that the City of New York and the [NYCDOE] are separate legal entities. . . . Because plaintiff alleges acts committed by the [NYCDOE] and its employees, the City of New York is not a proper party."); Linder v. City of New York, 263 F. Supp. 2d 585, 590 (E.D.N.Y. 2003) (dismissing claims against the City because "the [NYCDOE] is an entity separate from the City itself and the City is not liable for torts committed by [the NYCDOE]." (citation omitted)).

Moreover, there is no dispute that Principal De Sanctis, Assistant Principal Himonides, Ms. Mottola, Mr. Benavides, and all other employees who worked at Richmond Hill that are relevant to this case are or were NYCDOE employees and were never directly employed by the City during the relevant period. Indeed, plaintiffs do not make any allegations against the City that are separate and distinct from those against the NYCDOE and SCI, and there are no City officials or agents mentioned in the record other than those affiliated with the NYCDOE and SCI. Accordingly, to the extent claims against the City are predicated on the acts and omissions of the NYCDOE or its employees, such claims are dismissed as a matter of law.

The City is, however, the appropriate entity to be sued for the acts of the New York City Department of Investigation (the "DOI") and its subdivision SCI and their respective employees because the DOI and SCI are not suable entities. See Morris v. Katz, No. 11-CV-3556 (JG), 2011 U.S. Dist. LEXIS 100961, at *15-16 (E.D.N.Y. Sept. 4, 2011) (finding that the "DOI . . . as [an agency] of the City of New York, lack[s] independent legal existence and cannot be sued" (citing N.Y.C. Charter § 396 ("All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the [C]ity of New York and not in that of any agency, except where otherwise provided by law."))); Siino v. Dep't of Educ. of the City of N.Y., 843 N.Y.S.2d 828, 829 (N.Y. App. Div. 1st Dep't 2007) (finding that the DOI is not properly named a defendant (citing N.Y.C. Charter § 396)); see also Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008) (noting that "Section 396 of the [New York City] Charter has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued." (citing Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007)). Accordingly, while the court will continue to refer to SCI for the purposes of this opinion, any claims against SCI shall be dismissed because all such claims are properly brought against the City, which is already a named defendant. See Alleva v. New York City Dep't of Investigation, 696 F. Supp. 2d 273, 276 n.2 (E.D.N.Y. 2010) ("When claims 'are brought against non-suable entities,' the Court may construe them 'as brought against the City of New York.'" (citation omitted)).

B.Sex Discrimination in Violation of Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681) Plaintiffs claim that all defendants engaged in seX discrimination against Ms. Doe in violation of Title IX of the Education Amendments of 1972, codified as 20 U.S.C. §§ 1681 et seq. ("Title IX"). Section 901(a) of Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Title IX thus prohibits discrimination against any student based on gender in educational programs receiving federal funding. The Supreme Court has recognized an implied private right of action under Title IX for which both injunctive relief and damages are available. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009) (citations omitted).

As an initial matter, plaintiff Pilar Romero cannot recover on any derivative claim under Title IX or Section 1983, as there is no allegation or evidence that she was subjected to discrimination under a federally funded education program, nor that her civil rights were violated. See Bliss v. Putnam Valley Cent. Sch. Dist., No. 7:06-cv-15509 (WWE), 2011 U.S. Dist. LEXIS 35485, at *8 (S.D.N.Y. Mar. 24, 2011) (finding that father of a student victim of sexual assault by a teacher "cannot recover on any derivative claim based on Title IX or a section 1983 civil rights violation"); Zamora v. N. Salem Cent. Sch. Dist., 414 F. Supp. 2d 418, 427 (S.D.N.Y. 2006) (finding that the mother of a fifth-grade student who was the victim of sexual harassment by a teacher cannot sustain derivative claims based on Title IX or Section 1983). Although Ms. Romero initiated this action when Ms. Doe was still a minor and was a proper party as mother and natural guardian of Ms. Doe, she asserts no independent federal claims. Moreover, Ms. Doe is now of legal age to be substituted as the real party in interest, as provided by Federal Rule of Civil Procedure 17(a). See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997) ("A Rule 17(a) substitution of plaintiffs should be liberally allowed when the change is merely formal and in no way alters the original complaint's factual allegations as to the events or the participants."). Accordingly, plaintiff Pilar Romero's claims pursuant to Title IX and Section 1983 are dismissed, and Jane Doe is substituted as the real party in interest.

The court will next address plaintiff Jane Doe's claims under Title IX against each defendant in turn.

1.The NYCDOE

Title IX prohibits sex discrimination "under any education program or activity receiving Federal financial assistance," 20 U.S.C. § 1681(a), and thus "allows a student to assert a private cause of action against the recipient of the federal funding for the denial of access to education." Miotto v. Yonkers Pub. Schs., 534 F. Supp. 2d 422, 426 (S.D.N.Y. 2008). It is undisputed that the NYCDOE receives federal funding for Title IX purposes and that it is properly named a defendant. (See Compl. ¶¶ 3-4).

The Supreme Court has squarely addressed the issue of whether institutional actors such as the NYCDOE can be liable for damages under Title IX where a teacher sexually harasses a student. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), the Supreme Court held that a school district can be held liable in damages under Title IX in cases involving a teacher's sexual harassment of a student. Id. at 74-75.

Subsequently, in a case very similar to this one, the Supreme Court defined the contours of institutional liability in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), where a teacher had a sexual relationship with an eighth-grade student that was not reported to school officials and the student sued the school district under Title IX. Id. at 277-78. The Court held, with respect to the school district, that "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 elaborating on what amounts to a failure to adequately respond, the Supreme Court held that the response must amount to "deliberate indifference" - or "an official decision by the recipient not to remedy the violation." Id. at 290-91.

One year after Gebser, in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), the Supreme Court extended damages liability for Title IX funding recipients to cases of student-on-student harassment, but only where the Title IX recipient acted with actual knowledge of acts of harassment and with deliberate indifference. The Davis Court elaborated on its decision in Gebser:

[In Gebser], we rejected the use of agency principles to impute liability to the district for the misconduct of its teachers. Likewise, we declined the invitation to impose liability under what amounted to a negligence standard - holding the district liable for its failure to react to teacher-student harassment of which it knew or should have known. Rather, we concluded that the district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge. . . . [T]he misconduct of the teacher in Gebser was not 'treated as the grant recipient's actions.' Liability arose, rather, from 'an official decision by the recipient not to remedy the violation.' By employing the 'deliberate indifference' theory . . ., we concluded in Gebser that recipients could be liable in damages only where their own deliberate indifference effectively 'cause[d]' the discrimination. The high standard imposed in Gebser sought to eliminate any 'risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions.'"

Id. at 642-43 (internal citations omitted). The Court also stressed that its decision does not require that school administrators engage in any particular disciplinary action and that "administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed 'deliberately indifferent' . . . only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Id. at 648 (emphasis added).

The court will now address the two requirements of Gebser, actual knowledge and deliberate indifference, in the context of the NYCDOE's summary judgment motion.

a. Actual Knowledge

As established by Gebser, for an educational institution to be liable under Title IX, "the plaintiff must establish that a school official with 'authority to address the alleged discrimination and to institute corrective measures' had 'actual knowledge' of the discrimination . . . ." Papelino v. Albany College of Pharm. of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011) (quoting Gebser, 524 U.S. at 290). The Second Circuit has stated that "[r]equiring actual, as opposed to constructive, knowledge [of the alleged sexual harassment] imposes a greater evidentiary burden on a Title IX claimant [than a Title VII claimant]." Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir. 2003).

Here, it is undisputed that Richmond Hill's Assistant Principal Himonides and Principal De Sanctis were informed of a possible relationship between Mr. Benavides and Ms. Doe on June 6, 2007, the same day Principal De Sanctis reported this information to SCI. (City 56.1 Stmt. ¶¶ 22-23; Pls. City 56.1 Stmt. ¶¶ 22-23.) It is also not disputed that Assistant Principal Himonides and Principal De Sanctis lacked actual knowledge of an illegal sexual relationship between Mr. Benavides and Ms. Doe until June 8, 2007, after Investigator Jenkins conducted his interviews. (See City 56.1 Stmt. ¶¶ 27, 31; Pls. City 56.1 Stmt. ¶¶ 27, 31.) Principal De Sanctis unquestionably had authority to, and actually did, address the alleged gender-based discrimination and institute remedial measures upon learning on June 8th that Mr. Benavides and Ms. Doe had an illegal sexual relationship, including removing Mr. Benavides from all of his teaching responsibilities and transferring him to a reassignment center. (See City 56.1 Stmt. ¶¶ 31-33.) Accordingly, the undisputed evidence in the record establishes that Assistant Principal Himonides and Principal De Sanctis had actual knowledge of a possibly inappropriate relationship between Mr. Benavides and Ms. Doe on June 6, 2007, and of an illegal sexual relationship on June 8, 2007.

Unsupported by admissible evidence, plaintiffs assert that Ms. Mottola knew of the relationship as early as May 2007 -- a month earlier.*fn9 (Pls. City 56.1 Stmt. ¶¶ 16, 17, 20, 30.) In support of their position, plaintiffs cite only the deposition testimony of Ms. Doe in which she testified that her friends told her that another student told Ms. Mottola about rumors "that something was happening" between Ms. Doe and Mr. Benavides "[l]ike around May . . . [o]r April 2007." (04/29/09 Doe Dep. Tr. at 22-23.) Ms. Doe did not identify any of the students and there is no evidence in the record as to the identities of the students and what they did or did not report to a teacher as of April or May 2007. In her subsequent deposition, Ms. Doe testified that Ms. Mottola knew of the relationship "probably a few days prior [to June 6, 2007]. A month prior." (ECF No. 103-2, Transcript of Deposition of Jane Doe dated January 14, 2010 ("01/14/10 Doe Dep. Tr.") at 26.) Ms. Doe also testified, however, that she "do[es] not know the exact date [Ms. Mottola was told about the relationship] but I know she was told." (Id. at 28.)

On the other hand, Ms. Mottola, on numerous occasions in her deposition, flatly denied having any knowledge, or even any suspicion, of a relationship between Ms. Doe and Mr. Benavides prior to her conversation with Student A on June 6, 2007. (Mottola Dep. Tr. at 42-44, 51, 60.) Ms. Doe's deposition testimony is vague at best, describes multiple hearsay statements, and is "not significantly probative." Anderson, 477 U.S. at 249-50. As the only evidence in the record suggesting actual knowledge by a NYCDOE official of any sort of sexual harassment or inappropriate relationship prior to June 6, 2007, Ms. Doe's testimony is insufficient to establish a genuine dispute of material fact on the issue of actual knowledge "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.

Moreover, even if Ms. Doe's deposition testimony was unequivocal that Ms. Mottola was told about the relationship prior to June 6, 2007, Ms. Doe has no personal knowledge regarding what, when, and under what circumstances an unidentified classmate told Ms. Mottola about the relationship. Rather, Ms. Doe only recounted rumors that she heard from other unidentified students. Accordingly, plaintiff has thus failed to present admissible evidence sufficient to establish a genuine dispute of fact as to whether the NYCDOE had actual knowledge of an inappropriate relationship between Ms. Doe and Mr. Benavides prior to June 6, 2007. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) ("In order to defeat a properly supported summary judgment motion, the opposing party must proffer admissible evidence . . . .").*fn10

In light of the Supreme Court's clear rejection of "an objective ('should have known') test for deliberate indifference in the Title IX context," the Second Circuit has recognized that "[i]t would be inappropriate to base finding of discriminatory intent on a defendant's failure to respond to circumstances that were not actually known to him, even if he reasonably should have known." Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 n.6 (2d Cir. 1999); see also Crandell v. New York College of Osteopathic Med., 87 F. Supp. 2d 304, 320 (S.D.N.Y. 2000) ("The institution at minimum must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based.").

In Tesoriero v. Syosset Cent. Sch. Dist., 382 F. Supp. 2d 387 (E.D.N.Y. 2005), a Title IX case involving sexual harassment by a male teacher of two female high school students who were also sisters, the court discussed what kind of notice is sufficient to satisfy Gebser's actual knowledge standard. After recognizing that "Title IX liability does not attach simply because a school 'should have known' about sexual abuse" and that "actual notice also requires more than a simple report of inappropriate conduct by a teacher," the court found "that, on the other hand, the actual notice standard does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual abuse from the plaintiff-student." Id. at 397 (citations and quotation marks omitted). The court concluded that "[m]ost federal courts appear to agree that the 'actual knowledge' need only be of facts indicating that the teacher has the potential to abuse a student." Id. (emphasis in original) (citation omitted).

Pursuant to this standard, the court in Tesoriero denied summary judgment finding a triable issue of fact as to whether the school district had actual notice of the teacher's potential to harass one of the students based on the following "strong evidence" in the record: (1) the principal knew that the teacher had given the students gifts such as body lotion, offered to tutor them for free, telephoned their home, and attended their track meets; (2) the principal had heard that the students' father had called the teacher and demanded that he stop paying special attention to his daughters; (3) the principal received a credible report that another teacher had observed one of the students and the offending teacher interacting in a manner suggesting romantic involvement; and (4) the principal had seen a letter from the offending teacher to one of the students written in terms that were "over the line." Id. at 398. There was also evidence in the record of a prior call by the students' father to the assistant principal to discuss his concerns regarding the teacher and of a meeting between one of the students and the high school psychologist to discuss the situation. Id. at 391-92.

In contrast to Tesoriero, there are not sufficient facts from which a reasonable jury could infer actual notice of Mr. Benavides' sexual harassment or assault of Ms. Doe - or even his potential to abuse a student - prior to June 6, 2007. Other than Student A's conversation with Ms. Mottola on June 6, 2007, there is no evidence in the record from an individual with personal knowledge that any NYCDOE administrator or employee observed or was told about a possible relationship between Mr. Benavides and Ms. Doe.*fn11

As described in detail above, it is undisputed that Mr. Benavides and Ms. Doe employed extensive and elaborate measures to keep their relationship a secret and to avoid detection, including but not limited to communicating by computer and instant messenger after school hours, using "blocked" phone numbers, waiting until everyone, even the janitor, had left the school to kiss in Mr. Benavides' classroom, alternating the use of pay phones to call each other, and Ms. Doe traveling by taxi to a location several blocks away from Mr. Benavides' home. (See City 56.1 Stmt. ΒΆΒΆ 8-13, 18-19; 04/29/09 Doe Dep. Tr. at 8-10.) Indeed, it is uncontested that, at Mr. Benavides' insistence, Ms. Doe did not tell a single person - including her friends or her mother - about any aspect of her relationship with Mr. Benavides until her interview with Investigator Jenkins, and Ms. Doe denied any rumors about their ...


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