Opinion
19-CV-7011 (MKB)
2023-11-13
A.W., BY his father and legal guardian, E.W., Plaintiff, v. NEW YORK DEPARTMENT OF EDUCATION, and Aries Baluyot, in his individual and official capacity, Defendants.
Evan Brustein, Brustein Law PLLC, New York, NY, Joshua Tarrant-Windt, Brian L. Bromberg, Bromberg Law Office, P.C., Brooklyn, NY, for Plaintiff. Kendra Elise Riddleberger, Kimberly Marie Joyce, New York City Law Department, New York, NY, for Defendant New York Department of Education. Douglas G. Rankin, Law Offices of Douglas G. Rankin and Associates, PC, Brooklyn, NY, for Defendant Aries Baluyot.
Evan Brustein, Brustein Law PLLC, New York, NY, Joshua Tarrant-Windt, Brian L. Bromberg, Bromberg Law Office, P.C., Brooklyn, NY, for Plaintiff.
Kendra Elise Riddleberger, Kimberly Marie Joyce, New York City Law Department, New York, NY, for Defendant New York Department of Education.
Douglas G. Rankin, Law Offices of Douglas G. Rankin and Associates, PC, Brooklyn, NY, for Defendant Aries Baluyot.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Plaintiff A.W., by his father and legal guardian E.W., commenced the above-captioned action against Defendants the New York Department of Education (the "DOE") and Aries Baluyot, a paraprofessional employed by the DOE, on December 13, 2019. (Compl., Docket Entry No. 1.) Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 against Baluyot for unlawful seizure, substantive due process violations, equal protection violations, and excessive force, as well as state law claims for assault, battery, and false imprisonment. (Second Am. Compl. ("SAC"), Docket Entry No. 25.) Plaintiff also asserts that the DOE is liable for the state law claims against Baluyot under a theory of respondeat superior. (SAC ¶¶ 73-78.) Plaintiff seeks compensatory and punitive damages for the assault Plaintiff allegedly suffered from Baluyot on December 17 and 18 of 2018. (See id. ¶ 2; id. at 11-12.)
Plaintiff's initial complaint named the City of New York as a defendant, but the First and Second Amended Complaints named only the DOE and Baluyot. (See Am. Compl., Docket Entry No. 16; Second Am. Compl. ("SAC"), Docket Entry No. 25.) Accordingly, on March 24, 2020, the Court terminated the City of New York as a party.
The DOE moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, as to Plaintiff's respondeat superior claim against the DOE. The DOE contends that Baluyot's alleged conduct was unrelated to his role as a DOE employee, and therefore, even if such conduct occurred, the DOE cannot be held liable. (Def.'s Mem. 1.) For the reasons set forth below, the Court denies the DOE's motion for summary judgment.
(Def.'s Not. of Mot. for Summ. J. ("Def.'s Mot."), Docket Entry No. 77; Def.'s Mem. of Law in Supp. of Def.'s Mot. ("Def.'s Mem."), Docket Entry No. 80; Def.'s Reply Mem. in Supp. of Def.'s Mot. ("Def.'s Reply"), Docket Entry No. 84; (Def.'s R. 56.1 Stmt. ("Def.'s 56.1) ¶ 14, Docket Entry No. 79; Pl.'s Mem. of Law in Opp'n to Def.'s Mot. ("Pl.'s Mem."), Docket Entry No. 81); Pl.'s Response to Def.'s 56.1 Stmt. ("Pl.'s 56.1") ¶¶ 97-104, Docket Entry No. 82.)
I. Background
a. The parties
Plaintiff A.W. is a minor diagnosed with mild to moderate autism, is minimally verbal, struggles to communicate, and has a
limited vocabulary. (Pl.'s 56.1 ¶¶ 3-4.) Plaintiff's father, E.W., is A.W.'s legal guardian. (Id. ¶ 2.) In 2018, during the relevant period, A.W. attended P.S. 721K, a school that "specifically services students who have significant cognitive and/or physical disabilities and require specialized instruction and staffing." (Pl.'s 56.1 ¶¶ 5-6; Def.'s Excerpt of Dec. 16, 2021 Dep. of Barbara Tremblay 5:10-15, annexed to Decl. of Kendra Elise Riddleberger ("Riddleberger Decl.") as Ex. C, Docket Entry No. 78-3.) All students at P.S. 721K have Individualized Education Plans ("IEPs") that outline what services the students require. (Pl.'s 56.1 ¶¶ 8-9.) A.W.'s IEP required that he be in a "12:1:1 classroom" (i.e., twelve students, one special education teacher, and one paraprofessional), and it also included a behavior intervention plan. (Id. ¶¶ 10-11.) A.W. would sometimes have trouble keeping his hands to himself, and Barbara Tremblay — the principal of P.S. 721K — or other teachers would sometimes need to physically put A.W.'s arms down to keep him from misbehaving. (Id. ¶ 52.) While staff members are allowed to use reasonable force to prevent a student from hurting themselves or hurting someone else, school regulations prohibit the use of physical force for the purpose of punishing a pupil. (Id. ¶¶ 37, 51.)
Unless otherwise noted, the facts are undisputed by the parties and are presented in the light most favorable to Plaintiff, as the nonmoving party. See Horror Inc. v. Miller, 15 F.4th 232, 240 (2d Cir. 2021) ("When ruling on a summary judgment motion, the court construes the evidence before it in the light most favorable to the nonmoving party and resolves all ambiguities and draws all reasonable inferences against the moving party." (first citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and then citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))).
Because the excerpt of Principal Barbara Tremblay's deposition of December 16, 2021, submitted in support of the DOE's motion for summary judgment, did not include the original transcript page numbers, the Court refers to the page numbers assigned by the electronic case filing system.
Baluyot is a paraprofessional employed by the DOE and has been assigned to P.S. 721K for twenty years. (Id. ¶¶ 24-26.) As a paraprofessional, his role is to assist teachers in various ways, including by maintaining a safe environment, escorting students to support services and other out-of-class activities, and reinforcing social, cognitive, behavioral, and instructional objectives as specified by the teacher. (Id. ¶¶ 26-27.) Baluyot worked during the day as a paraprofessional from 8:00 AM to 2:50 PM, (id. ¶ 29), and also worked as a cleaner for the DOE in the evenings from 3:00 PM to 7:00 PM, (id. ¶ 30). Plaintiff contends that Baluyot carried out cleaning duties during the school day, as well. (Id. ¶¶ 30-32.) Baluyot oversaw students in what he described as an "externship" each day from 10:00 AM to 1:00 PM, during which students would help him "collect garbage" and "run errands" such as "bringing stuff from the main office to the classroom." (Id. ¶ 30; March 14, 2022 Dep. of Aries Baluyot ("Baluyot Mar. 14, 2022 Dep.") 11:3-14:2, annexed to the Decl. of Brian L. Bromberg ("Bromberg Decl.") as Ex. B, Docket Entry No. 83-2.)
b. The alleged incidents
Plaintiff alleges that on December 17 and 18 of 2018, Baluyot took A.W. to the basement of P.S. 721K and beat A.W. with a stick or ruler multiple times. (Pl.'s 56.1
In its summary judgment motion, the DOE does not meaningfully dispute whether the beating took place but argues instead that even if the beating took place as alleged, respondeat superior liability cannot properly be applied to hold it liable for Baluyot's alleged actions. (See Def.'s Mem. 1 ("[T]he DOE is entitled to summary judgment because even if the alleged conduct did occur, which the DOE does not concede, such conduct was wholly unrelated to Bal[u]yot's role as a DOE paraprofessional, as he was acting outside the scope of his employment. As such, the DOE cannot be held liable for Baluyot's actions....").) Accordingly, the Court assumes for the purpose of this summary judgment motion that the beating took place as alleged.
¶ 14; SAC ¶ 2.) On December 17, at approximately 4:00 PM, A.W. told E.W. that Baluyot had hit him. (Pl.'s 56.1 ¶ 100.) E.W. initially brushed the comment off, but on Thursday, December 20, E.W. walked into A.W.'s room while he was changing clothes and observed large bruises on his upper thigh and asked A.W. what had caused them. (Id. ¶¶ 15, 101-04.) A.W. responded that on December 17 and 18 around 10:00 AM or 11:00 AM, Baluyot had taken A.W. to the school basement and hit him. (Id. ¶¶ 15, 104.) On Friday, December 21, E.W. shared photos of the bruises with Principal Tremblay, who was "appalled by the photographs." (Id. ¶ 20.) The same day, E.W. filed a police report against Baluyot, and Baluyot was subsequently arrested and "removed" from P.S. 721K, returning to the same role in July of 2019. Baluyot was neither fired nor disciplined, and he was given no additional training. (Id. ¶¶ 105-07.) As of the date of parties' filings, Baluyot was still employed at P.S. 721K. (Id. ¶ 108.)
(Pl.'s 56.1 ¶¶ 22-23; Dep. of E.W. ("E.W. Dep.") 100:20-25, annexed to Riddleberger Decl. as Ex. B, Docket Entry No. 78-2; Def.'s Excerpt of Dec. 17, 2021 Dep. of Aries Baluyot ("Baluyot Dec. 17, 2021 Dep.") 19:16-20, 91:16-18, annexed to Riddleberger Decl. as Ex. D, Docket Entry No. 78-4; Pl.'s Excerpt of Baluyot Dec. 17, 2021 Dep. 94:12, Docket Entry No. 83-1.)
II. Discussion
a. Standard of review
Summary judgment is proper only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022) (quoting Fed. R. Civ. P. 56(a)). The court must "constru[e] the evidence in the light most favorable to the nonmoving party," Radwan, 55 F.4th at 113 (alteration in original) (quoting Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011)), and "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought," Koral v. Saunders, 36 F.4th 400, 408 (2d Cir. 2022) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The role of the court "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kee v. City of New York, 12 F.4th 150, 167 (2d Cir. 2021) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Id. The court's function is to decide whether, "after resolving all ambiguities and drawing all inferences in favor of the nonmovant, a reasonable jury could return a verdict for the nonmovant." Miller v. N.Y. State Police, No. 20-CV-3976, 2022 WL 1133010, at *1 (2d Cir. Apr. 18, 2022) (first citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505; and then citing Garcia v. Hartford Police Dep't, 706 F.3d 120, 127, 129 (2d Cir. 2013)).
b. Plaintiff's respondeat superior claims
The DOE argues that summary judgment is warranted because even if the
assault occurred as Plaintiff alleged, the evidence shows that Baluyot's conduct was unrelated to his role as a DOE paraprofessional, and therefore he was not acting in the scope of his employment. (Def.'s Mem. 1.) The DOE contends that as a result, Plaintiff cannot satisfy the five-factor test set forth by the New York Court of Appeals in Riviello v. Waldron, 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979), as required to show that an employee's actions were within the scope of their employment such that respondeat superior liability applies. (Def.'s Mem. 3-7.)
The parties do not dispute that New York law applies to address the DOE's potential liability under a respondeat superior theory. The vicarious liability alleged is available only as to the state law claims against Baluyot, not the section 1983 claims, and therefore the Court addresses Plaintiff's claim under Riviello's five-factor test. See Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (acknowledging the Supreme Court's confirmation that supervisory liability under section 1983 "cannot be premised on a theory of respondeat superior") (citing Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also Palmer v. City of New York, 564 F. Supp. 3d 221, 252 (E.D.N.Y. 2021) (observing that "supervisory officials may not be held liable under [s]ection 1983 'for the conduct of a lower-echelon employee solely on the basis of respondeat superior,'" but that "such defendants may be liable for the state-law torts committed by their employees under the theory of respondeat superior" (first quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991); and then citing Ackerson v. City of White Plains, 702 F.3d 15, 22 (2d Cir. 2012))).
Plaintiff argues that he has raised a triable issue of fact as to whether Baluyot was acting within the scope of his employment when he hit Plaintiff. (Pl.'s Mem. 1-2.) In support, Plaintiff argues that the evidence demonstrates the attack occurred inside A.W.'s school, during school hours, while A.W. was assigned to Baluyot's supervision, and for the purpose of disciplining A.W. (Id. at 1-2.) Plaintiff further contends that the DOE had prior notice of Baluyot's history of using force on students but had failed to adequately respond, and that the use of a ruler or stick to discipline students is a well-known pedagogical tool, even if it is prohibited under DOE regulations. (Id. at 2, 12-13.) Plaintiff argues that "the only actual question raised by [the] DOE is whether Baluyot's use of force was so unexpected that it was outside the scope of his employment for purposes of respondeat superior." (Id. at 2.)
Under New York law, "an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 (2002) (citing Riviello, 47 N.Y.2d at 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278); see Rivera v. State, 34 N.Y.3d 383, 389, 142 N.E.3d 641 (2019) ("Under the common-law doctrine of respondeat superior, an employer — including the State — may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment." (citing Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999))); see also Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 161 (2d Cir. 2014) (citing Riviello, 47 N.Y.2d at 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278). This doctrine applies both to intentional torts and to negligence, "so long as the tortious conduct is generally foreseeable and a natural incident of the employment." Judith M., 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (citing Riviello, 47 N.Y.2d at 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278); see also
Rivera, 34 N.Y.3d at 389, 142 N.E.3d 641 ("[T]he employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." (quoting Judith M., 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95)); Carnegie v. J.P. Phillips, Inc., 28 A.D.3d 599, 815 N.Y.S.2d 107, 108-09 (App. Div. 2006).
An employer will not be responsible for the torts of an employee who is not acting in furtherance of his employer's business or who acts only on personal motives. See N.X., 97 N.Y.2d at 251-52, 739 N.Y.S.2d 348, 765 N.E.2d 844 (holding that hospital employee's sexual assault of patient was outside the scope of employment); Judith M., 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 (holding that hospital orderly's sexual assault of patient was outside the scope of employment); see also Turley, 774 F.3d at 161 ("Because it is usually motivated by something personal, harassment, however egregious, ordinarily does not fall within the scope of employment." (citations omitted)). But even where personal motives are involved, it is "well established that intentional torts may still fall within the scope of employment, and the motivation for such conduct ... is but one of several for [the court's] consideration pertaining to whether such acts were foreseeable as 'a natural incident of the employment.'" M.K. v. State, 216 A.D.3d 139, 191 N.Y.S.3d 538, 542 (App. Div. 2023) (quoting Rivera, 34 N.Y.3d at 389, 142 N.E.3d 641). Particularly "in cases involving a use of force, whether an employee is acting within the scope of employment requires consideration of whether the employee was authorized to use force to effectuate the goals and duties of the employment." Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641 (citing Sauter v. N.Y. Tribune, Inc., 305 N.Y. 442, 445, 113 N.E.2d 790 (1953)). Where an employee's role is such that "some physical contact with others is permissible or even expected,... the question may be one of degree and not kind [and] the vicarious liability issue may be appropriately left to the fact-finder." Id.
Factors relevant to a determination of whether an employee's acts fall within the scope of employment include:
[1] the connection between the time, place and occasion for the act; [2] the history of the relationship between employer and employee as spelled out in actual practice; [3] whether the act is one commonly done by such an employee; [4] the extent of departure from normal methods of performance; and [5] whether the specific act was one that the employer could reasonably have anticipated (i.e., whether it was foreseeable).
Rivera, 34 N.Y.3d at 389-90, 142 N.E.3d 641 (quoting Riviello, 47 N.Y.2d at 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278); see also Agyin v. Razmzan, 986 F.3d 168, 184-85 (2d Cir. 2021) (citing to the Riviello factors and stating that "[a]n employee must also act at least 'in part to benefit the employer'" (quoting Sharkey v. Lasmo (AUL Ltd.), 992 F. Supp. 321, 329 (S.D.N.Y. 1998))). "While all five factors are considered, New York courts generally place greater emphasis on the fifth factor, namely, whether the acts involved ... could reasonably have been anticipated by [the] employer." Mingo v. United States, 274 F. Supp. 2d 336, 346 (E.D.N.Y. 2003). Whether an employee was acting within the scope of his employment is a fact-dependent inquiry typically left to the jury. See Golodner v. Quessant Inc., No. 05-CV-7895, 2007 WL 2844944, at *4 (S.D.N.Y. Sept. 27, 2007) (citing EEOC v. Die Fliedermaus, 77 F. Supp. 2d 460, 473 (S.D.N.Y. 1999)). Construing the evidence in Plaintiff's favor, the Court denies the DOE's motion for summary judgment because a genuine dispute of fact remains as to whether Baluyot's alleged conduct was within the scope of his employment as a paraprofessional with the DOE.
i. Time, place, and occasion
The DOE argues that although the alleged assault occurred on school grounds during the school day, the first factor nevertheless weighs in the DOE's favor because the incident "took place in the basement of PS 721K, a location within the school where students were not permitted and where Baluyot had no legitimate reason to be while on duty as a paraprofessional." (Def.'s Mem. 4.)
Plaintiff argues that the first factor is satisfied because it is undisputed that the alleged assault took place during school hours and while Baluyot was on duty as a paraprofessional. (Pl.'s Mem. 4.) In addition, Plaintiff argues that the evidence demonstrates that on the days in question, Baluyot was assigned to supervise Plaintiff because of his behavior, further establishing that this supervision — and the alleged beating — took place as Baluyot carried out his duties as a paraprofessional. (Id.)
The first factor "need not detain" courts in assessing respondeat superior liability when the incident occurred during work hours at the workplace. Riviello, 47 N.Y.2d at 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278; see also Pizzuto v. County of Nassau, 239 F. Supp. 2d 301, 314 (E.D.N.Y. 2003) (finding, at summary judgment, "an undisputed 'connection between the time, place and occasion for the act,' as the [d]efendants were on duty within their assigned work area"); Galloway v. State, 194 A.D.3d 1151,149 N.Y.S.3d 567, 570 (App. Div. 2021) (finding the time, place, and occasion factor satisfied where "the undisputed evidence demonstrated that the incident took place at [the workplace and] that the [accused employees] involved were on duty"). In a recent appeal of a jury verdict in favor of a prisoner who accused prison officers of assaulting him, the New York Court of Appeals deemed the first factor satisfied by the mere fact that the accused officers "were on duty and the assault occurred at the prison while [one of the officers] supervised inmates in the mess hall." Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641.
The Appellate Division remanded the case to the Court of Claims, and reiterated its finding as to the time, place, and occasion factor following a second appeal in 2023. Galloway v. State, 212 A.D.3d 965, 182 N.Y.S.3d 786, 788-90 (App. Div. 2023) ("As we noted on the prior appeal in this matter, the account of the incident satisfies the time, place and occasion factor.").
This factor weighs in Plaintiff's favor. It is undisputed that Baluyot was permitted to go to the basement while he was on duty as a cleaner, (Pl.'s 56.1 ¶¶ 32, 84-86) and a reasonable jury could infer from Baluyot's testimony that A.W. assisted Baluyot with his cleaning duties while he was under Baluyot's supervision, (see id. ¶¶ 82-87). This supervision, too, could reasonably be seen as part of Baluyot's duties. In fact, Baluyot testified that when Plaintiffs teachers would leave him behind in Baluyot's care while the rest of the class would be taken to perform volunteer work outside the school, Baluyot suspected it was because the teachers "needed a break from [A.W.]" because of his "behavior outside the building." (Baluyot Mar. 14, 2022 Dep. 18:4-20:9.)
The DOE argues that this factor weighs in its favor because students were not allowed in the basement, and Baluyot was not permitted to take students there when
on duty as a paraprofessional. (Def.'s Mem. 4; see also Def.'s Reply 3 ("There is nothing in the record to suggest, nor would it make sense, that Baluyot would be allowed to take A.W. to a prohibited area in the course of his work.").) The DOE offers no basis for its assertion that simply because an employee might have been violating employer policies, the first factor must weigh against respondeat superior liability. The DOE likens this case to that in Dykes v. McRoberts Protective Agency, Inc., 256 A.D.2d 2, 680 N.Y.S.2d 513 (App. Div. 1998), arguing that the First Department relied on the first factor to conclude that the accused employee was not acting in the scope of employment. (Def.'s Mem. 4.) In Dykes, a security officer left his assigned post to assault a supervisor based on a "long-standing personal grudge," and — contrary to the DOE's assertion — the First Department emphasized the lack of foreseeability in the accused employee's actions, rather than the time, place, and occasion of the act, when finding that the employee was not acting within the scope of his employment. See 680 N.Y.S.2d at 514. The DOE cannot prevail on the first factor simply by suggesting that Baluyot may have been violating the rules of his employment. See Stewartson v. Gristede's Supermarket, Inc., 271 A.D.2d 324, 705 N.Y.S.2d 583, 585 (App. Div. 2000) ("Mere disregard of instructions or deviation from the line of his duty does not relieve the employer of responsibility.... Only where the servant for his own purposes departs from the line of his duty and abandons his service is his employer not liable.... [T]he servant must be serving his own or some other person's purposes wholly independent of his master's business.").
Construing the facts in the light most favorable to Plaintiff, the first factor weighs against the DOE.
ii. History of the relationship between the employer and employee
The DOE argues that nothing in the record would have put it on notice that Baluyot would eventually assault a student. (Def.'s Mem. 4.) In support, the DOE highlights that "Baluyot has worked as a paraprofessional at PS 721K for [twenty] years," and that "[t]he principal of the school has never received a complaint about Baluyot's conduct towards students" in that time. (Id.)
Plaintiff argues that the DOE should have been aware of the possibility that Baluyot would hurt a student based on his history as an employee. (Pl.'s Mem. 8.) In support, Plaintiff presents evidence of three earlier incidents during Baluyot's time as a paraprofessional at P.S. 721K when he used force against other students. (Id.) Plaintiff first points to a handwritten report from Baluyot concerning an October 3, 2000 incident in which he tried to stop a student from leaving a classroom Baluyot was supervising. (Pl.'s 56.1 ¶¶ 57-66.) On that day, the student tried to leave the classroom and "started throwing [a] tantrum" when Baluyot told him he could not leave. ("SAVE Room" Incident Report, annexed to Bromberg Decl. as Ex. J, Docket Entry No. 86-1.) After Baluyot told him to stop yelling, the student hit and shoved Baluyot, "causing [him] to hit [his] back against the door and hurt [his] back." (Id.) Second, on October 25, 2001, Baluyot reported that he tried to stop a student from leaving the lunchroom. (Pl.'s 56.1 ¶¶ 67-69.) The student resisted by punching and kicking Baluyot. (Id.; Document regarding Baluyot cafeteria incident, annexed to Bromberg Decl. as Ex. K, Docket Entry No. 86-2.) In a third incident on March 5, 2014, a student walked out of the school building, punched two cars, and came back into the building "swinging [and] shoving" at Baluyot. (Pl.'s 56.1
¶¶ 70-76; Document regarding Baluyot's restraint of student, annexed to Bromberg Decl. as Ex. L, Docket Entry No. 86-3.) In the process of restraining the student, Baluyot's arm was hurt. (Pl.'s 56.1 ¶¶ 70-76.) Plaintiff further points to Principal Tremblay's testimony that she knew of this third incident. (Id. ¶ 73; Pl.'s Excerpt of March 14, 2022 Dep. of Barbara Tremblay 136:20-137:6, annexed to Bromberg Decl. as Ex. E, Docket Entry No. 83-5.)
On a motion for summary judgment, this factor will weigh in favor of the defendant employer when there is no evidence in the record tending to show that the employer could have known, from the employee's history, that the employee might engage in the alleged conduct. See Pizzuto, 239 F. Supp. 2d at 314-15 (denying summary judgment on respondeat superior claim in part because "it is eminently foreseeable that ... corrections officers may use excessive force to control a difficult inmate"); Rivera, 34 N.Y.3d at 388-91, 142 N.E.3d 641 (granting summary judgment in part because the State could not have anticipated that corrections officer would engage in such "gratuitous and unauthorized use of force"); Burlarley v. Wal-Mart Stores, Inc., 75 A.D.3d 955, 904 N.Y.S.2d 826, 827-28 (App. Div. 2010) (granting employer's summary judgment motion in part because cashier — who "threw a bag containing a pair of shoes and shampoo" at the plaintiff — "had worked as a cashier for several years without any significant disciplinary problems").
The second factor weighs in the DOE's favor. As the DOE argues, even construing the evidence in Plaintiff's favor, that evidence shows only that Baluyot previously used force to restrain a student who potentially posed a danger to themselves, others, or Baluyot. (See Def.'s Reply 4.) The parties agree that DOE regulations permit "the use of reasonable force" to "protect oneself from physical injury," "protect another pupil or teacher or any other person from physical injury," "protect the property of the school or of others," or "restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school district functions ... if the pupil refuses to comply with a request to refrain from further disruptive acts." (Pl.'s 56.1 ¶ 37.) Baluyot's reports of the three incidents, along with Principal Tremblay's testimony regarding the third incident, demonstrate that Baluyot's prior actions likely qualified as permissible uses of reasonable force under the DOE regulations. The record contains no evidence from which a reasonable juror could conclude that Baluyot's actions went beyond what those regulations permit.
iii. Whether the act is commonly done by such an employee
The DOE contends that the third factor also weighs in its favor, arguing in support that "Baluyot's alleged unprovoked and violent attack on A.W. would have been committed in a manner that is wholly inconsistent with DOE rules and practices." (Def.'s Mem. 5.) The DOE emphasizes that the conduct in which Baluyot is alleged to have engaged arose under circumstances "completely unrelated to the practice of removing a disruptive student from the classroom due to behavioral issues or any permissible disciplinary action." (Id.) In the absence of evidence that Baluyot's alleged beating was "motivated by a desire to discipline or punish" A.W., the DOE argues, no genuine dispute remains as to whether the alleged conduct is commonly done by DOE paraprofessionals. (Id. at 5-6.) In addition, the DOE likens this case to Rivera, described above. (Id. at 6-7.) The DOE argues that just as in Rivera, where corrections officers were accused of brutally assaulting a prisoner, Baluyot's alleged
conduct was so "completely divorced from the employer's interests" that the DOE cannot be held liable through a theory of respondeat superior. (Id. at 6 (quoting Rivera, 34 N.Y.3d at 391, 142 N.E.3d 641).)
Plaintiff argues that Baluyot's actions were "a misguided attempt at curing Plaintiff of his misbehavior." (Pl.'s Mem. 12.) In support, Plaintiff argues that because DOE regulations allow paraprofessionals like Baluyot the authority to use reasonable force under some circumstances, exercise of that authority falls within the range of acts "commonly done" by paraprofessionals. (Id. at 11.) Plaintiff further points to the prior instances in which Baluyot had to physically restrain students, and to Principal Tremblay's testimony that staff would sometimes have to "put" or "mov[e]" Plaintiff's hands down to keep him from misbehaving. (Id. at 12-13.)
Where use of force is involved, New York courts considering employer liability look to "whether the employee was authorized to use force to effectuate the goals and duties of the employment." Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641 (citing Sauter, 305 N.Y. at 445, 113 N.E.2d 790). In addition, if "physical contact with others is permissible or even expected," the question is "one of degree and not kind" and "may be appropriately left to the factfinder." See Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641. Even if use of force is generally authorized, however, courts may decline to find that an employee acted within the scope of employment if the particular use of force at issue was not "in furtherance of the business or interests of the employer." Mingo, 274 F. Supp. 2d at 346-47 (granting summary judgment to government defendant in case where employee used a government-issued firearm to shoot and seriously injure the plaintiff).
A reasonable jury could conclude, from this record, that the type of act in which Baluyot allegedly engaged was common among paraprofessionals. It is undisputed that DOE employees were authorized to use force to keep students from harming others and from interfering with or disrupting "the orderly exercise and performance of school district functions." (Pl.'s 56.1 ¶¶ 37, 51-55.) See Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641 (noting that courts must consider "whether the employee was authorized to use force to effectuate the goals and duties of the employment"). Thus, under the circumstances, where Baluyot was authorized to use force, the issue before the Court "is one of degree and not kind" and "may be appropriately left to the factfinder." Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641. While the DOE argues that the alleged conduct at issue is "completely divorced from the employer's interests," (Def.'s Mem. 6 (quoting Rivera, 34 N.Y.3d at 391, 142 N.E.3d 641)), the cases the DOE relies on did not bear the same factual disputes present in this case. In Rivera, the Court of Appeals observed that correction officers were "authorized to use physical force against inmates in limited circumstances not present here, such as in self-defense or to suppress a revolt." 34 N.Y.3d at 391, 142 N.E.3d 641 (emphasis added) (citations omitted). Similarly, in Sandoval v. Leake & Watts Services, Inc., also relied on by the DOE, an employee at a residential facility for adults with intellectual and developmental disabilities was accused of burning a resident with a heated metal potato masher. 192 A.D.3d 91, 136 N.Y.S.3d 306, 308 (App. Div. 2020). In granting summary judgment to the employer as to vicarious liability, the court stressed that "[i]t is beyond dispute that the burning of a resident with a heated potato masher is not an act committed in furtherance of the employer's business." Id. at 312. In this case, a dispute remains as to whether Baluyot's alleged act was meant to manage Plaintiff's behavior. (See, e.g., Pl.'s 56.1 ¶ 50 (disputing the DOE's characterization of why Baluyot attacked A.W.).) Baluyot himself suspected that Plaintiff would have been left with him on the days in question because his teachers "needed a break from [A.W.]" because of his "behavior outside the building." (Baluyot Mar. 14, 2022 Dep. 18:4-20:9.) A reasonable jury could conclude that any attempt to manage student behavior is "in furtherance of the business or interests of the employer," Mingo, 274 F. Supp. 2d at 346-47, in preventing pupils from "interfering with the orderly exercise and performance of school district functions" — a purpose for which DOE employees are authorized to use reasonable force, (Pl.'s 56.1 ¶ 37). See also K.R. ex rel. Perez v. Silverman, No. 08-CV-2192, 2009 WL 2959580, at *5 (E.D.N.Y. Aug. 13, 2009) ("[A] contention that a defendant's actions were wrongful is insufficient to establish that the actions were outside of the defendant's scope of employment." (citing Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991))). Given Baluyot's testimony that he believed Plaintiff would have been left in his care specifically because of his misbehavior, (Baluyot Mar. 14, 2022 Dep. 18:4-20:9), the record allows a reasonable inference that Baluyot might have been acting with the purpose of disciplining A.W. or managing his behavior. The third factor therefore weighs in Plaintiff's favor.
iv. The extent of departure from normal methods of performance
The DOE raises similar arguments in support of the fourth factor — namely, that "there is no evidence that Baluyot's alleged assault on A.W. was related to any kind of discipline," and therefore the "alleged actions were not just a departure from normal methods of performance, but something that would have been done completely outside the scope of his employment." (Def.'s Mem. 7.) Plaintiff argues that "discovery has revealed that Baluyot had no motive other than discipline and control of A.W." (Pl.'s Mem. 14.)
Even if an employee is pursuing the employer's goal, the fourth Riviello factor asks whether the manner in which that goal was pursued was within normal methods of operation. See, e.g., Rivera, 34 N.Y.3d at 391, 142 N.E.3d 641 (finding that corrections officers' "gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance"). Where the employee departs from these normal methods, courts must ask how foreseeable it was that an employee might depart in the manner at issue when pursuing this goal. See, e.g., Pizzuto, 239 F. Supp. 2d at 315 (finding that while corrections officers "may have departed from the normal method of silencing a difficult inmate, ... their departure from [prison] regulations [was] not so substantial as to outweigh the other Riviello factors, especially where their acts were taken in a misguided attempt to further the [prison's] legitimate penalogical interest in maintaining order"); Rivera, 34 N.Y.3d at 391, 142 N.E.3d 641 (granting summary judgment because the "unauthorized use of force" was "completely divorced from the employer's interests"); Riviello, 47 N.Y.2d at 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ("[T]he test has come to be whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." (citations and internal quotation marks omitted)).
In the Court's Memorandum and Order dated February 16, 2021, granting in part and denying in part the DOE's
motion to dismiss the SAC, the Court found the fourth factor to weigh in the DOE's favor because none of Plaintiff's allegations suggested any disciplinary or legitimate purpose for Baluyot's alleged actions. A.W. by E.W. v. N.Y. Dep't of Educ., 519 F. Supp. 3d 128, 141-42 (E.D.N.Y. 2021). Plaintiff's allegations were therefore distinguishable from the facts presented in cases like Cromer v. City School District of Albany Board of Education, in which the court found that a physical education teacher was acting within the scope of his employment when he grabbed and physically moved a student who was not listening to instructions. No. 01-02068683, 2002 WL 1174683, at *2 (N.Y. Sup. Ct. Apr. 5, 2002). The Cromer court specifically based its finding on its view that the teacher "was disciplining a student ... and his actions were generally foreseeable by his employer." Id. (citing Riviello, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278). In Inglis v. Dundee Central School District Board of Education, the court similarly found that a music teacher who slapped a student across the face to discipline him was acting within the scope of employment because "discipline of students [was] a normal and customary part of her employment" and "the extent of departure from performing that employment was not a dramatic one." 180 Misc.2d 156, 687 N.Y.S.2d 866, 868 (Sup. Ct. 1999).
Cromer and Inglis concerned whether section 3028 of the New York Education Law required New York City to either provide teachers with an attorney or reimburse legal fees incurred in defending against criminal charges. Cromer v. City Sch. Dist. of Albany Bd. of Educ., No. 01-02068683, 2002 WL 1174683, at *1 (N.Y. Sup. Ct. Apr. 5, 2002); Inglis v. Dundee Cent. Sch. Dist. Bd. of Educ., 180 Misc.2d 156, 687 N.Y.S.2d 866, 867 (Sup. Ct. 1999). Both cases, however, used the "scope of employment" test set forth in Riviello v. Waldron, 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979), to determine whether the teachers in Cromer and Inglis were engaged in the "discharge of duties" as required under section 3028. Cromer, 2002 WL 1174683, at *2; Inglis, 687 N.Y.S.2d at 868; see also Sagal-Cotler v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 20 N.Y.3d 671, 675-76, 965 N.Y.S.2d 767, 988 N.E.2d 502 (2013) (comparing Riviello's test to section 3028 and concluding that "scope of employment" and "discharge of duties" "have long been regarded as interchangeable").
At this stage of the proceeding, the record reflects facts more akin to those in Cromer and Inglis. Given that there remains a genuine dispute as to whether Baluyot's alleged actions carried a disciplinary purpose, the Court cannot conclude that Baluyot's departure from the normal methods of performance was so egregious that this factor weighs in the DOE's favor as a matter of law. With the evidence adduced in discovery, whether this departure was so extreme as to weigh in the DOE's favor is plainly a question "of degree and not kind" such that the "issue may be appropriately left to the factfinder." Rivera, 34 N.Y.3d at 390, 142 N.E.3d 641.
v. General foreseeability
The DOE argues that it could not have foreseen Baluyot's actions, and in support points to Plaintiff's failure to allege in his SAC that Baluyot's actions had a disciplinary purpose. (Def.'s Mem. 8.)
Plaintiff argues that the DOE misapprehends the standard for this fifth factor, and that "general foreseeability," i.e., "whether the use of excessive force generally against a student was foreseeable," is what matters more than the specific nature of Baluyot's alleged conduct. (Pl.'s Mem. 14-15.) Plaintiff also reiterates the parts of the record that, he submits, tend to show that Baluyot was acting to discipline Plaintiff. (Id.) New York courts have held that infliction of physical punishment by a teacher or school staff is within the bounds of general foreseeability. See Zampieron v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 958 N.Y.S.2d 649, 2010 WL 5576190, at *3 (Sup. Ct. 2010) (unpublished table decision) ("It was foreseeable that in the course of petitioner's duties, he may have needed to take disciplinary action against a student, and the discipline of a student is a normal, customary part of a pedagogical employee's employment."); Cromer, 2002 WL 1174683, at *2 (finding that a physical education teacher acted within the scope of employment when he grabbed and physically moved a student who was not listening to his instructions); Inglis, 687 N.Y.S.2d at 868 (finding that that a music teacher who slapped a student once across the face acted within the scope of employment because "discipline of students is a normal and customary part of her employment"); see also Robles v. Medisys Health Network, Inc., No. 19-CV-6651, 2020 WL 3403191, at *21 (E.D.N.Y. June 19, 2020) ("When the employee's act was foreseeable, the employer can be liable as long as the employee acted while the employee was 'doing his [employer's] work, no matter how irregularly, or with what disregard of instructions.'" (alteration in original) (quoting Pizzuto, 239 F. Supp. 2d at 313)); Capak v. Epps, No. 18-CV-4325, 2020 WL 3073210, at *9 (S.D.N.Y. June 10, 2020) ("[W]hile it is not necessary that the precise type of injury caused by the employee's act be foreseeable, it is necessary that the conduct is, in a general sense, reasonably foreseeable." (quoting Dykes, 680 N.Y.S.2d at 514)).
As discussed above, the parties' dispute surrounds whether Baluyot's alleged actions were taken in furtherance of a disciplinary goal, and therefore this factor also weighs against the DOE. In arguing that Baluyot's alleged conduct had no disciplinary purpose, the DOE primarily relies on Plaintiff's SAC, in which Plaintiff alleged that Baluyot's beatings were "not reasonably related to any disciplinary goal," and that the attack was "unprovoked." (Def.'s Mem. 8; SAC ¶¶ 33, 46.) While true that "a party cannot attempt to defeat a summary judgment motion by contradicting factual allegations in his complaint," Moscatelli v. Owl's Nest, Inc., 554 F. Supp. 3d 437, 444 (E.D.N.Y. 2021) (quoting Rojas v. Roman Cath. Diocese of Rochester, 783 F. Supp. 2d 381, 407 (W.D.N.Y. 2010), aff'd, 660 F.3d 98 (2d Cir. 2011)), this is not a case in which Plaintiff has, for example, submitted "contradictory sworn statements," id., or simply "testif[ied] to ... facts not alleged in [his] pleadings," Rojas, 660 F.3d at 106 (affirming summary judgment grant where nonmovant submitted contradictory sworn statements in an attempt to fabricate disputes of material fact). Rather, Plaintiff has pointed to specific sworn statements that have created a genuine dispute as to an opposing party's state of mind. On such a record, a reasonable jury could find that Baluyot's actions were generally foreseeable.
Because four of the five Riviello factors weigh in Plaintiffs favor, there are several genuine disputes of material fact as to whether Baluyot's alleged conduct would fall within the scope of his employment with the DOE. The Court cannot conclude that no reasonable jury could find that respondeat superior liability applies to the DOE. See Esperanza v. City of New York, 325 F. Supp. 3d 288, 307-08 (E.D.N.Y. 2018) (denying summary judgment to city defendants, observing that because "the determination of whether an employee's actions fall within the scope of employment depends heavily on the facts and circumstances of the particular case, the question is ordinarily for the jury" (quoting Beauchamp
v. City of New York, 3 A.D.3d 465, 771 N.Y.S.2d 129, 131 (App. Div. 2004))); Pizzuto, 239 F. Supp. 2d at 313-14 (acknowledging that respondeat superior liability is "ordinarily a question for the jury" but granting summary judgment in the plaintiff's favor because there was "no conflicting evidence as to the essential facts" (first citing Rounds v. Del., Lackawanna & W. R.R. Co., 64 N.Y. 129, 137-38 (1876); and then citing Cepeda v. Coughlin, 128 A.D.2d 995, 513 N.Y.S.2d 528 (App. Div. 1987))).
Accordingly, the Court denies the DOE's motion for summary judgment as to Plaintiff's respondeat superior claims against it.
III. Conclusion
For the reasons stated above, the Court denies the DOE's motion for summary judgment.