Opinion
01. Civ. 8090 (HB)
June 18, 2002
OPINION ORDER
The Fashion Institute of Technology ("FIT' or "FIT defendants") moves for summary judgment on all claims asserted by Cameron Mostaghim ("plaintiff) that survived the FIT defendants' motion to dismiss. On December 3, 2001, I granted the FIT defendants' motion to dismiss with respect to all claims save for plaintiff's Title IX retaliation claims against FIT and Professor LaVarnway ("LaVarnway"), his FERPA claim, and his breach of contract claims. Oral argument on defendants' summary judgment motion was heard on June 13, 2002. For the reasons detailed more fully below, FIT defendants' motion is granted in its entirety and the Clerk of the Court is ordered to remove this case from my docket
BACKGROUND
Plaintiff is a student at FIT, who, as of the Spring of 2001, was in his final semester of study in the B.F.A. Fashion Design program. During that Spring, plaintiff enrolled in FIT's senior thesis course taught by Professor LaVarnway ("LaVarnway"); this course, which is focused entirely on womenswear and childrenswear, represents a culmination of fashion design students' four year course of study leading to a B.F.A. (LaVarnway Aff. at ¶ 7). Students enrolled in this course are required to design and produce two womenswear or two childrenswear garments. (Id. at ¶ 8).
Although FIT does not offer menswear courses as part of its B.F.A. program in Fashion Design, it does offer numerous menswear courses as well as a course of study leading to an Associate Degree in menswear. (LaVarnway Aff. at ¶ 5).
Notwithstanding this policy, plaintiff sought leave to design menswear for his senior thesis course. Plaintiff first sought approval from then-Chairperson of the Fashion Design Department, Professor Carol Adelson ("Adelson"), to design menswear. (Id. at ¶ 9). Although Adelson informed plaintiff by letter on January 30, 2001 that all students in that department design womenswear fashions, plaintiff nevertheless persisted in his efforts to design menswear for the senior thesis course and received permission to design menswear from LaVarnway — who, it should be noted, was completely unaware of Adelson's directive to plaintiff. (Id. at 69, Ex. B). Consequently, plaintiff designed one menswear garment. (Id. at ¶ 12). However, after other members of the Department informed LaVarnway that Adelson had explicitly and repeatedly denied plaintiff's request to design menswear, LaVarnway informed plaintiff that she (LaVarnway) would provide a grade for the one menswear garment and she would require plaintiff to design a womenswear garment for his next project (Id. at ¶ 15).
On April 27, 2001, there was a meeting between plaintiff, Adelson, LaVarnway, Jimmy Newcomer, who was the Assistant Chairperson of the department, and Carol Litt, who was the Acting Dean of FIT's school of Art and Design. (Id. at ¶ 19). The meeting was called to discuss plaintiff's desire to submit menswear garments toward his course requirements, and at its end the parties agreed that plaintiff's first submission would be graded but would not be eligible to appear in the exhibition, and that his second garment would be womenswear. (Id. at ¶ 21, Ex. D).
On May 18, 2001, plaintiff and other members of his class presented their projects for grading. LaVarnway claims that plaintiff's designs were of poor quality and that plaintiff was mocking of both her and the class during his presentation. (Id. at ¶ 33). When later in the class he was informed that his grade would be a "C," plaintiff allegedly screamed at LaVarnway and, among others things, called her "crazy" and a "bitch." (Id. at ¶ 56, Ex. F). Following the class, LaVarnway filed a report with FIT's security office as well as a claim with FIT's general counsel. (Id. at ¶ 58, Exs. F, G).
On May 24, 2001 plaintiff was sent a letter advising him of the complaint and informing him that he needed to schedule an "informal hearing" to discuss the disciplinary charges made by LaVarnway. (Cohen Aff. at ¶ 9). In connection therewith, Herbert Cohen, the Vice President for Student Affairs ("Cohen"), placed a "hold" on plaintiffs account, which had the effect of preventing plaintiff from taking certain actions, like withdrawing from a course. (Id. at ¶ 13). According to Cohen, it is the practice of FIT to place such a "hold" on students accused of disciplinary violations as an inducement to attend the informal hearing. Although Cohen repeatedly notified plaintiff that an informal hearing was absolutely necessary should plaintiff wish to "present his case," plaintiff refused to schedule such a hearing until September 11, 2001, which in light of the tragedy never took place. (Id. at ¶ 20). An informal hearing was finally held on October 17, 2001, during which plaintiff refused to present his case, witnesses, or other pertinent evidence and simply denied any wrongdoing. (Id. at ¶¶ 22-23). Following the hearing, Cohen decided to refer the charges against plaintiff to the Judicial Council of the Student Affairs Committee pursuant to FIT procedure. Pending the formal hearing before the Judicial Council, plaintiff was temporarily suspended. (Id. at ¶ 24). The Judicial Council rendered a decision in April 2002 suspending plaintiff for the entire 2001-2002 school year, a two-semester suspension that expired in May 2002. (Id. at ¶ 25). At this time, plaintiff has satisfied all curricular requirements and may therefore graduate.
In a letter to Cohen dated June 28, 2001, plaintiff requested access to all of his "education records." (Cohen Aff. at Ex. R). Under the Family Educational Rights and Privacy Act ("FERPA"), FIT had 45 days to comply with a request for access to education records. FIT considered plaintiff's request to review these records and offered all records of which it was aware, including the security report, for plaintiff to view on July 16, 2001 — well within the forty-five day period. (Cohen Aff. at ¶ 33). Although plaintiff reviewed his records on July 24, 2001, at the conclusion of his review he stated that he believed that the file was incomplete. At that time, a representative at the Student Affairs office told plaintiff to compile a "list" of the records that he believed were missing — something that plaintiff declined to do. (Cohen Aff. at Ex. S, p. 4). Instead, plaintiff sent a letter dated that very day to Cohen, stating that "[w]hen I said I wanted to review `all of my educational records', I did mean `all' of my educational records." However, he still failed to specify precisely which records he felt were not made available to him. (Cohen Aff. at Ex. T). Consequently, because plaintiff refused to identify the particular records he believed defendants were withholding, FIT undertook an exhaustive search of every possible record in the college. In a memorandum dated August 2, 2001, Jeffrey Slonim, FIT's General Counsel ("Slonim"), asked the heads of each division of the college to "arrange for all faculty and staff in [their respective] division[s] to search all records, including electronic records, maintained by them for any and all records directly related to Cameron Mostaghim." (Cohen Aff. at Ex. W). Slonim emphasized that "this is a time-critical undertaking and [that he] must ask that [they] be able to report on the result as soon as possible." By letter dated August 2, 2001, Cohen advised plaintiff that FIT was undertaking an "exhaustive search" for all FIT records that directly related to him and that he would advise plaintiff of the outcome. (Cohen Aff. at Ex. X). Cohen sent plaintiff a letter on December 11, 2001 informing him that the college had compiled any and every known record after conducting an exhaustive search therefor and invited him to schedule an appointment to review the additional records it found. (Cohen Aff. at Ex. Y).
DICUSSION
1. Summary Judgment Standard
In a motion for summary judgment. the burden is on the moving party to establish that no genuine issues of material fact are in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(c). 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."' Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248, cert. denied, 506 U.S. 965 (1992)). The court resolves all ambiguities and draws all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide. Aldrich, 963 F.2d at 523. Further, the Supreme Court and the Second Circuit have made it abundantly clear that the courts must "construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotes omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972).
Defendant seeks summary judgment with respect to plaintiffs four remaining claims: (1) that FIT retaliated against him in violation of Title IX of the Education Amendments of 1972 ("Title IX") when he complained that FIT's B.F.A. curriculum discriminates on the basis of gender; (2) that LaVarnway retaliated against plaintiff in violation of Title IX for making such complaints by giving him a grade of "C" in her course; (3) that FIT violated FERPA because it purportedly did not provide plaintiff with timely access to his educational records; and (4) that FIT breached a purported contract, its Rights and Responsibilities Manual, with plaintiff
Notwithstanding the liberal pleading standard accorded to pro se plaintiffs, I find that no genuine issues of material fact are in dispute and that defendants are entitled to summary judgment on all claims as a matter of law.
1. Tide IX Retaliation Claims against FIT and LaVarnway
Plaintiff claims that defendant FIT and defendant LaVarnway violated Title IX by taking a series of adverse actions against him — e.g., awarding him a grade of "C," temporarily suspending him, prohibiting him from showing his menswear at the exhibition — as a consequence of the complaints he raised with both faculty and administration with respect to designing menswear in the fashion design course.
In order to establish a discriminatory retaliation claim under Tide IX, a plaintiff must make the following showing: (1) the educational institution took adverse action against the plaintiff after becoming aware of his protected conduct, and (2) a causal connection existed between the protected conduct and the adverse action taken by the institution. Murray v. New York Univ. Coll, of Dentistry, 57 F.3d 243 (2d Cir. 1995). In addition, to make out a Title IX retaliation claim, a plaintiff must point to "particular circumstances" that support a relaliatory bias, such as "statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decisionmaking that also tend to show the influence of [retaliation]." Murray, 57 F.3d at 251 (citations omitted).
Plaintiff claims that FIT initiated disciplinary charges against him and placed a hold on his account pending the resolution of those charges, and that LaVarnway gave him a grade of "C" in his design course in retaliation for his having complained about his inability to design menswear in the B.F.A. program.
Defendants FIT and LaVarnway claim that plaintiff has failed to adduce any evidence that his purported protected activity — his inability to design menswear in the B.F.A. program — had any connection to the disciplinary charges and the administrative hold on his records, as well as to the fact that his menswear garment was excluded from the B.F.A. exhibition. Specifically, defendants maintain that disciplinary charges resulted solely from his May 18, 2001 in-class outburst, during which time he called LaVarnway "crazy" and a "bitch," and that plaintiff has failed to demonstrate that FIT's stated reason for proceeding with disciplinary charges against him was pretextual. Further, defendant argues that "[p]laintiff's menswear project was excluded because it was a menswear garment and therefore would have been inappropriate in an exhibition of garments which were created in accordance with the B.F.A. curriculum." (Def.'s memorandum at 12). In other words, defendant FIT maintains that FIT's curricular determination, rather than plaintiffs behavior, was the actual reason for the exclusion of the menswear garment Finally, defendant LaVarnway marshals a considerable body of case law standing for the proposition that courts should grant great deference to educational institutions when making decisions concerning academic standards. Ward v. NYU No. 99 Civ. 8733 (RCC), 2000 WL 1448641, at *3 (S.D.N.Y. Sept. 28, 2000). Indeed, when reviewing determinations of educational institutions — such as grading decisions — a court's review is "limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute." Bhandari v. Trustees of Columbia Univ., No. 00 Civ. 1735 (JGK), 2000 WL 310344, at *5 (S.D.N.Y. Mar. 24, 2000).
In this case, plaintiff cannot establish a causal connection between his allegedly protected conduct — namely, his complaints with respect to FIT's policy on designing menswear in the senior thesis class — and the adverse action undertaken by FIT as well as LaVarnway's decision to give plaintiff a grade of "C" in her course. More precisely, FIT instituted disciplinary action against plaintiff not because he sought permission to design menswear (the allegedly protected conduct in this case), but rather because he had a violent outburst in class, during which time he called his professor "crazy" and a "bitch." Similarly, FIT did not allow plaintiff to design menswear in the particular course he was enrolled in simply because it was a requirement that students taking that course had to design either womenswear or childrenswear — not menswear. Finally, LaVarnway claims that she issued a grade of "C" by looking at such things as the quality of plaintiffs garments and his presentation thereof — not as a form of retaliating against plaintiff for seeking approval to design menswear. Indeed, if anything, the fact that Lavarnway allowed plaintiff to receive a grade for a menswear design as one of his projects in the course — despite administrative policy to the contrary — militates strongly in defendants' favor. Following Bhandari, I do not find that LaVarnway's decision to award plaintiff a grade of "C" was arbitrary and capricious.
Because plaintiff has adduced no evidence whatsoever to support his contention that either FIT or LaVarnway undertook a series of adverse actions against him in retaliation for plaintiff's request that he be able to design menswear in that particular course, defendants' summary judgment motion with respect to plaintiff's Title IX claims is granted.
2. FERPA Violation
Plaintiff argues that FIT deprived him of access to education records — including the security report that LaVarnway filed on May 18, 2001 — and thereby violated FERPA, which requires educational institutions receiving federal funds to allow students access to their "education records" within forty-five days after a request has been made to review such records. 20 U.S.C. § 1232(g)(b). Although no private right of action under FERPA exists, the Second Circuit has held that violations of FERPA are actionable through Section 1983. Fay v. South Colonie Cent School Dist., 802 F.2d 21, 33 (2d Cir. 1986). I find plaintiff's FERPA claim to be without merit for two reasons.
The United States Supreme Court recently granted certiorari in the case of Gonzaga Univ. v. Doe (01-679) and in so doing has agreed to decide whether alleged FERPA violations are actionable through Section 1983. For this reason, defendants request that this Court reserve decision on plaintiffs FERPA claim until after the Supreme Court rules on whether FERPA violations are actionable through Section 1983. I decline to do so.
First, plaintiff is alleging that FIT prevented him from viewing his educational records. However, in order to prevail on a FERPA claim, a plaintiff must establish that a defendant had a "policy or practice" that would prevent the inspection and review of a student's records. Weixel v. Bd. of Educ. of NY, No. 97 Civ. 9367 (DAB), 2000 WL 1100395, at *6 (S.D.N.Y. Aug. 7, 2000). Plaintiff has failed to adduce any evidence whatsoever supporting his claim that FIT had a "policy or practice" of preventing students from viewing their own records. Indeed, plaintiffs claim that FIT has a policy of withholding security reports simply belies logic, for plaintiff himself admitted during deposition that he received the security report within the forty-five day period.
As he stated: "So, with regard to the June 5th letter and my request for the security report, I did receive that within the 45-day time period. I don't deny that. . . ." (O'Brien Reply Aff. at Ex. CC, p. 372).
Second, in order to establish a FERPA claim pursuant to Section 1983, a plaintiff must prove that a defendant's failure so provide education records in a timely manner was intentional. Sirohi v. The Trustees of Columbia Univ., No. 94-CIV-6165 (JFK), 1996 WL 71504, at *6 (S.D.N.Y. Feb. 20, 1996). Plaintiff has adduced no evidence whatsoever that FIT withheld education records from him intentionally. Quite the contrary, if anything, the uncontroverted evidence indicates that FIT made a good-faith effort to comply with FERPA's forty-five day limit. Plaintiff requested access to all of his education records on June 28, 2001. Not only did FIT present plaintiff with all educational records of which it was aware on July 16, 2001, but it also initiated an exhaustive search of all potential records on August 2, 2001 — both within the forty-five day limit. Because the overwhelming evidence indicates that defendant made a good faith effort to provide plaintiff with his educational records within the forty-five day time frame, defendants' motion with respect plaintiffs FERPA claim is granted.
3. Breach of Contract
Plaintiff asserts a variety of breach of contract claims against defendant that arise from FIT's alleged breach of its Rights and Responsibilities Manual ("Manual"). As a preliminary matter, defendant maintains that plaintiffs contract claims fail as a matter of law since the Manual is not a contract — either express or implied — since it was not "material" to plaintiffs relationship with the college and since plaintiff never even saw the Manual until his final semester at FIT. I am not persuaded, for clearly the Manual contained information — such as the disciplinary procedures that are at issue in this case — that are very much "material" to a student's relationship with the college. However, I do believe that plaintiffs contract claims, which in my view are either simply wrong or lacking in substance, can be summarily dismissed.
I will briefly discuss the merits of plaintiff's seven different contract claims in turn:
(1) Plaintiff claims that FIT breached its contract by failing to notify him within twenty-four hours of the charges of misconduct. Defendant argues that the Manual's statements with respect to notifying students of charges of misconduct do not constitute contractual promises but are rather merely aspirational, and cite decisional authority to the effect that promises of this kind are unenforceable. Gally v. Columbia Univ. 22 F. Supp.2d 199 (S.D.N.Y. 1998). While I do not share defendants' view that the Manual's statements with respect to notification of disciplinary action do not constitute enforceable promises, I nevertheless find that this particular contract claim must fail since defendant has demonstrated that it did indeed inform plaintiff in a timely manner of the charges of misconduct brought against him. The sequence of events is as follows: the misconduct took place on May 18, 2001, Cohen received an Incident Report on May 23, on May 24 the Office of the Vice President of Student Affairs sent plaintiff a letter advising him of the charges against him, and in a June 5 letter plaintiff himself acknowledged having received the college's letter on May 29. In other words, Cohen did inform plaintiff within twenty-four hours of his (Cohen's) receipt of the disciplinary charges. Accordingly, this contract claim is dismissed.
(2) Plaintiff claims that FIT breached its contract by coercing him into waiving his rights by requiring that he attend the informal hearing as part of the disciplinary process, and that, if plaintiff failed to schedule an informal hearing to address the charges of misconduct against him, he would be temporarily suspended. However, because the Manual absolutely requires students to attend an informal meeting as part of the disciplinary process, this claim is dismissed. (Compl. Ex. 80 at pp. 7-8).
(3) Plaintiff claims that FIT breached its contract by preventing him from obtaining his grades and transcripts and from registering and graduating after he was placed on suspension. Because plaintiff does not, and cannot, identify a single provision in the Manual promising that an FIT student will never be prevented from getting grades and transcripts or from registering and graduating, this claim is dismissed.
(4) Plaintiff claims that FIT breached its contract because FIT's acting affirmative action officer, Ellen Conovitz, negligently investigated plaintiff's claim of discrimination. Plaintiff fails to identify a provision in the Manual that creates a specific, enforceable contractual promise on this score. Indeed, even assuming that such a contract exists, plaintiff has adduced no evidence whatsoever that Conovitz negligently investigated his discrimination claim, and this claim is therefore dismissed.
(5) Plaintiff claims that FIT breached its contract because it negligently investigated information in the FIT security report. This contract claim fails for the same reasons that the contract claim for negligent investigation of plaintiffs discrimination claim fails.
(6) Plaintiff claims that FIT breached its contract by engaging in the practices of bigotry and hypocrisy. Specifically, plaintiff points to defendant's general equal employment opportunity and affirmative action policies as purportedly creating an independent contractual commitment not to engage in bigotry and hypocrisy. However, because such statements do not create contractual commitments, see Ward, 2000 WL 1448641, at *4, and because plaintiff has adduced no evidence whatsoever in support thereof even if they did, this claim is dismissed.
(7) FIT breached its contract by ignoring plaintiff's grade change requests. As defendant points out, plaintiff is unable to identify a single provision in the Manual that requires an FIT employee to take a particular course of action in response to a grade change request. Second, to the extent that plaintiff claims that these individuals failed to give him the grade he deserves — an "A" instead of a "C" — despite his request for a grade change, his claim amounts to nothing more than a claim for educational malpractice, which is not cognizable in New York. See Gally, 22 F. Supp.2d at 207.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment on all of plaintiff's surviving claims is granted, and the Clerk of the Court is ordered to remove this case from my docket.