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denying summary judgment on teacher's Title VII claim against employer for failing to address student-on-teacher harassment
Summary of this case from Cieslik v. Bd. of Eduction of Chi.Opinion
97 CV 7109 (ARR)
August 6, 2001
OPINION AND ORDER
By motion filed on June 5, 2001, the defendants have moved for summary judgment in the above-captioned action. For the reasons set forth below, the motion is granted in part and denied in part.
Background
The following facts are undisputed unless otherwise noted. The plaintiff, Vincent Peries, was born in Sri Lanka in 1933 and educated in England before coming to the United States in 1968. He continued his education in this country, receiving a Ph.D. in Adapted Physical Education and Child Development, as well as an MBA in international finance and an M.Sc. in Teaching English as a Second Language. After teaching at York College and New York University, Dr. Peries became a teacher in the New York City public school system, working at a number of different schools before joining the staff of Francis Lewis High School in Queens in 1987. At Lewis High, Dr. Peries teaches special education, working in both the resource room setting, where students receive individual assistance, and in self contained classes.
Dr. Peries complains that, since the early 1990s, he has been subjected to a "steady barrage of insults and demeaning conduct from students based on [his] national origin and race." Peries Aff., ¶ 8. During the 1992-93 school year, Dr. Peries worked as one of three teachers whose classes shared a single resource room, with different groups separated by partitions. Lorraine Valsich, the resource room coordinator, taught in an adjoining section. On November 16, 1992, Dr. Peries went into Ms. Valsich's room to retrieve a book. While he was there, one of Ms. Valsich's students began taunting him, calling him a "fucking Hindu" and asking, "why are you here? You go home." Id., ¶ 12. According to Dr. Peries, Ms. Valsich did nothing to stop the student and instead giggled. Other students joined in and continued to harass Dr. Peries until the third resource room teacher, Terry Shapiro, took Dr. Peries out of Ms. Valsich's room. Two or three students followed them, continuing the abuse.
After the incident, Dr. Peries asked William Stolfi, the assistant principal in charge of the special education department, to look into the issue. On the same day, Mr. Stolfi sent Dr. Peries a letter. The letter conveyed Mr. Stolfi's observation that, after the incident, Dr. Peries was "almost to the point of hysteria" and his advice that problems must be dealt with in a professional manner. Peries Aff., Ex. B. It also contained a statement that Ms. Valsich was under no obligation to help him discipline his students. In addition, Mr. Stolfi asked Dr. Peries to give him the names of the students who had harassed him and promised that "[t]hey will be dealt with in the usual procedures handling troublesome students." Id. He also asked Dr. Peries to write up the particulars of the threat of physical harm from one student and assured that "it will be handled expeditiously." Id. Finally, the letter stated that "[y]ou should not be subjected to ridicule by any student and these problems will be addressed." Id. According to the plaintiff, this letter was "admonishing me rather than expressing his support and his intention to investigate the incident and to prevent any reoccurrence." Peries Aff., ¶ 15. Furthermore, Dr. Peries resents that Mr. Stolfi asked him for the names of the students, as Ms. Valsich could have provided that information more readily. See id., Dr. Peries states that Ms. Valsich gave him false student names when he asked her for assistance and that the school failed to investigate the matter once he did get the names. See id., ¶ 16-17.
For the remainder of the 1992-93 year, Dr. Peries was subjected to further taunts from students in Ms. Valsich's class. Students threw paper balls at him, called him names like "Gandhi" and "Indian shit," and put a red dot an the forehead of a picture of a polar bear in Ms. Valsich's room. The plaintiff states that Ms. Valsich let the dot remain for months. In addition, somebody put notes on Dr. Peries's desk and chair containing messages such as "Hindu, go home. You don't belong here."Id., ¶ 18. Dr. Peries states that nothing was done despite his complaints to Mr. Stolfi and Principal Robert Burns. See id. He speculates, based on his observations over the years, that Mr. Stolfi and Ms. Valsich are friends and that the former therefore resented his complaints about the latter. See id., ¶ 20.
Dr. Peries alleges that, because of his accusations regarding Ms. Valsich, he was "subjected to a rigorous and demeaning program of observation" during the 1993-94 school year. Id., ¶ 21. He claims that he was observed eight times in a six month period so that school officials could give him an "unsatisfactory" rating, which he had never before received, but did receive at the end of the year. See id. This observation apparently caused Dr. Peries to experience depression and increased anxiety. Even though his physician wrote to the administration explaining the problem, Dr. Peries states that "[n]o one seemed to care."id., ¶ 22. Dr. Peries states that the "unsatisfactory" rating prevented him from transferring to another school. See id., ¶ 23. During the 1994-95 year, Dr. Peries took advantage of a United Teachers Federation Program that allowed him to be evaluated by someone other than Mr. Stolfi and Mr. Burns.
According to Dr. Peries, the hostile environment of discrimination based on the plaintiffs national origin has continued "virtually unabated" since that time. Id., ¶ 25. Dr. Peries states that he has asked the administration, specifically Dean Lynn Reuter and Mr. Stolfi, to help him, but that they have not done so. In addition to verbal complaints, see id., ¶ 28, Dr. Peries submitted five written complaints between February 1996 and May 1997 about students mimicking his accent, calling him names such as "Hindu" and "shit Indian," and telling him to "go home. This is my country." Id., ¶ 29. Despite these complaints, Dr. Peries alleges that nothing was done. No students were suspended or reprimanded, and some were sent to an administrator's office only to return moments later. See id., ¶ 26. One student told Dr. Peries that Ms. Reuter had called him a "stupid teacher." Id. Dr. Peries says that he would have participated in mediations with the students if the administration had been willing to help him. See id, ¶ 27.
On March 4, 1997, Dr. Peries wrote a long referral report to Mr. Burns and Mr. Stolfi regarding harassment from two students, G.M. and G.K. The letter began with a statement that "although I have brought this matter several times during the previous six months there has been NO resolution of the problem. . . . My complaints have been swept under the rug and NO efforts have been made to discipline the inappropriate behavior of the students." Id., ¶ 29(f). According to the letter, G.M., who was in the room with Ms. Valsich, mimicked the plaintiffs accent and said "You bloody man, sit down." Id. Ms. Reuter told the plaintiff that she "cannot do anything about this" and then took the student away. Id. Dr. Peries asked the administrators to solve the harassment problem permanently and asked them to intervene since "[i]t has to be admitted that disciplining these students has been a failure." Id. Dr. Peries asserts that the administration did not take action in response to his letter. Dr. Peries and his psychiatrist, Dr. J. Roosevelt Clerisme, have stated that the harassment by the students has caused intense psychological, emotional, and physical problems for the plaintiff, including depression, contemplated suicide, and pain. See Peries Aff., ¶ 9, Exs. A, C.
Dr. Peries has supplemented his account of the hostile work environment with the affidavit of teacher Rosetta Sirico Codling, who "observed the horrendous racial abuse that was heaped upon" the plaintiff and saw "no attempt by the authorities to stop this behavior." Codling Aff., ¶¶ 2, 4.
The defendants do not dispute Dr. Peries's claims that individual students harassed him on the basis of his national origin. Rather, they question his assertion that the harassment was pervasive and explicitly dispute his claims that the administration ignored his pleas for help. To the contrary, the defendants assert that they considered the plaintiffs complaints and responded with such actions as calls to parents, conferences, the reassignment of some students, and the assignment of paraprofessionals to assist Dr. Peries. See Reuter Aff., ¶ 15; Stolfi Dep., 122-23. In response to the March 4, 1997 letter to Mr. Burns, for example, Equal Opportunity Coordinator Joyce Prenner was sent to talk to Dr. Peries about the problem. see Burns Dep., 101-03. As for mediations, the defendants state that Dr. Peries himself was resistant to participating. See Reuter Aff., ¶ 14. In addition, the defendants claim that Dr. Peries's reliance on the referral forms as evidence of a lack of administrative response is inaccurate since school officials often took action without recording that action in writing. See id., ¶ 12.
Perhaps most significantly the defendants state that their options for dealing with harassment by students were severely limited by rules and regulations governing the suspensions of special education students. Pursuant to procedures set forth by the Chancellor of the New York City Schools, special education students can be suspended only in extreme circumstances:
Episodes of disruptive behavior are not in and of themselves necessarily cause for suspension. These episodes should signal the need for guidance conferences with the principal, a student's parent, the student, if appropriate, teachers, guidance counselors and other school staff to discuss episodes of behavior as well as possible remedial steps.
Reuter Aff., Ex. B, p. 4. School principals have the authority to suspend special education students only when they believe that a student's behavior poses "a clear and present danger of physical injury . . . or prevents the orderly operation of classes or other school activities."Id., p. 7. Verbal misconduct alone is not generally considered a basis for suspension, especially for emotionally disturbed students. See Reuter Aff., ¶¶ 10-11; Burns Dep., 15-19. The defendants also emphasize that Dr. Peries, as a classroom teacher, was the "primary authority figure in [his] classroom," and was therefore "responsible for maintaining discipline." Reuter Aff., ¶ 6.
In addition, the defendants point out that Dr. Peries's complaints about harassment rarely included multiple complaints about the same students. According to Ms. Reuter's review of the written complaints, Dr. Peries submitted one referral each for twenty-four students, two referrals for thirteen students, and three or more for only seven students. Most of these referrals did not involve ethnic or national origin harassment. Only three of the students with three or more referrals had harassed the plaintiff. See Reuter Aff., ¶¶ 17-19, Exs. E-M. Mr. Stolfi states that Dr. Peries had never previously complained about either of the two students in his March 4 letter to the principal. See Stolfi Dep., 105. The defendants argue that suspensions would not have been appropriate given the lack of a history of disruption by the individual students involved.
The defendants have submitted an affidavit from Ms. Valsich, who attests that the plaintiffs claim that she encouraged students to use slurs or otherwise harass him is "absolutely false." Valsich Aff., ¶ 2. She states that she "did not at any time ask or direct any student at Francis Lewis High School to use racial or ethnic slurs toward plaintiff or to harass him." Id., ¶ 3.
Dr. Peries filed this action on December 4, 1997, claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and 1983, as well as a number of other federal and New York statutes. As noted in the plaintiffs opposition to the instant motion, the only claims still being pursued by the plaintiff are his Title VII "hostile work environment" claim against the Board of Education ("the Board") and his Section 1981 and 1983 claims against Mr. Burns, Mr. Stolfi, Ms. Valsich, and Catherine Kalina, who has served as principal of Francis High since 1997.
The defendants assert that Mr. Burns was never served with process in this case. Dr. Peries does not dispute this claim and the record contains no indication that Mr. Burns was served. Therefore, this court lacks personal jurisdiction over the claim against him. Even if the court had jurisdiction, however, the claims against Mr. Burns would be dismissed on the basis of qualified immunity, as discussed infra.
Discussion
The Board first argues that the Title VII claim should be dismissed because Dr. Peries has failed to show that any of the Board's employees or officials engaged in conduct severe enough to create a hostile work environment and because the plaintiff has provided no basis for imposing liability on the Board for the misconduct of students. Next, the individual defendants argue that they are entitled to qualified immunity from the Section 1981 and 1983 lawsuits.
I. Legal Standard
When a party so moves, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists," Gallo V. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). "[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, 106 S.Ct. 2505, 2510 (1986). "On summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold. Inc., 369 U.S. 654. 655, 82 S.Ct. 993, 994 (1962), but the non-moving party "must do more than show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In making the necessary showing. "[c]onclusory allegations [by the non-moving party] will not suffice to create a genuine issue." Delaware Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990). A "genuine" issue is one that a reasonable jury could decide in favor of the non-moving party based on the evidence. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. The role of the court in deciding a motion for summary judgment is not to decide issues of fact, but only to determine whether or not they exist. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).
II. Title VII
The only Title VII claim that the plaintiff now pursues alleges that the ethnic and national origin harassment and the administration's failure to remedy the situation resulted in a hostile work environment. As the Supreme Court has explained, Title VII is violated "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (internal quotations omitted). Hostile work environment claims commonly involve allegations that co-workers have harassed the plaintiff based on his or her race, gender, ethnicity, or national origin. In these cases, a plaintiff must show "both (1) a hostile work environment and (2) that a specific basis exists for imputing the conduct that created the hostile work environment to the employer." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). The first prong is satisfied if the plaintiff can show the sort of atmosphere described by the Supreme Court in Harris. The second prong is satisfied if a plaintiff can show that the employer "failed to provide a reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (quoting Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 441 (2d Cir. 1999)) (internal citations omitted).
The plaintiffs claim in this case is unusual in that the alleged harassment came not from co-workers, but from students. The court has found no cases, nor have the parties identified any, involving this type of harassment. The most relevant cases in the Title VII context are those in which an employee has been harassed by the customers of his employer. Without deciding "the precise contours of the duty, if any, that employers owe to employees who are subjected to harassment by outsiders such as customers," the Second Circuit has stated that "such a duty can be no greater than that owed with respect to co-worker harassment." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). The Quinn court cited for support 29 C.F.R. § 1604.11(e), which discusses standards governing sexual harassment by non-employees:
An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the [EEOC] will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.159 F.3d at 766 (emphasis added in circuit opinion).
Although there may be some circumstances in which an employer truly has little or no authority to control the actions of customers, rendering the employer's duty less than that for co-worker harassment, the relationship between school officials and students is not such a case. In Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661 (1999), the Supreme Court recently held that a school board may be liable for the failure to stop students from sexually harassing other students if school officials are deliberately indifferent to the harassment. The decision was based in large part on the Court's determination that a school board "retains substantial control over the context in which the harassment [by students] occurs." Id. at 646. 1673.
More importantly, however, in this setting the Board exercises significant control over the harasser. We have observed, for example, "that the nature of [the State's] power [over public school children] is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.'Id. (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 2392 (1995)).
There are, of course, distinctions between student-on-student harassment and student| on-teacher harassment, the most important of which is that a victim student has no disciplinary authority over the harassing student, while a victim teacher wields at least nominal disciplinary authority. It is therefore conceivable that school officials would owe a greater duty of protection to powerless students than to teachers. Nevertheless, as a general rule, school administrators and school board officials have disciplinary authority that exceeds that of a classroom teacher, such as the power to suspend students and take other actions not commonly carried out by individual classroom instructors. See generally Howard v. Board of Educ. of Sycamore Cmty. Unit School Dist. No. 427, 893 F. Supp. 808, 819 (N.D. Ill. 1995) (noting that principal is in "unique position to attempt to control the behavior of the students" and "has a responsibility to teachers as well in his role as chief administrator of the school").
While the precise ability of a principal or other school official to control the harassment at issue in a given case should, as discussedinfra, be one factor taken into consideration when deciding whether or not there is actually liability under Title VII, as a matter of general legal standards it is difficult to conceive of a test more appropriate for student-on-teacher harassment than that suggested for customer harassment in Quinn. In this case, therefore, Dr. Peries can prevail only if he can show first that a hostile environment existed and second that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action.
Under the first prong of the Title VII inquiry, Dr. Peries has made a satisfactory showing of a hostile work environment for summary judgment purposes. The evidence produced by the plaintiff raises a legitimate possibility that the harassment by the students was sufficiently severe and pervasive to alter the conditions of Dr. Peries's employment and create an abusive atmosphere. The ongoing name-calling, mimicking, and other abuse described by the plaintiff between 1992 and 1997 constituted more than "a single isolated instance of harassment," Howley, 217 F.3d at 153, and may indeed have amounted to "a series of incidents [that] were sufficiently continuous and concerted to have altered the conditions of [his] working environment." Cruz v. Coach Stores. Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotations omitted). Ultimately, the jury will have to make a decision "by looking at all the circumstances" surrounding the harassment, Harris, 510 U.S. at 23, 114 S.Ct. at 371, including the severity of the abuse, the nature of the humiliation, its interference with Dr. Peries's teaching, and its effect on his psychological well-being. See id. While the jury might not in the end be convinced by Dr. Peries's allegations, this inquiry cannot be resolved conclusively on summary judgment.
The second hostile work environment question also cannot be answered definitively at this time. Dr. Peries does not seem to be arguing that the Board offered no mechanism for complaint, but rather that school officials knew about the harassment and did nothing to stop it. The defendants assert that school officials did all that they could, but that they were limited by regulations regarding special education students. They also state that Dr. Peries submitted a small number of complaints about many different students, but not enough complaints about any one student to merit taking serious action such as suspension. Furthermore, the Board insists that Dr. Peries himself had an obligation to provide stricter discipline on his own. While each of these arguments may have merit, the court cannot adequately judge the quality of the Board's response on summary judgment. The question of whether school officials took appropriate remedial action is a question of fact, not law. The jury's analysis of this question can include such issues as what disciplinary options are available short of suspension and what constitutes a proper division of disciplinary responsibility between administrators and teachers.
To the extent that Dr. Peries advances a separate hostile work environment claim based on abuse perpetrated by school employees, such a claim must fail. There is no concrete or credible evidence that any school officials harassed the plaintiff at any point, let alone in the continuous or concerted way necessary to support a Title VII claim. The only claim that can reach a jury is that school officials knew, or should have known, about the harassment by students and failed to take appropriate remedial action.
III. Sections 1981 and 1983
The individual defendants claim that they are protected from Dr. Peries's civil rights claims by qualified immunity, which bars lawsuits against government employees in most situations in order to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Harlow v. Fitzgerald, 457 U.S. 800, 818 102 S.Ct. 2727, 2738 (1982). As the Supreme Court has explained, qualified immunity covers "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986). "If the law did not put the [government official] on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2151, 2156-57 (2001). A court deciding whether a party is protected from suit under qualified immunity must first ask whether that individual's conduct "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known."Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). If that question is answered in the positive, the court must then ask whether "it was "objectively reasonable' for [the official] to believe that his actions were lawful at the time of the challenged act." Id. (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987)) (other citations omitted). The Second Circuit has explained that
[i]n deciding whether a particular right was clearly established as of a particular time, we must determine (i) whether the right at issue was defined with reasonable clarity; (ii) whether the Supreme Court or the Second Circuit had affirmed the existence of the right; and (iii) whether reasonable [officials] in the defendants' position would have understood from the existing law that their conduct was unlawful.Townes v. City of New York, 176 F.3d 138, 144 (2d Cir. 1999).
In this case, the defendants' conduct did not violate any clearly established statutory or constitutional obligation. The plaintiff argues to the contrary, stating that the law unambiguously bars discrimination on the basis of national origin. While this is true, so general a legal statement is not sufficient to overcome qualified immunity. See. e.g., Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 1700 (1999) ("[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established."). What matters for this inquiry is that neither the Supreme Court nor the Second Circuit has recognized a right for teachers to be protected by their employers against harassment by their students. In fact, as acknowledged in Quinn, the Second Circuit has not even resolved conclusively the question of whether employers have any obligation at all to protect their employees from discriminatory harassment by non-employees. See 159 F.3d at 766 ("[W]e need not decide the precise contours of the duty, if any, that employers owe to employees who are subjected to harassment by outsiders such as customers.") (emphasis added). Although the Supreme Court in Davis established that students have a right to be protected by school officials from harassment by other students, neither the Supreme Court nor the Second Circuit has extended that right to teachers. While this court believes, as discussed supra, that administrators should be required under Title VII to combat student-on-teacher harassment, this obligation is not sufficiently established to allow the defendants here to be held liable. Because the law did not put them on notice that their conduct was clearly unlawful, Mr. Burns, Mr. Stolfi, Ms. Kalina, and Ms. Valsich are entitled to qualified immunity.
Ms. Valsich's claim to qualified immunity is even stronger than the others, as there exists absolutely no basis to believe that one teacher has a legal obligation to stop the harassment of another teacher. The court has considered the qualified immunity issue as applied to Mr. Burns even though it appears that personal jurisdiction is lacking due to the plaintiffs failure to serve that defendant.
Conclusion
For the reasons set forth above, the defendants' motion is granted in part and denied in part. The Title VII hostile work environment claim against the Board of Education remains, but the civil rights claims against the individual defendants must be dismissed. All other claims against all other defendants are dismissed in light of the plaintiffs decision to withdraw them.The parties are directed to appear before Magistrate Judge Chrein at 11:00 a.m. on Friday, August 10, 2001, for settlement discussions. If the action is not settled, Judge Chrein will supervise the preparation of a joint pretrial order. The pretrial order must be submitted, in compliance with chambers' rules, by September 12, 2001. On that same date, the parties should submit all motions in limine, copies of all exhibits, proposed voir dire questions, and joint proposed jury instructions. If there is any disagreement regarding jury instructions, the parties should submit separate proposed charges on the disputed topics. Jury selection and trial will commence at 9:00 a.m. on October 1, 2001.
SO ORDERED.