RF v. South Country Central School District et al
Filing
62
OPINION & ORDER: For the foregoing reasons, the Moving Defendants' motion for summary judgment is granted in its entirety. The sole claims that survive this Order are Plaintiffs' section 1983 and state law battery claims against defedant Elsalam. SO Ordered by Judge Sandra J. Feuerstein on 9/23/2016. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
RF, individually on behalf of herself and on
behalf of her infant daughter MF,
FILED
CLERK
9/23/2016 1:05 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Plaintiffs,
-against-
OPINION AND ORDER
13-cv-2710 (SJF)(AKT)
SOUTH COUNTRY CENTRAL SCHOOL
DISTRICT, JONATHAN ELSALAM, and
PETER GROSSI, in their individual and
official capacities,
Defendants.
----------------------------------------------------------X
FEUERSTEIN, District Judge:
On May 5, 2013, plaintiff RF commenced this action individually and on behalf of MF,
her then minor daughter (RF and MF together, “Plaintiffs”), against defendants South Country
Central School District (the “District”), Jonathan Elsalam, and Peter Grossi, in their official
capacities as teachers at Bellport High School (“Bellport”), a school within the District, and in
their individual capacities. (See Complaint (“Compl.”) (Dkt. 1)). The litigation arises out of a
sexual relationship between Elsalam and MF during the 2011-2012 school year, MF’s junior year
at Bellport, and the summer of 2012.
Plaintiffs assert two (2) federal claims: (1) that the District engaged in sex discrimination
against MF in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et
seq. (“Title IX”); and (2) that the District and Elsalam, while acting under color of state law,
deprived MF of her rights to bodily integrity and to an educational environment free from sexual
harassment in violation of the Fourteenth Amendment, enforced via 42 U.S.C. § 1983. (Compl.
¶¶ 42-47). Plaintiffs also assert three (3) state law claims: (1) battery as to Elsalam; (2) negligent
hiring, supervision, and retention as to the District; and (3) failure to report suspected child abuse
or maltreatment in violation of New York Social Services Law (“NYSSL”) § 413 as to Grossi.
(Compl. ¶¶ 48-55). The Court has original federal-question jurisdiction over the federal claims
pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to
28 U.S.C. § 1367(a).
Presently before the Court are defendants the District’s and Grossi’s (together, the
“Moving Defendants”) motion for summary judgment on each of Plaintiffs’ claims against them
(i.e., all claims apart from battery) pursuant to Federal Rule of Civil Procedure 56. (Dkt. 51).
For the following reasons, the Court grants the Moving Defendants’ motion for summary
judgment in its entirety.
I.
BACKGROUND 1
During the 2011-2012 school year, MF was a student in her junior year at Bellport;
Elsalam, who began teaching at Bellport in 2008, was a social studies teacher and assistant coach
for the boys’ football and lacrosse teams. (Def. Stmt. ¶¶ 1, 3-4; Elsalam Depo. Tr. at 6). MF
was sixteen (16) years old for most of that school year; she turned seventeen (17) on May 9,
2012. (See 12/16/2013 MF Depo. Tr. at 8). Elsalam turned twenty-six (26) on January 12, 2012.
The following facts are taken from the parties’ statements pursuant to Local Civil Rule 56.1 and accompanying
exhibits and are undisputed unless otherwise noted. (See generally Moving Defendants’ Rule 56.1 Statement (“Def.
Stmt.”) (Dkt. 51-1); Plaintiffs’ Rule 56.1 Counterstatement (“Pl. Stmt.”) (Dkt. 58-1); Moving Defendants’ Rule 56.1
Reply Statement (“Def. Reply Stmt.”) (Dkt. 59-1). The Court has considered whether the parties’ statement of facts
are supported by admissible evidence. If a proffered fact that is supported by admissible evidence is disputed only
with inadmissible evidence such as hearsay or speculation, the Court treats that fact as undisputed. See, e.g., Spiegel
v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (“It is well established that, in determining the appropriateness of a
grant of summary judgment, … the district court in awarding summary judgment[ ] may rely only on admissible
evidence.”) (internal citations and quotations omitted); Scotto v. Brady, 410 Fed. Appx. 355, 361 (2d Cir. 2010)
(“We observe that a district court deciding a summary judgment motion has broad discretion in choosing whether to
admit evidence, and that the principles governing admissibility of evidence do not change on a motion for summary
judgment.”) (internal quotations and citations omitted); see also Burlington Coat Factory Warehouse Corp. v.
Espirit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (a party “cannot rely on inadmissible hearsay in opposing a
motion for summary judgment”).
1
2
(See 2/10/2013 State Court Trial Tr. (Dkt. 56-1) at 48-49). Peter Grossi was a physical education
/ health teacher and head coach of the boys’ varsity soccer and lacrosse teams. (Def. Stmt. ¶¶ 68). Bernie Soete was Bellport’s principal during the 2011-2012 school year. (Id. ¶ 11). Timothy
Hogan was one of four (4) assistant principals during that school year; the other three (3) were
Brian Norton, Bruce Muro, and Ally Ulberg. (Id. ¶ 9-10). Hogan was Bellport’s principal
during the 2012-2013 school year. (Id. ¶ 12). Nelson Briggs was the District’s assistant
superintendent for human resources during the 2012-2013 school year. (Id. ¶ 13).
MF was in Elsalam’s sociology class during the fall 2011 semester and she was in his
“current social problems” class during the spring 2012 semester. (Id. ¶ 14). Bellport teachers
are required to offer at least thirty (30) minutes of afterschool extra help time per week, and
Elsalam allowed students to come to his classroom for extra help after regular school hours
multiple days per week. (Id. ¶ 16, 19-20). MF was on the Bellport soccer team and needed
somewhere to go between the end of the school day at 1:52 p.m. and the start of soccer practice
at 2:45 p.m. (Id. ¶ 18). In September 2011, she began going to Elsalam’s classroom during this
interval between two (2) and four (4) days per week. (Id. ¶ 15). Other students were often
present for extra help, but MF attended these extra help sessions more frequently than others.
(Id. ¶¶ 19-20).
During the 2010-2011 school year, the District did not require teachers to maintain
records of students who attended extra help, but Elsalam nonetheless wrote down the names of
afterschool extra help attendees in a notebook. (Id. ¶ 22). Sometime during the fall of 2011, the
District began to require Bellport teachers to maintain extra help sign-in sheets containing the
names of the students in attendance and submit them to school administrators on a weekly basis,
and Elsalam was aware of the new requirement. (Id. ¶¶ 23-27). Elsalam complied with the new
3
requirement and submitted extra help attendance sheets on a weekly basis during the fall 2011
semester. (Id. ¶ 28; Pl. Stmt. ¶ 28; Def. Reply Stmt. ¶ 28). Although MF understood that she
was supposed to sign in when she attended Elsalam’s extra help sessions, she recalled signing in
“maybe once” during the fall 2011 semester; her name appeared on a single December 2011
attendance record. (Def. Stmt. ¶ 21; Pl. Stmt. ¶ 28). When MF asked Elsalam if she should sign
in, he told her “not to worry about it.” (Def. Stmt. ¶ 29; Pl. Stmt. ¶ 30).
In late October 2011, soccer season had ended and MF began staying in Elsalam’s
classroom late into the afternoon, after other students who were actually seeking extra help had
left. (Def. Stmt. ¶¶ 32-33). With just the two of them in the classroom after school, MF began to
confide in Elsalam regarding family turmoil involving her brother. (Id. ¶¶ 33-34). RF, MF’s
mother, knew that MF was spending time alone with Elsalam after school and discussing family
issues with him. (Id. ¶¶ 34-35). RF had “bad thoughts” about MF’s relationship with Elsalam,
but she did not disclose her “bad thoughts” to anyone else at the time. (Id. ¶¶ 35-36).
According to MF, in mid to late November 2011, her relationship with Elsalam became
“more than just [a] student-teacher relationship” when Elsalam told MF that he “ha[d] a crush”
on her while they were together in his classroom after school. (Id. ¶¶ 37-38; 12/16/2013 MF
Depo. Tr. at 24-25). MF did not tell anyone about this conversation until August or early
September of 2012, when she told her friend AD, a fellow student at Bellport, as further
discussed below. (Def. Stmt. ¶¶ 42, 124-28). Soon after Elsalam told MF that he had a “crush”
on her, the two began emailing each other. (Id. ¶ 43). MF first emailed Elsalam at his school
email address, but he told her to send emails to his private account instead, which she did. (Id.
¶¶ 44-45). After they began emailing through private accounts, Elsalam sent MF his cell phone
number in an email and the two began exchanging flirtatious text messages, including during
4
class in a surreptitious manner. (Id. ¶¶ 48-49). Neither Elsalam nor MF had the other listed in
their phone contacts under their true name: Elsalam’s pseudonym was “Seraphina” in MF’s
phone and MF was listed as “Matt H.” in Elsalam’s phone. (Id. ¶ 76). RF did not know that MF
and Elsalam were texting and emailing each other during the 2011-2012 school year. (Id. ¶ 50).
MF and Elsalam met outside of school for the first time in early December 2011. (Id. ¶
51). Elsalam picked MF up in his car near MF’s friend’s house in the late afternoon, told MF to
duck in the back seat until he said it was okay to sit up, and drove to a small beach on the north
shore of Long Island. (Id. ¶¶ 51-59). On this occasion, Elsalam and MF spent about two (2)
hours in Elsalam’s car talking and drinking a bottle of wine. (Id. ¶¶ 59-60). According to MF,
Elsalam told her that he wanted to kiss her, but they did not kiss or otherwise engage in any
romantic physical contact on this occasion. (Id. ¶ 60; Pl. Stmt. ¶ 60). After this day, Elsalam
and MF began to text message each other more frequently during the school day. (Def. Stmt. ¶
61).
Elsalam and MF met each other outside of school for the second time approximately two
(2) weeks later when Elsalam again picked MF up near her friend’s house and drove to the same
small beach, and then began seeing each other outside of school more frequently. (Id. ¶¶ 63-65).
According to MF, Elsalam kissed her on either the second or third occasion that they met outside
of school, and she did not tell anyone about it. (Id. ¶¶ 66-68). MF and Elsalam had sex for the
first time in Elsalam’s car; it was night time and they were parked in a secluded wooded area
near hunting grounds. (Id. ¶¶ 69-73). During the month of December 2011, Elsalam and MF
had sex in his car between ten (10) and twenty (20) times; each time they parked in the wooded
area near the same hunting grounds or at another secluded location that was not visible from the
5
road. (Id. ¶ 74). MF told RF that she was going to a friend’s house when she met with Elsalam.
(12/16/13 MF Depo. Tr. at 48-49).
MF enrolled in Elsalam’s “current social problems” course in the second semester of the
2011-2012 school year, and MF and Elsalam continued to surreptitiously text message each other
during class. (Id. at 50-51; Def. Stmt. ¶¶ 75-76). In class, MF always referred to Elsalam by his
surname in the same manner as the other students. (Def. Stmt. ¶¶ 77-78). MF did not attend
Elsalam’s afterschool extra help sessions as frequently as she did during the first semester
because she no longer had soccer practice, but she and Elsalam began seeing each other out of
school more often – about three (3) to four (4) days per week, according to MF. (Id. ¶¶ 79-80).
MF and Elsalam continued their sexual relationship, and Elsalam began taking MF to motels to
have sex in the late winter / early spring of 2012, and continued doing so through the summer of
2012. (Id. ¶¶ 81-85). Whenever they went to motels, Elsalam would park the car in front of the
room and MF would wait in the car while Elsalam went to the front desk to pay for the room in
cash, so as to avoid detection. (Id. ¶¶ 83-85, 94-95).
Both Elsalam and MF made other efforts to conceal their relationship. When he picked
MF up, Elsalam would park down the street and near bushes where his car was concealed from
view. (Id. ¶ 92). Elsalam and MF would typically drive around in Elsalam’s car, find
somewhere to park, or go to a motel; they were never outside of the car in public settings
together. (Id. ¶¶ 93-99). MF did not tell RF or her older sister, CF, about her relationship with
Elsalam during the second semester of the 2011-2012 school year. (Id. ¶ 100). MF lied to her
mother at least two hundred (200) times during the course of her relationship with Elsalam,
telling RF that she was going to the movies, to friends’ houses, or elsewhere whenever she went
out to meet him. (Id. ¶¶ 101-04). Before the relationship was ultimately revealed in late
6
September 2012, RF did not observe any personality changes in her daughter. (Id. ¶ 105). MF
lied to her sister, CF, and her close friend, AD, “too many times to count” during the course of
her relationship with Elsalam. (Id. ¶ 106). MF and Elsalam never had sex on school property
and, according to MF, kissed in the school “I think … just one time,” in Elsalam’s classroom
afterschool while they were alone. (Id. ¶¶ 109-13; Pl. Stmt. ¶¶ 109-13). MF never saw anyone
from the school when she was with Elsalam outside of school and is not aware of anyone from
the school seeing them together outside of school. (Def. Stmt. ¶¶ 107-08).
During her initial deposition conducted pursuant to section 50-h of the New York
General Municipal Law on February 11, 2013, MF testified that beginning “maybe four months
into the relationship” (i.e., around April 2012), “rumors and stuff like that” regarding the
relationship between MF and Elsalam began to circulate among Bellport students, but that MF
denied such rumors. (2/11/2013 MF Depo. Tr. at 62-63). During her 50-h deposition, MF
testified that students teased her about her relationship with Elsalam, but she could not recall the
name of a single student who had teased her. (Id. at 60-62). She never reported the supposed
teasing to any member of the Bellport faculty. (Id.). During her subsequent deposition, MF
testified that on one occasion during the spring 2012 semester she approached Ms. Conk, an art
teacher with whom she had a close relationship, seeking advice concerning family troubles.
(12/16/2013 MF Depo. Tr. at 110-14). MF testified that during this conversation with Ms. Conk,
she brought up “rumors about [her] and Mr. Elsalam,” but that she did not indicate that she and
Elsalam were in fact engaged in any romantic relationship. (Id.). MF did not discuss either the
relationship or any rumors regarding the relationship with any other Bellport faculty member
until the relationship was ultimately disclosed in late September 2012. (Id. at 117). Similarly, in
response to an interrogatory from the Moving Defendants, Elsalam indicated that he never
7
informed anyone employed by or associated with the District of his relationship with MF prior to
September 28, 2012. (Def. Stmt. ¶ 120).
The first person that MF told about her relationship with Elsalam was her friend AD, in
August or early September of 2012. (Id. ¶¶ 124-26). MF asked AD not to tell anyone else what
MF had told her and AD said that she would not. (Id. ¶¶ 127-28). Despite AD’s promise of
confidentiality, shortly before 9:30 a.m. on Tuesday September 25, 2012, AD and AR (another
Bellport student who was friends with MF) approached Grossi in his office during a four (4)minute interval between classes and said they needed to speak with him. (Grossi Depo. Tr. at
30-35, 41-42). Grossi was getting ready for a gym class that was about to begin. (Id. at 36, 4142). According to Grossi, one of the girls held up and waived her cell phone, seemingly
displaying a message posted on Facebook or another social media platform that Grossi was
unfamiliar with, and both girls were “saying[ ] something about [MF] either doing harm to
herself or to Jon Elsalam’s fiancée.” (Id. at 35-36, 44-46). The girls were speaking at the same
time, said that they did not want to talk to Principal Hogan, and referenced a lesson in health
class Grossi had previously given about “trusting people, about going to people, being honest.”
(Id. at 36-38, 140). According to Grossi, both girls were speaking rapidly and simultaneously,
and he “didn’t know what they were really trying to tell [him].” (Id. at 42, 47). Grossi asked the
girls what Elsalam had to do with the situation, and AD said, “Didn’t you know.” “Know
what?” asked Grossi. “About them,” replied AD. (Id. at 36-37). Grossi told the girls to go to
class, that “we’re gonna straighten this thing out, and if I have to go with you to present this
somewhere, that’s what we’re gonna do.” (Id. at 38).
After AD and AR had gone to their next class and Grossi had finished his gym class,
Grossi was on his way to get a security guard to watch his next class while he went to retrieve
8
AD and AR and bring them to Principal Hogan’s office. (Id. at 47-49). According to Grossi, as
he was in the midst of this, he saw Elsalam walking into the boys’ physical education office and
he pulled him aside and said, “Listen, two irate girls just came in, and somehow your name came
up, and this girl [MF’s] name came up, and I believe your fiancée’s name came up.” (Id. at 49).
Grossi told Elsalam to “go get an administrator and inform them that there’s a rumor that
something is going on.” (Id.; Def. Stmt. ¶¶ 144-45). After Grossi finished his next class, he
went to Elsalam’s classroom and asked Elsalam if he had reported the issue to administration;
Elsalam told Grossi he had not gone to an administrator yet but was going to. (Id. at 50; Def.
Stmt. ¶¶ 148-49). Grossi then went to cover “hall duty” before he had a break during seventh
period. (Def. Stmt. ¶¶ 150-51). During seventh period, Grossi went to look for AD and AR to
bring them to Principal Hogan, but they had left for the day. (Id. ¶ 152). When the school day
ended at 2:00 p.m., Grossi saw Elsalam at a meeting and, after the meeting had ended and the
two of them were walking to the sports fields, Grossi again asked Elsalam if he had discussed the
situation with an administrator and Elsalam said he had not because he had been busy. (Id. ¶¶
153-54). According to Grossi, no administrators were on school premises at this point in the day
and he “thought it needed to be done in person” rather than by emailing Principal Hogan. (Id. ¶¶
154-57; Grossi Depo. Tr. at 56). During his deposition, Hogan testified that “I believe I was, but
I can’t state that I absolutely was in the building that afternoon.” (Pl. Stmt. ¶ 155).
At about 7:00 p.m. on September 25, Elsalam called MF on her cell phone and told her
that they could not continue their relationship because someone had found out about it. (Def.
Stmt. ¶ 164). Elsalam told MF that two girls had approached Grossi displaying “some sort of a
text message,” and accused MF of telling someone about their relationship. (Id. ¶¶ 166-67). MF
at first denied telling anyone, to which Elsalam responded that “somebody knows and the only
9
way they can know is because of you.” (Id. ¶ 168). MF then admitted that she had told her
friend AD about the relationship. (Id. ¶ 169). Elsalam told MF that Hogan would question her
and that MF should deny any relationship with Elsalam. (Id. ¶ 170).
After speaking with Elsalam, MF went to see AD who denied telling anyone about the
relationship. (Id. ¶ 171). MF then called her older sister, CF, who was thirty (30) years old at
the time, and asked if she could go to CF’s apartment, to which CF agreed. (Id. ¶¶ 172-74; CF
Depo. Tr. at 8). MF went to CF’s apartment and told her the details about her relationship with
Elsalam. (Def. Stmt. ¶¶ 175-77). CF told MF that she could no longer see Elsalam, but did not
discuss the possibility of alerting school authorities. (Id. ¶¶ 178, 180). Before this time, it had
never occurred to CF that her sister might be involved in a romantic relationship with a teacher.
(Id. ¶ 179). After MF told CF about the relationship, CF began monitoring all communications
that MF had with Elsalam. (Id. ¶ 181).
MF spent that night (September 25 into September 26) at CF’s apartment. (Id. ¶ 183).
On Wednesday September 26, 2012, school was closed for the Yom Kippur holiday. (Id. ¶¶ 158,
182). On the morning of September 26, MF told CF that she wanted to see Elsalam. (Id. ¶ 183).
MF told CF that Elsalam had been approached by another teacher (Grossi) about rumors
concerning their relationship and that when school resumed on Thursday September 27, this
other teacher (Grossi) and Elsalam would need to report what the students (AD and AR) had told
the teacher (Grossi). (Id. ¶ 184). MF said she wanted to make sure Elsalam would not get in
trouble when school resumed the next day. (Id. ¶ 185). CF agreed that MF could meet Elsalam
to make a plan, so long as the meeting was in CF’s presence. (Id. ¶ 186). MF called Elsalam on
speaker phone in front of CF and made arrangements for Elsalam to come to CF’s apartment.
10
(Id. ¶ 187). According to CF, this “was the only way they [MF and Elsalam] [could] contact and
speak to each other about the situation…” (Id. ¶ 188).
Notwithstanding the school’s closure on September 26, fall sports teams were holding
practices and Grossi went to the school for soccer practice. (Id. ¶¶ 158-59). Grossi expected to
see Elsalam at the school for football practice and planned to speak with him, but Elsalam was
not there. (Id. ¶ 159-60). Grossi got Elsalam’s cell phone number from a lacrosse coach and
called Elsalam after he had returned home from practice. (Id. ¶ 161). Grossi told Elsalam that
he intended to speak with Hogan the next day, September 27. (Id. ¶ 162). Elsalam asked if he
could go with Grossi to speak with Hogan, and Grossi said yes. (Id. ¶ 163).
CF had work during the day on September 26 and a class that evening, so Elsalam went
to CF’s apartment around 9:30 p.m. on September 26, after CF had returned. (Id. ¶¶ 191-92).
MF, CF, and Elsalam spoke for more than an hour and CF recorded the meeting with her cell
phone. (Id. ¶¶ 193-94). In CF’s presence, Elsalam and MF agreed that it would be best for both
of them if nobody found out about the relationship and agreed to “deny everything to
administration.” (Id. ¶¶ 196-99, 201). At Elsalam’s request, MF deleted from her phone
Elsalam’s phone number and all text and email messages to / from Elsalam. (Id. ¶ 202). MF
then went outside and sat in her car while Elsalam and CF spoke in the apartment. (Id. ¶¶ 20304). CF expressed concern for her sister’s safety at school and Elsalam offered to act as CF’s
“eyes and ears and let CF know if MF was being bullied.” (Id. ¶ 204). Elsalam and CF
exchanged phone numbers and agreed to keep in touch as the situation progressed, and then
Elsalam left. (Id. ¶ 205). At some point that evening, Elsalam called MF and told her “that his
job and his future [were] in [her] hands so [she] needed to be [her] normal composed self and
11
save him,” to which MF responded that they were “in this together.” (Id. ¶¶ 206-07). At that
point, MF still believed that there was hope for a relationship with Elsalam. (Id. ¶ 208).
On Thursday September 27, 2012, Grossi approached Hogan as he was greeting students
in the Bellport lobby between 6:45 and 7:15 a.m. and said that he would like to speak with him
about something important at the beginning of the second period. (Id. ¶ 209). At 8:00 a.m.,
Grossi and Elsalam went to Hogan’s office and Grossi told Hogan that two girls, AD and AR,
had approached him and expressed concern that one of their friends and Elsalam were involved
in a relationship. (Id. ¶¶ 210-11). Hogan asked Elsalam if there was “any validity to any of
this,” and Elsalam said there was not. (Id. ¶ 212). Hogan told Elsalam that “if there’s anything
you need to share with me, now is the time to do it,” and Elsalam said that there was nothing to
share other than the fact that MF had attended some of his afterschool extra help sessions. (Id.
¶¶ 213-14). Hogan told Elsalam that he intended to apprise Nelson Briggs (the District’s
assistant superintendent for human resources) of the situation. (Id. ¶ 215). Hogan was not aware
of any rumors regarding Elsalam and MF until this time. (Id. ¶ 216).
As soon as Elsalam left his office, Hogan telephoned Briggs, and Briggs arrived at
Hogan’s office within an hour. (Id. ¶¶ 217-18). Briggs first met with Hogan and Grossi. (Id. ¶¶
219-20). Upon Briggs’ request, Hogan summoned AD from her class so that she could meet
with Briggs and Hogan. (Id. ¶¶ 221-23). AD showed Briggs and Hogan a text message on her
phone, which she described as a message between Elsalam and MF “that had something to do
with MF being upset because Elsalam was seeing his former girlfriend,” and then printed out the
text message and provided copies to Briggs. (Id. ¶¶ 224-25). This first meeting with AD lasted
about thirty (30) minutes, and Briggs and Hogan met with her on two subsequent occasions. (Id.
¶¶ 227-28). Hogan and Briggs also met with AR; Hogan believed that meeting occurred the
12
following day (September 28). (Id. ¶ 229). AR said that Elsalam had picked MF up from
another student’s home after the junior prom in late April 2012. (Id. ¶ 230). AD and AR
provided Briggs and Hogan with the names of two (2) other students who they said knew about
the relationship, and Hogan and Briggs spoke with those students on either Friday September 28
or Monday October 1; both students said they were aware of the relationship. (Id. ¶¶ 231-32).
On Friday September 28, 2012, a “district official” (MF did not remember his name)
pulled MF out of class and MF accompanied him to his office. (Id. ¶ 233). Once in the official’s
office, MF met alone with a social worker named Ms. Lopez, who asked MF about the rumors
regarding her and Elsalam. (Id. ¶ 234). MF denied any relationship with Elsalam and told Ms.
Lopez that the rumors were false. (Id. ¶¶ 235-36). MF then met with Hogan, Briggs, and Lopez,
and again denied any relationship with Elsalam. (Id. ¶ 237-38). Briggs then called RF (MF’s
mother) and summoned her to the school. (Id. ¶ 240). RF and CF went to the school and met in
Hogan’s office with Hogan, Briggs, and MF. (Id. ¶¶ 239-41). Again, MF denied any
relationship with Elsalam. (Id. ¶¶ 241-42). RF was not aware of MF’s relationship with Elsalam
and believed the purpose of the meeting was to discuss rumors arising from other students who
were jealous of MF because she had entered a beauty pageant. (Id. ¶ 243). At the time of this
meeting with Briggs and Hogan, CF was aware of MF’s relationship with Elsalam but she did
not disclose the relationship or the fact that Elsalam had met with MF at CF’s apartment two (2)
days before. (Id. ¶¶ 244-45). CF also attended a second meeting with District officials and again
did not disclose the relationship. (Id. ¶ 246).
Between 3:00 and 4:00 p.m. on Friday September 28, 2012, Briggs had Elsalam removed
from football practice based upon the information he had gathered during the previous two (2)
days. (Id. ¶ 247). After being removed from practice that day, Elsalam did not return to the
13
classroom or to his coaching position and the District suspended him on October 8, 2012. (Id. ¶
248). During the weekend of September 29-30, Briggs contacted Officer John Scanga, a School
Resource Officer from the Suffolk County Police Department who is assigned to the District,
regarding the relationship between Elsalam and MF. (Id. ¶ 250).
Soon thereafter, in early October 2012, Briggs summoned RF, who still did not know
about the relationship, to another meeting. Briggs told RF that her older daughter CF had met
with Elsalam at CF’s apartment and that they were “trying to cover up the facts that occurred.”
(Id. ¶ 253). After that meeting, RF spoke with her daughters and, at CF’s urging, MF disclosed
her relationship with Elsalam to her mother. (Id. ¶¶ 255-59). Following MF’s disclosure to her
mother, MF and RF attended another meeting with District officials (MF’s third such meeting),
where MF again denied her relationship with Elsalam in RF’s presence and RF did nothing to
correct the misrepresentation. (Id. ¶¶ 261-64).
On October 10, 2012, upon Briggs’ report to Officer Scanga, a police officer went to
MF’s family’s house and asked MF if he could take a statement from her regarding her
relationship with Elsalam. (Id. ¶ 265-67). MF felt obligated to be truthful with law enforcement
and admitted her relationship with Elsalam to the officer. (Id. ¶¶ 268-69). This was the first
time MF disclosed the relationship to a school or law enforcement official. (Id. ¶ 265). On
October 11, 2012, the District convened another meeting with MF’s parents, this time conducted
by Douglas Spenser, an attorney for the District. (Id. ¶ 271). Principal Hogan had called MF’s
house and directed MF to attend this meeting, but MF “got hysterical” and RF reported that her
daughter would not be attending; RF went to the meeting with her husband (MF’s father). (Id. ¶¶
272-75). Upon questioning from Briggs and Spenser, RF admitted for the first time that MF had
been involved in a relationship with Elsalam. (Id. ¶¶ 275-77). The District officials at the
14
meeting informed RF and her husband that Elsalam would be fired. (Id. ¶ 278). Elsalam was
fired, prosecuted and convicted in state court on a misdemeanor charge of endangering the
welfare of a child (he was acquitted on criminal statutory rape charges), and sentenced to a 60day term of imprisonment.
II.
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with 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,” Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006)
(quoting Fed. R. Civ. P. 56(c)), and “where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Belton v. City of New York, 629 Fed. Appx. 50,
50 (2d Cir. 2015) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). A district court “is not to weigh the evidence but is instead required to view the
evidence in the light most favorable to the party opposing summary judgment, to draw all
reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty
America v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotations
omitted).
In order to defeat a motion for summary judgment, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts… [She] must
come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita, 475 U.S. at 586-87) (emphasis
in original); see also R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
15
(“opposing party must provide concrete particulars showing that a trial is needed”) (internal
quotations omitted). “It is not sufficient merely to assert a conclusion without supplying
supporting arguments or facts.” BellSouth Telecommunications, Inc. v. W.R. Grace & CompanyConn., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
B.
Title IX
Plaintiffs assert Title IX claims against the District only. (Compl. ¶¶ 44-11). Title IX
provides, in pertinent part, that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
If a school receives federal funding, as virtually every public school does, a student who is
subjected to sexual harassment by a teacher has a private right of action against the school and
may recover monetary damages under Title IX. See Franklin v. Gwinnett County Public
Schools, 503 U.S. 60, 73-76 (1992); Romero v. City of New York, 839 F. Supp. 2d 588, 602
(E.D.N.Y. 2012); Bliss v. Putnam Valley Cent. School Dist., No. 06-cv-15509, 2011 WL
1079944, at *4 (E.D.N.Y. March 24, 2011).
In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), a case
involving a sexual relationship between a teacher and an eighth-grade student that was not
reported to school officials, the Supreme Court held that “a damages remedy will not lie [against
a school district] under Title IX unless an official who at a minimum has authority to address the
alleged discrimination and to institute corrective measures on the [federal funding] recipient’s
behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to
respond.” 524 U.S. at 290 (emphasis added). “Deliberate indifference” or “an official decision
by the recipient not to remedy the violation” constitutes an inadequate response. Id. at 290-91.
16
The Supreme Court has “declined … to impose [Title IX] liability under what amount[s] to a
negligence standard – holding the district liable for its failure to react to teacher-student
harassment of which it knew or should have known.” Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 642 (1999) (emphasis in original) (citing Gebser, 524 U.S. at 283). “The high standard
imposed in Gebser sought to eliminate any ‘risk that the recipient would be liable in damages not
for its own official decision but instead for its employees’ independent actions.’ ” Id. at 643
(quoting Gebser, 524 U.S. at 290-91).
1.
Notice of the Relationship
Plaintiffs argue that “a reasonable jury can find that an appropriate person at the District
was on notice of the harassment” at some unspecified point prior to September 27, 2012, when
Grossi reported to Hogan what AD and AR (the two girls who were friends with MF) had told
him on September 25. (Pl. Opp. Br. at 14). Without citing to their 56.1 statement or any other
evidentiary support, Plaintiffs contend that “[a]ctual notice can be inferred” because “[s]everal
teachers … made comments indicating that they knew Elsalam was having an affair with M.F.”
(Id. at 15). A review of Plaintiffs’ 56.1 statement shows that this assertion is premised solely
upon MF’s contention that Elsalam and/or another student told her that other people made
statements to them and/or others. Plaintiffs also argue that the conversation MF attests to have
had with Ms. Conk (her former art teacher) regarding family turmoil and “rumors about [her] and
Mr. Elsalam” during the spring 2012 semester provided the District with actual notice.
However, as discussed above, MF testified that she said something to Ms. Conk about “rumors”
but did not indicate that she and Elsalam were in fact engaged in any romantic relationship.
(12/16/2013 MF Depo. Tr. at 110-14). Plaintiffs did not make any effort to depose Ms. Conk. In
any event, a school district “is not required to undertake an investigation or implement remedial
17
measures for every instance of an unsubstantiated rumor uttered among students about a
student’s feelings for a teacher, or vice-versa…” Romero, 839 F. Supp. 2d at 609. Therefore,
these arguments do not create any triable issues regarding the District’s notice.
Plaintiffs also argue that summary judgment is inappropriate because the District “should
have known” about the relationship with Elsalam. (Pl. Opp. Br. at 13). While the Supreme
Court explicitly rejected the “should have known” standard in Davis, the Second Circuit, in a
decision issued about six (6) months after Davis, noted that “[o]f course, a showing that the
defendant ‘should have known’ can, in some circumstances, create an inference – at least
sufficient to raise a genuine issue – that the defendant did know.” Gant v. Wallingford Bd. of
Educ., 195 F.3d 134, 141 n. 6 (2d Cir. 1999) (internal citation omitted) (emphasis in original).
Seizing upon the Second Circuit’s footnote in Gant, Plaintiffs argue that the District should have
known about the relationship because: (1) “Briggs … was already on notice that Elsalam had
engaged in inappropriate relationships with previous students prior to Elsalam’s affair with
M.F.”; (2) “M.F. was observed by administrators, teachers, and students” “spending an
inordinate amount of time in his classroom” and generally behaving in a manner that was “far
from the normal student / teacher relationship”; and (3) “M.F. stayed late in Elsalam’s classroom
two to four times per week” and administrators were aware that Elsalam had failed to submit
extra help attendance sheets. (Pl. Opp. Br. at 14).
Plaintiffs’ first argument that the District “should have known” about the relationship
between MF and Elsalam is premised upon a fall 2011 report from Bellport Athletic Director
Robert McIntyre to Briggs that McIntyre “was told by two parents [at a baseball game] that
Elsalam was dating former Bellport students,” and that, after hearing this from McIntyre, Briggs
“told Elsalam that his dating of recent graduates was inappropriate…” (Pl. Stmt. ¶ 113; Pl. Ex.
18
11 at 16) (emphasis added). Plaintiffs offer no legal or logical support for their contention that
an unsubstantiated report regarding a relationship between Elsalam and a former Bellport student
provided the District with constructive notice that Elsalam was involved in a romantic
relationship with MF or any other current student. “Relying on Gebser, courts have found that
discrepancies between the conduct that allegedly put the administration on notice and the
conduct ultimately at issue in the litigation must be sufficiently similar to find liability.” Bliss,
2011 WL 1079944, at *6 (citing Doe v. Flaherty, 623 F.3d 577, 585 (8th Cir. 2010) and Doe v.
Sch. Bd., 604 F.3d 1248 (11th Cir. 2010)). A teacher in his twenties dating a former student who
is over the age of eighteen (18) is legally and morally different from that teacher dating a current
student. An fall 2011 allegation of a report regarding a romantic relationship between Elsalam
and a former Bellport student, even if true, was insufficient to put the District on notice of the
relationship between Elsalam and MF.
Plaintiffs’ other arguments that the District “should have known” are also insufficient to
establish any triable questions of fact regarding the District’s knowledge of the relationship
under Title IX. Plaintiffs’ contention that “M.F. was observed by administrators, teachers, and
students” “spending an inordinate amount of time in [Elsalam’s] classroom” and generally
behaving in a manner that was “far from the normal student / teacher relationship” is
unsupported by admissible evidence. Plaintiffs’ sole specific proffer in support of this
contention is that “M.F.’s 9th period teacher, Dr. Inna Kucheryavanko, witnessed M.F. leaving
class early ‘to go to Mr. Elsalam’s class’ where she would ‘sit there for a while.’ ” (Pl. Stmt. ¶
113 (quoting 12/16/13 MF Depo. Tr. at 151)). However, MF’s testimony negates Plaintiffs’
contention that Ms. Kucheryavanko knew or should have known that MF was spending this time
in Elsalam’s classroom: “I would tell her I was in the bathroom or I went to the guidance office
19
or I would -- I wouldn’t really tell her. I would just leave.” (12/16/13 MF Depo. Tr. at 151).
Plaintiffs have offered no evidence that any Bellport administrators were aware of the time that
MF spent with Elsalam at his afterschool extra help sessions during the fall 2011 semester. It is
undisputed that MF signed Elsalam’s extra help attendance sheet just one (1) time, in December
2011 (Def. Stmt. ¶ 21; Pl. Stmt. ¶ 28), which would not put anyone in a position of authority on
notice of MF’s frequent attendance at Elsalam’s extra help sessions. In any event, even if other
teachers and/or administrators were aware that MF was spending a significant amount of time in
Elsalam’s classroom during or after school, this alone would be insufficient to put the District on
notice of an improper student-teacher relationship under Title IX. See Romero, 839 F. Supp. 2d
at 607-08 (where plaintiff testified that she and her teacher “did not touch or kiss in the presence
of others,” her testimony that she and the teacher “regularly walked together in the hallway, ate
lunch together, and sat together in the library in plain view of students and staff” was insufficient
to create a triable question of fact regarding the school district’s knowledge of the improper
relationship). In short, the record contains no evidence that any adult affiliated with the District
received any information about a potential relationship between MF and Elsalam prior to
September 25, 2012, when AD and AR approached Grossi.
On the morning of September 25, 2012, AD and AR approached Grossi in his office
during the brief interval between classes and displayed what appeared to Grossi to be a Facebook
message on a cell phone. (Grossi Depo. Tr. at 35-36, 45-46). Grossi testified that the girls were
speaking rapidly and simultaneously, and that he “didn’t know what they were really trying to
tell [him],” but that he deduced that they were “saying[ ] something about [MF] either doing
harm to herself or to Jon Elsalam’s fiancée.” (Id. at 35-36, 42, 47). Grossi believed that the girls
were reporting rumors that they had heard. (Id. at 37, 39). It is not clear whether Grossi, a gym /
20
health teacher and athletic coach, is an “official” whose knowledge may be imputed to the
District under Title IX. See Romero, 839 F. Supp. 2d at 605, n. 9 (“[N]either the Supreme Court
nor the Second Circuit has addressed whether a teacher … who does not have supervisory
authority over the offending employee and cannot fire or suspend the employee, is a ‘school
official with authority to address the alleged discrimination and institute corrective
measures[.]’”) (quoting Gebser, 524 U.S. at 290) (collecting cases). However, it is unnecessary
to resolve this question because even if Grossi were such an “official,” a hurried and confusing
report about a Facebook message from two students between classes does not amount to actual
knowledge under Title IX. See id. at 609 (school district “is not required to undertake an
investigation or implement remedial measures for every instance of an unsubstantiated rumor
uttered among students about a student’s feelings for a teacher, or vice-versa…”); Tesoriero v.
Syosset Central School Dist., 382 F. Supp. 2d 387 (E.D.N.Y. 2005) (“[A]ctual notice … requires
more than a simple report of inappropriate conduct by a teacher.”) (internal quotations omitted).2
Bellport was closed on September 26, 2012 for the Yom Kippur holiday. At 8:00 a.m. on
Thursday September 27, 2012, Grossi, with Elsalam in tow, went to Hogan’s office and reported
the incident involving AD and AR. Hogan asked Elsalam if there was any truth to the rumors,
and Elsalam denied it. Nevertheless, Hogan immediately summoned Briggs to the school, and
Briggs and Hogan commenced an investigation that included interviewing AD, AR, and MF on
September 27 and 28. MF denied any relationship during the September 28 meeting. In early
October (before October 10), MF admitted the relationship to RF, but nevertheless denied the
In any event, even if Grossi were an “official” and even if the report from AD and AR triggered actual notice,
Grossi located Elsalam very shortly after the encounter with the students and pressured him multiple times to report
directly to administration. Elsalam did not follow Grossi’s instructions that day, so Grossi reported the incident
involving AD and AR to Hogan himself on the morning of September 27, 2012, immediately after the school
reopened following the Yom Kippur holiday on September 26. Accordingly, Grossi “immediately took meaningful
steps to stop the possible [sexual harassment],” Romero, 839 F. Supp. 2d at 605, n. 9, and thus satisfied any remedial
obligations he might have had under Gebser.
2
21
relationship to District officials at a subsequent meeting in RF’s presence. RF allowed District
officials to labor under her daughter’s misrepresentation during this early October 2012 meeting.
On October 10, 2012, MF admitted the relationship to a police officer; this was the first time that
MF admitted the relationship to anyone other than her friends, sister, or mother. During an
October 11, 2012 meeting that MF did not attend, RF admitted to District officials for the first
time that MF and Elsalam had been involved in a relationship. Accordingly, the Court concludes
that the District had actual knowledge of the possibility of a relationship between MF and
Elsalam on September 27, 2012, and actual notice that MF and Elsalam had in fact been engaged
in an improper relationship on October 11, 2012.
2.
The District’s Response
“A school fails to adequately respond if it provides no response or if it provides a
response that ‘amount[s] to deliberate indifference to discrimination.’” Papelino v. Albany
College of Pharmacy of Union University, 633 F.3d 81, 89 (2d. Cir. 2011) (quoting Gebser, 524
U.S. at 290). Deliberate indifference may be found where “[t]he school’s response to sex
discrimination [is] ‘clearly unreasonable’ in light of known circumstances,” Id. (quoting Davis,
526 U.S. at 648), or “whe[re] remedial action only follows after a lengthy and unjustified delay.”
Hayut v. State University of New York, 352 F.3d 733, 751 (2d Cir. 2003) (internal quotations
omitted). As stated by the Second Circuit, “[c]learly unreasonable is not a mere ‘reasonableness’
standard, and there is ‘no reason why courts on a motion … for summary judgment … could not
identify a response as not clearly unreasonable as a matter of law.’ ” DT v. Somers Central
School Dist., 348 Fed. Appx. 697, 700 (2d Cir. 2009).
Plaintiffs hinge their Title IX argument entirely on the false premise that District officials
knew about the relationship between Elsalam and MF at some unspecified point prior to
22
September 27, 2012. Briggs and Hogan commenced an investigation on September 27, 2012
immediately upon learning of Grossi’s September 25 interaction with AD and AR.
Notwithstanding the fact that MF denied the relationship to everyone apart from friends and
family until October 10, Hogan and Briggs removed Elsalam from football practice on the
afternoon of September 28, promptly suspended him and reported the situation to law
enforcement, held a series of investigatory meetings with MF and/or her parents, and ultimately
fired Elsalam.
“The body of applicable case law indicates that a principal receiving reports of possible
teacher-to-student sexual harassment does not act with deliberate indifference where he or she
promptly investigates, institutes corrective measures, and subsequently continues to monitor the
situation.” Tesoriero, 382 F. Supp. 2d at 399 (internal citations omitted). The record is clear that
the District’s response was both prompt and adequate; there are no triable questions of fact in
this regard. Accordingly, the Court grants the Moving Defendants’ motion for summary
judgment with respect to Plaintiffs’ Title IX claim.
C.
§ 1983
Plaintiffs claim that the District and Elsalam violated MF’s “constitutional rights to
bodily integrity and to an educational environment free from sexual harassment” under the
Fourteenth Amendment, enforceable via 42. U.S.C. § 1983. (Compl. ¶¶ 42-43). Plaintiffs claim
that the District’s “deliberate indifference” to the purported constitutional violations “may be
inferred” because (i) “[s]upervisors … failed to properly investigate and address the
Constitutional violations,” and (ii) “[i]nadequate training / supervision was so likely to result in
the Constitutional violations that policymakers can reasonably be said to have been deliberately
indifferent to the need to provide better training and supervision…” (Compl. ¶ 43). While the
23
Second Circuit once held that “a § 1983 claim based on the Equal Protection Clause is subsumed
under Title IX,” Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 758 (2d Cir. 1998),
in 2009 the Supreme Court resolved a circuit split and held that plaintiffs alleging
unconstitutional gender discrimination in schools may assert claims under both Title IX and §
1983. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258 (2009).
Under § 1983, an injured party may sue a “person who, under color of any statute,
ordinance, regulation, custom, or usage of any State … subjects, or causes to be subjected, any
citizen of the United States … to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws…” 42 U.S.C. § 1983. Courts within the Second Circuit recognize,
under the Equal Protection Clause, constitutional rights to bodily integrity and to an educational
environment free of sexual harassment. See, e.g., Bruneau, 163 F.3d at 758; U.S. v. Giordano,
442 F.3d 30, 47 (2d Cir. 2006). “Municipal entities, including school districts, are ‘persons’
within the meaning of § 1983 and therefore subject to suit under that provision.” Nagle v.
Marron, 663 F.3d 100, 116 (2d Cir. 2011) (citing Monell v. Dep’t of Soc. Serv. of City of New
York, 436 U.S. 658, 663 (1978)).
“[M]unicipalities are not liable ‘on a respondeat superior theory,’ simply because an
employee committed a tort.” Id. (quoting Monell, 436 U.S. at 691). “Section 1983
‘distinguish[es] acts of the municipality from acts of employees of the municipality,’ and imposes
liability only for ‘action for which the municipality is actually responsible.’ ” Id. (quoting
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). Under Monell, a school district may
be held liable for a teacher’s violation of a student’s constitutional rights only where the
violation is a result of the district’s “policy or custom.” Monell, 436 U.S. at 694; see also Roe v.
City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). The Monell “policy or custom” requirement
24
may be satisfied under one or more of the following theories: (1) an employee was acting
pursuant to an expressly adopted policy; (2) an employee was acting pursuant to a longstanding
practice or custom; (3) the employee responsible for the constitutional deprivation was himself
responsible for establishing the relevant municipal policies. See, e.g., Hurdle v. Bd. of Educ. of
City of New York, 113 Fed. Appx. 423, 424-25 (2d Cir. 2004); Romero, 839 F. Supp. 2d at 618;
Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 630. “In limited circumstances, a
[municipal entity’s] decision not to train certain employees about their legal duty to avoid
violating citizens’ rights may rise to the level of an official government policy for purposes of §
1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
Certainly, Elsalam was neither a policymaker nor acting in accordance with express
District policy when he embarked on a romantic relationship with MF. Plaintiffs argue first that
“knowledge of Elsalam’s predilection towards engaging in inappropriate relationships with
students, and his affair with M.F., was so widespread that it constituted custom through which
constructive notice was imposed.” (Pl. Opp. Br. at 22). As discussed above, the record only
contains evidence that Briggs learned at some point in 2011 that Elsalam may have dated a
former Bellport student; even if true, this would not have imparted “knowledge of Elsalam’s
predilection towards engaging in inappropriate relationships with students” as Plaintiffs argue.
As discussed above, the District did not receive notice of Elsalam’s “affair with M.F.” until
September 27, 2012, at which time it took prompt remedial action. Insofar as Plaintiffs seek to
proceed on a theory of “inadequate training,” they cannot succeed.
“A municipality’s culpability for a deprivation of rights is at its most tenuous where a
claim turns on a failure to train.” Connick, 563 U.S. at 61 (internal citations omitted). “[A]
municipality’s failure to train its employees in a relevant respect must amount to deliberate
25
indifference to the rights of persons with whom the untrained employees come into contact.” Id.
(internal quotations and alterations omitted). “A pattern of similar constitutional violations by
untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes
of failure to train.” Id. at 62 (internal quotations omitted). The record is clear that the first time
a District official learned about Elsalam’s relationship with MF was September 27, 2012, when
Grossi informed Hogan about his interaction with AD and AR on September 25, and that
Elsalam was suspended the next day. The record is also devoid of any evidence of a “pattern of
similar constitutional violations” by any other Bellport teachers. Accordingly, Plaintiffs’ failure
to train argument is without merit.
The Moving Defendants’ motion for summary judgment is granted as to Plaintiffs’ §
1983 claim against the District. Elsalam has not moved for summary judgment, and the Court
sees no reason to dismiss Plaintiffs’ § 1983 claim against Elsalam based on the record before it,
thus Plaintiffs’ § 1983 claim against Elsalam survives this Order. See Bliss, 2011 WL 1079944,
at *9 (“As the alleged tortfeasor, [the teacher] was in a position to protect plaintiff from her
statutorily-protected right to be free of teacher-on-student sexual assault… Summary judgment
is not appropriate on the section 1983 claim against [the teacher].”) (internal citations omitted).
D.
State Law Claims
1.
Negligent Hiring, Retention, and Supervision
Plaintiffs assert a negligent hiring, retention, and supervision claim under New York
State common law against the District. (Compl. ¶¶ 49-51; Pl. Opp. Br. at 19-20). In order to
succeed on a negligent hiring claim, a plaintiff must show that the employer “knew or should
have known of the employee’s tortious propensities at the time of hiring.” Tesoriero, 382 F.
Supp. 2d at 401 (citing Estevez-Yalcin v. Children’s Vill., 331 F. Supp. 2d 170, 175 (S.D.N.Y.
26
2004)). The record contains no facts that might have raised any red flags about “tortious
propensities” that Elsalam might have had at the time of his hiring, so Plaintiffs do not have a
viable negligent hiring claim.
“To avoid summary judgment on the issue of negligent retention,… a plaintiff must offer
evidence that the defendant negligently failed to terminate an employee – that is, that the
defendant knew or should have known of the employee’s propensity to commit acts meriting
dismissal, yet failed to act accordingly.” Id. at 401-02; see also Adorno v. Corr. Servs. Corp.,
312 F. Supp. 2d 505, 519 (S.D.N.Y. 2004) (“[A]n employer is required to answer in damages for
the tort of any employee against a third party when the employer has … retained the employee
with knowledge of the employee’s propensity for the sort of behavior which caused the injured
party’s harm.”) (internal quotations and citations omitted). As discussed extensively above, the
District was not put on notice of Elsalam’s “propensity to commit acts meriting dismissal” until
September 27, 2012 and it suspended him on September 28, 2012. Plaintiffs do not have a viable
negligent retention claim.
A school district owes the duty to exercise the same degree of care with respect to its
students “as a reasonably prudent parent would exercise under the same circumstances.”
Tesoriero, 382 F. Supp. 2d at 402 (internal citations omitted). “The duty to supervise apparently
encompasses the supervision of teachers as well as students, to the extent that teachers present
known or knowable potential threats to the students’ well-being.” Id. (citing Doe v. Whitney,
779 N.Y.S.2d 570, 572 (2d Dep’t 2004) (emphasis in original). A successful negligent
supervision claim in this context requires a showing that the student’s injury was “reasonably
foreseeable … and proximately related to the school’s failure to provide supervision.” Id. (citing
Dia CC v. Ithaca City Sch. Dist., 758 N.Y.S.2d 197, 197 (3d Dep’t 2003)). Contrary to
27
Plaintiffs’ suggestions, the record contains no evidence that Elsalam ever engaged in a similar
relationship with any other current Bellport student. Moreover, MF and Elsalam conducted their
romantic relationship almost entirely off school premises in private locations, or via text and
email using private accounts and pseudonyms, and employed a variety of machinations to
successfully keep the relationship secret until AD and AR ultimately informed Grossi over MF’s
request for secrecy. Thus, MF’s injury was neither reasonably foreseeable nor proximately
related to the District’s failure to provide supervision. Accordingly, the Moving Defendants’
motion for summary judgment is granted with respect to Plaintiffs’ negligent hiring, retention,
and supervision claim against the District.
2.
NY Social Services Law § 413 – Failure to Report
Plaintiffs assert a claim against Grossi pursuant to New York Social Services Law § 413.
Section 413 provides that various categories of adults in positions of trust and/or authority,
including teachers, must report child abuse if they have “reasonable cause to suspect that a child
coming before them in their professional or official capacity is an abused or maltreated child or
when they have reasonable cause to suspect that a child is an abused or maltreated child where
the parent, guardian, custodian or other person legally responsible for such child comes before
them in their professional or official capacity and states from personal knowledge facts,
conditions or circumstances which, if correct, would render the child an abused or maltreated
child.” N.Y.S.S.L. § 413(1)(a). A private right of action for money damages may lie against a
teacher who fails to report in accordance with § 413. See N.Y.S.S.L. § 420(2).
“In federal court, state notice-of-claim statutes apply to state-law claims.” Parise v. New
York City Dep’t of Sanitation, 306 Fed. Appx. 695, 697 (2d Cir. 2009) (internal citations
omitted). “[U]nder New York Education Law Section 3813(2) and New York General
28
Municipal Law Section 50-e(1), [a] plaintiff [is] required to file a notice of claim with respect to
her state law claims against defendants within ninety (90) days of the accrual of those claims as a
condition precedent to bringing a personal injury action against defendants.” Tyrrell, 792 F.
Supp. 2d at 635 (internal quotations, citations, and alterations omitted). “It is well-settled within
both New York state courts and this Circuit that Section 50-e of the General Municipal Law
requires a plaintiff to name each defendant in the Notice of Claim in order to maintain a cause of
action against that defendant.” Edwards v. Jericho Union Free Sch. Dist., 904 F. Supp. 2d 294,
306 (E.D.N.Y. 2012) (internal citations omitted). According to the New York Court of Appeals,
the primary purpose of this pre-litigation notice statute is to put municipal officials “in a position
to investigate the facts as to time and place, and decide whether the case is one for settlement or
litigation.” Rosenbaum v. City of New York, 8 N.Y.3d 1, 11 (N.Y. 2006) (internal quotations and
citations omitted).
It is undisputed that on November 20, 2012, RF and MF filed a notice of claim against
the District and Elsalam, but never filed a notice of claim against Grossi. (Def. Stmt. ¶¶ 285-86;
Pl. Stmt. ¶¶ 285-86). Plaintiffs’ only argument against dismissal of their § 413 claim against
Grossi based upon their failure to name him in a pre-litigation notice of claim is that this
argument “was not put in the District’s answer and is therefore waived.” (Pl. Opp. Br. at 22). In
reply, the Moving Defendants correctly argue that, under New York law, defendants are not
required include a plaintiff’s failure to comply with a statutory notice of claim requirement as an
affirmative defense in their answer. See Barnaman v. New York City Health & Hosps. Corp., 90
A.D.3d 588, 589 (2d Dep’t 2011) (internal citations omitted). Accordingly, this argument was
not waived and Plaintiffs’ § 413 claim against Grossi must be dismissed because Plaintiffs failed
29
to comply with New York pre-litigation notice-of-claim requirements. The Moving Defendants’
motion for summary judgment is granted as to Plaintiffs’ § 413 claim against Grossi.
III.
CONCLUSION
For the foregoing reasons, the Moving Defendants’ motion for summary judgment is
granted in its entirety. The sole claims that survive this Order are Plaintiffs’ section 1983 and
state law battery claims against defendant Elsalam.
SO ORDERED.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: September 23, 2016
Central Islip, New York
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?