CT et al v. Valley Stream Union Free School District et al

Filing 81

ORDER granting in part and denying in part 51 Motion for Summary Judgment. For the reasons stated herein, defendants' motion for summary judgment is granted with respect to all claims, except plaintiffs' First Amendment retaliation and negligent supervision claims. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/16/2016. (Akers, Medora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-3473 (JFB)(AKT)
_____________________

C.T., T.T., AND J.T., A MINOR REPRESENTED BY HIS NATURAL GUARDIANS,
C.T. AND T.T.,
Plaintiffs,
VERSUS

VALLEY STREAM UNION FREE SCHOOL DISTRICT AND THE BOARD OF EDUCATION OF
VALLEY STREAM UNION FREE SCHOOL DISTRICT,
Defendants.
___________________
MEMORANDUM AND ORDER
August 16, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff, J.T., along with his parents, C.T.
and T.T. (hereinafter, “plaintiffs”), bring this
action against defendants, Valley Stream
Union Free School District and the Board of
Education of Valley Stream Union Free
School District (hereinafter, “defendants”).1
Plaintiffs allege that J.T. was bullied by
students at his school and that, although they
repeatedly
complained
about
J.T.’s
harassment, defendants failed to prevent the
bullying. They further allege that defendants
repeatedly suspended J.T in retaliation for
making these complaints about J.T.’s
treatment.

1

Defendants contend that they should properly be
referred to as “Valley Stream Central High School
District.”

Defendants move for summary judgment
pursuant to Federal Rule of Civil Procedure
56. For the reasons that follow, defendants’
motion is granted in part and denied in part.
Specifically, the Court grants the summary
judgment motion on all claims, with the
exception of the First Amendment retaliation
and negligent supervision claims.
I.
A.

BACKGROUND
Factual Background

The Court has taken the facts described
below from the parties’ affidavits, exhibits,
and Local Rule 56.1 Statements of Facts.
Unless otherwise noted, the facts are
undisputed. Upon consideration of the

motion for summary judgment, the Court
shall construe the facts in the light most
favorable to the non-moving party. See
Capobianco v. New York, 422 F.3d 47, 50 n.1
(2d Cir. 2001).

J.T. received two suspensions in March,
one in April, and one in May 2012. (See
Defs.’ Ex. H.)
The following academic year, in October
2012, plaintiffs testified that several students
came to their house after school and called for
J.T. to come out so that they could “kick his
a**.”3 (See Pls.’ Ex. 1 at 38, 75; Defs.’ Ex.
V at 23.) Plaintiffs assert that they called the
school, which said it could not do anything
because the students were not on school
grounds. (Defs.’ Ex. V at 24-25.) J.T. was
suspended in October 2012 and in January
2013. (See Defs.’ Ex. H.)

Between 2011 and 2014, J.T. attended
seventh, eighth, and ninth grades at South
High School (hereinafter, “the school”). (See
Defs.’ Ex. W at 10-11.) Plaintiffs allege that
J.T. was systematically bullied during this
time.2
Plaintiffs claim that they first complained
about J.T. being bullied in February 2012 to
the school’s principal, Maureen Henry
(hereinafter, “Principal Henry”). (Defs.’ Ex.
V at 20-21.) T.T., J.T.’s mother, testified that
Principal Henry told her that she would
investigate the bullying allegations and report
back; however, T.T. could not recall any
follow-up from Principal Henry. (Id. at 23.)

In February 2013, C.T., J.T.’s father,
picked up J.T. from school. When he arrived,
several students surrounded C.T.’s vehicle
and told him that they were going to “kick
J.[T.’s] f******a**” and one of the students
said his father would come to “kick [C.T.’s]
f****** a**.” (Pls.’ Ex. 2 at 29-30.)
Principal Henry was advised of the run-in.
(Id. at 35.)

T.T. also testified that she contacted the
school again later that spring after J.T. was
issued a suspension for fighting with student
C.O. (Id. at 25.) She spoke with Assistant
Principal, Cara Jacobson (hereinafter,
“Assistant Principal Jacobson”) and
complained that the school was not doing
anything to prevent run-ins between J.T. and
C.O. (Id. at 25-26.) T.T. stated that Assistant
Principal Jacobson said she was not aware of
the bullying. (Id. at 26.)

Following this incident, plaintiffs met
with Jill Vogel (hereinafter, “Vogel”), the
school’s Director of Guidance, and Principal
Henry on February 13, 2013.4 (Defs.’ Ex. V
at 37-38.) According to plaintiffs, during the
meeting, Vogel denied being aware of any
bullying and Principal Henry purportedly
told plaintiffs that if J.T. were involved in any
future incidents, regardless of whether he was
the instigator, he would be suspended. (See
Pls.’ Ex. 3 at 28.)

2

J.T. provided testimony concerning the different
instances of harassment he experienced; however, in
the interest of brevity, the Court has not delineated
each incident of bullying behavior but has only
provided the facts necessary for its analysis.

states that this incident occurred in the spring of 2012.
(Defs.’ Ex. V at 23.)
4

During his 50-H hearing testimony, C.T. testified
that this incident occurred in April 2013. However,
when he later testified during his deposition, he was
presented with a copy of the police report prepared
regarding the incident, which established that the date
of the incident was February 4, 2013. (See Pls.’ Ex. 3
at 13.)

3

In T.T.’s 50-H deposition, she seems to state that this
event occurred in October 2012. (Pls.’ Ex. 1 at 38.)
However, in her deposition on March 11, 2015, she

2

Following the meeting, Vogel sent
plaintiffs an e-mail summarizing the steps
she had taken to address J.T.’s conflict with
other students, which included meeting with
all of the students involved and advising
J.T.’s teachers that he should be kept away
from the students who were bullying him.
(See Defs.’ Exs. K, V at 41-42.)

J.T. received an in-school suspension the
following day, March 8. (Defs.’ Ex. H.)
Upon learning that J.T. had been suspended,
C.T. sent an e-mail to Dr. Heidenerich stating
that J.T. had not been given any classwork or
homework while serving his in-school
suspension that day and complaining that the
failure to give J.T. his work was keeping him
from learning anything. (See Defs.’ Ex. L.)
The e-mail also advised Dr. Heidenerich that
plaintiffs had delivered to the school a letter
following up on their meeting from the day
before. (See id.) In the letter, plaintiffs stated
their position that J.T.’s frequent suspensions
were interfering with his education, included
a list of issues they asked Dr. Heidenerich to
investigate or address, and requested certain
records related to J.T.’s disciplinary and
academic history. (See Defs.’ Ex. M.) J.T.
was subsequently suspended on March 12.
(See Defs.’ Ex. H.) On March 15, 2013, Dr.
Heidenerich replied to plaintiffs’ March 8
letter, answering their questions and
providing the requested documents. (Defs.’
Ex. N.) J.T. was suspended again on April 15
and May 28, 2013. (See Defs.’ Ex. H.)

T.T. testified that she called Vogel again
in the spring of 2013, complaining that
Principal Henry was not adequately
addressing the bullying and reporting that
J.T. had been issued a suspension for hitting
another student with a ball during a gym
dodgeball game. (Defs.’ Ex. V at 44.) Vogel
apparently told her to discuss the matter with
Principal Henry. (Id. at 43.) T.T. proceeded
to call Principal Henry, though it appears no
resolution was reached. (Id. at 45.) J.T.
served a suspension on March 6, 2013. (See
Defs.’ Ex. H.)
On March 7, 2013, plaintiffs met with the
school
superintendent,
Dr.
William
Heidenerich
(hereinafter,
“Dr.
Heidenerich”), to discuss the bullying, the
school’s alleged failure to prevent it, and
J.T.’s frequent suspensions. (Defs.’ Ex. V at
45-47.)
According to plaintiffs, Dr.
Heidenerich told them that the suspensions
J.T. had received were unwarranted and that
such a serious punishment was typically
reserved for students who brought weapons
to school or injured another student. (Pls.’
Ex. 3 at 40.)
T.T. testified that Dr.
Heidenerich told them that, typically, in
similar situations, he would convene a
meeting with the parents and principal, but he
would not do so here because he could tell
that their relationship with Principal Henry
was “bruised.” (Defs.’ Ex. V at 47-48.) At
the close of the meeting, Dr. Heidenerich told
plaintiffs that he would speak with Principal
Henry and report back. (Id. at 48.)

Around this time, T.T. also complained to
either Vice-Principal Jacobson or to Principal
Henry because J.T.’s locker was next to the
locker of one of the students who bullied him,
which was causing additional conflict
between the two boys. (Defs.’ Ex. V at 63.)
T.T. testified that she was told that she should
have raised the issue sooner but that the
school agreed to move J.T.’s locker. (Id. at
65.)
According to plaintiffs, the bullying
continued during J.T.’s ninth grade year. In
October 2013, J.T. avers that another student
slapped him in the face. (Defs.’ Ex. W at 50.)
J.T. was suspended after the incident,
although he alleges that the attack was
unprovoked. (Id. at 53; Defs.’ Ex. V at 61.)
J.T. admits that he had not complained to
3

anyone at the school about this student prior
to the altercation. (Defs.’ Ex. W at 53.)

II.

The standard for summary judgment is
well-settled. Pursuant to Federal Rule of
Civil Procedure 56(c), a court may not grant
a motion for summary judgment unless “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.” Fed. R. Civ. P.
56(c); Globecon Group, LLC v. Hartford
Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.
2006). The moving party bears the burden of
showing that he or she is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). The 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 Am. v.
Town of West Hartford, 361 F.3d 113, 122
(2d Cir. 2004); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).

Following the incident, plaintiffs’ former
attorney sent a letter to defendants requesting
an investigation into the attack pursuant to
New York’s Dignity for All Students Act.
(Defs.’ Ex. O.) The letter closed by advising
the school that, “[i]f I do not hear from you
within seven days, I will assume that the
District is not interested in pursuing an
amicable resolution and will apprise my
client (sic) of their legal rights and remedies
under the applicable statutes.” (Id.)
J.T. was suspended on November 7 and
12, 2013, and an additional thirteen times
between January and May 2014. (See Defs.’
Ex. H.)
T.T. testified that she again spoke with
the school concerning J.T.’s bullying after
she learned that another student had
threatened that he was going to bring a gun to
school and shoot J.T. (Defs.’ Ex. V at 64-65),
again after learning about an altercation
between J.T. and another student in the
lunchroom (id. at 69), and again in June 2014
after a student spit on J.T. (id. at 67).
B.

STANDARD OF REVIEW

Procedural History
Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
metaphysical doubt as to the material facts . .
. . [T]he nonmoving party 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 Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). As the Supreme Court stated in
Anderson, “[i]f the evidence is merely
colorable, or is not significantly probative,
summary judgment may be granted.” 477
U.S. at 249-50 (internal citations omitted).

On August 18, 2015, this Court denied
defendants’ motion to dismiss. On December
11, 2015, defendants moved for summary
judgment on all of plaintiffs’ claims. On
February 12, 2016, plaintiffs filed their
opposition. Defendants replied on February
26, 2016. Oral argument was held on April
20, 2016. The matter is fully briefed, and the
Court has considered all of the parties’
submissions.

4

Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247. Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials, but must
set forth “concrete particulars” showing that
a trial is needed. R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(internal quotations omitted). Accordingly, it
is insufficient for a party opposing summary
judgment “merely to assert a conclusion
without supplying supporting arguments or
facts.” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)
(internal quotations omitted).
III.
A.

plaintiffs’ speech. (Defs.’ Mot. Summ. J.
(“Mot.”) at 5, ECF No. 54.)
1.

Public Concern

Defendants claim that plaintiffs’ speech
is not subject to First Amendment protection
unless it relates to a matter of public concern.
(Mot. at 5-6.)
The “public concern”
requirement emerged from to First
Amendment retaliation cases involving
public employees.
The Sixth Circuit
described the genesis of the public concern
requirement in Jenkins v. Rock Hill Local
School District:
The public concern test originated in
Pickering v. Board of Education, 391
U.S. 563 (1968) and Connick v.
Myers, 461 U.S. 138 (1983), in which
the Supreme Court held the First
Amendment protects from retaliation
government employees who speak on
matters of public concern. Following
its rationale in Pickering, the Court in
Connick sought to balance the
interests of government employees,
as citizens, “in commenting upon
matters of public concern and the
interest of the State, as an employer,
in promoting the efficiency of the
public services it performs through its
employees.” To achieve this balance,
the Court held the speech of
government
employees
is
constitutionally protected if it touches
upon a matter of public concern.
Connick was expressly limited to
government employees and based
solely on the need to balance the free
speech rights of government
employees with the government’s
needs as an employer.

DISCUSSION

First Amendment Retaliation

To show retaliation in violation of the
First Amendment, a “plaintiff must prove: (1)
he has an interest protected by the First
Amendment; (2) defendants’ actions were
motivated or substantially caused by his
exercise of that right; and (3) defendants’
actions effectively chilled the exercise of his
First Amendment right.” Mental Disability
Law Clinic, Touro Law Ctr. v. Hogan, 519 F.
App’x 714, 717 (2d Cir. 2013) (quoting
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d
Cir. 2001)). Chilled speech, however, is not
necessary if the plaintiff can establish that he
suffered some other “concrete harm.”
Dorsett v. Cty. of Nassau, 732 F.3d 157, 160
(2d Cir. 2013).
Defendants argue that they are entitled to
summary judgment on plaintiffs’ First
Amendment retaliation claim for two
reasons. First, they allege that the speech was
not protected because it did not relate to a
matter of public concern. Second, they
contend that there is no evidence that J.T.’s
suspensions were imposed in retaliation for

513 F.3d 580, 586 (6th Cir. 2008) (select
internal citations omitted).
5

Although the public concern requirement
originated in the public employment sphere,
defendants note that some courts, including,
most notably, the Seventh Circuit in
Landstrom v. Illinois Department of Children
& Family Services, 892 F.2d 670, 679 (7th
Cir. 1990), have extended the public concern
requirement to First Amendment claims
outside this context. In Landstrom, the court
dismissed the parents’ First Amendment
retaliation claim against their daughter’s
school because it determined that the parents’
speech concerned only personal complaints,
not matters of public concern.
Id.
Defendants rely on this case to similarly
argue that T.T. and C.T.’s speech should not
be protected because it related only to their
concerns regarding J.T. and did not address
matters of public concern. (Pls.’ Opp’n to
Defs.’ Mot. Summ. J. (“Opp’n”) at 5-6, ECF
No. 61.)

Clatskanie Sch. Dist. 6J, 467 F.3d 755, 76567 (9th Cir. 2006) (“[W]e do not read Tinker,
its progeny or our own cases applying its
standard as importing [the] public concern
test into the public education context.”);
Eichenlaub v. Township of Indiana, 385 F.3d
274, 284 (3d Cir. 2004) (“[O]utside the
employment context[,] the First Amendment
forbids retaliation for speech even about
private matters.”); Campagna v. Mass. Dep’t
of Enviro. Protection, 334 F.3d 150, 155 (1st
Cir. 2003) (“Since the reason for the test is
missing in the present case—maintaining
order in the governmental workplace—the
[public concern doctrine] should not be
applied here.” (citation omitted)). Most
relevant here, in Friedl v. City of New York,
210 F.3d 79, 87 (2d Cir. 2000), the Second
Circuit held that the public concern
requirement, having been developed in the
context of public employee speech, had “no
place” in the context of prisoner petitions for
redress of grievances, which typically relate
only to matters of personal concern. In doing
so, the Second Circuit expressly rejected the
defendant’s argument “that where the
plaintiff alleges retaliation for protected
speech in the form of a petition to the
government, he must establish that the speech
contained in his petition to the government
was a matter of public concern.” Id.

However, courts outside the Seventh
Circuit5 have declined to impose the public
concern requirement beyond the public
employment context. See, e.g., Jenkins, 513
F.3d at 586-89 (rejecting Landstrom and
holding that parents’ complaints to the school
were protected by the First Amendment
regardless of whether they touched on
matters of public concern); see also Van
Deelen v. Johnson, 497 F.3d 1151, 1156-57
(10th Cir. 2007) (“The public concern test,
then, was meant to form a sphere of protected
activity for public employees, not a
constraining noose around the speech of
private citizens. To apply the public concern
test outside the public employment setting
would require us to rend it from its animating
rationale and original context.”); Pinard v.

Nevertheless, defendants point out that
the Second Circuit has yet to rule on the issue
of whether a parental complaint to a school
official must touch on a matter of public
concern to receive First Amendment
protection and argue that this Court should
follow Landstrom and apply the public
concern requirement to plaintiffs’ First

5

Some courts within the Seventh Circuit have refused
to apply the public concern requirement to nongovernmental employees. See, e.g., Van Dyke v.
Barnes, No. 13-CV-5971, 2015 WL 148977, at *6
(N.D. Ill. Jan. 12, 2015) (declining to apply public
concern requirement to speech by a non-public
employee and noting that “subsequent to Landstrom,

the Seventh Circuit abrogated its own precedent that
applied the ‘public concern’ test to non-public
employees, holding that a prisoner’s speech can be
protected under the First Amendment even where it
does not involve a matter of public concern”); Nolan
v. Village of Dolton, No. 10-CV-7357, 2011 WL
1548343, at *1-2 (N.D. Ill. April 21, 2011).

6

Amendment claim. This Court will not do so.
Although the Second Circuit has not weighed
in on the precise question to be decided here,
the Second Circuit’s refusal in Friedl to apply
the public concern requirement outside the
public employment context to prisoner
petitions is consistent with the above-cited
Circuit decisions that have protected speech
pertaining to private concerns in the school
setting, see Jenkins, 513 F.3d at 586-89;
Pinard, 467 F.3d at 765-67, and leads this
Court to conclude that a similar outcome is
warranted here. As these cases recognize, the
need to balance between the government
employee’s right to speak and his employer’s
need to efficiently deliver services, which
drove the development of the public concern
requirement, see, e.g., Bridges v. Gilbert, 557
F.3d 541, 550 (7th Cir. 2009), simply does
not exist in these circumstances.
See
Eichenlaub, 385 F.3d at 284 (“The rationale
for a public/private concern distinction that
applies to public employees simply does not
apply to citizens outside the employment
context.”). Thus, this Court concludes that
plaintiffs’ speech need not relate to a matter
of public concern in order to receive First
Amendment protection in this case and,
therefore, declines to grant defendants’
motion for summary judgment on this
ground.
2.

plaintiffs’ complaints.
For instance,
plaintiffs met with Dr. Heidenerich on March
7, 2013 and criticized the school’s failure to
respond to the alleged bullying and, the
following day, J.T. was suspended. (See
Defs.’ Exs. H, V at 46-47.) Similarly, after
plaintiffs’ attorney sent a letter to the school
regarding their concerns about the school and
implied that they might initiate legal action if
the school failed to comply with their
requests, just over a week later, on November
7, J.T. was issued a suspension. (See id. at
Exs. H, O.) J.T. received another suspension
on November 12, and then was suspended an
additional thirteen times during the
remainder of the academic year for a total of
twenty-one days of suspension. The volume
of the suspensions and the fact that they
followed so closely after plaintiffs’
complaints supports an inference that the
suspensions were retaliatory. See, e.g.,
Frisenda v. Inc. Vill. of Malverne, 775 F.
Supp. 2d 486, 511-12 (E.D.N.Y. 2011) (“It is
well settled that proof of causation may be
shown
indirectly
by,
inter
alia,
demonstrating that the protected activity was
followed closely by a retaliatory action.”
(citing Cifra v. Gen. Elec. Co., 252 F.3d 205,
217 (2d Cir. 2001))).
However, defendants argue that there is
no causal connection between plaintiffs’
speech and the suspensions, pointing out that
the teachers who reported the misconduct for
which J.T. was suspended were not aware of
his parents’ speech and, further, that J.T.’s
discipline was warranted based on his
misconduct. (Mot. at 8.) However, even if
the teachers who referred the infractions were
unaware of his parents’ complaints, the
individual actually imposing the punishment,
Principal Henry, was aware and, further, she
was the subject of a number of their
complaints. (See Pls.’ 56.1 ¶ 110; see also
Defs.’ Ex. I (Principal Henry signed each
letter informing plaintiffs that J.T. had

Retaliatory Intent

Defendants also contend that plaintiffs’
First Amendment retaliation claim fails for
the separate reason that plaintiffs cannot
show that the retaliatory suspensions were
motivated by their speech. (Mot. at 7.)
Plaintiffs, however, argue that defendants’
retaliatory intent is evidenced by the close
temporal proximity between their complaints
to the school and the school’s subsequent
suspensions of J.T. (Opp’n at 7-8.) In fact,
the record reflects that J.T. was repeatedly
suspended within weeks or days following
7

received an out-of-school suspension).)
Additionally,
and
significantly,
Dr.
Heidenerich purportedly told plaintiffs that
the suspensions issued to J.T. were
unwarranted, explaining that such serious
penalties were usually reserved for cases in
which a student brought a weapon to school
or injured another student. (Pls.’ 56.1 ¶ 105.)
From this evidence, a reasonable jury could
conclude that Principal Henry was imposing
harsher punishments on J.T. in retaliation for
plaintiffs’ complaints to the school.

between plaintiffs and Principal Henry as
“bruised.” (Defs.’ Ex. V at 47-48.) The
forgoing evidence, construed most favorably
to plaintiffs, certainly raises an issue of
material fact as to whether defendants acted
with retaliatory intent in suspending J.T.6
Accordingly, because the Court finds
defendants’ bases for dismissing the First
Amendment retaliation argument to be
unpersuasive, defendants’ motion for
summary judgment on this claim is denied.

That defendants disciplined J.T. in
retaliation for his parents’ speech is further
reinforced by plaintiffs’ allegation that
Principal Henry told them in the spring of
2013 that, regardless of the circumstances, if
J.T. were involved at all in any future
disciplinary incident, he would be suspended.
(Id. ¶ 104.) Finally, there is evidence in the
record of hostility and antagonism between
Principal Henry and plaintiffs that could
allow a jury to conclude that Principal Henry
would have reason to retaliate against
plaintiffs. For instance, plaintiffs specifically
criticized Principal Henry several times for
failing to prevent J.T.’s bullying. For her
part, Principal Henry testified during her
deposition that plaintiffs were “always
complaining.” (Id. ¶ 113.) Additionally, Dr.
Heidenerich described the relationship

B.
1.

Due Process Claims
Procedural Due Process

In order to assert a claim for violation of
procedural due process rights, a plaintiff must
“first identify a property right, second show
that the [government] has deprived him of
that right, and third show that the deprivation
was effected without due process.” Local
342, Long Island Pub. Serv. Emps., UMD,
ILA, AFL–CIO v. Town Bd. of Huntington, 31
F.3d 1191, 1194 (2d Cir. 1994) (citation
omitted) (emphasis omitted). New York’s
Constitution and education laws provide a
right to elementary and secondary education
for children up to the age of eighteen. N.Y.
Const. Art. XI § 1; N.Y. Educ. L. § 3202(1).
J.T.’s suspensions constitute a deprivation of

6

The Court notes that this First Amendment claim is
somewhat unusual in that it was C.T. and T.T. who
were responsible for the speech at issue, but the
retaliatory conduct was directed at J.T. Defendants do
not challenge this claim on that ground, and the Court
does not believe that this factual distinction requires
dismissal of the claim. As one court observed, when
the defendant contended that the plaintiffs/parents
could not maintain their First Amendment retaliation
claim because all of the retaliatory conduct was
directed at their son, “a parent’s constitutional right to
criticize school officials would collapse if such an
argument were taken to its logical end point. School
officials could immunize themselves from any
criticism by swiftly punishing any student who is the
child of a critical parent.” Cain v. Tigard-Tualatin

Sch. Dist. 23J, 262 F. Supp. 2d 1120, 1128-29 (D. Or.
2003); see also Jones v. Bay Shore Union Free Sch.
Dist., 947 F. Supp. 2d 270, 276 (E.D.N.Y. 2013)
(father could maintain First Amendment retaliation
claim where his daughter was suspended allegedly in
retaliation for his speech). The court in Cain v.
Tigard-Tualatin School District 23J also concluded
that the son could make a First Amendment retaliation
argument based on his parents’ speech, noting that, if
the defendants retaliated against him because his
parents complained, it would interfere with his First
Amendment right of association. 262 F. Supp. 2d at
1127; see also Adler v. Pataki, 185 F.3d 35, 44 (2d Cir.
1999) (husband could sue when he was discharged in
retaliation for his wife’s speech).

8

this right. See Goss v. Lopez, 419 U.S. 565,
576 (1975). Therefore, the question is
whether J.T. was deprived of an education
without due process.

Sch. Dist., 668 F. Supp. 2d 406, 419
(E.D.N.Y. 2009) (“[S]tudents facing a
suspension of ten days or less are entitled
only to an informal ‘give and take’ with the
administrator imposing the penalty, at which
the student is permitted to give her side of the
story.”).

In Goss v. Lopez, the Supreme Court set
forth minimal due process requirements
attendant to the imposition of suspensions of
ten days or fewer. Specifically, the Court
held that:

In fact, plaintiffs do not contest that J.T.
was afforded these protections, but rather
contend that additional process was required
because he was suspended for more than ten
days in aggregate. Plaintiffs have not
provided any support for this aggregation
argument, nor has the Court found any
support in this Circuit. In any event, this
Court holds that the Goss rule applies to each
individual suspension, rather than to the
suspensions in aggregate. Thus, because no
suspension was longer than ten days, and
because the undisputed facts demonstrate that
J.T. was afforded adequate process under
Goss for these suspensions, plaintiffs have
failed to show any denial of procedural due
process. Accordingly, defendants’ motion
for summary judgment on the procedural due
process claim is granted.

Students
facing
temporary
suspension have interests qualifying
for protection of the Due Process
Clause, and due process requires, in
connection with a suspension of 10
days or less, that the student be given
oral or written notice of the charges
against him and, if he denies them, an
explanation of the evidence the
authorities have and an opportunity to
present his side of the story.
419 U.S. at 581. However, “[a] formal
hearing is unnecessary” for suspensions of
ten days or fewer. Rosenfeld v. Ketter, 820
F.2d 38, 40 (2d Cir. 1987).
Here, each time J.T. was issued an out-ofschool suspension, Principal Henry notified
his parents by letter. (See Defs.’ Ex. I.) The
letters detailed the offending conduct and
informed J.T. and his family of their right to
a hearing at which J.T. could present his side
of the story. (See id.) This process is all that
is required under Goss, given that each of his
suspensions was for fewer than ten days (see
Defs.’ Ex. H). See Goss, 419 U.S. at 581; see
also, e.g., DeFabio v. E. Hampton Union
Free Sch. Dist., 658 F. Supp. 2d 461, 489-90
(E.D.N.Y. 2009) (plaintiff who was informed
of his right to an informal hearing and
received written notice of the charges against
him was afforded all requisite process for
five-day suspension), aff’d, 623 F.3d 71 (2d
Cir. 2010); Lopez v. Bay Shore Union Free

2.

Substantive Due Process

Substantive due process is a means of
“protection of the individual against arbitrary
action of government.” Wolff v. McDonnell,
418 U.S. 539, 558 (1974). “In order to
establish a violation of a right to substantive
due process, a plaintiff must demonstrate not
only government action but also that the
government action was ‘so egregious, so
outrageous, that it may fairly be said to shock
the contemporary conscience.’” Pena v.
DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)

9

(quoting County of Sacramento v. Lewis, 523
U.S. 833, 847 n.8 (1998)).7

See Smith v. Guilford Bd. of Educ., 226 F.
App’x 58, 62 (2d Cir. 2007) (summary order)
(“Defendants’ failure to respond to the
harassing and bullying . . . while highly
unfortunate, does not rise to the level of
‘egregious conduct . . . so brutal and
offensive to human dignity as to shock the
conscience.’” (quoting Smith v. Half Hollow
Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d
Cir. 2002) (alteration in original))); P.W. v.
Fairport Cent. Sch. Dist., 927 F. Supp. 2d 76,
84 (W.D.N.Y. 2013) (concluding that the
conduct of school district that took “some
steps” to respond to bullying could not be
considered “conscience shocking” or
“offensive to human dignity” even if it was
allegedly inadequate and failed to prevent
bullying); HB v. Monroe Woodbury Cent.
Sch. Dist., No. 11-CV-5881 CS, 2012 WL
4477552, at *12-13 (S.D.N.Y. Sept. 27,
2012) (noting that even if defendants did
nothing to respond to complaints of verbal
harassment and limited physical abuse their
conduct would not be conscience-shocking);
S.C. v. Monroe Woodbury Cent. Sch. Dist.,
No. 11-CV-1672 CS, 2012 WL 2940020, at
*8 (S.D.N.Y. July 18, 2012) (holding that
school district’s actions did not shock the
conscience where it took “some steps” to
address the harassment); Chambers v. N.
Rockland Cent. Sch. Dist., 815 F. Supp. 2d
753, 770-71 (S.D.N.Y. 2011) (defendants’
behavior was not conscience-shocking
despite the fact that they allegedly failed to
adequately punish verbal threats made by
students who later physically assaulted
plaintiff); Scruggs v. Meriden Bd. of Educ.,
No. 3:03-CV-2224(PCD), 2007 WL

Plaintiffs argue that their substantive due
process rights were violated because, despite
their many complaints about J.T.’s treatment,
defendants did not prevent the ongoing
bullying. (Opp’n at 10-11.) However,
uncontroverted evidence in the record
demonstrates that defendants did take
measures to address the harassment. For
instance, after C.T. reported an incident
during which several students surrounded his
car and threatened to “do bodily harm” to J.T.
(see Pls.’ Ex. 2 at 28, 40), the school met with
the alleged bullies and admonished them to
stop, warned them to avoid J.T., instructed
teachers that the alleged bullies should not be
seated next to J.T., and requested that the
school social worker hold a mediation
between J.T. and the alleged bullies (see
Defs.’ Ex. K). Similarly, after plaintiffs
raised their concerns with Dr. Heidenerich,
he promptly responded and provided the
requested
answers
and
information
concerning J.T.’s academic and disciplinary
history. (See Defs.’ Ex. N.) On another
occasion, after T.T. called the school
complaining that J.T. had been assigned a
locker next to one of the students that bullied
him, the school moved J.T.’s locker. (Defs.’
Ex. V at 63-65.) Even if defendants were
unable to end the bullying or plaintiffs
considered defendants’ response to their
grievances to be inadequate, no reasonable
jury could conclude that defendants’ actions
were sufficiently egregious or outrageous to
support a substantive due process violation.
“As a general matter . . . a State’s failure to protect
an individual against private violence simply does not
constitute a violation of the Due Process Clause.”
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489
U.S. 189, 197 (1989). However, “in exceptional
circumstances a governmental entity may have a
constitutional obligation to provide such protection,
either because of a special relationship with an
individual, or because the governmental entity itself

has created or increased the danger to the individual.”
Ying Jing Gan v. City of New York, 996 F.2d 522, 533
(2d Cir. 1993) (internal citations omitted). As the
Court concludes that plaintiffs’ substantive due
process claim fails for the separate reason that
defendants’ conduct was not egregious or outrageous,
it need not decide whether the State was even required
to protect J.T. from private harm.

7

10

2318851, at *13 (D. Conn. Aug. 10, 2007)
(“Defendants’ failure to fully remedy the
bullying situation does not amount to ‘brutal’
or ‘oppressive’ treatment of [the plaintiff] at
school.”). Therefore, plaintiffs are entitled to
summary judgment on the substantive due
process claim.

claim. See, e.g., Rother v. NYS Dep’t of Corr.
& Cmty. Supervision, 970 F. Supp. 2d 78, 100
(N.D.N.Y. 2013) (dismissing substantive due
process claim because there was substantial
overlap with the First Amendment claim in
the “harm and conduct challenged”);
Kasprzycki v. DiCarlo, 584 F. Supp. 2d 470,
478 (D. Conn. 2008) (substantive due process
claim would not lie where it was duplicative
of First Amendment retaliation claim).

Separately, plaintiffs argue that their
substantive due process rights were violated
because defendants “actively took steps to
punish [them] for reporting” the bullying.
(Opp’n at 9.) This argument is legally
untenable.
The “arbitrary, conscience
shocking, or oppressive” behavior about
which plaintiffs complain is defendants’
alleged retaliation against plaintiffs for their
exercise of their First Amendment rights. In
other words, they are effectively claiming
that they were denied substantive due process
because their First Amendment rights were
violated. However, “where another provision
of the Constitution provides an explicit
textual source of constitutional protection, a
court must assess a plaintiff’s claims under
that explicit provision and not the more
generalized notion of substantive due
process.” Kia P. v. McIntyre, 235 F.3d 749,
757-58 (2d Cir. 2000) (quoting Conn v.
Gabbert, 526 U.S. 286, 293 (1999) (internal
quotation marks omitted)).
Thus, this
generalized substantive due process claim
must be subsumed into the First Amendment

C.

Title VI Claim

To establish a Title VI claim, a plaintiff
must show: (1) that the defendant
discriminated against him on the basis of
race, (2) that the discrimination was
intentional, and (3) that the discrimination
was a “substantial” or “motivating factor” for
the defendant’s actions. Tolbert v. Queens
Coll., 242 F.3d 58, 69 (2d Cir. 2001). In
support of this argument, plaintiffs merely
claim that “the harassment incurred by J.T.
would have been addressed differently had
J.T. been Caucasian.”
(Opp’n at 12.)
However, they provide no factual support to
substantiate this claim. In fact, during her
deposition, T.T. admitted that the only basis
for her belief that J.T.’s bullying was not
addressed on account of his race was the fact
that her family is African-American and
Principal Henry is Caucasian.8 (Defs.’ Ex. V
at 83.)

8

The following exchange occurred during T.T.’s
deposition:

that it why Miss Henry didn’t take
care of the situations?
A: Yes.

Q: Why do you believe that Miss
Henry didn’t [address the incidents
of bullying]?
A: I don’t have a reason.
Q: You think just because Miss
Henry is Caucasian and you and
your family are African American,

(Defs.’ Ex. V at 83.) T.T. was similarly unable to
articulate any basis for his belief that his son’s
treatment was based on his race:
Q: So, if I am understanding you
correctly, what you are saying [is]
because the district didn’t handle
things properly, you believe

11

Thus, there is no factual basis from which
a rational jury could conclude that defendants
intentionally discriminated against J.T. on the
basis of his race. See, e.g., Saggio v. Sprady,
475 F. Supp. 2d 203, 209 & n.6 (E.D.N.Y.
2007) (holding that plaintiff failed to show
that school administration’s response to
plaintiff’s bullying was driven by racial
animus where there was “no showing that the
steps taken by the District to deal with [the
bullying] were in any way racially motivated
or limited as a result of racial
considerations”); see also Kajoshaj v. New
York City Dep’t of Educ., 543 F. App’x 11,
14 (2d Cir. 2013) (summary order) (“[The]
‘naked allegation’ that [the plaintiffs] were
treated differently from non-Muslim, nonAlbanians cannot demonstrate a plausible
entitlement to Title VI relief.”); Gear v. Dep’t
of Educ., No. 07 CIV 11102 NRB, 2010 WL
5297850, at *5 (S.D.N.Y. Dec. 21, 2010)
(holding that plaintiff’s “single, conclusory
allegation that [the defendant] would have
acted differently if she were white” was
insufficient to state a plausible claim for
relief where the “allegation [was]
unaccompanied by any facts regarding [the
defendant’s] statements, actions, or policies
that would support a plausible inference of
discriminatory animus or disparate impact”),
aff’d, 472 F. App’x 67 (2d Cir. 2012).9
Accordingly, summary judgment on the Title
VI claim is granted in favor of defendants.
D.

individuals alike.
City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). Here, plaintiffs argue that defendants
contravened the Equal Protection Clause by
disproportionately disciplining AfricanAmerican students relative to their Caucasian
peers. (Opp’n at 13-14.) In order to
successfully demonstrate this type of
“selective enforcement” theory under the
Fourteenth Amendment, plaintiffs must
prove that “(1) [J.T.], compared with others
similarly situated, was selectively treated;
and (2) that such selective treatment was
based on impermissible considerations such
as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious
or bad faith intent to injure a person.” Brown
v. City of Syracuse, 673 F.3d 141, 151-52 (2d
Cir. 2012) (internal quotation marks and
citations omitted). In particular, at the
summary judgment stage, a “plaintiff must
present evidence comparing [himself] to
individuals that are ‘similarly situated in all
material respects,’” Lener v. Hempstead Pub.
Sch., 55 F. Supp. 3d 267, 283 (E.D.N.Y.
2014), and must show how this “similarly
situated” individual of a different race was
not subject to the same offensive conduct,
Brown v. City of Oneonta, 221 F.3d 329, 337
(2d Cir. 2000).
Plaintiffs attempt to substantiate their
argument by relying on statistics that
compare the percentage of the student body
made up of Caucasian and African-American
students, respectively, with the percentage
that each race constituted of the students
disciplined. (Opp’n at 14.) They argue that
this data reflects that “the proportion of

Equal Protection Claim

The Equal Protection Clause of the
Fourteenth Amendment requires the
government to treat all similarly situated
therefore it must be because of race.
A: Possibly, yes.

defendants took no action against N.I. because N.I. is
Caucasian. (Opp’n at 12.) However, the school did
not discipline N.I. because an investigation into the
incident revealed that no threat was made (Defs.’ Ex.
Z at 28), and thus, the school had no grounds to punish
N.I. Therefore, this argument does not support
plaintiffs’ Title VI claim.

(Pls. Ex. 2 at 77-78.)
9

Plaintiffs also attempt to establish intentional
discrimination by asserting that when a student, N.I.,
told a third classmate that he would stab J.T.,

12

African-American students disciplined is
substantially higher than the overall
proportion of students in the district.” (Id.)
This assertion may be mathematically
accurate, but the data also reveal that the
same is true for Caucasian students, and, in
fact, in two out of the three years for which
the statistics are provided, the rate at which
Caucasian students were disciplined
exceeded
that
of
African-American
10
students. Thus, this data does not validate
the argument that the rules were selectively
enforced against African-American students,
and it cannot substantiate plaintiffs’ Equal
Protection claim. Schreiber v. E. Ramapo
Cent. Sch. Dist., 700 F. Supp. 2d 529, 563
(S.D.N.Y. 2010) (parents failed to establish a
disputed issue of fact regarding their equal
protection claim where they offered only
“bare statistics” that “fail[ed] to present the
required ‘stark pattern’ of discrimination
necessary for statistics to be acceptable as the
sole proof of discriminatory intent under the
Constitution” (quoting Chesna v. U.S. Dep’t
of Def., 850 F. Supp. 110, 117-18 (D. Conn.
1994))). In short, plaintiffs have failed to
submit any evidence from which a jury could
rationally find selective enforcement of
discipline against African-American students
relative to their Caucasian peers.
Accordingly, the Equal Protection claim
based on race cannot survive summary
judgment.

there is no basis from which a rational jury
could conclude that J.T. was treated
differently because of his disability, and
plaintiffs’ Equal Protection claim based on
disability fails. Pape v. Bd. of Educ. of the
Wappingers Cent. Sch. Dist., No.
07CV8828(KMK), 2009 WL 3151200, at *7
(S.D.N.Y. Sept. 29, 2009) (dismissing Equal
Protection claim because plaintiffs failed to
identify any similarly situated person was
treated differently from the plaintiffs); Bikur
Cholim, Inc. v. Vill. of Suffern, 664 F. Supp.
2d 267, 278 (S.D.N.Y. 2009) (“Without any
comparators pleaded in the amended
complaint for the Court to examine, . . .
plaintiffs’ claim under the Equal Protection
Clause cannot stand. Therefore, it will be
dismissed.”).
Accordingly, summary
judgment is also warranted for the Equal
Protection claim based on disability.
E.
1.

State Law Claims

Negligent Hiring and Training Claim

Defendants argue that the Court lacks
subject matter jurisdiction over certain of
plaintiffs’ negligence claims because
plaintiffs failed to include them in their notice
of claim. “Under New York law, a notice of
claim is a condition precedent to bringing
certain tort actions against a municipality
such as the City for damages sustained by
reason of the negligence or wrongful act of
the municipality or its officers, agents or
employees.” Hargroves v. City of New York,
No. 03-CV-1668 RRM VMS, 2014 WL
1271024, at *5 (E.D.N.Y. Mar. 26, 2014).
Pursuant to General Municipal Law § 50-e,
the notice must contain “the time when, the
place where and the manner in which the

Plaintiffs also make a rather perfunctory
selective enforcement argument based on
J.T.’s alleged disability. However, plaintiffs
provide only the conclusory assertion that
J.T. was treated differently than his
nondisabled peers, but fail to identify any
similarly situated comparator. Therefore,
10

The data presented by plaintiffs reveals that in 201112, African-American students comprised 22% of the
student body, but were 32% of the students
disciplined; however, Caucasian students made up
33% of the student body, and were 60% of the students
disciplined. (See Opp’n at 14.) During the 2012-13

school year, African-American students comprised
24% of the student body, but were 37% of those
disciplined; however, Caucasian students made up
29% of the student body, and were 50% of the students
disciplined. (Id.)

13

claim arose.” N.Y. Gen. Mun. Law § 50-e
(McKinney). “The Notice need not provide
that information with ‘literal nicety or
exactness’; rather, the test is whether the
Notice provides facts sufficient to enable the
County to investigate.” Fisher v. Cty. of
Nassau, No. 10-CV-0677 JS ETB, 2011 WL
4899920, at *3 (E.D.N.Y. Oct. 13, 2011)
(quoting Phillipps v. N.Y. City Transit Auth.,
890 N.Y.S.2d 510, 512 (App. Div. 2009)).
Notice of claim requirements are strictly
construed. Hardy v. New York City Health &
Hosp. Corp., 164 F.3d 789, 793 (2d Cir.
1999).

hiring and negligent supervision.
This
oversight is fatal to these causes of action.”);
Ferlito
v.
Cty.
of
Suffolk,
No.
CIVA065708(DRH)(AKT),
2007
WL
4180670, at *4 (E.D.N.Y. Nov. 19, 2007)
(dismissing negligent hiring, training and
retention claims because “the facts alleged in
the notice of claim are limited to the
occurrences of July 24, 2005 and the facts
with respect to negligent hiring, training and
retention would, of necessity, have occurred
prior to that date”); Jewell v. City of New
York, No. 94 CIV. 5454 (DLC), 1995 WL
86432, at *1 (S.D.N.Y. Mar. 1, 1995) (notice
of claim was inadequate where it alleged only
“negligence,” but did not contain “facts
suggesting that this referred to the City’s
hiring practices rather than to the tortious acts
of the traffic agent and police officer”).

It is undisputed that plaintiffs’ notice of
claim does not assert claims for negligent
hiring and training. Nevertheless, plaintiffs
assert that they alleged facts in their notice of
claim that gave defendants sufficient notice
of these claims, though they fail to identify
which facts supposedly provided this notice.
(See Opp’n at 15-16.) Based on its review of
the notice, the Court does not agree with
plaintiffs. The notice of claim contains only
facts pertaining to the treatment of J.T.; it
does not include facts that would alert
defendants to claims regarding the hiring and
training of its employees. Therefore, these
claims must be dismissed.
See, e.g.,
Hargroves, 2014 WL 1271024, at *6 (first
plaintiff’s notice of claim that alleged only
facts relating to false arrest did not put
defendants on notice of negligent hiring,
training and supervision claim, whereas
second plaintiff’s notice of claim that
contained allegations concerning the
defendant’s unfitness as a police officer did
provide notice); Fisher v. Cty. of Nassau, No.
10-CV-0677 JS ETB, 2011 WL 4899920, at
*3 (E.D.N.Y. Oct. 13, 2011) (“Nowhere in
his Notice of Claim narrative does Plaintiff
suggest that he planned to pursue negligent

However, even if these claims were not
barred by the notice of claim requirements,
they would separately fail as plaintiffs have
not provided any facts or legal argument to
support these claims.
2.

Negligent Care, Supervision, and
Administration of Discipline Claim

“A school district has the duty to exercise
the same degree of care over the pupils under
its control as a reasonably prudent parent
would
exercise
under
the
same
circumstances, and a breach of this duty may
form the basis for a claim for negligent failure
to supervise.”11 Tesoriero v. Syosset Cent.
Sch. Dist., 382 F. Supp. 2d 387, 402
(E.D.N.Y. 2005). “Defendants may only be
liable for injuries which are reasonably
foreseeable and proximately related to the
school’s failure to provide adequate
supervision.” TC v. Valley Cent. Sch. Dist.,
777 F. Supp. 2d 577, 605 (S.D.N.Y. 2011)

Plaintiffs assert claims for “negligent care” and
negligent “administration of discipline.” These claims
appear to merely relate to aspects of the negligent
11

supervision claim and will be evaluated in the analysis
of that claim.

14

(internal
citation
omitted),
on
reconsideration sub nom. DC v. Valley Cent.
Sch. Dist., No. 7:09-CV-9036 WWE, 2011
WL 3480389 (S.D.N.Y. June 29, 2011). “To
determine ‘whether the duty to provide
adequate supervision has been breached in
the context of injuries caused by the acts of
fellow students, it must be established that
school authorities had sufficiently specific
knowledge or notice of the dangerous
conduct which caused injury; that is, that the
third-party acts could reasonably have been
anticipated.’” Emmanuel B. v. City of New
York, 15 N.Y.S.3d 790, 793 (App. Div. 2015)
(quoting Mirand v. City of New York, 637
N.E.2d 263 (N.Y. 1994)). On the question of
notice, the New York Court of Appeals has
explained that:

Educ., 928 F. Supp. 2d 627, 647 (E.D.N.Y.
2013) (and collecting cases).
Some of the offensive behavior about
which J.T. complains clearly could not
support a negligent supervision claim, as it is
clear that defendants would have had no way
of anticipating it. For instance, J.T. alleges
that bully C.O. slapped him in the face in
October 2013. (Defs.’ Ex. W at 51.)
However, J.T. admits that he had never made
any complaints to defendants concerning this
student prior to this incident. (Id. at 53.)
Thus, there was plainly no way that
defendants could have been aware of this risk
and prevented the strike. Furthermore, this
attack is the kind of “impulsive” and
“unanticipated” act by a student against
which defendants could not be expected to
defend.

[a]ctual or constructive notice to the
school of prior similar conduct is
generally
required
because,
obviously, school personnel cannot
reasonably be expected to guard
against all of the sudden, spontaneous
acts that take place among students
daily; an injury caused by the
impulsive, unanticipated act of a
fellow student ordinarily will not give
rise to a finding of negligence absent
proof of prior conduct that would
have put a reasonable person on
notice to protect against the injurycausing act.

However, in other instances, the question
of whether defendants were on notice
regarding the potential for bullying, but failed
to respond to the threat as a prudent parent
would, is close enough to preclude summary
judgment.
For instance, student C.S.
allegedly came to J.T.’s home in October
201212 with a group of students who
threatened to “kick J.T.’s a**.” (See Pls.’ Ex.
1 at 38, 74-76.) Plaintiffs informed the
school about this conduct. (Id. at 77.) In
November 2012, C.S. allegedly began a
campaign to recruit other students to “do
bodily harm” to J.T. (Defs.’ Ex. W at 56.)
J.T. testified that he reported this behavior to
a teacher shortly after it happened and then
raised it again to the teacher four additional
times. (Id. at 57-59.) However, J.T. contends
that the teacher did nothing and that C.S.’s
bullying persisted from November 2012

Mirand, 637 N.E.2d at 266. A school may
make a prima facie showing of lack of notice
“where the prior conduct was unrelated to or
of a different nature than the conduct at
issue.” Carabello v. New York City Dep’t of

12

As noted, there is some inconsistency in the record
regarding whether this incident occurred in the spring
of 2012 or in October 2012. (Compare Pls.’ Ex. 1 at
38, with Defs.’ Ex. V at 23.) Although the date this
event transpired does not materially alter the Court’s

analysis, interpreting all facts in the light most
favorable to plaintiffs, the Court will assume that it
occurred in October, closer to the other relevant
activity.

15

through the remainder of the academic year.
(Id. at 59.) In fact, in April 2013, C.S. and
other students allegedly surrounded C.T.’s
car when he came to pick up J.T. and told
C.T. that they planned to “kick J.[T.’s]
f****** a**.”13 (Pls.’ Ex. 2 at 28; see also
Ex. 1 at 79-80.) C.T. reported this incident to
school authorities as well. (See Pls.’ Ex. 2 at
35.)

In reaching this conclusion, the Court
notes that a number of cases in this Circuit
and State have granted summary judgment to
schools on negligent supervision claims,
finding that they were not on notice that a
perpetrator might commit an injurious act.
However, the Court finds distinctions in the
instant facts that make this case
distinguishable from those decisions. For
example, here, the prior threats were targeted
directly at J.T., in contrast to those cases in
which the perpetrator, though perhaps
possessing a disciplinary record, had never
specifically targeted the plaintiff in the past.
Compare, e.g., Carabello, 928 F. Supp. 2d at
647 (school was not on notice that student
would attack plaintiff, as his prior
disciplinary incidents involved altercations
with teachers, not the plaintiff), with
Amandola v. Roman Catholic Diocese of
Rockville Ctr., 13 N.Y.S.3d 556, 557 (N.Y.
App. Div. 2015) (denying school’s motion
for summary judgment because it failed to
establish that it did not have notice of
attacker’s prior altercations with plaintiff).

Thus, there is evidence in the record that
the school was on notice that this student was
threating J.T. with physical violence.
Construing the facts most favorably to
plaintiff, a rational jury could find that, after
being made aware of these verbal threats, a
reasonably prudent school administrator
would have intervened or done more to
address this harassment. See, e.g., Wilson ex
rel. Wilson v. Vestal Cent. Sch. Dist., 825
N.Y.S.2d 159, 160-61 (App. Div. 2006)
(denying summary judgment on negligent
supervision claim arising out of injuries the
plaintiff sustained when her classmate pulled
her chair out from under her while seated
because there were issues of material fact
concerning whether defendants had sufficient
notice based on history of conflict between
the plaintiff and her classmate, which was
reported to defendants and included
destruction of the plaintiff’s test papers,
stealing the plaintiff’s personal effects,
screaming at the plaintiff, making prank calls
to the plaintiff, and threatening to fight the
plaintiff); see also Estate of D.B. by Briggs v.
Thousand Islands Cent. Sch. Dist., No.
715CV0484GTSATB, 2016 WL 945350, at
*13 (N.D.N.Y. Mar. 14, 2016) (denying
motion to dismiss negligent supervision
claim where the plaintiff put forth evidence
that defendants knew of the ongoing bullying
and failed to remedy that bullying).

Additionally, many of the decisions
granting summary judgment to the defendant
school do so on the basis that the injurious
conduct could not have been predicted
because it was dissimilar from any of the
offender’s prior misconduct.
See, e.g.,
Carabello, 928 F. Supp. 2d at 647 (prior
incident, during which offender tried to touch
a female student’s neck and hair then blew
kisses at her, did not put school on actual or
constructive notice that offender would
sexually assault plaintiff); Barmore v. Aidala,
No. 04-CV-0445, 2006 WL 1978449, at *13
(N.D.N.Y. July 12, 2006) (plaintiffs could
not maintain negligent lack of supervision
claim where school had only been notified

13

It appears that J.T. did not witness these threats
being made, but presumably learned about them when
he subsequently joined his father. (Pls.’ Ex. 2 at 36.)

16

that assailant had uttered racial epithets to
plaintiff and therefore lacked any actual or
constructive notice that he would physically
attack plaintiff); Smith v. Half Hollow Hills
Cent. Sch. Dist., 349 F. Supp. 2d 521, 525
(E.D.N.Y. 2004) (“[P]rior, unrelated
incidents resulting in discipline are
insufficient to put a school on notice of a
specific threat of danger requiring
supervision.”); Emmanuel B. v. City of New
York, 15 N.Y.S.3d 790, 792 (App. Div. 2015)
(school could not have anticipated physical
attack where assailant had only previously
made verbal threats). Here, in contrast, C.S.
allegedly threatened that he would “kick
J.T.’s a** in October, recruited students to
“do bodily harm” to J.T. in November, and
threatened to attack J.T. again in February.
Construing the evidence most favorably to
plaintiffs, a rational jury could reasonably
find that the verbal threats in October were
sufficiently similar to C.S.’s subsequent
conduct that they could have put the school
on notice that C.S. might persist in
threatening J.T.

bullying, and C.T. and T.T. complained as
well; thus, if such evidence is credited, it
would support the conclusion that the school
was aware of the issue.
Finally, this case is also unlike those in
which the injury “occurs in so short a span of
time that even the most intense supervision
could not have prevented it,” and therefore,
“any lack of supervision is not the proximate
cause of the injury.” Convey v. City of Rye
Sch. Dist., 710 N.Y.S.2d 641, 646 (App. Div.
2000). Instead, here, J.T. testified that C.S.
continued to bully him and recruit students to
do bodily harm to him from November
through the end of the school year. Compare
Kamara ex rel. Kamara v. City of New York,
940 N.Y.S.2d 53, 54 (App. Div. 2012)
(plaintiff could not show that negligent
supervision proximately caused his injuries
sustained when another student pushed him
on the basketball court, despite the plaintiff’s
previous reports that the other student had
bullied him, because the push “occurred in
such a short span of time that it could not
have been prevented by the most intense
supervision”).

Further, plaintiffs testified that they
complained several times to defendants about
the conduct at issue. Compare MacCormack
v. Hudson City Sch. Dist. Bd. of Educ., 856
N.Y.S.2d 721, 723 (App. Div. 2008) (holding
that school was not on notice that student
would strike plaintiff where plaintiff never
reported student’s threats to school); LaPage
v. Evans, 830 N.Y.S.2d 818, 820 (App. Div.
2007) (school could not have reasonably
anticipated altercation where it had not been
made aware of any conflict between the
victim and perpetrator); Danna v. Sewanhaka
Cent. High Sch. Dist., 662 N.Y.S.2d 71, 73
(App. Div. 1997) (school could not have
reasonably anticipated altercation between
two students where plaintiff failed to inform
school about her prior skirmish with her
assailant). In fact, J.T. allegedly complained
five times to his teacher about C.S.’s

Thus, in contrast to these other cases
where the offender’s conduct would have
been difficult to prevent because it was
anomalous or impulsive, here, plaintiffs have
submitted evidence that they repeatedly
reported that J.T. was being bullied, but the
school allowed the same kind of harassment
to persist. Construing the evidence most
favorably to plaintiffs, a rational jury could
find that the school’s failure to respond to
these threats amounts to a breach of their duty
to supervise under New York law.
Accordingly, the disputed issues of fact
preclude summary judgment on this claim.

17

3.

DASA Violation Claim

to include a private right of action in the
former statute if it intended to do so and,
‘[c]onsidering that the statute gives no hint of
any private enforcement remedy for money
damages,’ we will not infer that the
Legislature in fact intended to do so.’” (citing
Mark G. v. Sabol, 717 N.E.2d 1067 (N.Y.
1999))). Therefore, because there is no
private right of action under DASA,
summary judgment is granted in defendants’
favor on the DASA claim.

Plaintiffs’ fifth cause of action alleges
negligence per se arising from defendants’
purported violation of New York’s Dignity
for All Students Act (“DASA”). Defendants
oppose this argument, maintaining that there
is no private right of action under DASA,
though they acknowledge that the matter had
not been addressed by a court in this District.
(Mot. at 31-35.) However, subsequent to the
completion of the briefing on this motion,
two courts, one from the Northern District of
New York and one from the New York
Appellate Division, First Department,
considered whether DASA encompasses an
implied private right of action and concluded
that it does not. See Terrill v. WindhamAshland-Jewett Central School District, No.
115CV0615GTSDJS, 2016 WL 1275048, at
*7 (N.D.N.Y. Mar. 31, 2016) and Motta ex
rel. Motta v. Eldred Cent. Sch. Dist., No.
522416, 2016 WL 3619331, at *1 (N.Y. App.
Div. July 7, 2016). Although these opinions
are not binding, this Court agrees with their
well-reasoned conclusions and similarly
determines that there is no private right of
action under DASA. As the Appellate
Division in Motta ex rel. Motta v. Eldred
Central School District recognized, “[t]here
is no explicit private right of action in the
statutory scheme nor can one be implied from
the statutory language and the legislative
history.” 2016 WL 3619331, at *1; see also,
e.g., Flagstar Bank, FSB v. State, 978
N.Y.S.2d 266, 273 (App. Div. 2013)
(observing that “the Legislature clearly knew
how to include a private right of action when
it intended to do so, and the omission of any
similar language in [the statutes in question]
evinces a legislative intent not to provide for
a private right of action”); Davis v. State, 937
N.Y.S.2d 521, 523 (App. Div. 2012) (“It is
beyond cavil that the Legislature knew how

4.

Negligent Infliction of Emotional
Distress Claim

“A claim for negligent infliction of
emotional distress cannot be asserted if it is
‘essentially duplicative of tort or contract
causes of action.’” Virgil v. Darlak, No. 10CV-6479P, 2013 WL 4015368, at *10
(W.D.N.Y. Aug. 6, 2013) (quoting
Djangmah v. Falcione, 2013 WL 208914, *9
(S.D.N.Y. Jan. 18, 2013)); Moore v. City of
New York, 219 F. Supp. 2d 335, 339
(E.D.N.Y. 2002) (“The New York Court of
Appeals has strongly cautioned against
allowing emotional distress claims to be
brought where other tort remedies are
available.” (citing Fischer v. Maloney, 373
N.E.2d 1215 (N.Y. 1978))).
Plaintiffs contend that defendants “owed
JT . . . a special duty of care to be free from
physical harm or threats of physical harm
while at school, and to be free from
harassment by teachers and students,” but
breached this duty by permitting a continuous
pattern of bullying and harassment, causing
J.T. severe emotional distress. (See Pls.’
Second Am. Compl. ¶¶ 71-72, ECF No. 20.)
As evident from the discussion of the
negligent supervision claim, this argument
mirrors that claim, and therefore shall not be
permitted to proceed separately.14 See, e.g.,
conduct did not “rise to the level of outrageous and
extreme conduct that is utterly intolerable in a

14

Defendants also argue that they cannot be liable for
negligent infliction of emotional distress because their

18

Caravalho v. City of New York, No.
13CV4174PKCMHD, 2016 WL 1274575, at
*23 (S.D.N.Y. Mar. 31, 2016) (dismissing as
duplicative negligent infliction of emotional
distress claim because “the conduct at
issue—[the
defendant’s]
allegedly
unreasonable use of force—and any resulting
emotional damage is entirely subsumed by
[the plaintiff’s] common law assault and
battery claim and his federal excessive force
claim”); Virgil, 2013 WL 4015368, at *10
(dismissing negligent infliction of emotional
distress claim because the “conduct that
provides the basis for [the plaintiff’s] claim
for negligent infliction of emotional distress
is the same conduct underlying his claim for
medical malpractice”).
5.

IV.

CONCLUSION

For the foregoing reasons, defendants’
motion for summary judgment is granted
with respect to all claims, except plaintiffs’
First Amendment retaliation and negligent
supervision claims.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 16, 2016
Central Islip, NY

Intentional Infliction of Emotional
Distress

***
Plaintiffs were represented on the motion for
summary judgment by Russell J. Platzek,
Law Office of Steven A. Morelli, 1461
Franklin Avenue, Garden City, NY 11530.
Plaintiffs are currently represented by
Jonathan A. Tand, Tand & Associates, 990
Stewart Avenue, Suite 130, Garden City, NY
11530. Defendants are represented by Lewis
R. Silverman, Silverman & Associates, 445
Hamilton Avenue, Suite 1102, White Plains,
NY 10601.

Plaintiffs abandoned their intentional
infliction of emotional distress claim in their
opposition. (Opp’n at 21.) Therefore,
summary judgment is granted on this claim
as well.

civilized community.” (Mot. at 36.) However, recent
case law suggests that the conduct at issue need not be
outrageous and extreme in order to make out a claim
for negligent infliction of emotional distress. See Ben
v. United States, No. 5:14-CV-0370 (CJS), 2016 WL
447713, at *16 (N.D.N.Y. Feb. 4, 2016) (“However,
the New York State Supreme Court, Appellate
Division, Second Department, recently purported to
clarify that ‘extreme and outrageous conduct’ is not a

required element of an NIED claim.” (citing and
following Taggart v. Costabile, 14 N.Y.S.3d 388, 398
(App. Div. 2015) (“[W]e now clarify that,
notwithstanding case law to the contrary, extreme and
outrageous conduct is not an essential element of a
cause of action to recover damages for negligent
infliction of emotional distress.”))).

19