702 F.3d 655 (2nd Cir. 2012), 10-3604-cv, Zeno v. Pine Plains Central School District

Docket Nº:10-3604-cv.
Citation:702 F.3d 655
Opinion Judge:CHIN, Circuit Judge:
Party Name:Anthony ZENO, Plaintiff-Appellee, v. PINE PLAINS CENTRAL SCHOOL DISTRICT, Defendant-Appellant.
Attorney:Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Plaintiff-Appellee. John Frances Moore, Towne, Ryan & Partners, P.C., Albany, NY, for Defendant-Appellant. Jay Worona, Pilar Sokol, Latham, NY, for Amicus Curiae New York State School Boards Association, Inc. Thomas E. Perez, Assistant...
Judge Panel:Before: CABRANES, LIVINGSTON, and CHIN, Circuit Judges.
Case Date:December 03, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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702 F.3d 655 (2nd Cir. 2012)

Anthony ZENO, Plaintiff-Appellee,



No. 10-3604-cv.

United States Court of Appeals, Second Circuit.

December 3, 2012

Argued: Oct. 21, 2011.

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Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Plaintiff-Appellee.

John Frances Moore, Towne, Ryan & Partners, P.C., Albany, NY, for Defendant-Appellant.

Jay Worona, Pilar Sokol, Latham, NY, for Amicus Curiae New York State School Boards Association, Inc.

Thomas E. Perez, Assistant Attorney General, Samuel R. Bagenstos, Principal Deputy Assistant Attorney General, Dennis J. Dimsey, Erin H. Flynn, Attorneys, U.S. Department of Justice, Charles P. Rose, General Counsel, Department of Education, Washington, District of Columbia, for Amicus Curiae United States.

Before: CABRANES, LIVINGSTON, and CHIN, Circuit Judges.

CHIN, Circuit Judge:

During his freshman year of high school, plaintiff-appellee Anthony Zeno (" Anthony" ) transferred to Stissing Mountain High School (" SMHS" ) in Pine Plains, New York. SMHS was a part of defendant-appellant Pine Plains Central School District (the " District" ). His fellow students harassed him for the next three-and-a-half

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years. He brought this action below, contending that the District was deliberately indifferent to his harassment. A jury found the District liable for violating Title VI of the Civil Rights Act of 1964 (" Title VI" ) and awarded Anthony $1.25 million in damages.

The district court (Davison, Mag. J. ) 1 denied the District's motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), but it granted remittitur of the jury award to $1 million. The District appeals. We affirm.


A. The Facts

We construe the facts in the light most favorable to Anthony. See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 51 (2d Cir.2012).

1. Freshman Year (January 2005— June 2005)

In January 2005, when he was sixteen years old, Anthony moved from Long Island to Pine Plains, in Dutchess County. He enrolled at SMHS, a racially homogenous school where minorities represented less than five percent of the student population. For the several years preceding Anthony's enrollment, SMHS was devoid of bias-related disciplinary incidents. That changed after Anthony— who is dark-skinned and biracial (half-white, half-Latino)— began attending SMHS.

In February 2005, a few weeks after Anthony's arrival, a student— a stranger to Anthony— charged toward him, screaming that he would " rip [Anthony's] face off and ... kick [his] ass," and that " [w]e don't want your kind here." Other students held the aggressor back, while unidentified students in the crowd called Anthony a " nigger" and told him to go back to where he came from.

After this first incident, Anthony's mother, Cathleen Zeno (" Mrs. Zeno" ), voiced her concerns to SMHS principal John Francis Howe. Howe told Mrs. Zeno that " this is a small town and [ ] you don't want to start burning your bridges."

For the rest of the year, Anthony was subjected to numerous racial comments and harassment at the school. For example, a student stripped a necklace from Anthony's neck, breaking it. The student claimed the incident was merely a joke and offered an apology: " Whoops, didn't mean to break your piece of fake rapper bling bling."

Anthony repeatedly reported the incidents to school officials. Mrs. Zeno wrote to District Superintendent Dr. Linda Kaumeyer and the school board, raising concerns about students' " verbal racial attacks and physical abuse" on Anthony and his younger sister, who was also a student in the District. Kaumeyer neither offered to meet with Mrs. Zeno nor informed Howe of the letter.

Beyond disciplining each student involved in incidents during this semester with a warning or suspension, the District did not implement other remedial measures in response to the student harassment of Anthony.

2. Sophomore Year (August 2005— June 2006)

a. Escalating Harassment

Throughout Anthony's second year at SMHS, student harassment continued. In addition to the pervasive hallway harassment reported by Anthony, specific incidents revealed escalating racial tensions at SMHS.

For example, a football teammate punched Anthony as he told him that " he was going to kick [Anthony's] black ass."

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Another student, in the cafeteria, told Anthony, " You fucking nigger. Go back to where you came from." The student picked up a chair, and started to throw it at Anthony before he was restrained. On yet another occasion, Anthony walked into the school bathroom to find graffiti on the walls warning: " Zeno is dead" and " Zeno will die." Then, in December 2005, another football teammate circulated a homemade rap CD at SMHS. The CD used racial (" nigger" ), anti-Semitic, and sexually-charged language. Anthony, like many of his peers, received a copy.

Harassment of Anthony continued the following semester. In January 2006, a faculty member reported frequent racial comments in Anthony's art class. For example, a classmate repeatedly called Anthony " homey" and " gangster," referred to " the hood," and made stereotypical remarks such as " what's up my nigger" and " you're so ghetto." Then, in February 2006, the student who had broken Anthony's necklace and another student tampered with Anthony's locker. When Anthony later opened his locker, the metal door fell off, hitting him on the head. The students had also filled the locker with garbage, which spilled onto Anthony and the floor. Moreover, on at least two separate occasions, students taunted Anthony in a racial manner with references to lynching— displaying a noose or threatening to take a rope to the nearest tree.

In response to these incidents, the District suspended the students involved, typically for five days. Twice, Anthony obtained Orders of Protection. The District moved one student to another school.

b. Additional Reports of Harassment

During his sophomore year, Anthony faced additional harassment, which he repeatedly reported to school officials. In fact, halfway through the year, he told faculty and staff: " I'm tired of this— I can't take any more of it, I have to stop this— This has been going on forever."

Similarly, by letter to Superintendent Kaumeyer dated September 19, 2005, Mrs. Zeno described " verbal attacks includ[ing] racial slurs and threats to their lives" and physical attacks so violent that SMHS called the police. Kaumeyer did not call or meet with Mrs. Zeno, but she responded in writing. Principal Howe responded by asking staff members and teachers to keep an eye on Anthony and to reach out to him.

In addition, the Zenos' lawyer and members of the community notified the District about the harassment. In October 2005, Marilynn A. Vetrano of the Dutchess County Human Rights Commission (the " HRC" ) wrote Kaumeyer, referring to " a complaint of alleged racism related incidents." Around this time, Anthony's lawyer, Michael H. Sussman, also contacted the District. Sussman asked SMHS to do two things: (1) provide Anthony with a shadow, who would accompany him at school, and (2) implement racial sensitivity programs to underscore the District's zero tolerance of racism and bias.

In November 2005, Vetrano and Elouise Maxey of the Dutchess County N.A.A.C.P. met with Kaumeyer and with Howe. At both meetings, Vetrano and Maxey reiterated the Zenos' requests for a shadow and racial sensitivity programs. In addition, they offered to provide these options at no cost. The District, however, declined to assign Anthony a shadow and chose not to implement the HRC's training program.2

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After meeting with Vetrano and Maxey, Howe discussed Anthony's progress and transition to the District with his teachers. He learned that in Anthony's art class, " [r]acial comments [were made] all the time." In addition, a teacher indicated that Anthony's presence " just makes it worse."

At the end of the school year, the District prepared an Individualized Education Program (" IEP" ) for Anthony. The IEP noted that " Anthony has been struggling with acceptance in the school environment. There have been numerous incidents between Anthony and others with prejudicial or racial overtones." After the IEP was finalized, Special Education Director Maryanne Stoorvogel (who prepared the IEP), teachers, and other school officials discussed the IEP with Mrs. Zeno. At this meeting, Mrs. Zeno also raised additional concerns regarding the bias Anthony continued to encounter at school.

c. Additional District Actions

Stoorvogel, who was aware of the " numerous incidents ... with prejudicial or racial overtones" concerning Anthony, never investigated the harassment. As the District's Title IX compliance officer, Stoorvogel was charged with investigating alleged violations of both Title IX of the Education Amendments of 1972 (" Title IX" ) and Title VI.3 Nevertheless, she did not follow up or respond to these complaints.

Stoorvogel was also part of a group (which included Kaumeyer and other District-wide administrators) that met on a biweekly basis to discuss issues of internal importance. Throughout Anthony's sophomore year— even after the graffiti on the bathroom wall, the comments about lynching, the noose, and other incidents— the administrators never discussed racial harassment, generally, or Anthony, specifically.

In February 2006, the District coordinated a mediation between Mrs. Zeno and Anthony's antagonists and their respective parents....

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