Carabello v.

• Decision Date: 06 March 2013
• Docket Number: No. 09–CV–3775 (RRM)(JMA).,09–CV–3775 (RRM)(JMA).
• Citation: Carabello v. N.Y.C. Dep't of Educ., 928 F.Supp.2d 627 (E.D. N.Y. 2013)
• Parties: Beatriz CARABELLO, mother and natural guardian of M.H., an infant, and Beatriz Carabello, individually, Plaintiff, v. The NEW YORK CITY DEPARTMENT OF EDUCATION, the City of New York, and Keith T. Matone, Defendants.
• Court: U.S. District Court — Eastern District of New York

928 F.Supp.2d 627

Beatriz CARABELLO, mother and naturalguardian of M.H., an infant, and Beatriz Carabello, individually, Plaintiff,

v.The NEW YORK CITY DEPARTMENT OF EDUCATION, the City of New York, and Keith T. Matone, Defendants.

No. 09–CV–3775 (RRM)(JMA).

United States District Court, E.D. New York.

March 6, 2013.

Andrew Michael Laskin, Joel Harris Robinson, Robinson & Yablon PC, New York, NY, for Plaintiff.

Lesley Berson Mbaye, The New York City Law Department, New York, NY, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

ROSLYNN R. MAUSKOPF, District Judge.

By Motion filed on July 16, 2012, defendantsNew York City Department of Education, City of New York, and Keith T. Matone moved for summary judgment against plaintiffBeatriz Carabello.(Doc.Nos. 49–53.)By Order entered on August 16, 2012, this Court referred that motion to the assigned Magistrate Judge, the Honorable Joan M. Azrack, for a Report and Recommendation.On February 19, 2013, Judge Azrack issued a Report and Recommendation (“R & R”) recommending that defendants' motion for summary judgment be granted as to all federal and state law claims.(Doc. No. 60.)Judge Azrack reminded the parties that, pursuant to Rule 72(b), any objection to the R & R was due on or before March 5, 2013.No party has filed any objection.

Pursuant to 28 U.S.C. § 636(b)andFederal Rule of Civil Procedure 72, the Court has reviewed the R & R for clear error and, finding none, concurs with the R & R in its entirety.SeeCovey v. Simonton,481 F.Supp.2d 224, 226(E.D.N.Y.2007).Accordingly, it is hereby ORDERED that: Defendant's motion for summary judgment is GRANTED, and the Plaintiff's amended complaint in the above matter is DISMISSED.The Clerk of the Court is directed to enter judgment accordingly, and close the case.

SO ORDERED.

REPORT AND RECOMMENDATION

AZRACK, United States Magistrate Judge:

PlaintiffBeatrice Carabello, on behalf of her infant daughter, M.H., brings this sexual harassment and retaliation suit under Title IX of the Education Law of 1972(“Title IX”), 20 U.S.C. § 1681, against the New York City Department of Education(“DOE”), the City of New York(the “City”), and Keith T. Matone(collectively, “defendants”).Plaintiff also brings New York State law claims of negligent infliction of emotional distress and negligent supervision against all defendants.This action arises out of an instance of sexual abuse against M.H. by a fellow student, B.P., in a stairwell of New Utrecht High School (“New Utrecht”) in Brooklyn, New York.

On September 1, 2009, plaintiff brought this action on her own behalf and on behalf of her daughter M.H. Compl. ¶ 1, ECF No. 1.Subsequently, plaintiff voluntarily dismissed with prejudice all claims brought on her own behalf, leaving only claims asserted on behalf of M.H. ECF No. 28.

Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c).ECF No. 49.On August 16, 2012, the Honorable Roslynn R. Mauskopf referred this motion to me for report and recommendation.The issues in this motion are: (1) whether defendants had actual notice of any prior physical, sexual harassment by B.P.; (2) whether defendants acted with deliberate indifference upon learning of any sexual harassment by B.P.; and (3) whether B.P.'s sexual abuse of M.H. was sufficiently severe, pervasive, or objectively offensive to deny her educational benefits.SeeDef.'s Mem. in Supp. of Mot. Summ. J. (“Def.'s Mem.”)at 2, ECF No. 50;Pl.'s Mem. in Opp. to Def.'s Summ. J. (“Pl.'s Mem.”)at 2, ECF No. 54.For the reasons set forth below, I respectfully recommend the Court grant defendants summary judgment on all claims.

BACKGROUND

In April 2009, M.H. was a ninth grade student at New Utrecht High School in Brooklyn, New York. Def.'s Rule 56.1 Statement of Undisputed Material Facts (“Def.'s 56.1”)¶ 3, ECF No. 52.This action arises out of a single incident of sexual abuse by B.P. against M.H. on April 30, 2009.Id.¶ 17.

1.Disciplinary Procedures at New Utrecht High School

New Utrecht enrolls approximately 3,000 students in grades nine through twelve, employs 300 teachers, staff members, and administrators, and is administered by the DOE.Def.'s 56.1 ¶¶ 1–2;Decl. of Keith T. Matone in Supp. Mot. Summ. J. (“Matone Decl.”)¶ 3, ECF No. 51.Keith Matone is New Utrecht's Assistant Principal of Safety and Security and oversees daily operations of the deans and school safety aides.MatoneDecl. ¶ 4.Matone also works closely with the Sergeant of the school safety agents, who are uniformed members of the New York Police Department assigned to New Utrecht.Id.On a daily basis, Matone addresses student disciplinary infractions and ensures that school officials investigate and report these incidents in accordance with the Chancellor's Regulations and DOE policies.Id.Whenever a teacher, student, or staff member makes a report of student misconduct, the first step is to have the individual prepare a written statement describing the incident, including the time and location.Id.¶ 11.

The DOE has implemented a Disciplinary Code, which provides schools with guidance on how to properly discipline students, including a range of permissible disciplinary measures.Id.at ¶¶ 5–6;DOE Citywide Standards of Discipline and Intervention Measures (“Disciplinary Code”), Decl. of Andrew M. Laskin (“Laskin Decl.”)Ex. 9, ECF No. 56.Possible disciplinary responses include parent conferences, detention, exclusion from extracurricular activities, removal from a certain classroom, and suspension.MatoneDecl. ¶ 6;Disciplinary Codeat 18–24.There are two types of suspensions, a principal's suspension and a superintendent's suspension, both of which can vary in length depending on the infraction.MatoneDecl. ¶ 7.Matone recommends principal's suspensions, which the New Utrecht principal approves, and superintendent's suspensions, which the DOE's Office of School and Youth Development approves.Id.

The DOE also supports a policy of “progressive discipline,” which encourages schools to use guidance interventions to address behavior problems.Id.¶ 5;Disciplinary Codeat 2.These interventions can include guidance counselor sessions, parent conferences, peer mediation, and conflict resolution.MatoneDecl. ¶ 5;Disciplinary Codeat 4–6.

2. B.P.'s Disciplinary History Prior to April 30, 2009

Before starting at New Utrecht, B.P. was a student at FDR High School (“FDR”).Pl.'s Rule 56.1 Counterstatement of Material Facts (“Pl.'s 56.1 Counter.”)¹¶ 2, ECF No. 55.On March 1, 2007, B.P. ran from FDR security staff and struck Steven DeMarco, the Assistant Principal, in the face.Id.;DeMarco Statement, LaskinDecl. Ex. 6.As a result, B.P. received a superintendent's suspension and was transferred to New Utrecht.Pl.'s 56.1 Counter. ¶¶ 2, 5.

As a New Utrecht student, B.P. had a reputation for cutting class and hanging out in the hallways.Def.'s 56.1 ¶ 6.In March 2008, two incident reports were filed regarding B.P. March 2008 Incident Take in Sheets, LaskinDecl. Ex. 8.The reports address two separate occasions where school personnel found B.P. in the auditorium while cutting class.Id.One of the reports also stated that B.P. was found trying to break a chair in the auditorium.Id. at 2.Both reports note that B.P. chronically cuts class and wanders the halls.Id.

The following school year, in September 2008, Barry Nagel, the band director at New Utrecht, wrote an incident report letter to the deans.Sept. 29, 2008Nagel Letter, LaskinDecl. Ex. 14.According to the letter, B.P. appeared in Nagel's sixth period class and gave him “three hard taps/pokes” on his “shoulder/back area.”Id.When Nagel told B.P. that “[y]ou don't just go and touch people[,]” B.P. responded “[w]hat?!I got this class!”Id.Nagel looked at B.P.'s program and noticed that B.P. did not have sixth period in that classroom.Id.Nagel reported that B.P. made him feel threatened and invaded his personal space.Id.

Shortly thereafter, on October 10, 2008, Christopher Knight, B.P.'s Spanish teacher, wrote a report regarding an incident with B.P. in his class that day.October 10, 2008 Knight Report, Decl. of Lesley Berson Mbaye (“Mbaye Decl.”)Ex. J, ECF No. 53. B.P. arrived late to class and demanded all of the homework he had recently missed; a heated exchange betweenB.P. and Knight followed.Id.Knight then asked B.P. to step outside and B.P. refused, stating that he was going to blow up the class and the school.Id. B.P. further stated “I'm going to bomb him, I'm going to bomb her ... no, not her, she's cute.”Id.Knight asked a student to go to the dean's office and, at the same time, B.P. walked out of class.Id.Knight attempted to contact B.P.'s family and explained in this report that B.P. “only causes disturbances, has little to zero control over his emotions and actions, and I feel could pose a possible danger to other students ... I am not comfortable with him in the classroom, and I believe that a physical altercation is possible.”Id.

Also in this report, Knight noted that B.P. had recently been transferred into his Spanish class but had only attended three times.Id.Each time B.P. was in class, “he caused a disturbance to the class and has harassed certain female students in ways that are inappropriate, as well as discussing his ‘virility’ with women.”Id.Although this report does not identify a specific incident of harassment, Knight later stated in his deposition that “there was one female that [B.P.] was always either talking to or trying to touch[,]” and that B.P. “had a propensity for trying to sit behind this girl and brush the back of her neck and play with her hair.”Christopher Knight Dep. March 3, 2011(“Knight Dep.”) 10:13–18.Knight would “ask [B.P.] to stop and move his seat away from the females[,][b]ut even when [he] would move him to a different spot [B.P.] would still try to blow kisses, and make noises at the females ... this...