Mennone v. Gordon

• Decision Date: 15 June 1995
• Docket Number: No. 3:92 CV 467 (GLG).,3:92 CV 467 (GLG).
• Citation: 889 F. Supp. 53
• Court: U.S. District Court — District of Connecticut
• Parties: Johna MENNONE, Plaintiff, v. Stephen H. GORDON, Amity Regional Board of Education, and James Bouchard, Defendants.

889 F. Supp. 53

Johna MENNONE, Plaintiff, v. Stephen H. GORDON, Amity Regional Board of Education, and James Bouchard, Defendants.

No. 3:92 CV 467 (GLG).

United States District Court, D. Connecticut.

June 15, 1995.

Greenfield & Murphy, New Haven, CT (Maureen M. Murphy, of counsel), for plaintiff.

Sperandeo & Donegan, New Haven, CT (Ruth Beardsley, of counsel), for defendants Gordon and Bd. of Educ.

Brenner, Saltzman & Wallman, New Haven, CT (David R. Schaefer, of counsel), for defendant Bouchard.

OPINION

GOETTEL, District Judge.

Plaintiff brings this action for declaratory relief and damages pursuant to 20 U.S.C. § 1681 ("Title IX"), 18 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. Defendants now move to dismiss the Title IX claims against individual defendants Gordon and Bouchard and the constitutional claims against all defendants. For the reasons stated below, Defendants' motion (Docket # 19) is granted with regard to the Title IX claim against Defendant Bouchard and the constitutional claims against all defendants, and is granted without prejudice to repleading within twenty days with respect to the Title IX claim against Defendant Gordon. Plaintiff's request for declaratory relief is moot.

BACKGROUND

The following facts are based entirely on the allegations in the complaint. Plaintiff, a senior at Amity Regional High School during the 1990-91 school year, was enrolled in an environmental science class taught by Defendant James Bouchard. Early in the semester another student, Scott Randall, began to sexually harass her in class on an almost daily basis. Mr. Randall repeatedly insulted and assaulted Plaintiff, making remarks about her breasts, grabbing her hair, legs, breasts and buttocks, and threatening to rape her. Although he was present and Plaintiff asked him to intervene at least once, Mr. Bouchard did nothing to stop Mr. Randall's actions.

Mr. Randall resumed the same type of behavior in a law class attended by both students during the spring semester. Some time in May the class was taught by a guest speaker who was a rape crisis counselor. For the first time Plaintiff learned that Mr. Randall's behavior was inappropriate and in some instances criminal.

After several more incidents, and consultation with school guidance counselors, Plaintiff sought direct help from school administrators. She was referred to an outside rape crisis center where counselors advised her that Mr. Randall's behavior was criminal, and encouraged her to file a complaint with the police. The school administration took no action against Mr. Randall.

The problems continued, and Plaintiff ultimately went to the Woodbridge police. Mr. Randall was arrested and charged with sexual assault in the fourth degree and breach of the peace. School administrators did not suspend or significantly discipline Mr. Randall. Plaintiff, who had skipped classes throughout the year to avoid Mr. Randall, barely attended the last few weeks of school.

Although Defendants were aware of these events, they did not take any action or enact any policies or procedures to protect Plaintiff from Mr. Randall's harassment. Plaintiff argues that Defendants' failure to protect her from Mr. Randall was a violation of her rights under Title IX, Section 1983 and the Fourteenth Amendment.

DISCUSSION

Since this is a motion to dismiss we must accept all of the allegations in the complaint as true, and draw all inferences in favor of the plaintiff. Andrea Theatres, Inc. v. Theatre Confections, Inc., 787 F.2d 59, 64 (2d Cir.1986). We can dismiss under Rule 12(b)(6) only if "it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). We will consider only the first two counts of the complaint, since Plaintiff has withdrawn the state claims presented in the third and fourth counts.

I. Claims Against Superintendent Gordon

Defendants argue that both counts against Superintendent Gordon should be dismissed since the school board is a defendant in the action. Mr. Gordon is named in his official capacity, so the claims against him must be dismissed if the Board is the real party in interest. Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir.1989), cert. denied, 496 U.S. 941, 110 S.Ct. 3225, 110 L.Ed.2d 671 (1990) (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985)). To maintain an action against Mr. Gordon in his official capacity, Plaintiff must allege that he was "directly and personally responsible for the purported unlawful conduct." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987).

Plaintiff's complaint alleges only that Gordon, as Superintendent, served as chief executive officer of the school board and had responsibility for supervision of the school district. There are no specific allegations that Mr. Gordon was directly and personally responsible for any action or inaction on the part of the school board or teacher Bouchard. Based on the complaint as currently drafted, it appears that the school board is the real party in interest.

Defendants' motion to dismiss the claims against Superintendent Gordon is granted without prejudice to repleading within twenty days.

II. Count I — Title IX

A. Application of Title IX to Individuals

Defendants James Bouchard and Superintendent Stephen Gordon move to dismiss Plaintiff's Title IX claims against them on the grounds that the statute does not apply to individuals.¹ Since the issue is one of statutory interpretation, we start our analysis with the language of the statute itself. Samuels, Kramer & Co. v. C.I.R., 930 F.2d 975, 979 (2d Cir.1991). The plain meaning of the statute controls our determination, unless the result is clearly at odds with the intent of Congress. Id.

Title IX provides that:

No 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. The statute then carves out exceptions for certain types of educational institutions and activities. Id.

The plain language of the statute broadly refers to discrimination occurring "under any education program or activity." This language does not restrict the potential class of defendants based on their nature or identity (i.e. individual, institution, etc.). It does, however, restrict them based on their function or role in a program or activity. Logically, the language of Title IX demands that a defendant must exercise some level of control over the program or activity that the discrimination occurs under. Thus, the plain language of the statute sets forth a functional restriction that does not preclude individual defendants, as long as they exercise a sufficient level of control.

Our conclusion is supported by a review of the regulations adopted to implement Title IX. While an administrative agency's interpretation of a statute is not conclusive, it is entitled to deference as long as it is consistent with the language of the statute. Young v. Community Nutrition Inst., 476 U.S. 974, 981-82, 106 S.Ct. 2360, 2364-65, 90 L.Ed.2d 959 (1986). According to the regulations, Title IX was designed to eliminate sex discrimination under any education program or activity receiving Federal financial assistance, "whether or not such program or activity is offered or sponsored by an educational institution...." 34 C.F.R. § 106.1. The regulations go on to define a "recipient" as:

any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof.

Id. § 106.2 (emphasis supplied).

This definition clearly includes persons or entities that do not receive funding directly from the federal government. Further, it expresses the functional requirement we have described above by restricting the definition of recipients to persons who "operate" a program or activity. Such a restriction properly exposes those who have the power to prevent discrimination to liability, while shielding individuals who do not exercise such control. This is completely consistent with Title IX, excluding potential defendants only as contemplated by specific language in the statute.

In Chaplin v. Consolidated Edison, 587 F.Supp. 519 (S.D.N.Y.1984), the court faced a similar question regarding individual defendants under § 504 of the Rehabilitation Act. 29 U.S.C. § 794. The court found that "§ 504 and the accompanying regulations can be read as requiring a showing that the discrimination took place under a federally funded program, but as permitting a suit against individuals responsible for discriminatory policies as well as against the entity receiving federal funds." Id. at 521. The court specifically considered the definition of a "recipient" in regulations enacted pursuant to § 504, and held that the statute extends liability to agents of an entity that receives federal funding.²Id. at 520-21. This is another way of expressing what we have referred to as control over the program or activity.

The language of § 504 closely parallels Title IX, and the regulations for each statute define "recipient" to include individuals who exercise sufficient control over the program or activity. Compare 34 C.F.R. § 106.2 and 45 C.F.R. § 86.2 (Title IX) with 29 C.F.R. § 32.3 (Section 504). As with § 504, the regulations adopted under Title IX define a "recipient" of funding broadly enough to encompass...