Oliveras v. Saranac Lake Cent. Sch. Dist.

• Decision Date: 31 March 2014
• Docket Number: 8:11-cv-1110 (MAD/CFH)
• Citation: Oliveras v. Saranac Lake Cent. Sch. Dist., 8:11-cv-1110 (MAD/CFH) (N.D. N.Y. Mar 31, 2014)
• Parties: AMY OLIVERAS, individually and as parent and on behalf of the minor A.O.; HIRAM OLIVERAS, individually and as parent and on behalf of the minor A.O.; and A.O., by The Children's Rights Initiative, Inc., Plaintiffs, v. SARANAC LAKE CENTRAL SCHOOL DISTRICT; PATRICIA KENYON, in her individual and official capacity as Middle School Principal of the Saranac Lack Central School District; GERALD GOLDMAN, in his individual and official capacity as Superintendent of the Saranac Lake Central School District; SARANAC LAKE CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; DEBRA LENNON, in her individual and official capacity as President of the Saranac Lake Central School District; JOHN DOE(S); and JANE DOE(S), Defendants.
• Court: U.S. District Court — Northern District of New York

AMY OLIVERAS, individually and as parent and on behalf of the minor A.O.;HIRAM OLIVERAS, individually and as parent and on behalf of the minor A.O.;and A.O., by The Children's Rights Initiative, Inc., Plaintiffs, v. SARANAC LAKE CENTRAL SCHOOL DISTRICT; PATRICIA KENYON,in her individual and official capacity as Middle School Principalof the Saranac Lack Central School District; GERALD GOLDMAN, in his individualand official capacity as Superintendent of the Saranac Lake Central School District;SARANAC LAKE CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION;DEBRA LENNON, in her individual and official capacity as Presidentof the Saranac Lake Central School District; JOHN DOE(S); and JANE DOE(S), Defendants.

8:11-cv-1110 (MAD/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: March 31, 2014

APPEARANCES:

GIROUARD LAW FIRM

Attorneys for Plaintiffs Amy and

Hiram Oliveras

PERTZ & PERTZ, PLLC

Attorneys for Plaintiff A.O.

OF COUNSEL:

THERESA M. GIROUARD, ESQ.

T. JOSIAH PERTZ, ESQ.

BARTLETT, PONTIFF, STEWART &

RHODES, P.C.

Attorneys for Defendants Saranac Lake

Central School District, Saranac Lake

Central School District Board of

Education, and Debra Lennon

REHFUSS, LIGUORI & ASSOCIATES

Attorneys for Defendant Patricia Kenyon

FISHER, BESSETTE, MULDOWNEY &

HUNTER

Attorneys for Defendant Gerald Goldman

EILEEN M. HAYNES, ESQ.

BENJAMIN R. PRATT, JR., ESQ.

STEPHEN J. REHFUSS, ESQ.

JOHN J. MULDOWNEY, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On September 19, 2011, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, and the New York State Human Rights Law. See Dkt. No. 1. Currently before the Court are Defendants' motions for summary judgment (Dkt. Nos. 60, 62 and 64) and Plaintiffs' cross motion for leave to amend their complaint/response (Dkt. No. 76).

II. BACKGROUND¹

Plaintiffs filed their complaint in this matter on September 19, 2011. See Dkt. No. 1. In their complaint, Plaintiffs raise the following seven separate causes of action against Defendants:(1) Equal Protection violations due to racial discrimination brought pursuant to 42 U.S.C. § 1983; (2) racial discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; (3) racial discrimination pursuant to New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq.; (4) First Amendment retaliation pursuant to 42 U.S.C. § 1983; (5) unlawful retaliation pursuant to the NYHRL; (6) negligence based on Defendants' alleged failure to provide Plaintiff A.O. with a safe learning environment free from bullying, racial discrimination, and harassment; and (7) for punitive damages for Defendants' alleged gross negligence. See Dkt. No. 1; see also Dkt. No. 73-1 at ¶ 1.² Although Plaintiffs did not include any causes of action for sexual harassment or claims of gender discrimination under Title IX or Section 1983, Plaintiffs have cross-moved to amend their complaint to add such claims. See Dkt. No. 76; see also Dkt. No. 73-1 at ¶ 4. The named Defendants include Saranac Lake Central School District (the "District" or "Saranac Lake C.S.D."), the Board of Education (the "Board"), Patricia Kenyon (Principal of the Petrova Middle School), Gerald Goldman (Superintendent of Schools), and Debra Lennon (President of the Board), in their individual and official capacities.

In 2007, Plaintiff A.O. moved to Saranac Lake and attended the Petrova Elementary School as a fourth grader. Plaintiff A.O.'s mother is Caucasian and her father is Puerto Rican. See Dkt. No. 73 at ¶ 10. As set forth in more detail below, Plaintiff A.O. contends that, when she began attending Saranac Lake schools she was subjected to harassment and discrimination.

A. 2008-2009 School Year: 5th Grade

During Plaintiff A.O.'s fifth grade year, Josh Dann was (and still is) the principal of Petrova Elementary School. See Dkt. No. 73 at ¶¶ 11-12. During that year, Plaintiff A.O. alleges that she was subjected to two incidents of harassment or bullying. Plaintiff A.O. alleges that at some point during that year, a fifth grand male student, C.J.C., alleged called her a "Muslim" and asked whether her uncle, Saddam Hussein, was going to blow up the Twin Towers again. See id. at ¶ 13. Plaintiff reported this incident to Mr. Dann and her mother, Plaintiff Amy Oliveras. See id. at ¶ 15. During her deposition, Plaintiff A.O. first stated that C.J.C. was disciplined as a result of this incident, but then later stated that "[n]othing happened to him" as a result of this comment. See Dkt. No. 76-3 at 34-35. Plaintiff A.O. indicated, however, that she does not remember what makes her certain that nothing happened to Plaintiff as a result of this comment. See id. at 35-36. Plaintiff A.O. admitted, however, that for the remainder of her fifth grade year, C.J.C. did not bother her again. See id. at 37. At some point during the school year, Mr. Dann recalls giving C.J.C. in-school suspension for calling Plaintiff A.O. "blackie." See Dkt. No. 73 at ¶ 17.

Around the same time, Plaintiff A.O. alleges that a fifth grade boy, J.K., posted on her MySpace page that she was a "fucked up black girl." Id. at ¶ 19. Plaintiff A.O. testified that this exchange took place outside of school and that the exchange had to do with the fact that she and the boy had broken up their relationship. See id. at ¶ 20. When Plaintiff Amy Oliveras reported this incident to Mr. Dann, he recommended that she contact the police, which she did. See id. at ¶¶ 21-22.³ Plaintiff Amy Oliveras admits that she was satisfied with the way Mr. Dann handled the situation with J.K. See id. at ¶ 25. According to Mr. Dann, the District does not allow students to use social networking sites such as MySpace, Facebook, and Twitter during school hours. See Dkt. No. 64-65 at ¶ 24. The District has blocking software that prevents studentsfrom accessing these sites while using school computers. See id. Plaintiff A.O. claimed no other incidents of harassment or discrimination during that year. See Dkt. No. 73 at ¶ 28.

B. 2009-2010 School Year: 6th Grade

During the 2009-2010 school year, Plaintiff A.O. was in sixth grade. See Dkt. No. 73 at ¶ 29. During this school year, Plaintiff A.O. alleged that two students, M.H. and H.S. followed her around and said that they were going to beat her up. See id. at ¶ 30; see also Dkt. No. 76-3 at 173-74. Plaintiff Amy Oliveras claims to have reported the incident to Plaintiff A.O.'s teacher Ms. Phelan and Plaintiff A.O. had no problems with those girls after this incident. See id. at ¶¶ 30, 32. Plaintiffs admit the incident was motivated, at least in part, by the fact that M.H. and H.S. were friends with a girl who liked the same boy as Plaintiff A.O. See id. at ¶ 31.

On another occasion in the 6th Grade, Plaintiff A.O. alleged that, after she had dyed her hair red, two students, B.I. and C., kicked her and announced that it was "kick ginger" day. See id. at ¶ 33. Plaintiff A.O. did not recall during her deposition whether she reported the incident to any school official. See id. at ¶ 34. Neither B.I. nor C. had ever bothered her before or after that day. See id. at ¶ 35.

Plaintiff A.O. also alleges that another student, B.S., told her that she did not think "races should mix" and that this same girl posted on her Facebook page that Plaintiff A.O. is a "slut." See id. at ¶ 36. Plaintiff A.O. and B.S. have since become friends. See id. Plaintiff Amy Oliveras claims that she gave Plaintiff A.O. a copy of the Facebook page to give to Mr. Ellsworth. See id. at ¶ 37. Although Plaintiff A.O. does not recall whether she did, in fact, give the copy of the Facebook page to Mr. Ellsworth, Plaintiff Amy Oliveras testified that Plaintiff A.O. told her that she hade given him the Facebook page as instructed. See id. at ¶ 37.

Plaintiff A.O. also alleged that a female student K.A. touched her inappropriately on the breast and thigh during a study hall period. See id. at ¶ 38. Plaintiff A.O. testified that she reported this incident to Mr. Ellsworth on the same day that it happened. See id. Plaintiff A.O. testified that Mr. Ellsworth gave K.A. a warning and told her not to do it again. See id. Mr. Ellsworth, however, does not remember Plaintiff A.O. speaking to him about this incident and he has no record of such a conversation. See id. at ¶ 39. Although Plaintiff A.O. never had any problems with K.A. before that day and K.A. did not touch her again during that school year, Plaintiff A.O. testified that other incidents involving offensive contact occurred during summer school. See id. at ¶ 40.

Defendants claim that, during her sixth grade year, Plaintiff A.O. was identified as one of a group of girls who were experiencing peer conflict. See id. at ¶ 41. Defendants allege that these girls were involved in "peer conflict behaviors such as ignoring one another, gossiping about one another, teasing, taunting, etc." Dkt. No. 64-65 at ¶ 41. Although Plaintiffs admit that Defendants blamed Plaintiff A.O. as one of the perpetrators of harassment, they characterize Plaintiff A.O. as a victim. See Dkt. No. 73 at ¶ 41. Anastasia Black, a Middle School Guidance Counselor, arranged to meet weekly with these girls to discuss problem solving and anti-bullying behavior. See id. at ¶ 42. Plaintiff "A.O. refused to attend the group and her mother sent a letter asking that she be excused. She was the only girl who refused to attend and she never attended a single session." Dkt. No. 64-65 at ¶ 43.⁴

Moreover, Plaintiff A.O. testified that, on one occasion, another student, K.A.,⁵ referred toher as a "nigger," while in Ms. Phelan's classroom. See Dkt. No. 76-3 at 181-82. Plaintiff A.O. could not recall whether she reported this incident to any member of the school's administration. See id. Further, during her 50-h hearing, Plaintiff A.O. failed to mention that K.A. had made this comment. See id. at ¶ 45 n.2 (citation omitted). Plaintiff Amy Oliveras, denies that K.A. called Plaintiff A.O. a ...