T.Z. ex rel. C.G. v. City of New York
| Decision Date | 22 May 2009 |
| Docket Number | No. 05-CV-5111 (CPS)(JMA).,05-CV-5111 (CPS)(JMA). |
| Citation | 635 F.Supp.2d 152 |
| Parties | T.Z., as guardian of C.G., an Infant, Plaintiff, v. The CITY OF NEW YORK, the New York City Department of Education, Frank DiFranco, and Robert Raskin, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Madeline Lee Bryer, New York, NY, for Plaintiff.
John H. Graziadel, Office of The Corporation Counsel, Meghan Ann Cavalieri, Abigail Lynne Goldenberg, New York City Law Department, Richard Ernest Signorelli, Law Office of Richard E. Signorelli, New York, NY, for Defendants.
Plaintiff C.G., an infant under the age of fourteen years at the time of the events giving rise to this lawsuit, through her guardian T.Z.,1 commenced this action on November 1, 2005 against defendants City of New York ("City"), the New York City Department of Education, Frank DiFranco ("DiFranco"),2 and Robert Raskin ("Raskin"), in connection with an alleged sexual assault of C.G. by two fellow students in a classroom while defendant Raskin was present. Plaintiff alleges violations under 42 U.S.C. §§ 1981, 1983, and 1985; 20 U.S.C. § 1681; as well as state law claims of negligence and infliction of emotional distress.3 Plaintiff seeks compensatory and punitive damages, in addition to attorneys' fees. Now before this Court are (1) the City Defendants' motion for summary judgment, (2) defendant Raskin's motion for summary judgment and (3) plaintiff's cross motion for partial summary judgment as to liability only. For the reasons set forth below, the City Defendants' motion is granted in part and denied in part, Raskin's motion is denied, and plaintiff's motion is denied. Plaintiff has made no arguments as to the § 1981, § 1985, or infliction of emotional distress claims, or the fifth "cause of action." Since the motion is not denominated a motion for partial summary judgment, I deem these claims abandoned.
The following facts are taken from plaintiff's Complaint and the submissions of the parties in connection with this motion. Disputes are noted.4
Plaintiff C.G. is a minor, born on June 28, 1991. At all times relevant to this action, C.G. was enrolled at Junior High School 278 ("JHS 278") as a special needs student. JHS 278 is located in Kings County, New York.
Defendant City of New York is a municipal corporation existing under the laws of the State of New York. Defendant New York City Department of Education is an agency of defendant City, with control over the City's public schools. Defendant Education Department receives federal financial assistance. Defendant Raskin is a teacher employed at JHS 278 and is an employee of the City and the Education Department. Defendant DiFranco was an assistant principal at JHS 278 and was employed by the City and the Education Department at the time of the events giving rise to the complaint.
Plaintiff was a seventh-grade student at JHS 278 during the 2004-2005 school year, and was enrolled in defendant Raskin's third period computer class. Deposition of C.G. at 14, 42 ("C.G. Dep."). There were approximately 27 to 29 students in the class. Deposition of Robert Raskin at 120 ("Raskin Dep."). Plaintiff alleges that on November 9, 2004, during Raskin's computer class, she was sexually assaulted by two fellow students in the back of the classroom while Raskin was present, and that although she called for help, Raskin did not assist her. Plaintiff further states that, five weeks after this assault, she was suspended from school for five days following a fight with a male student, which she alleges was unfair given that the male student was not disciplined, and was imposed in retaliation against her for asserting her rights. In support of her argument that the school administration and City were at fault with respect to her assault, plaintiff refers to two earlier incidents in which female students were assaulted at JHS 278, one in 2000 that took place in the school schoolyard and one in 2003 that took place in Raskin's classroom. These incidents are described in further detail below.
During the times relevant to this litigation, Raskin's computer classroom was located in Room 204 at JHS 278. Raskin Dep. at 65. There were 35 student computer work stations in the room. Id. at 66. The computer systems were set on four rows of tables running from the front to the back of the room. Id. at 67. Each system consisted of a six inch tall computer base with a monitor on top. Id. at 73. Raskin's desk was situated at the front of the rectangular classroom, toward the right corner of the room, next to the front door. Ha Decl. Ex. B (drawing made by plaintiff of the classroom). At the back of the room were two tables and several storage cabinets. Id. Raskin often provided "one-on-one" assistance to students at their workstations, which sometimes required sitting down at the work station. Raskin Dep. at 75-76, 108. Due to the height of the computer monitors, Raskin's line of sight was obscured when he was sitting at a work station. Id. at 79.
With limited exceptions, Raskin required students to stay in their seats and not talk during class or to limit their talking during class. C.G. Dep. at 16-17. On occasion, when a student came back from being out of the classroom or near the end of a class period, Raskin allowed the student to take a break and sit away from his or her computer or sit and talk to another student. Raskin Dep. at 212-213. On some occasions, close to the holidays and close to the end of a class period, Raskin would permit a few students at a time to play cards in the back of the classroom if they were finished with their work. Raskin Dep. at 93.
At some time during Raskin's third period computer class, C.G. left class to speak to her guidance counselor. C.G. Dep. at 56, 59-60. C.G. states that she returned to class with 25 minutes left in the class period; Raskin states that she returned with no more than ten minutes left in the period. C.G. Dep. at 73-74; Raskin Dep. at 211. C.G. testified that when she returned, a number of students were standing up and talking loudly. C.G. Dep. at 75. C.G. saw Raskin working on his computer at his desk. Id. at 71. Raskin told members of the class to sit down and be quiet more than once. Id. at 78-79.
C.G. next saw Laurie Touzalin ("Laurie") and Tamaine Wallace ("Tamaine") touching a student named Shanique on her breasts over her shirt. C.G. Dep. at 61. The students were located towards the back of the room. Id. Shanique was telling Laurie and Tamaine to stop, while giggling as if being tickled. Id. at 62, 69. C.G. approached Laurie and Tamaine and told them to leave Shanique alone; she did not tell Raskin what had happened to Shanique, and C.G. saw no indication that Raskin knew what was happening. Id. at 65, 68. With Raskin's permission, C.G. then sat down in the back corner of the room to talk to Shanique and another friend. Raskin Dep. at 213; Id. at 70. After C.G. talked to Shanique for five or six minutes, Tamaine began chasing her around the room. C.G. Dep. at 75. C.G. told Raskin to make Tamaine leave her alone but Raskin instead told her to sit down. Id. at 75-76. C.G. returned to sitting with Shanique and her friend in the back corner of the room, where she could not see Raskin because the computers on the tables blocked the view of the front of the classroom. Id. at 77-78.
Laurie approached C.G. and asked her for a hug; C.G. refused. C.G. Dep. at 79. Laurie hugged C.G. from behind and began touching her breasts while she tried to fight him off by kicking and biting. Id. at 81. C.G. was facing the back of the room at this time. Id. at 85. Next, Tamaine walked up to plaintiff and told Laurie to hold down plaintiffs legs as he began touching her breasts. Id. at 86. Tamaine then touched C.G. on her vagina and buttocks outside of her clothing, after which he pulled her pants down and caressed her buttocks. Id. at 86-89. By this time there was a crowd of students around plaintiff, who was slouched down in her chair. Id. at 92-93, 88. C.G. was yelling loudly for help, but did not call out to Raskin in particular. Id. at 83, 88, 97. The incident ended when C.G.'s friend Natalia pushed everyone out of the way and pulled Tamaine away from her. Id. It is not clear how long the incident lasted.5 Afterwards, plaintiff was crying in Natalia's lap, at which point Raskin approached and told her to get up and go to her seat. Id. at 90. C.G. did not tell Raskin what happened to her. Id.
Raskin states that in the last 10 minutes of class, he was walking around the room and helping students with problems. Raskin Dep. at 214. At some point he returned to the front of the room to open the door for two students returning from the counselor's office. Id. at 217. He then saw a student in the third seat in the first row, which was near the front side of the room by the door, raise her hand for help. Id. at 221-222. He found that her computer was frozen and she was in danger of losing her work; he attempted to help her at her desk, but was unsuccessful, after which he returned to his own work station to recover the file. Id. at 224-225. Soon afterwards, the end of class bell rang. Id. at 226. Raskin states that he did not see and was not aware of the alleged assault on C.G. while it was happening, and did not learn of it until a week later. Raskin Dep. at 230, 194-195. Raskin further states that no one in the classroom told him about the alleged assault at the time. Id. at 227.
After the incident, C.G. went to her homeroom class, but did not tell either of her teachers what had happened. C.G. Dep. at 101-102. After C.G. described to...
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