T.Z. ex rel. C.G. v. City of New York

• Decision Date: 23 June 2009
• Docket Number: No. 05-CV-5111 (CPS)(JMA).,05-CV-5111 (CPS)(JMA).
• Citation: 634 F.Supp.2d 263
• 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

634 F.Supp.2d 263

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.

No. 05-CV-5111 (CPS)(JMA).

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

June 23, 2009.

COPYRIGHT MATERIAL OMITTED

Madeline Lee Bryer, Madeline Lee Bryer, New York, NY, for Plaintiff.

John H. Graziadel, Office of the Corporation Counsel, Meghan Ann Cavalieri, New York City Law Department, Abigail Lynne Goldenberg, NYC Law Department, Richard Ernest Signorelli, Law Office of Richard E. Signorelli, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

CHARLES P. SIFTON, Senior District Judge.

Plaintiff T.Z.,¹ on behalf of C.G., an infant under the age of fourteen years at the time of the events giving rise to this lawsuit, 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 alleged violations under 42 U.S.C. §§ 1981, 1983, and 1985; Title IX of the Educational Amendments of 1972, 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. On May 22, 2009, I granted in part and denied in part a motion for summary judgment by the City defendants, granted in part and denied in part a motion for summary judgment by Raskin, and denied a motion for summary judgment by plaintiff. Now before the court is a motion for reconsideration by plaintiff with regards to her Title IX claim against the City. For the reasons stated below, the motion is granted, and the City's motion for summary judgment on the Title IX discrimination claim is denied.

BACKGROUND

Familiarity with the parties and factual allegations of this case is assumed.⁴ A brief recitation of facts relevant to this motion follows.

At all times relevant to this action, C.G. was enrolled at Junior High School 278 ("JHS 278") as a special needs student. Defendant Raskin is a teacher employed at JHS 278 and is an employee of the City and the Education Department. During the times relevant to this lawsuit, Raskin taught computer class at JHS 278.

On November 9, 2004, at some time during Raskin's third period computer class, C.G. left class to speak to her guidance counselor. When C.G. returned, a number of students were standing up and talking loudly, while Raskin was working on his computer at his desk. With Raskin's permission, C.G. sat down in the back corner of the room to talk to two friends. A few minutes later, fellow classmate Tamaine began chasing her around the room. C.G. told Raskin to make Tamaine leave her alone but Raskin instead told her to sit down, which she did, at the back of the room. A male student named Laurie approached C.G. and asked her for a hug; C.G. refused. Laurie hugged C.G. from behind and began touching her breasts while she tried to fight him off by kicking and biting. Next, Tamaine walked up to plaintiff and told Laurie to hold down plaintiff's legs as he began touching her breasts. 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. By this time there was a crowd of students around plaintiff, who was slouched down in her chair. C.G. was yelling loudly for help, but did not call out to Raskin in particular. The incident ended when C.G.'s friend Natalia pushed everyone out of the way and pulled Tamaine away from her. 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. C.G. did not tell Raskin what happened to her. After the incident, C.G. went to her homeroom class, but did not tell either of her teachers what had happened. C.G.'s friend told a teacher about the incident; the teacher approached C.G. and asked that she write a statement. C.G. then met with the assistant principal, statements were taken from student witnesses, and the police and C.G.'s family were called.

After the incident, Laurie and Tamaine were taken out of C.G.'s class and were never in the same class as C.G. again. C.G. testified at suspension hearings for Laurie and Tamaine, who were as a result suspended for 87 days. After serving their suspension, Laurie and Tamaine returned to JHS 278 in April, 2005, and were transferred out of the school in October, 2005. After his return to school, Laurie would stare at C.G. when he saw her. During eighth grade, after the boys were transferred out of the school, plaintiff saw Tamaine by the front desk and had a panic attack.

Following the incident, C.G.'s grades in seventh grade dropped from an average of 72 to an average of 64. However, her grades improved again in eighth grade. C.G. had 29 absences from school in the spring term after the assault, compared to 28 for the entire previous year. C.G. entered psychotherapy as a result of the assault and was diagnosed with post-traumatic stress disorder. C.G. suffered self-cutting, nightmares, difficulty sleeping, flashbacks, panic attacks, uncontrollable crying, loss of concentration, loss of energy, impulsive aggression against boys, and difficulty sleeping. She was deemed to be a high risk of suicide by her therapist and complained of being depressed and anxious. Her therapist indicated that these symptoms came into existence following C.G.'s assault.⁶

In my opinion of May 22, 2009, I granted summary judgment to the City defendants on the Title IX discrimination claim, the Title IX retaliation claim, the § 1983 claim, and the negligent retention and promotion claims. I granted summary judgment to defendant DiFranco on the Title IX and § 1983 claims, resulting in his dismissal from the lawsuit. I granted summary judgment to defendant Raskin on the Title IX claim only. In her present motion, plaintiff seeks reconsideration of my grant of summary judgment to the City defendants on the Title IX discrimination claim.

DISCUSSION

I. Standard for Motion for Reconsideration

The standard for success on a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995);⁷ Pereira v. Aetna Cas and Sur. Co. (In re Payroll Express Corp.), 921 F.Supp. 1121, 1123 (S.D.N.Y. 1996); Violette v. Armonk Assocs., L.P., 823 F.Supp. 224, 226 (S.D.N.Y.1993). It is within the district court's discretion to treat case law and legislative history as "data that the court has not previously considered." Shrader, 70 F.3d at 257.

Local Rule 6.3 "is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Ades v. Deloitte & Touche, 843 F.Supp. 888, 890 (S.D.N.Y.1994). A Local Rule 6.3 motion is not to be used as a substitute for appeal. See Morser v. A.T. & T. Information Systems, 715 F.Supp. 516, 517 (S.D.N.Y.1989); Korwek v. Hunt, 649 F.Supp. 1547, 1548 (S.D.N.Y.1986). In its motion for reconsideration, a party may not "advance new facts, issues, or arguments not previously presented to the Court." National Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 115 (2d Cir.2001) (quotation omitted). The decision to grant or deny a motion for reargument is within the sound discretion of the Court. See Devlin v. Transp. Comm'ns Union, 175 F.3d 121, 132 (2d Cir.1999).

Reconsideration is appropriate in light of an intervening change of controlling law, the availability of new evidence, the need to correct a clear error, or to prevent manifest injustice. See Doe v. New York City Dept. of Social Servs., 709 F.2d 782, 789 (2d Cir.1983). Additionally, reconsideration is appropriate where a court misinterprets or misapplies relevant case law in its original decision. See O'Brien v. Bd. of Educ. of Deer Park Union Free School Dist., 127 F.Supp.2d 342, 346 (E.D.N.Y.2001).

II. Title IX

A brief statement of the law governing Title IX peer-on-peer sexual harassment suits is warranted.

Title IX of the Education Amendments of 1972 ("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 Supreme Court has long "recognized an implied private right of action under Title IX ... [for] money damages." Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629, 639, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).

A plaintiff seeking recovery for a violation of Title IX based on student-on-student harassment must prove that the alleged harassment took place in a location within the control of a recipient of federal funds. Davis, 526 U.S. at 645, 119 S.Ct. 1661. Furthermore, a plaintiff must prove the following elements. First, an appropriate person⁸ must have "actual knowledge" of the alleged discrimination or harassment, Id. at 650, 119 S.Ct. 1661. Second, a funding recipient is liable for peer-on-peer harassment only if "the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities," and the deliberate indifference "subjected" the plaintiff to discrimination. Davis, 526 U.S. at 633, 640-41, 119 S.Ct. 1661. Third, the discrimination must be "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Id. at 633, 119 S.Ct. 1661.

III. P...