Zamora v. North Salem Central School District
| Decision Date | 09 February 2006 |
| Docket Number | No. 04 Civ. 8120(CLB).,04 Civ. 8120(CLB). |
| Citation | 414 F.Supp.2d 418 |
| Parties | Claudia ZAMORA, Individually, and as Mother and Natural Guardian of "Jane Doe," infant, Plaintiffs, v. NORTH SALEM CENTRAL SCHOOL DISTRICT, Debra Jackson, Individually and as Superintendent, Roberta Reiner, Individually and as Principal of Pequenakonck Elementary School, and Robert Gordon, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Urs Broderick Furrer, Harriton & Furrer, LLP, Armonk, NY, for Claudia Zamora, plaintiff.
Lewis R. Silverman, Rutherford & Christie, LLP, New York, NY, for defendants.
Robert Gordon, Carmel, NY, pro se.
Before the Court in this action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., is a motion for summary judgment (Doc. No. 23) filed October 31, 2005, by Defendants North Salem Central School District, Debra Jackson and Debra Reiner (collectively the "District Defendants"). Oral argument on the motion was heard on February 3, 2006. Defendant Robert Gordon is the former teacher of the infant Plaintiff and appears pro se in this litigation. On March 8, 2005, the District Defendants filed a cross-claim against Defendant Robert Gordon for indemnification and/or contribution. Plaintiff Claudia Zamora is the mother and natural guardian of the infant Plaintiff, and maintains a derivative claim in this action.
Unless otherwise noted, the following facts are undisputed or assumed true for purposes of this motion only. The infant Plaintiff claims that during her fifth grade year (2003-2004), Defendant Gordon repeatedly made improper sexual advances to her by rubbing her back and touching her under her shirt, and that on February 26, 2004, Defendant Gordon told her to stay in class to finish her work while the rest of the class went to physical education. He rubbed her back under her clothing and then told her to go to the back of the classroom where, out of view from the classroom door, he unzipped her sweater down to her belly button, lifted her shirt with one hand and put the other hand on her left breast. Plaintiff pushed his hand away, sat down, and then ran to the bathroom, crying, and while there, she told three other students what happened.
The girls found a teacher's aide, Debbie Downey, and the infant Plaintiff told her what had happened. Ms. Downey reported the incident to a school social worker, Gail Mailsel, who took the Plaintiff to Defendant `Principal Reiner's office. The Assistant Principal, Barbara Lavrakos interviewed the child and reported the incident to Defendant Superintendent Jackson, Principal Reiner, Assistant Superintendent Victoria Kniewel, and to the School's General Counsel Attorney Kehl. The State Police were called and responded to the school that afternoon. After the State Police interviewed the child and Defendant Gordon, they arrested Defendant Gordon.
It is undisputed that prior to the assault on February 26, 2004, these Plaintiffs did not report Defendant Gordon's misconduct toward the infant Plaintiff. Plaintiffs argue, however, that similar allegations of inappropriate conduct were brought to the attention of the District as early as 1989, and on other occasions since then, that Defendant Gordon's reputation for such misconduct was well-known, and that the District failed to take any action to stop it until February 26, 2004.
Evidence of record shows that in 1989, Ms. H then an eleven year old student, was similarly abused by Gordon. Ms. H, an Affiant in this case, avers that in March of 1989, she reported Gordon's inappropriate conduct to a teacher's aid. On March 6, 1989, Ms. H and her parents met with the District's former Principal, Cheryl Cassano, and told Principal Cassano that Defendant Gordon had touched her inappropriately in her chest area on numerous occasions, including the last occurrence on March 3, 1989. Defendant Gordon was present for the meeting, and according to Ms. H's affidavit, he apologized to Ms. H. Principal Cassano then sent the child back to Mr. Gordon's classroom, which Ms. H later left, due to her obvious discomfort. She was then assigned to a new classroom. Ms. Cassano informed then-Superintendent Mr. McKeever of the allegations. The school officials entered a "Memorandum of Record" into Defendant Gordon's personnel file. In April 1989, Ms. H's parents wrote a letter to Principal Cassano expressing their dissatisfaction with the School's handling of the situation.
In the Spring of 1992, a letter was sent to the School Psychologist by another Affiant in this case, Ms. McG, a former student, who was in graduate school at the time that she wrote the letter. In her letter, Ms. McG advised then School Psychologist, Chris Latner, that in 1981, when she was thirteen and in the eighth grade, Defendant Gordon had fondled her breasts. On August 7, 1992, then Superintendent Charles Wilson called and interviewed Ms. McG. During the phone call, she informed Wilson that people referred to Dr. Gordon as "the Octopus."
Then Superintendent Wilson also called Ms. H. to confirm her allegations. He found the allegations by both Ms. H and McG to be credible. In February 1993, District Counsel, Mr. Kehl, referred the H and McG complaints to the New York State Education Department. The two Alfiants were then contacted by Mr. Barton Zabin, an investigator from the New York State Education Department. In July 1993, the Education Department decided that it would not commence a proceeding to revoke Defendant Gordon's license and that the matter could "best be handled at the local level." See Harriton Aff, Ex. GG. At that time, the District was advised that if Defendant Gordon's alleged acts were criminal in nature, any action to terminate his employment would not be timebarred.
On August 6, 1993, Superintendent Wilson wrote a letter memorandum to Defendant Gordon, and stated:
[T]he New York State Education Department has advised us that it has determined that it will not undertake a Part 83 license revocation proceeding at this time with respect to the allegations by two students that there was inappropriate physical contact between you and them in 1981 and 1989. The School District intends, in reliance on the State Education Department's decision, to take no further action with respect to this matter.
Harriton Aff, Ex. HH. Dr. Wilson also stated in the memorandum that the Education Department "invited [the District] to let [Gordon] know that it was `prepared to move forward to a revocation proceeding if the alleged activities are repeated.'" Id.
In 2003, a fifth grade student reported to Defendant Principal Reiner that she had observed Defendant Gordon touching another fifth grade student, Ms. J.A., in a way that made her feel uncomfortable. The student said that Defendant Gordon placed his hand on Ms. J.A.'s back. Plaintiff contends that the student told her that Gordon was playing with J.A.'s bra strap. Defendant Reiner spoke to J.A., and to J.A.'s mother, both of whom denied that there had been any inappropriate contact. Defendant Reiner spoke to Defendant Gordon, who denied that any inappropriate contact occurred. The mother of J.A. avers that her daughter said Gordon did not touch her inappropriately and that she in turn told Principal Reiner that there was no inappropriate touching.
After his arrest on February 26, 2004, Defendant Gordon resigned on March 3, 2004, effective April 1, 2004, before the District moved forward with disciplinary charges. See Harriton Aff, Ex. SS. On November 17, 2004, Defendant Gordon pled guilty in Westchester County Supreme Court to first degree sexual assault (first degree due to age 10 of victim child). He was sentenced to ten years probation.
Plaintiffs assert eight separate claims, alleging deprivations of due process, unspecified civil rights violations, negligence, gross negligence, sexual harassment, and emotional distress. There is also a derivative claim for loss of services on behalf of infant Plaintiff's mother, Claudia Zamora. Plaintiffs allege that the infant Plaintiff was deprived without due process of law of the constitutional right to receive an education; that the Defendants failed to provide her with a safe and harassment-free learning environment, and failed to adopt or implement policies or procedures sufficient to screen personnel and exercise reasonable care to protect Plaintiff from inappropriate behavior; that Defendants caused the infant Plaintiff severe emotional distress, mental anguish, pain, anxiety and nervousness; that Defendants were deliberately indifferent and grossly negligent; and derivatively that Plaintiff Mother has been deprived of the companionship and comfort of the infant Plaintiff.
District Defendants move for summary judgment, on the several bases addressed infra. Plaintiffs oppose the motion, arguing that genuine issues of material fact exist and that the District Defendants, with knowledge of his propensities, enabled Defendant Gordon to keep abusing his power as a tenured teacher, as an officer of the Teacher's union, and as President of the Teacher's Association, because they were unwilling to act.
Fed.R.Civ.P. 56(c) provides that summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In evaluating the record to determine whether there is a genuine issue as to any material fact, "the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
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