09-4248-cv Papelino v. ACP
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2010
Argued: August 24, 2010 Decided: January 24, 2011
Docket No. 09-4248-cv
DANIEL R. PAPELINO and MICHAEL YU,
Plaintiffs-Appellants,
CARL BASILE,
Plaintiff,
v.
ALBANY COLLEGE OF PHARMACY OF UNION UNIVERSITY, JAMES GOZZO, individually and as President of Albany College of Pharmacy of Union University, HOWARD D. COLBY, individually and as Associate Dean for Academic Affairs, ELISABETH VINES, individually and as Faculty Advisor to the Student Honor Committee, and THOMAS DALTON, individually and as Chairperson of the Appellate Board,
Defendants-Appellees.*
Before: WINTER, CABRANES, and CHIN, Circuit Judges.
Appeal from a final judgment of the United States
District Court for the Northern District of New York (Mordue,
Chief Judge) dismissing plaintiffs-appellants' sexual harassment
* The Clerk of Court is directed to amend the official caption in accordance with this Opinion. and retaliation claims under Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681 et seq., and their breach of contract
and tort claims under New York law.
AFFIRMED in part, REVERSED in part, and REMANDED.
ALAN J. PIERCE, Hancock & Estabrook, LLP, Syracuse, NY, for Plaintiffs-Appellants.
GERALD H. KATZMAN, General Counsel, Albany College of Pharmacy, Albany, NY, for Defendants-Appellees.
CHIN, Circuit Judge:
In this case, plaintiff-appellant Daniel Papelino
alleges that he was sexually harassed by a professor when he was
enrolled as a student at the defendant-appellee Albany College of
Pharmacy (the "College"). He complained to the Associate Dean of
Student Affairs. Shortly thereafter, the College accused
Papelino and his two roommates, plaintiff-appellant Michael Yu
and plaintiff Carl Basile, of cheating on exams. All three were
disciplined, and Papelino and Basile were expelled.
The three students successfully brought an Article 78
proceeding in state court to challenge the College's decisions.
The Appellate Division, Third Department, held that the College's
determination that the students had cheated was "arbitrary and
capricious" and lacked a "rational basis."
Papelino, Basile, and Yu brought this case asserting
- 2 - sexual harassment and retaliation claims under Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title
IX"), and breach of contract and tort claims under New York
common law. In a decision dated February 5, 2003, the district
court (Norman A. Mordue, Chief Judge), dismissed all but two of
plaintiffs' claims. In a memorandum decision dated March 28,
2005, the district court granted plaintiffs leave to reinstate
certain claims but denied leave to reinstate four claims. And in
a memorandum decision dated September 11, 2009, the district
court granted summary judgment dismissing all plaintiffs'
remaining claims. Final judgment was entered the same day. This
appeal followed.
We affirm in part and reverse in part. We conclude
that while the district court properly dismissed certain claims,
plaintiffs demonstrated the existence of genuine issues of
material fact for trial with respect to their claims for sexual
harassment, retaliation, breach of contract, and negligent
supervision. Accordingly, we remand for further proceedings.
BACKGROUND
A. The Facts1
1 This is an appeal from the district court's grant of defendants' motions to dismiss and for summary judgment and the district court's denial of plaintiffs' motion for leave to
- 3 - In 1997, Papelino, Yu, and Basile were pharmacy
students at the College. They were roommates, study partners,
and friends. All three were enrolled in a year-long Medicinal
Chemistry course taught by Professor Deanne Nowak.
In the fall of 1997, Nowak began to flirt with Papelino
in and out of class. She would wink and smile at him. She sat
on the edge of his desk during one class, and gave him excessive
praise for his work.
In October 1997, after the first Medicinal Chemistry
exam, many students, including Papelino, petitioned Nowak for
additional points. When Papelino went to Nowak's office to pick
up his exam, she informed him that she had awarded him extra
points, and told him, in what Papelino described as a voice
"laced with sexual innuendo": "[N]ot everyone got extra points,
they truly have to earn them. You know what I mean, don't you
Dan?"
In January 1998, Papelino again visited Nowak's office,
reinstate certain claims. Accordingly, as to the claims dismissed on motion to dismiss, we assume as true all the material allegations of the amended complaint and proposed second amended complaint, see Pena v. DePrisco, 432 F.3d 98, 107 (2d Cir. 2005), and, as to the claims dismissed on summary judgment, we construe the evidence in the light most favorable to plaintiffs. Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006). In both instances, we draw all reasonable inferences and resolve all conflicts and ambiguities in favor of plaintiffs. Id.; Pena, 432 F.3d at 107.
- 4 - this time to discuss a class project. Nowak stated in a
flirtatious manner: "I can really appreciate a man who is good
with his hands, if you know what I mean." As Papelino tried to
leave, she stated: "You know I am always here for you handsome."
A month later, in February 1998, Papelino visited
Nowak's office a third time, to ask a question about class
material. Nowak invited Papelino to sit down. As Papelino began
to ask his question, Nowak stood up, and then bent down in front
of him so that her backside was in Papelino's face. As Nowak
looked over some papers on the floor, she directed Papelino to
pick up a book from the shelf above her. When Papelino moved to
pick up the book, Nowak stood up and Papelino "felt her hand rub
against [his] crotch." Papelino asked: "What was that for[?]"
Nowak responded, with a "grin on her face": "It's an accident,"
and then, "Do you know how lonely I've been lately?" When
Papelino asked why she was telling him that, Nowak replied: "I
thought you might be interested in knowing that." Papelino told
her that she had him "all wrong," and left the office.
In March 1998, Nowak asked Papelino to stay after class.
Nowak invited Papelino to attend a college-sponsored party with
her so that she could "teach [him] to dance." When Papelino
declined, Nowak said: "So that means you are going to make me go
- 5 - alone?"
Finally, on April 6, 1998, Papelino and his classmates
attended a "poster session" in the school gymnasium, where groups
of students presented posters and pamphlets of information about
different prescription drugs. Nowak approached Papelino and
asked him to go out with her the next day to celebrate her
birthday. According to Papelino, the following ensued:
I told her, "I thought I made it clear that I am not interested in any kind of personal relationship." Nowak said, "C'mon, what are you worried about?" I said, "I have a girlfriend, you are married, and I'm not interested!" Nowak then persisted and stated: "I wouldn't be too concerned about my husband, he's in Ohio." I told her that if she couldn't take "NO" for an answer, I think Dean White might be interested in hearing about this. Nowak's attitude changed and sternly told me that doing so would be a "big mistake." She then said, "Well, if you think it's necessary, go ahead and try it and see what happens!"
Papelino immediately reported Nowak's sexual advances
to the College's Associate Dean for Student Affairs, Albert
White. As defendants conceded below, Papelino spoke to White "on
or about April 6, 1998" about Nowak, when he sought advice about
Nowak's "sexual overtures." According to Papelino, White
reported back to him in late April 1998, stating that he had
"spoken to Nowak" and that the matter had been "taken care of."
Dean White testified at his deposition, however, that he "never
- 6 - spoke to anybody" about the situation, nor did he "go to any
member of the administration . . . 'cause [he] didn't want to let
it out." Around that time, Papelino noticed a change in Nowak's
behavior, as she started to act cold and unfriendly toward him.
On or about May 6, 1998, Nowak told Elisabeth Vines,
the Faculty Advisor to the Student Honor Code Committee, that she
believed Papelino and Basile had cheated in her Medicinal
Chemistry course, as well as in a Pharmacology course taught by
Nowak's roommate, Professor Diane Sylvester. Nowak testified at
her deposition that she first decided to look into whether
Papelino and Basile had been cheating in early December 1997 when
she received an "anonymous note" slipped under the door to her
office.2 She thereafter told Sylvester that she thought Papelino
and Basile "were cheating" and she asked Sylvester to check her
exams. At some point she approached other instructors as well,
including Professor Jeffrey Voight, who had Papelino and Basile
in their classes, asking them to look at their exams to see
whether the students had cheated.
On May 8, 1998, just two days after Nowak spoke to
Vines, Papelino and Basile received e-mail notices that they had
been accused of violating the College Honor Code. Over the next
2 At her deposition, Nowak testified that she "kept" the note, although she could not recall where, and that she was later unable to find it.
- 7 - week, Yu was also charged with cheating, and the number of
courses in which Papelino and Basile were accused of cheating
grew to nine.
A hearing was held on May 20, 1998.3 In support of the
charges, Nowak presented evidence, which consisted primarily of
"statistical" charts that she had prepared based on her review of
exams taken by Papelino, Basile, and Yu in various courses.
Papelino, Basile, and Yu countered with (1) the lack of evidence
of the means by which the three might have managed to cheat; (2)
the fact that the three studied together, and therefore had
similar knowledge bases; and (3) the lack of validity of the
"statistical" evidence. During the hearing, Nowak leaned over
while showing a document to plaintiffs, "whereby her shirt fell
forward and plaintiffs were exposed to her bare breasts." The
Student Honor Code Committee found Papelino guilty of cheating in
three classes, Basile guilty of cheating in six classes, and Yu
guilty of cheating in one class.
The three students appealed the decision to the College
Honor Code Appellate Board, but the Board declined to hear the
appeal. The students received failing grades in the classes in
3 Prior to the hearing, there was a meeting of the professors who were going to be presenting the case at the hearing. Nowak chaired or ran the meeting and "summarized the data that everyone had given [her]."
- 8 - which they were found to have cheated. In August 1998, Papelino
and Basile were expelled, and Yu was permitted to retake the one
class.
In September 1998, plaintiffs commenced an Article 78
proceeding in New York State Supreme Court, Albany County. They
sought to annul the Honor Code Committee decision. The Supreme
Court dismissed their petition, but on appeal, the Third
Department reversed and held that the College's determinations to
expel Basile and Papelino and to award Yu a failing grade were
"arbitrary and capricious" and lacked a "rational basis." Basile
v. Albany Coll. of Pharmacy of Union Univ., 279 A.D.2d 770, 771
(3d Dep't), leave to appeal denied, 96 N.Y.2d 708 (2001).
Specifically, the Third Department concluded that the Honor Code
Committee's determinations were based "solely" on a "statistical
compilation" that was based upon "false assumptions" and did not
provide "a rational basis to conclude that petitioners cheated."
279 A.D.2d at 771. The Third Department also held that as "the
same statistical methodology" was used to evaluate the charges,
there was "no rational explanation" for why Basile was found
guilty of cheating in six out of nine courses, Papelino in three
out of nine courses, and Yu in one out of seven courses. Id. at
772. Finally, the Third Department held that the allegations of
cheating were based on "either hearsay anonymous notes or . . .
- 9 - sheer speculation," and that "it was irrational of the Committee
to determine that it could rely solely on the inference of
cheating raised by the statistical compilation, particularly when
faced with proof that petitioners took these examinations in
separate rooms and under the watchful eye of a proctor, who
discerned no evidence of cheating." Id.
After the Article 78 proceedings, the College faculty
voted in May 2001 to award Papelino and Basile their diplomas.
Yu had already received his diploma after having retaken the one
course. According to the President of the College, Papelino's
diploma was issued "without notation or qualification," and it
was back-dated to Papelino's originally-planned graduation date.
On May 1, 2001, the College sent Papelino's transcripts to the
Division of Professional Licensing Services in New York --
without any reference to the Honor Code proceedings or the
Article 78 decision.
On July 9, 2001, after the commencement of this action
below, Papelino requested that the College certify his degree to
Florida's pharmacy licensing authorities. The College's attorney
responded to Papelino as follows:
[The College] proposes to complete the certification and attach thereto the decisions of Justice Malone and the Appellate Division, and send the same to Florida. A further caveat needs to be added as to the pendency of this lawsuit, which upon
- 10 - resolution may effect [sic] the award of the degree. I would like to discuss with you appropriate language to the effect that: "It may be determined in a pending action commenced by Mr. Papelino that the charges were true, which may result in the revocation of Mr. Papelino's degree."
B. Proceedings Below
On or about May 8, 2001, plaintiffs commenced this
action in the Supreme Court of the State of New York, Oneida
County. Papelino asserted claims for sexual harassment and
retaliation under Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681 et seq., and all three plaintiffs asserted
claims for breach of contract, negligent and intentional
infliction of emotional distress, and prima facie tort.
Defendants removed the action to the district court
below on June 7, 2001. Plaintiffs filed an amended complaint in
September 2001, adding, inter alia, negligent supervision claims
and a claim that the College's refusal to provide an unqualified
certification of Papelino's degree to Florida constituted
unlawful retaliation for filing this lawsuit.
Defendants moved to dismiss. In a memorandum decision
and order dated February 5, 2003, the district court dismissed
plaintiffs' breach of contract, tort, and hostile educational
environment sexual harassment claims, but permitted Papelino to
proceed with his claims for quid pro quo sexual harassment and
- 11 - retaliation.
Plaintiffs filed a motion for leave to file a second
amended complaint. In a memorandum decision and order dated
March 28, 2005, the district court granted plaintiffs leave to
file a second amended complaint reinstating certain claims, but
denied plaintiffs leave to reinstate four claims: prima facie
tort, negligent infliction of emotional distress, intentional
infliction of emotional distress, and hostile environment sexual
harassment.
Following discovery, defendants moved for summary
judgment. On September 11, 2009, the district court granted
summary judgment to defendants on all claims, Papelino v. Albany
College of Pharmacy of Union Univ., No. 01 Civ. 909 (NAM), 2009
WL 2957789 (N.D.N.Y. Sept. 11, 2009), and entered final judgment
dismissing the second amended complaint in its entirety. This
DISCUSSION
A. Standard of Review
We review de novo a district court's grant of summary
judgment, reversing where there are genuine issues of material
fact. See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,
603 (2d Cir. 2006). Similarly, we review de novo a district
court's grant of a motion to dismiss under Rule 12(b)(6). See
- 12 - Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010).
While we generally review a district court's denial of a motion
for leave to amend a pleading for abuse of discretion, where the
denial is based on rulings of law, our review is de novo. See
Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010); Kassner v.
2nd Ave. Delicatessen, Inc., 496 F.3d 229, 242 (2d Cir. 2007).
B. The Merits
We address in turn the claims for sexual harassment,
retaliation, breach of contract, and negligent supervision, and
then we discuss the remaining claims.
1. Sexual Harassment
a. Applicable Law
Title IX provides a remedy to a student who is
subjected to sexual harassment by a teacher or professor at an
educational institution receiving federal funds. Hayut v. State
Univ. of N.Y., 352 F.3d 733, 749-50 (2d Cir. 2003); see also
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280 (1998).
For an educational facility to be liable, however, the plaintiff
must establish that a school official with "authority to address
the alleged discrimination and to institute corrective measures"
had "actual knowledge" of the discrimination and failed to
adequately respond. Gebser, 524 U.S. at 290. A school fails to
adequately respond if it provides no response or if it provides a
- 13 - response that "amount[s] to deliberate indifference to
discrimination." Id. The school's response to sex
discrimination must be "clearly unreasonable" in light of known
circumstances. Davis v. Monroe County Bd. of Educ., 526 U.S.
629, 648 (1999).
In other respects, a Title IX sex discrimination claim
requires the same kind of proof required in a Title VII sex
discrimination claim. See Torres v. Pisano, 116 F.3d 625, 630
n.3 (2d Cir. 1997) ("We have held that Title VII principles apply
in interpreting Title IX."). Therefore, as under Title VII, a
quid pro quo sexual harassment claim under Title IX requires
proof of three elements: (1) the rejection of sexual advances;
(2) a tangible school-related (as opposed to employment)
consequence; and (3) a causal connection between the two. See
Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994). In
the education context, a tangible consequence occurs when "some
benefit or adverse action," such as a change in a grade, is made
to depend upon providing sexual favors to someone in authority.
Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999).
Similarly, a Title IX hostile education environment
claim is "governed by traditional Title VII 'hostile environment'
jurisprudence." Hayut, 352 F.3d at 744. A Title IX plaintiff
must show that he subjectively perceived the environment to be
hostile or abusive and that the environment objectively was
- 14 - hostile or abusive, that is, that it was permeated with
discriminatory intimidation, ridicule, and insult sufficiently
severe or pervasive to alter the conditions of his educational
environment. Id. at 745; see also Davis, 526 U.S. at 633 (for
Title IX sexual harassment claim, plaintiffs must show conduct
"that [was] so severe, pervasive, and objectively offensive that
it effectively bar[red] . . . access to an educational
opportunity or benefit").
b. Application
We discuss first the quid pro quo claim and then the
hostile environment claim.
(i) Quid Pro Quo Harassment
We conclude that genuine issues of material fact exists
with respect to Papelino's quid pro quo claim. The district
court concluded that Papelino had failed to present sufficient
evidence that the College had "actual knowledge" of the serious
nature of Nowak's sexual overtures towards him or that the
College acted with deliberate indifference. We disagree.
There is sufficient evidence in the record to permit a
reasonable jury to find that the College had actual notice of
Nowak's sexual advances: Papelino complained to Dean White about
Nowak's sexual advances. First, White was a high-ranking member
of the College's administration who was "responsible for the
- 15 - administration of the Student Code." Second, in their amended
answer to the amended complaint, defendants admitted that
Papelino spoke to White about "sexual overtures" made by Nowak
against him. Third, White testified at his deposition that
Papelino spoke to him on or about April 6, 1998, and told him
that Nowak was giving him "favorable marks because of actions,"
as well as "something about a blouse" and "something about
dinners or . . . going out." Finally, Papelino asserted that he
gave White detailed information:
I told [Dean White] that I was having problems with Prof. Nowak. He asked me, "What kind of problems?" I told him Prof. Nowak has been making passes at me. He asked me, "What do you mean by that?" I told him that on several occasions Nowak had asked me to go out with her on a personal level[.] I also explained that she went so far as to touch me. Dean White said, "Where did she touch you?" I then explained to him the incident that happened on Feb. 18, 1998 and the several other incidents that took place. I told him these incidents have made me very uncomfortable and nervous.
Together, this evidence provides a more-than-sufficient basis for
a reasonable jury to conclude that White (and hence the College)
was on "actual notice" of Nowak's alleged behavior.
As for deliberate indifference, Papelino was required
to adduce evidence that the College or its agents "knowing[ly]
refus[ed] to take any action in response" to the behavior, such
as "investigat[ing] or put[ting] an end to the harassment,"
- 16 - Davis, 526 U.S. at 651, 654, or "refus[ed] to take action to
bring the recipient [institution] into compliance," Gebser, 524
U.S. at 290. We conclude that Papelino did so. White testified
at his deposition that he "kept . . . quiet" about Papelino's
complaint -- that he did not speak to Nowak or anyone else at the
College about the complaint -- because he "didn't want to let it
out." Although White was responsible for administering the
Student Code, he did nothing to investigate Papelino's complaint.
He did not follow the procedures established by ACP for
processing complaints of sexual harassment. He did not "take
care" of the situation as he had told Papelino he would. He
failed to intervene in the Honor Code proceedings initiated by
Nowak against plaintiffs. A reasonable jury could surely find
"deliberate indifference" from these facts.
Finally, we also conclude that there is sufficient
proof of the elements of a quid pro quo claim to entitle Papelino
to a jury trial. Papelino adduces evidence that: Nowak made
sexual advances toward him, he rejected them, and Nowak initiated
Honor Code proceedings against him soon thereafter, falsely
accusing him of cheating. The close temporal proximity between
Papelino's final rejection of Nowak's advances and her initiation
of proceedings combined with the apparent speciousness of the
proffered proof of cheating constitute evidence of a causal
- 17 - connection, especially given Nowak's warning that it would be "a
big mistake" for Papelino to report her to White.
(ii) Hostile Environment Harassment
As for the hostile environment claim, the district
court dismissed the claim on grounds of timeliness. It held
(correctly) that a three-year statute of limitations applied, see
Torre v. Columbia Univ., No. 97 Civ. 0981 (LAP), 1998 WL 386438,
at *5 (S.D.N.Y. July 10, 1998), aff'd, 189 F.3d 462 (2nd Cir.
1999); Benzo v. N.Y. State Div. of Human Rights, No. 95 Civ. 5362
(LAP), 1997 WL 37961, at *5 (S.D.N.Y. Jan. 31, 1997), aff'd, 141
F.3d 1151 (2d Cir. 1998), and determined that the claim was
untimely because the last act of alleged sexual harassment
occurred in April 1998, more than three years before suit was
filed (on May 8, 2001). The district court concluded that the
only "harassing event" alleged to have occurred within the three
years prior to filing of suit was when Nowak purportedly exposed
her breasts to plaintiffs at the Honor Code hearing on May 20,
1998. The district court held that this incident was not
sufficiently severe to constitute actionable sexual harassment.
We reverse. First, the incident at the Honor Code
hearing cannot be so easily dismissed. Nowak's alleged exposure
of her breasts at the hearing cannot be viewed in isolation. In
context, a jury could reasonably find that Nowak engaged in the
- 18 - conduct as a final sexual taunting of Papelino and the others.
See Gregory v. Daly, 243 F.3d 687, 693 (2d Cir. 2001) (to
determine whether an environment is hostile or abusive, courts
must look at "the totality of the circumstances rather [than]
individual events in isolation"); accord Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993) ("[W]hether an environment is
'hostile' or 'abusive' can be determined only by looking at all
the circumstances.").
Second, the record contains evidence of other incidents
of hostile conduct within the three-year limitations period. For
example, after plaintiffs were notified by email on May 8, 1998
of the cheating charges, Nowak spearheaded the prosecution of the
charges by meeting with other professors and leading the
presentation of the evidence. A reasonable jury could find that
Nowak engaged in this conduct because Papelino rejected her
sexual advances, and that these actions were part of a pattern of
pervasive conduct that was sufficiently hostile or abusive to
alter the conditions of Papelino's educational environment.
While this adverse treatment was not overtly sexual in nature, in
the circumstances here, a reasonable jury could find that it was
"on account of sex." See Raniola v. Bratton, 243 F.3d 610, 621
(2d Cir. 2001) (both sex-specific and other adverse treatment can
be part of a hostile environment where the "other adverse
treatment was also suffered on account of sex"). Moreover, under
- 19 - the continuing violation doctrine, a plaintiff may bring claims
for discriminatory acts that would have been barred by the
statute of limitations as long as "an act contributing to that
hostile environment [took] place within the statutory time
period." McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d
Cir. 2010) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 105 (2002)). A reasonable jury could find that the
post-May 8, 1998 conduct was part of a continuing course of
conduct that began with Novak's earlier sexual advances.
2. Retaliation
"[R]etaliation against individuals because they
complain of sex discrimination is 'intentional conduct that
violates the clear terms of [Title IX].'" Jackson v. Birmingham
Bd. of Educ., 544 U.S. 167, 183 (2005) (quoting Davis, 526 U.S.
at 642). As in the context of Title VII, a plaintiff claiming
retaliation under Title IX must first establish a prima facie
case by showing: (1) protected activity by the plaintiff; (2)
knowledge by the defendant of the protected activity; (3) adverse
school-related action; and (4) a causal connection between the
protected activity and the adverse action. See Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). "Close
temporal proximity between the plaintiff's protected activity and
the . . . adverse action may in itself by sufficient to establish
- 20 - the requisite causal connection." Kaytor v. Elec. Boat Corp.,
609 F.3d 537, 552 (2d Cir. 2010).
Once a plaintiff establishes a prima facie case, the
burden shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its actions. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). After the defendant has done
so, the burden shifts back to the plaintiff to demonstrate that
the articulated reasons are pretextual. Id. at 804-05.
Even if the agents who carried out the adverse action
did not know about the plaintiff's protected activity, the
"knowledge" requirement is met if the legal entity was on notice.
Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 113-14 (2d Cir.
2000) (Title VII context). "Neither this nor any other circuit
has ever held that, to satisfy the knowledge requirement,
anything more is necessary than general corporate knowledge that
the plaintiff has engaged in a protected activity." Id. at 116.
While the individual agents' claims of unawareness of
the protected activity are relevant to the jury's determination
of causality, a jury is entitled to disregard such claims if they
are unreliable. Further, while lack of knowledge on the part of
particular agents who carried out the adverse action is evidence
of lack of causal connection, a plaintiff may counter with
evidence that the decision-maker was acting on orders or
encouragement of a superior who did have the requisite knowledge.
- 21 - See Gordon, 232 F.3d at 117 (2d Cir. 2000); Henry v. Wyeth
Pharm., Inc., 616 F.3d 134, 148 (2d Cir. 2010). In a retaliation
case, a plaintiff is only required to prove that "a retaliatory
motive play[ed] a part in adverse [] actions toward [him],
whether or not it was the sole cause." Terry v. Ashcroft, 336
F.3d 128, 140-41 (2d Cir. 2003) (citing Cosgrove v. Sears,
Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993)).
Here, a jury could find actionable retaliation both in
terms of the initiation of the Honor Code proceedings and the
College's refusal to provide an unqualified certification of
Papelino's degree to the State of Florida.
In terms of the initiation of the Honor Code
proceedings, the district court concluded that the individuals
who participated in the Honor Code Panel's decision were unaware
of Papelino's complaints against Nowak, and that, therefore, they
found plaintiffs guilty of cheating only because they actually
believed the students were guilty. The district court concluded,
therefore, that Papelino failed to establish "knowledge" and a
"causal relationship."
Construing the evidence and drawing all reasonable
inferences in favor of plaintiffs, however, we conclude that
triable issues of facts existed as to knowledge and causation.
First, there was evidence of knowledge -- evidence that the
- 22 - College knew that Papelino had engaged in protected activity.
Papelino complained to White, and thus White was aware that
Papelino was engaging in protected activity. Yet, White did
nothing even after the cheating charges were lodged against
Papelino. Moreover, Papelino told Nowak that he was going to
report her to White, and indeed he did so. Although White
testified that he never spoke to Nowak, the jury was not required
to credit this testimony. There is evidence that Nowak's
behavior toward Papelino changed -- she became cold and hostile
toward him -- around this time, and Papelino asserted that White
reported that he had spoken to Nowak. The record also includes
evidence that members of the College faculty discussed Papelino's
allegations of sexual harassment during and after the Honor Code
appeals process. A reasonable jury could also conclude that even
if the Panel members were themselves unaware that Papelino had
engaged in protected activity, they were acting on Nowak's
explicit encouragement, or that they acted without information
that White should have imparted to them.
Second, the record contains substantial evidence of
causation. A reasonable jury could find that Nowak initiated the
Honor Code proceedings for retaliatory reasons rather than a good
faith belief that Papelino had actually cheated. Nowak compiled
and presented the evidence to the Panel, serving as the hearing's
primary witness. The speciousness of the evidence presented to
- 23 - the Panel, as determined by the Third Department, is further
evidence of a retaliatory motive and a causal connection. A
reasonable jury could also find that White should have followed
up on Papelino's complaint once the cheating charges were brought
against him. In any case, for Papelino to recover on his
retaliation claim, he need only establish that impermissible
retaliation was one motive behind the initiation of the Honor
Code charges against him -- not that it was the sole reason that
any of the Panel members voted to find him guilty of cheating.
See Terry, 336 F.3d at 140-41. From the evidence adduced, a
reasonable jury surely could reach such a conclusion.
As for the College's refusal to provide an unqualified
certification to the Florida Pharmacy Board, we also find an
issue of fact as to impermissible retaliatory motive. Though the
College claims that it refused to give an unqualified
certification to the State of Florida because it still harbored
doubts about Papelino's academic integrity, the validity of this
explanation is undermined by the College's decision to provide an
unqualified certification to the State of New York two months
prior. The only circumstance that changed in the interim was
plaintiffs' filing of this litigation. Further, the College's
letter to Papelino's counsel as much as admits that the "pendency
of this lawsuit" was the reason why the College was no longer
- 24 - willing to provide an unqualified certification. At a minimum,
there are issues of fact here.
3. Breach of Contract
Under New York law, an implied contract is formed when
a university accepts a student for enrollment: if the student
complies with the terms prescribed by the university and
completes the required courses, the university must award him a
degree. Carr v. St. John's Univ., 17 A.D.2d 632, 633 (2d Dep't),
aff'd, 12 N.Y.2d 802 (1962); accord Clarke v. Trs. of Columbia
Univ., No. 95 Civ. 10627 (PKL), 1996 WL 609271, at *5 (S.D.N.Y.
Oct. 23, 1996). The terms of the implied contract are "contained
in the university's bulletins, circulars and regulations made
available to the student." Vought v. Teachers Coll., Columbia
Univ., 127 A.D.2d 654, 654 (2d Dep't 1987). Implicit in the
contract is the requirement that the institution "act in good
faith in its dealing with its students." Olsson v. Bd. of Higher
Educ., 49 N.Y.2d 408, 413-14 (1980). At the same time, "the
student must fulfill [his] end of the bargain by satisfying the
university's academic requirements and complying with its
procedures." Gally v. Columbia Univ., 22 F. Supp. 2d 199, 206
(S.D.N.Y. 1998).
As the district court noted below, New York law does
not recognize a claim for "educational malpractice," Introna v.
- 25 - Huntington Learning Ctrs., Inc., 78 A.D.3d 896, 896 (2d Dep't
2010), and a student may not seek to avoid this rule by couching
such a claim as a breach of contract claim. Gally, 22 F. Supp.
2d at 207. Indeed, courts must show the "utmost restraint" in
intervening in controversies involving a student's academic
qualifications, for "the decisions surrounding the issuance of
[academic] credentials [must] be left to the sound judgment of
the professional educators who monitor the progress of their
students on a regular basis." Olsson, 49 N.Y.2d at 413.
This is one of those rare education cases where it is
appropriate for a court to intervene. Indeed, the Third
Department has already done so, setting aside the College's
determination that plaintiffs had cheated. Largely for the
reasons set forth above, we conclude that genuine issues exist
for trial with respect to whether the College breached its
implied duty of good faith by, inter alia, failing to investigate
Papelino's complaint of sexual harassment, mishandling the Honor
Code proceedings after Nowak accused plaintiffs of cheating, and
denying (at least initially) Papelino and Basile a diploma and
failing Yu in a course. Accordingly, we conclude that the
district court erred in granting summary judgment dismissing
plaintiffs' breach of contract claim.
4. Negligent Supervision
- 26 - a. Applicable Law
Under New York law, a plaintiff asserting a claim for
negligent supervision must prove: (1) the tortfeasor and
defendant were in an employee-employer relationship; (2) the
employer knew or should have known of the employee's propensity
for the tortious conduct; and (3) the tort was committed on the
employer's premises or with the employer's chattels. Ehrens v.
Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004).
When describing an employee's "tortious propensities,"
case law often turns to the concept of "unfitness." See, e.g.,
Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369, 378 (1986);
Malone v. Hathaway, 64 N.Y. 5, 10 (1876); Steinborn v. Himmel, 9
A.D.3d 531, 533 (3d Dep't 2004). An employer will be liable to
an injured party for an employee's tort when the employer knew or
had reason to know that the employee was unfit for the job. An
"unfit" employee may take a variety of shapes. Commonly, she is
alleged to be habitually violent, Fernandez v. Rustic Inn, Inc.,
60 A.D.3d 893, 897 (2d Dep't 2009), or careless, Lawrence v. City
of N.Y., 82 A.D.2d 485, 503 (2d Dep't 1981), or drunk, Cygan v.
City of N.Y., 165 A.D.2d 58, 68 (1st Dep't 1991). The common
theme, though, is that for whatever reason -- whether something
about an employee's essential nature or something less permanent
and more situational -- she is unsuited for the task that she has
undertaken to perform.
- 27 - b. Application
Here, plaintiff's negligent supervision claim asserts
that the College is liable for Nowak's tortious conduct in two
respects: the sexual harassment and her misuse of the Honor Code
proceedings.
As to the sexual harassment, we agree with the district
court that the record contained insufficient evidence to permit a
jury to find that the College knew or had reason to know that
Nowak would sexually harass a student. Although, as we have
held, the record contains evidence of the College's actual notice
of Nowak's purported sexual conduct, that notice arose after the
conduct had occurred. There is nothing in the record to suggest
that the College knew, or should have known, that Nowak was unfit
to teach because she had a propensity for sexually harassing
students.
As to the handling of the cheating charges, however, we
conclude that issues of fact existed as to whether the College
knew or had reason to know that Nowak would misuse the Honor Code
process to engage in what plaintiffs have described as a
"charade." Given Nowak's apparent conflict of interest, the
College's decision to permit her to serve, in essence, as the
prosecutor and star witness in the Honor Code proceedings was
highly questionable. Cf. In re Estate of Palma, 40 A.D.3d 1157,
- 28 - 1158 (3d Dep't 2007) ("conflict, divided loyalty, self-interest,
and hostility" rendered petitioner "unfit" to serve as a
fiduciary). The College had a duty to plaintiffs to administer
the Honor Code proceedings in a fair and impartial manner. A
reasonable jury could conclude, on this record, that the College
was negligent in its handling of the proceedings by permitting an
unfit person to lead the disciplinary process.
Accordingly, we reverse the dismissal of the negligent
supervision claim to the extent the claim is based on the filing
and prosecution of the cheating charges.
5. Remaining Claims
We affirm the district court's dismissal of the
remaining claims substantially for the reasons articulated by the
district court.
CONCLUSION
The orders of the district court are hereby REVERSED
with respect to the Title IX quid pro quo and hostile environment
sexual harassment, Title IX retaliation, breach of contract, and
negligent supervision claims, and AFFIRMED in all other respects.
We REMAND for further proceedings.
- 29 -