A.S. v. City Sch. Dist. of Albany

585 F.Supp.3d 246

A.S., Plaintiff,

v.CITY SCHOOL DISTRICT OF ALBANY, City School District of Albany Board of Education, Lori McKenna, in her individual capacity, Dale Getto, in her individual capacity, Anne Savage, in her individual capacity, and Jeffrey Honeywell, in his individual capacity, Defendants.

1:21-cv-620 (BKS/ATB)

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

Signed February 7, 2022

For Plaintiff: Rebecca J. Houlding, Giselle B. Schuetz, Friedman & Houlding LLP, 1050 Seven Oaks Lane, Mamaroneck, NY 10543.

For Defendants City School District of Albany, City School District of Albany Board of Education, Lori McKenna, Dale Getto, and Anne Savage : Loraine C. Jelinek, Gregg T. Johnson, Johnson & Laws, LLC, 646 Plank Road, Suite 205, Clifton Park, NY 12065.

For Defendant Jeffrey Honeywell : Frank W. Miller, Giancarlo Facciponte, The Law Firm of Frank W. Miller, PLLC, 6575 Kirkville Road, East Syracuse, NY 13057.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

Plaintiff A.S.¹ brings this action asserting various claims under 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), based upon events that occurred while she was a minor attending Albany High School. (Dkt. No. 1). Presently before the Court are two motions to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), filed by (1) Defendants City School District of Albany ("CSDA"), City School District of Albany Board of Education (the "Board") (together, "the District"),² Lori McKenna, Dale Getto, and Anne Savage (collectively, the "District Defendants"); and (2) Defendant Jeffrey Honeywell. (Dkt. Nos. 35, 41). Plaintiff has opposed the motions, (Dkt. No. 48), and Defendants have responded, (Dkt. Nos. 61, 62). For the following reasons, the District Defendants’ motion is granted in part and denied in part, and Attorney Honeywell's motion is granted.

II. FACTS³

A. 2014–2015 School Year

In the fall of 2014, Plaintiff entered Albany High School as a freshman. (Dkt. No. 1, at ¶ 51). One of Plaintiff's classmates was a male student ("MS"); Plaintiff and MS were not acquainted before beginning high school but both participated in Jazz Ensemble their freshman year. (Id. ¶¶ 52–53). Both students played the piano and often shared a piano bench. (Id. ¶ 53). MS at times "physically took over" the piano, forcing Plaintiff to move out of the way, and on one occasion he "began screaming profanities" at Plaintiff. (Id. ¶¶ 55–56). Although the student teacher present during this incident is believed to have informed the teacher, the incident was not reported to the administration. (Id. ¶¶ 56–59).

B. 2015–2016 School Year

In September 2015, MS told "Student Victim 3" that he had written a song. (Id. ¶ 61). MS sent the song to Student Victim 3 upon her request; the song suggested that MS had raped Student Victim 3. (Id. ). Upset, Student Victim 3 confided in Plaintiff about the song, but both were afraid to report the song because of MS's mother, who was a friend of Dale Getto, the Acting Principal at Albany High School, and also an elected member of the Board (referred to as the "Board President"). (Id. ¶ 62; see also id. ¶¶ 19 (alleging that MS's mother served as Vice President of the Board from January 2016 to January 2017, when she was elected President), 28 (noting that Getto was Acting Principal until January 2018)).⁴

On or about December 1 and 2, 2015, MS distributed to male classmates "text messages describing rape fantasies" that specifically referenced Plaintiff (the "December 2015 texts"). (Id. ¶ 63). The December 2015 texts referenced "quasi-abduct[ion]," bondage, and chloroform, and used the word "mercilessly" to describe MS's actions in the fantasy. (Id. ¶¶ 63–64). Around the same time, a male classmate provided copies of the December 2015 texts to Plaintiff, who was "embarrassed," "frightened," and "afraid to report" the texts. (Id. ¶¶ 65–66).

Also during sophomore year, MS asked his Chemistry teacher "how to make chloroform." (Id. ¶ 67). Students in the class were aware of the December 2015 texts and their reference to chloroform and informed Plaintiff about MS's question. (Id. ¶ 68).

In Spring 2016, MS "forcibly grabbed and held [Plaintiff's] arm during Jazz Ensemble class." (Id. ¶ 73). Plaintiff did not report this incident, "lacking faith that [the Board President's] friend, Principal Getto, would take any action." (Id. ). During this same time period, MS "loudly" asked Plaintiff: "do you want to be my dominatrix?" (Id. ¶ 74). MS also "loudly" "joked" with male classmates during class, "repeatedly and dramatically using the word ‘mercilessly’ in various comments to his peers." (Id. ¶ 82). Plaintiff overhead these comments and was "retraumatized by them." (Id. ¶ 83). Plaintiff "mustered up her courage and confronted" MS, who "admitted" that he wrote the December 2015 texts. (Id. ¶ 84).

C. 2016–2017 School Year

In Fall 2016, MS was "appointed to serve as an Assistant Volunteer Coach with the varsity [football] team." (Id. ¶ 87). He accessed the school PA system and played "inappropriate songs over the speaker with slurs and offensive language demeaning to women." (Id. ). The Assistant Boys Varsity Soccer Coach directed MS to stop; MS in turn "reported that he was yelled at by the coach," who was then "removed from his coaching position for the rest of the season." (Id. ¶ 90). Plaintiff alleges this is "indicative of what happens to teachers and staff members when they take action to enforce school rules and the laws vis a vis" MS. (Id. ).

On or about November 6, 2016, Plaintiff "confronted" MS about the December 2015 texts. (Id. ¶ 93). She wrote: "[The rape story] freaked me out and I couldn't even look at you for the longest time. What you did was disgusting and I was scared." (Id. ). MS responded: "Yeah, I know it's awful.... I'm immeasurably sorry.... It was a terrible, thoughtless action on my part to not only think up such a thing, but to share it." (Id. ¶ 94).

On or about November 17, 2016, the Board approved a proposal to hire MS as a CSDA employee for the 2016–2017 school year as a paid lifeguard. (Id. ¶ 95).⁵ Around the same time, students became aware that MS had "obtained copyrighted AP test materials and answers and sold" them to other students. (Id. ¶ 96). Plaintiff reported this information to the teacher and indicated "she was worried about retaliation from [MS's] mother, who was an attorney" as well as Vice President of the Board. (Id. ¶ 98). MS "ultimately admitted" to purchasing the test questions and answers from a website, and the Board President also checked credit card receipts and "confirmed" to the teacher that MS had made the purchase. (Id. ¶¶ 99–101).

On January 9, 2017, "Student Victim 2" and another student went to see School Psychologist, Dr. Jamie Savoie, about MS. (Id. ¶ 109). The two students told Dr. Savoie that MS "had pornographic fantasies about another student [Plaintiff]" which he had put in story form and shared with other students. (Id. ). They also informed Dr. Savoie of MS's behavior toward Student Victim 2, including refusing to leave her alone and making inappropriate comments about penis size. (Id. ). Dr. Savoie brought the students to see Assistant Academy Principal Suzann Cornell, and they showed Assistant Principal Cornell the December 2015 texts. (Id. ). Assistant Principal Cornell used her phone to take pictures of the December 2015 texts; no one informed law enforcement of the texts. (Id. ¶¶ 110–11). MS subsequently "implored Student Victim 2 to tell administrators she had lied" in her report, but she refused to do so. (Id. ¶ 112).

Defendants did not inform Plaintiff or her parents that a report had been made regarding the December 2015 texts; nor did they investigate the texts or file a complaint on Plaintiff's behalf under New York's Dignity for All Students Act ("DASA"). (Id. ¶¶ 113–14). Plaintiff also alleges that no disciplinary action was taken against MS and that Defendant Honeywell, retained counsel for CSDA, was informed of the allegations. (Id. ¶¶ 119, 121). Defendants told Student Victim 2 that MS had "agreed" to stay away from her and also instructed that Student Victim 2 should "stay away from" MS. (Id. ¶¶ 122–23).

On February 12, 2017, the Board President went to Plaintiff's home and informed Plaintiff and her parents that the Board President knew Plaintiff had reported MS for academic dishonesty. (Id. ¶ 137). The Board President threatened to sue for defamation and told the family that, despite her status as both President of the Board and MS's mother, she would be personally involved in any District investigation. (Id. ). She told the family they should "try to get along" and "agree that the issue does not leave this room." (Id. ).

In late winter or early spring of 2017, MS walked over to Plaintiff after a history test and said: "You have the tits and ass of an 80-year-old man." (Id. ¶ 138). Plaintiff would later report this incident in May 2017. (Id. ¶ 139). Around this time MS would also "walk near" Plaintiff and "talk to" her unnecessarily. (Id. ¶ 140). On a school choir trip to a festival in Long Island in May 2017, MS stood "unnecessarily" behind Plaintiff during the school's performance. (Id. ¶ 144).

On May 22, 2017, during an AP United States History class, the discussion "centered on women's rights, the Equal Rights Amendment, the Clinton impeachment, and Monica Lewinski." (Id. ¶ 145). During that class, MS sent "multiple sexually hostile, misogynistic texts" about Plaintiff and Student Victim 2 that "referenced their bodies, oral sex, mutilation, Viagra-fueled rape, and noise-cancelling headphones" (the "May 2017 texts"). (Id. ¶ 146). MS sent these texts to male classmates who "disrupt[ed] class with their laughter." (Id. ). Plaintiff asked what was so funny, and, later, a student told her: "[MS] is writing about you again." (Id. ¶ 147).

The next day,...