- No Duty To Protect Student Who Left School Grounds
- Employee Criticism Not Adverse Employment Action
- Principal’s Alleged Conduct Supported Sexual Harassment
No Duty To Protect Student Who Left School Grounds
In Diaz v. Brentwood Union Free School District, an appellate court recently affirmed the dismissal of a personal injury action against a school district brought by a summer school student, who at 16 years old sustained injuries when he was assaulted by gang members after he left school grounds following dismissal.
The student had testified that, prior to the assault, he was leaving the school at dismissal time along with “[h]undreds of kids,” and that the school security guards were directing the students to leave the property. He intended to walk to a restaurant with his friends to get something to eat. Prior to leaving the school grounds, the student noticed a group of six young men, whom he thought were gang members, walking down the street toward the school, yelling “[w]here’s the Bloods around here?” The student testified that he “didn’t feel threatened” when he saw the group because he was not a member of a gang, “so [he] didn’t think they would mess with [him].” He further testified that, while his friends stopped to converse with other students, he continued walking and was assaulted by the six young men after he left the school grounds. The student also testified that, prior to the assault, he had attempted to return to the school campus, but the security guards prevented him from doing so.
In upholding the dismissal of the action, the appellate Court reasoned that a “school is not an insurer of the safety of its students, and the duty owed to its students ‘is co-extensive with the school’s physical custody and control over them.’ A school’s custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child’s protection.”
The Court found that here, the school district established its entitlement to dismissal as a matter of law by demonstrating that the assault occurred at a time when the student was not on school property and no longer in the district’s custody or under its control “and was, thus, outside of the orbit of its authority.” It further found that the school district demonstrated that the student “was not released into a foreseeably hazardous setting that the district had a hand in creating.” The student’s “own testimony” showed that he “did not feel threatened by the gang members and that he decided to leave school grounds. Schools ‘cannot reasonably be expected to continuously supervise and control all movements and activities of students.’” The Court concluded that the student “departed safely from school premises prior to the assault. Once the plaintiff left school premises, the [district] had no duty to supervise him off school premises after dismissal from school. Furthermore, the [district] established that it assumed no affirmative duty to protect the [student] outside of school premises.”
Employee Criticism Not Adverse Employment Action
In Jaeger v. North Babylon Union Free School District, a male high school teacher brought a federal action against a school district, alleging gender-based employment discrimination and retaliation in violation of Title VII arising from incidents involving his female supervisor, who was his ex-wife, and who complained of harassment by the teacher.
Upon the school district’s motion to dismiss the complaint, the federal judge held that alleged series of “minor indignities” suffered by the teacher, including closer monitoring and
criticism by District officials, were not “adverse employment actions.”
The Court noted that the dispute arose from the close working relationship between these former spouses, although the ex-wife was not a party to the action.
Jaeger alleged the following discriminatory conduct on the part of the District, which he argued was sufficient to survive the District’s motion to dismiss: (1) on December 4, 2013, the school principal held a meeting to discuss his “emotional stability” after his ex-wife complained about his conduct in the workplace; (2) the District placed him under “heightened scrutiny” by conducting a formal investigation into his ex-wife’s complaints of harassment; (3) on May 29, 2014, the District placed him in a “compromising position” apparently by failing to prevent his ex-wife from entering the same room as him, in violation of a restraining order; (4) on June 3, 2014, the District again placed him in a “compromising position” by assigning his ex-wife responsibility for administering testing materials to members of the School faculty, including Jaeger, which resulted in the two of them again occupying a common space, in violation of the restraining order; (5) on September 2, 2014, during an unrelated meeting, the school principal remarked that Jaeger had had a “bad year” and that the, principal had been “more than fair” with Jaeger; (6) he has been denied unspecified classroom resources, administrative support, and has been effectively “cut off” from the rest of the School’s science department; and (7) he has been prevented from obtaining unspecified promotions and other employment opportunities both in and outside of the District.
In deciding the motion, the Court reasoned that Jaeger “must allege facts that give ‘plausible support’ to show that ‘he is a member of a protected class, was qualified for his position, suffered an adverse employment action, and has at least minimal support for the position that the employer was motivated by a discriminatory intent.’”
As to whether Jaeger suffered an “adverse employment action” the Court recognized that “an adverse employment action is a ‘materially adverse change in the terms and conditions of employment.’ Although ‘the employment action need not involve job termination or a reduction in wages, … “not every unpleasant matter short of discharge or demotion creates a cause of action.”’ To that end, certain basic features of cognizable adverse employment actions have become settled. For example …an adverse employment action generally includes ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.’”
Conversely, “‘criticism of an employee in the course of evaluating and correcting her work is not, in itself, a materially adverse employment action.’ (‘A thin-skinned worker’s reaction to criticism by a supervisor will not support a claim of … discrimination unless it is outside the bounds of appropriate supervision’). Nor is a negative evaluation alone, absent some accompanying adverse result such as demotion, diminution of wages, or other tangible loss,’ considered an adverse employment action.”
“Nor will close monitoring by a supervisor or ‘excessive scrutiny constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.”
The Court concluded that in sum, “everyday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII. In applying these standards, ‘Courts in this circuit have universally rejected attempts by plaintiffs to show an adverse employment action based simply on the plaintiff’s personal feelings about the employer’s actions.’ Rather, for a challenged employment action to be deemed ‘diverse’ under the law, it must objectively alter for the worse the terms and conditions of a plaintiff’s employment.”
In the Court’s view, Jaeger’s “allegations, even taken as true, fail to allege a plausible adverse employment action.” Rather, Jaeger “alleges to have suffered a series of minor indignities, which he found to be personally offensive, but which had no discernible impact on the material terms and conditions of his employment.
The Court concluded: “In sum, while the Court is sensitive to the apparently contentious working relationship between Jaeger and ex-wife; and to Jaeger’s apparent displeasure to be working in a subordinate role to his ex-wife; there simply is no plausible allegation that this situation translated into any materially adverse change in the terms and conditions of his employment. Stated otherwise, there is no plausible indication that Jaeger has ‘suffered a loss of wages, benefits, responsibilities, or anything else.’”
Principal’s Alleged Conduct Supported Sexual Harassment
In Richardson-Holness v. Alexander a female probationary teacher brought an action against a male school principal, asserting claims for sexual harassment and hostile work environment, based on allegations that she was subject to groping, and terminated after rejecting the principal’s sexual advances. A federal Court recently rejected the principal’s motion to dismiss the complaint, finding that his alleged conduct was sufficiently severe and pervasive to support the teacher’s claims.
In February 2008, the teacher took a probationary teaching position at the School for Human Rights (“SHR”) in Brooklyn, New York. She was hired by the defendant principal to teach English Language Arts and perform duties in the dean’s office, mostly involving the instruction of disruptive students removed from class. She was given the title “Dean of Discipline.”
According to the complaint, the principal began to harass her shortly after her arrival at SHR by staring at her from outside her classroom and dropping in on her as frequently as ten times a day. During these visits, she alleged that the principal would often attempt to massage her shoulders and complimented her appearance and dress, once commenting that she had “nice legs.” She also alleged that the principal called her into his office at the outset of the 2008-2009 school year and inquired, based on rumors he had heard, whether she had thoughts of leaving SHR. According to plaintiff, defendant emphasized during this meeting, as he had several times previously, that he had done plaintiff a “favor” by hiring her and stated, in a sexually suggestive manner, that he expected the favor to be returned . When she rose to leave the principal’s office, she alleged that he “embraced her unexpectedly and groped her buttocks.” The principal called her on her mobile phone at five p.m. on a Friday and asked about her plans for the weekend. During this conversation, the teacher alleged that the principal made reference to “incentive pay” other teachers were receiving and inquired whether she had received the same. She claimed that her resistance to theses sexual advances caused the principal to become hostile towards her and was ultimately terminated.
On the hostile work environment claim, the Court stated that to prevail, a plaintiff must produce evidence of harassment “‘that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ In assessing a claim of hostile work environment, ‘we look to the record as a whole and assess the totality of the circumstances, considering a variety of factors including thefrequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’”
Here although the principal denied engaging in the harassing conduct, his position was that, even if the teacher’s version of events were credited, the harassment she alleges was insufficiently pervasive or severe to sustain a verdict in her favor. The Court disagreed.
The Court recognized that “‘[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.’ Here, defendant is alleged to have groped plaintiff’s buttocks while alluding to ‘favors’ she owed him.” The principal quibbled that this case involves just the one instance of groping, but the Court held that “even a single incident, if sufficiently severe, can render a workplace hostile. A rational jury could conclude that the groping plaintiff alleges rises to that level. In any event, plaintiff does not predicate her hostile work environment claim on the groping incident alone. Defendant is also alleged to have repeatedly massaged plaintiff’s shoulders, leered at her suggestively, complimented her dress and legs, and contacted her outside work hours to inquire about her weekend plans.”
As for the quid pro quo harassment claim, the Court stated that a “plaintiff can prevail on a quid pro quo harassment claim by demonstrating that ‘a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.’ ‘A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’”
Here, the teacher’s allegations that she lost her “dean” title, received a letter of reprimand, along with the denial of certain extra pay for per session work, and was ultimately terminated were sufficient tangible employment actions to survive the principal’s motion.
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