Opinion
No. 97-CV-12534-MEL, No. 97-CV-12675-MEL, 97-CV-12691-MEL.
December 12, 2000
MEMORANDUM AND ORDER
Shequana Cheshire, Nicole Victorian and Ruth Perez (the "girls") and their mothers (collectively, the "plaintiffs") allege that the girls were inappropriately touched in a sexual manner by their fourth grade special education teacher, Frederick Bromberg. In addition to suing Bromberg, the plaintiffs are suing the City of Boston and various employees of the Boston Public School System (collectively, the "city"). The plaintiffs allege that the city's actions violated their federal rights under 42 U.S.C. § 1983 ("§ 1983") and 20 U.S.C. § 1681 et seq. ("Title IX"). The plaintiffs also assert that the city is liable under M.G.L. ch. 258, the Massachusetts Tort Claims Act ("MTCA"). In addition, Cheshire brings a claim under M.G.L. ch. 214, § lB, for interference with privacy; Perez maintains a claim under M.G.L. ch. 12, § 11H-11I, the Massachusetts Civil Rights Act ("MCRA"); and the girls' mothers assert loss of consortium claims. The city moves for summary judgment. The city's motion is granted regarding the plaintiffs' claims under state law and for punitive damages under Title IX and is otherwise denied.
I. FACTS
During the 1994-95 school year, the girls were assigned to attend Bromberg's special education classroom. During class, on a daily basis, Bromberg would call the girls up to his desk for individualized reading instruction. The girls allege that when they were called up to Bromberg's desk, he would position the chairs and maneuver his body in such a manner so that his "privates" would touch their knees and thighs. When they tried to move away he would then thrust back at them. The girls also allege that Bromberg would get nervous if he thought someone might see this conduct and engaged in furtive conduct to prevent detection.
While the girls allege. that this conduct occurred throughout the school year, none of the girls complained until the Spring of 1995, when they each complained about Bromberg's conduct to their homeroom teacher, Ms. Hill.
Under Massachusetts law and the Boston Public School's "Child Abuse and Neglect" policy, such complaints require immediate action including, a report of the allegations to the Massachusetts Department of Social Services ("DSS") and to the school principal. If such a report had been made to DSS, the girls and Bromberg normally would have been separated within a day. However, Hill was unaware of the policy and instead "did the best that she knew how." Hill Depo. I 25.
Understandably concerned by the explosive allegations, Hill pursued the matter. About two weeks after the first girl complained, she reported the matter to Ms. Fields, the Senior Officer of Equity for the Boston Public Schools, whose job was to deal with civil rights issues. While Fields may or may not have known that the correct procedure would be to contact DSS, she chose to confer with the city's lawyers who were housed across the hall from her office.
It is unclear exactly when, but Hill also told Ms. Nocera, a supervisor of special education at the Eliot school, about the girls' allegations. Nocera's response, was to discuss the allegations with Eliot School Principal, Mr. Cardoni. Nothing came of these discussions.
In early June, DSS was notified of allegations against Bromberg by a doctor who had examined Victorian. The DSS immediately took action to remove the girls from Brornberg's tutelage. Six to eight weeks passed from the time Hill was initially notified until DSS separated the girls from Bromberg. During this time, the girls allege that Bromberg continued to molest them.
II. FEDERAL LAW CLAIMS
A. May a Reasonable Jury Conclude that the City's Employees were "Deliberately Indifferent" to the Plaintiffs' Rights?
In order to establish the liability of a municipality under either § 1983 or Title IX a plaintiff must identify a municipal "policy" or "custom" that caused a deprivation of federal rights. Board of County Comm'rs of Bryan County v. Brown, 520 U.s. 397, 403 (1997). Even where the municipality has adopted a policy which is on its face constitutional, if the policy is implemented with "deliberate indifference" towards the constitutional rights of persons affected by the policy, a municipality may be held liable. City of Canton v. Harris, 489 U.S. 378, 387-88 (1989).
The city has urged me to reconsider my earlier ruling in Doe v. Old Rochester Reg'l Sch. Dist., 56 F. Supp.2d 114 (D.Mass. 1999) that a § 1983 action brought by a student based on alleged sexual molestation by a teacher is not preempted by Title Ix. Because I believe that Doe is correct, I decline to do so.
It is undisputed that the city (i.e. the school system) had a written policy requiring teachers to report sexual abuse charges to the DSS immediately upon learning of such charges and indeed, state law required such action. The plaintiffs argue however that the city is nevertheless liable because of their "deliberate indifference" in failing to implement the policy and failing to train its staff as to the unconditional necessity of making such an immediate report.
The city answers that the plaintiffs cannot establish "deliberate indifference" on the part of the city because they have failed to show that the city was aware of a pattern of incidents in which its employees had failed to deal properly with cases of alleged sexual molestation.
The plaintiffs respond that the law does not require them to establish such a municipal pattern where the training the teachers and administrators received was "obviously deficient" and this deficiency was likely to, and did in fact, result in a violation of the plaintiffs' constitutional rights.
This case falls directly under the United States Supreme Court's decision in Canton:
The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy." It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the madequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.Canton, 489 U.S. at 390 (citations omitted)
The city policy in question is its policy for dealing with allegations of sexual molestation. In a school setting such a policy is of course of vital importance. Indeed, the issue is so important that, as indicated above, the Massachusetts legislature has mandated immediate reporting to the Department of Social Services ("DSS") of alleged incidents of sexual molestation. M.G.L. ch. 119, § 51A.
Under the circumstances, the city enacted what appeared to be a constitutional policy. The crux of the plaintiffs' allegations is that the city utterly failed to distribute copies of the policy to its employees or to train them as to the action the policy required. They have provided evidence which could support a finding that the city did little more than develop the policy, distribute it to its principals in the middle of almost 1000 pages of other documents, and assume that from these actions its employees would understand their mandatory reporting obligations under § 51A. Not surprisingly, this expectation was not met when the girls complained in the Spring of 1995. As would be expected, under such a "paper tiger" system, all four school employees (three of whom were administrators) who should have reported the incidents under § 51A failed to do so. As a result, a jury could conclude that the city was a "moving force" behind any violation occurring after the girls first reported the incident to Hill. B. Did the School Officials Notified of Brombera's Alleged Conduct have the Authority to Immediately End It?
The city's argument that because the majority of the harm alleged by the girls is excluded from this time period, the rest of the harm is somehow de minimis, is spurious at best. If a fourth grade student receives six to eight weeks of sexual touching by her teacher every school day this hardly qualifies as a trifling occurrence.
The city argues that its is entitled to summary judgment on the plaintiffs' Title IX claims because an official with the authority to end Bromberg's actions was not on "actual notice" of these actions. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274 (1999). The city contends that because Bromberg's supervisor, Principal Cardoni, allegedly did not have "actual notice" of the allegations until after DSS notified, it can not be liable under Title IX.
The city's motion is denied. The plaintiffs have presented evidence which supports the conclusion that Cardoni knew about the allegations against Bromberg well before DSS was notified. More fundamentally, all four school officials who were allegedly notified of the purportedly inappropriate conduct not only had the authority but the obligation to notify DSS and end Bromberg's alleged conduct. Because these city employees had the authority to end Bromberg's conduct immediately, Title IX liability is appropriate. Gebser, 524 U.S. at 291.
C. Cheshire's Title IX Retaliation Claims
Cheshire alleges that Ms. Sonia Diaz-Salcedo, the principal at the Eliot school during the year after the Bromberg incident, retaliated against her on account of her allegations against Bromberg by: (1) suspending her; (2) applying the suspension in violation of the school's Code of Discipline; and (3) attempting to deny her the right to ride on the school bus. Cheshire also alleges that after unnamed administrators at the Gavin school, the second school she attended after the Eliot school, learned of the Bromberg incident, they disciplined her in retaliation as well.
When Cheshire was in fifth grade, Ms. Sonia Diaz-Salcedo was the principal of the Eliot School. In fourth grade, when the Bromberg incident occurred, Cardoni was the principal.
The city argues that it is entitled to summary judgment as to these claims because: (1) Cheshire had unrelated discipline problems both before and after the Bromberg incident; and (2) Diaz-Salcedo and other administrators allegedly retaliating against Cheshire were not personally involved in the Bromberg incident.
The city's motion is denied. Admittedly, Cheshire's less than exemplary disciplinary record and the school administrators' lack of personal involvement in the Bromberg incident gives considerable merit to "the city's position on Cheshire's retaliation claims. Nevertheless, fact questions remain as to Diaz-Salcedo's and the Gavin school administrators' motives for disciplining Chesire. Other evidence in the record, such as Hill's testimony, supports Cheshire's allegations of retaliation.
Hill notified chesire's mother that she had observed school officials, including Diaz-Salcedo, unfairly disciplining her daughter because (in her opinion) of the incident with Bromberg. Hill felt that the retaliation was so prevalent against Chesire, that she "did not stand a chance if she stayed at the Eliot school."
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D. Are Punitive Damages Available Under Title IX Against Municipalities?
Federal courts will not impose punitive damages against municipalities absent express congressional authority allowing them to do so. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 263 (1981) (holding that municipalities are immune from punitive damages under 42 U.S.C. § 1983). In passing Title IX Congress has not provided such authority. I recognize that a respected colleague in this district had recently reached the opposite conclusion, that punitive damages are available against municipalities under Title IX. Canty v. Old Rochester Reg'l Sch. Dist., 54 F. Supp.2d 66, 70 (D.Mass. 1999).
However, even if punitive damages were available against municipalities under Title IX, an award of punitive damages would not be justifiable on the basis of the record in this case. In Canty, the court limited punitive damages to the "rare case" where "ongoing egregious violations" existed. Canty, 54 F. Supp.2d at 70. The Canty court found that this standard could be met where a school district allegedly ignored a pattern of sexual abuse of students by a single teacher for over two decades. Here, allegations of such a pattern of abuse or gross misconduct over a long period of time are noticeably absent and preclude the award of punitive damages.
Understandably, given the facts, the plaintiffs' advocate a standard for allowing punitive damage claims under Title IX which conflates the "deliberate indifference" test with the test for punitive damages. Combining these two tests is neither required by logic nor supported by the language of Title IX. Such a fusion would yield the incongruous result that punitive damages would be available against a municipality as a matter of course anytime a violation of Title IX was found.
III. STATE LAW CLAIMS
A. The Plaintiffs' Claims Under the Massachusetts Tort Claims Act
i) The Plaintiffs' MTCA Claims Based on Bromberg's Actions
The city argues that it cannot be held liable under the MTCA for Bromberg's acts because § 10(c) of the MTCA bars claims against a municipality arising out of the intentional torts of its employees. M.G.L. ch. 258, § 10(c).
In Booker and Gaskins' complaints, a claim was also made against the City for intentional infliction of emotional distress under the MTCA. The plaintiffs have conceded that this claim is barred by M.G.L. ch. 258, § 10(c).
The plaintiffs respond that the city can be held liable under the MTCA because a jury might find that Bromberg's alleged touching of the girls was not intentional, but was negligent. Under § 2 of MTCA, public employers are liable for the negligent acts of an employee acting within the scope of his employment. To support their position that a jury could find that Bromberg acted negligently, the plaintiffs rely exclusively on Victorian's testimony to the DSS social worker and at her deposition. Victorian stated that she did not think that Bromberg knew that he was touching her improperly.
The city's motion for summary judgment on the MTCA claims is granted. The record is replete with both facts and statements by the girls which demonstrate that if Bromberg improperly touched the girls, it was intentional. In contrast, there is no evidence in the record to support the conclusion the Bromberg acted negligently. Victorian's statement, which she contradicted at the pretermination hearing, is, by its very nature, pure speculation.
One or more of the girls have previously testified that Bromberg did the following to enable him to inappropriately touch them: (1) moved back quickly if someone entered the room; (2) closed the door and windows; and (3) would not let them go to the bathroom while he was reading to them. In addition, the girls describe Bromberg as thrusting his pelvis while he read to them. If a jury were to believe the girls, it would be impossible for them to find that Bromberg acted negligently.
ii) The Plaintiffs' Remaining MTCA Claims
The city argues that § 10(j) of the MTCA bars the plaintiffs' remaining claims under the statute. Section 10(j), provides that the MTCA bars all claims against municipal entities "based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation . . . which is not originally caused by the public employer." M.G.L. ch. 258, § 10(j) (emphasis added). The city asserts that the plaintiffs' remaining claims can only be fairly characterized as claiming that the city failed to "prevent or diminish" the harm caused by Bromberg and is therefore barred by § 10(j).
Section 10(j) does bar the plaintiffs' remaining claims under the MTCA. Plaintiffs seek to hold the city liable for failing to "prevent or diminish" the harm allegedly caused by the unauthorized, intentional and tortious conduct of one of its employees, Bromberg. Section 10(j) precludes such a claim. Brum v. Town of Dartmouth, 704 N.E.2d 1147 (Mass. 1999).
B. Cheshire's Claim Under Massachusetts Privacy Law
Massachusetts General Law ch. 214, § lB provides, in pertinent part, that "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy."
Cheshire argues that a fax sent to a Gavin school psychologist which stated that she "had problems with male teachers due to the fact that there was an incident at Eliot," was an unreasonable and substantial interference with her privacy. Booker Depo. II 372. She asserts that this action was unreasonable because she had moved to the Gavin school to escape alleged retaliation by administrators and teachers based on the Bromberg incident. To prevent further retaliation, Cheshire contends that the school system was required not to send this information to her new school. Cheshire also alleges that, in fact, after this fax was received, teachers and administrators at the Gavin school began to retaliate further against her so that she was forced to transfer to yet another school.
The city responds that Cheshire's privacy rights under M.G.L. 214, § lB were maintained by the fax which: (1) was reasonable under the circumstances; and (2) did not disclose "serious or substantial" information.
The city's motion for summary judgment on Cheshire's Massachusetts privacy claim is granted. Whether or not the school department's fax to the Gavin School was reasonable or within its discretion, it did not constitute a "serious or substantial" disclosure of information. There is no evidence to support the conclusion that the fax contained any further information then what the school psychologist told Ms. Booker (Cheshire's mother). See Booker Depo. II 372. The statement that Cheshire "had problems with male teachers due to the fact that there was an incident at Eliot" does not relate the explosive substance of the events which occurred at Eliot. It appears to have been specifically encrypted to prevent the reader from guessing the substance of Cheshire's "problem." Here, such a generic description of Cheshire's circumstance cannot be considered a "serious or substantial" disclosure implicating M.G.L. ch. 214, § lB.
C. Perez's Claim Under the Massachusetts Civil Rights Act Against the City
Perez argues that the city may be held accountable under the MCRA for the alleged wrongdoing of its employee, Bromberg, which interfered with Perez's civil rights. Mindful of the MCRA's requirement that such interference must be accomplished through "threats, intimidation or coercion' to be actionable, Perez contends that Bromberg's "coercive inappropriate sexual touching" may be imputed through the doctrine of respondeat superior to the city.
The city responds that municipalities cannot be held liable under the MCRA. The city also argues that even if municipalities were liable under the MCRA, the MCRA does not impose respondeat superior liability on municipalities for civil rights violations perpetrated by employees like Bromberg.
Perez's rebuttal relies primarily on Sarvis v. Boston Safe Deposit and Trust Co., 711 N.E.2d 911, 921 (Mass.App.Ct. 1999), which held that the MCRA does impose respondeat superior liability on private corporations for civil rights violations inflicted by employees. Perez argues that the Massachusetts courts would extend this ruling to include respondeat superior liability for municipalities under the MCRA.
The Massachusetts courts have indicated that the MCRA does not impose respondeat superior liability on municipal corporations. Indeed, inSarvis, the very case relied upon by Perez, the Appeals Court expressed its opinion that the legislature did not intend to include the "state or political subdivisions thereof" in the definition of "persons" subject to the MCRA. Sarvis, 711 N.E.2d at 920, n. 10. The Appeals Court has also ruled that the state is entitled to sovereign immunity under the MCRA.Commonwealth v. ELM Med. Labs., Inc., 596 N.E.2d 376, 379 (Mass.App.Ct. 1992). The ELM court's reasoning for finding that the state had immunity under the MCRA would be equally applicable to municipalities like the city. But see Pheasant Ridge Assocs. Ltd. P'ship v. Town of Burlington, 506 N.E.2d 1152, 1159 (Mass. 1987) (expressing in dicta some doubt that immunity principles would bar an action against a municipality under the MCRA).
Even if the Massachusetts courts were to hold that the MCRA applies to municipalities, it is highly unlikely that they would find that the legislature imposed respondeat superior liability on municipalities under the MCRA. Such a vast expansion of municipal liability, so at odds with the common law, cannot be inferred absent a clear indication of legislative intent. Perez has not pointed to any such indication. The city is entitled to summary judgment on Perez's MCRA claim.
D. The Mothers' Loss of Consortium Claims
The plaintiffs argue that if the girls' underlying federal civil rights claims against the city survive summary judgment, their mothers' loss of consortium claims under state law survive as well. They cite language inArmstrong v. Lamy, 938 F. Supp. 1018, 1046 (D.Mass. 1996) to support their position.
In Sena v. Commonwealth, 629 N.E.2d 986 (Mass. 1994), the SJC held that a loss of consortium claim cannot be based solely on an underlying federal civil rights claim. Sena is controlling. Because the plaintiffs state law claims have been dismissed and the SJC in Sena has held that loss of consortium claims are not recognizable for federal civil rights violations, the city is entitled to summary judgment on these claims.
IV. CONCLUSION
The city's motion for summary judgment is granted on the plaintiffs' claims under: (1) state law; and (2) for punitive damages under Title IX. The city's motion is otherwise denied.
It is so ordered.
Dated: December 12, 2000 Boston, Massachusetts.