Opinion
CA Nos. 97-CV-12534-MEL, 97-CV-12675-MEL, 97-CV-12691-MEL
January 11, 2001
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 also suing the City of Boston and various employees of the Boston Public School System. Based on Bromberg's purportedly inappropriate touching, the plaintiffs bring actions against him for assault and battery, and for intentional infliction of emotional distress and under 42 U.S.C. § 1983 ("§ 1983") for violation of their federal civil rights. Cheshire and Victorian also assert a claim under 20 U.S.C. § 1681 et seq. ("Title IX") and Perez maintains additional claims for negligence, negligent infliction of emotional distress, and M.G.L. ch. 12, § 11H-11I, the Massachusetts Civil Rights Act ("MCRA"), against Bromberg. In addition, the girl's mothers assert loss of consortium claims. Bromberg moves for summary judgment. The motion is granted regarding the Cheshire and Victorian's Title IX claims and Perez's negligence claim and is otherwise denied.
I.
During the 1994-95 school year, the girls were assigned to attend Bromberg's special education classroom at the Eliot Elementary School. 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. 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.
In May of 1995, DSS was notified of the allegations against Bromberg. On May 24, 1995, DSS notified Mr. Cardoni, Bromberg's supervisor and the principal of the Eliot School, that it was investigating allegations of abuse involving Bromberg and the girls. After receiving DSS' notice, Cardoni placed Bromberg on paid administrative leave. On June 2, 1995, DSS' investigation ended with a finding "supporting" the girls' allegations of abuse. One year later, the city moved to terminate Bromberg's employment. The process culminated in a five-day arbitration hearing at which the testimony of the girls and Bromberg was heard. In a thoughtful, fifty-page opinion, the arbitrator found that he believed Bromberg's denial of impropriety and consequentially, that he did not believe the girls' allegations. As a result, he ordered that Bromberg be reinstated.
II.
A. Does Preclusion Apply Because the Plaintiffs were Involved in Bromberg's Employment Arbitration?
Bromberg argues that the plaintiffs are precluded from pressing their claims because in the arbitration proceedings the city functioned as the plaintiffs' "representative," and that the plaintiffs "effectively exerted control" over the city's position. Bromberg relies on Gonzalez v. Banco Central Corp., 27 F.3d 751 (1st Cir. 1994) and United States v. Bonilla Romero, 836 F.2d 39 43-44 (1st Cir. 1987), as the controlling First Circuit cases dealing with the application of preclusion to non-parties.
The plaintiffs respond by denying either that the city functioned as their "representative" or that they exercised control over the city's litigation plan at the arbitration hearing. They assert that:
The sole participation the plaintiffs had in the arbitration was that the three minor plaintiffs testified as witnesses. At the arbitration, the plaintiffs were not in a position of power over the Boston Public Schools or its attorney, Haidee Morris and exercised no control, let alone "substantial control," over the [Boston Public Schools] at the arbitration. The adult and minor plaintiffs did not select the witnesses who testified, did not select or advance the evidence or arguments to be presented, and were not represented by attorney Haidee Morris. Indeed, the plaintiffs in this action had utterly no control over the arguments and facts presented by the [Boston Public Schools] through Attorney Morris in the arbitration. The plaintiffs did not have access to all the information that Attorney Morris' and the [Boston Public Schools] did, did not know or even have possession of the full scope of documents and potential witnesses, and were not even present at the arbitration except to deliver their own testimony.P's Opp. at 9.
In Gonzalez, 27 F.3d at 758-762, the Court of Appeals held that it was appropriate to apply preclusion to non-parties when: (1) they exercise "substantial control" over a party at the first hearing; or (2) the principles of "virtual representation" apply. Here, Bromberg argues that the plaintiffs did exert substantial control over the city at the arbitration. "Substantial control means what the phrase implies; it connotes the availability of a significant degree of effective control in the prosecution or defense of the case — what one might term, in the vernacular, the power — whether exercised or not — to call the shots." Gonzalez, 27 F.3d at 758.
The only points made by Bromberg in support of his position that the plaintiffs exercised "substantial control" over the city at the arbitration were that: (1) the girl's testified as friendly witnesses for the city at the arbitration and met with the city's attorney prior to the arbitration; (2) Cheshire and Victorian's mothers testified at their depositions that, in their opinion, they were satisfied with the city's presentation and that the city was representing their interests at the arbitration.
These points are insufficient to establish "substantial control."Gonzalez, 27 F.3d at 759 (it is the burden of the party seeking a nonparty's preclusion to prove "substantial control"). A review of the record demonstrates that the proper characterization of the plaintiffs' relationship with the city at the arbitration is that they were significant witnesses who shared the city's goal in seeing Bromberg terminated. A witness-victim in such a position, while important, does not automatically have the power to "call the shots." The record here does not reveal any evidence of an unusual relationship between the "witness-victims" and the city which would justify such a finding. Accordingly, Bromberg's motion for summary judgment based on preclusion is denied.
B. Is Bromberg Individually Liable Under Title IX?
Cheshire and Victorian assert a claim against Bromberg under Title IX. Bromberg points out, and the plaintiffs do not contest, that claims of sexual harassment can not be made against individual teachers under Title IX. Lipsett v. University of Puerto Rico, 864 F.2d 881, 884-901 (1st Cir. 1988). Accordingly, Bromberg is entitled to summary judgment on Cheshire and Victorian's Title IX claim.
C. Has Perez Presented Any Evidence of Sexual Abuse by Bromberg?
Bromberg argues that Perez's claims fail because she allegedly did not testify that Bromberg physically touched her. Perez disputes Bromberg's characterization of her testimony.
Bromberg's motion for summary judgment on Perez's claims is denied. While Perez's testimony is not always clear and its muddied nature forms a weakness in her case, its underlying message is evident; that Bromberg touched her in a sexual manner. It can not be expected that a minor child, who has learning disabilities, will testify with the same level of expression and verbal clarity as an adult. Under the circumstances, Perez's inability to articulate the nuances of the alleged abuse is somewhat, if not completely, understandable.
D. Can Bromberg be Liable for Negligence?
Bromberg moves for summary judgment on Perez' s negligence claim. The motion is granted. Under M.G.L. ch. 258, a public employee is not liable, and his public employer is, for negligence he commits during the course of his official duties.
E. Is Bromberg Entitled to Summary Judgment on Cheshire's Intentional Infliction of Emotional Distress Claim?
Bromberg argues that Cheshire's intentional infliction of emotional distress claim fails because she allegedly did not testify that she suffered "severe" emotional distress. Agis v. Howard Johnson Co., 371 Mass. 140, 144-145, 355 N.E.2d 315 (1976) (explaining that severe distress is a requisite element of an intentional infliction of emotional distress claim). Cheshire disputes Bromberg's characterization of her testimony.
Bromberg's motion is denied because while it is by no means clear that a jury will decide in Cheshire's favor, the evidence is sufficient to meet the threshold level for a jury to conclude that she suffered severe emotional distress. At her deposition, which was held in chambers, Cheshire was teary in describing the incident. See Cheshire Depo. I, 34. In addition, she testified that as a result of the incident: (1) she is to this day an "unhappy child;" (2) she continues to wear winter clothes in the summer. Cheshire Depo. I, 34, 47. These symptoms of severe emotional distress displayed by Cheshire at her deposition are sufficient to raise a fact question which can only be decided by a jury.
III.
Bromberg's motion is granted regarding Cheshire and Victorian's Title IX claim and Perez's negligence claim and is otherwise denied.