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Papelino v Albany College of Pharmacy of Union University

Case No. 09-4248-cv (C.A. 2, Jan. 24, 2011)

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 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.
 

 

Judge(s): Denny Chin
Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Education
 
Circuit Court Judge(s)
José Cabranes
Denny Chin
Ralph Winter, Jr.

 
Trial Court Judge(s)
Norman Mordue

 
Appellant Lawyer(s) Appellant Law Firm(s)
Alan Pierce Hancock & Estabrook LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Gerald Katzman Albany College of Pharmacy, General Counsel

 

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docket no. 09-4248-cv white. as defendants conceded below, papelino spoke to white "on nowak's office a third time, to ask a question about class (correctly) that a three-year statute of limitations applied, see discriminatory intimidation, ridicule, and insult sufficiently discrimination claim. see torres v. pisano, 116 f.3d 625, 630 "big mistake." she then said, "well, if you college's refusal to provide an unqualified certification of september 2001, adding, inter alia, negligent supervision claims f.3d 1151 (2d cir. 1998), and determined that the claim was alleges that he was sexually harassed by a professor when he was yu had already received his diploma after having retaken the one note, although she could not recall where, and that she was later accordingly, we reverse the dismissal of the negligent out of nine courses, and yu in one out of seven courses. id. at birthday. according to papelino, the following ensued: after the article 78 proceedings, the college faculty defendants removed the action to the district court including professor jeffrey voight, who had papelino and basile cheating were based on "either hearsay anonymous notes or . . . certification of papelino's degree to florida constituted in the fall of 1997, nowak began to flirt with papelino b. application hostile environment claim. evidence that the college had "actual knowledge" of the serious 1998. the district court held that this incident was not opportunity or benefit"). of nowak's purported sexual conduct, that notice arose after the severe or pervasive to alter the conditions of his educational and then, "do you know how lonely i've been lately?" when are unreliable. further, while lack of knowledge on the part of infliction of emotional distress, and hostile environment sexual prior. the only circumstance that changed in the interim was "charade." given nowak's apparent conflict of interest, the reasonable jury to find that the college had actual notice of that the college knew, or should have known, that nowak was unfit primary witness. the speciousness of the evidence presented to "deliberate indifference" from these facts. "causal relationship." - 9 - karibian v. columbia univ., 14 f.3d 773, 778 (2d cir. 1994). in nowak would sexually harass a student. although, as we have protected activity and the adverse action. see quinn v. green problems with prof. nowak. he asked me, code charges against him -- not that it was the sole reason that inferences in favor of plaintiffs, however, we conclude that conclude that issues of fact existed as to whether the college university's academic requirements and complying with its as for deliberate indifference, papelino was required testified that he never spoke to nowak, the jury was not required defendants moved to dismiss. in a memorandum decision similar knowledge bases; and (3) the lack of validity of the this is one of those rare education cases where it is as for the college's refusal to provide an unqualified been accused of violating the college honor code. over the next therefore, that papelino failed to establish "knowledge" and a gebser v. lago vista indep. sch. dist., 524 u.s. 274, 280 (1998). loughry v. lincoln first bank, n.a., 67 n.y.2d 369, 378 (1986); see terry, 336 f.3d at 140-41. from the evidence adduced, a wl 2957789 (n.d.n.y. sept. 11, 2009), and entered final judgment procedures." gally v. columbia univ., 22 f. supp. 2d 199, 206 up on papelino's complaint once the cheating charges were brought discrimination." id. the school's response to sex syracuse, ny, for plaintiffs-appellants. member of the administration . . . 'cause [he] didn't want to let - 28 - court concluded that papelino had failed to present sufficient with respect to papelino's quid pro quo claim. the district alleged to be habitually violent, fernandez v. rustic inn, inc., the circumstances here, a reasonable jury could find that it was second, the record contains substantial evidence of univ., 127 a.d.2d 654, 654 (2d dep't 1987). implicit in the failed to intervene in the honor code proceedings initiated by dean white testified at his deposition, however, that he "never - 11 - further caveat needs to be added as to the papelino asked why she was telling him that, nowak replied: "i 5. remaining claims department has already done so, setting aside the college's 3. breach of contract of the college's administration who was "responsible for the committee's determinations were based "solely" on a "statistical the protected activity are relevant to the jury's determination me, "what do you mean by that?" i told him we conclude that genuine issues of material fact exists sheer speculation," and that "it was irrational of the committee the articulated reasons are pretextual. id. at 804-05. retaliation, breach of contract, and negligent supervision, and capricious" and lacked a "rational basis." papelino and basile had been cheating in early december 1997 when appeal. the students received failing grades in the classes in infliction of emotional distress, and prima facie tort. as the district court noted below, new york law does in their classes, asking them to look at their exams to see unable to find it. it out." around that time, papelino noticed a change in nowak's - 24 - office. she thereafter told sylvester that she thought papelino2 of the cheating charges, nowak spearheaded the prosecution of the care" of the situation as he had told papelino he would. he - 27 - oct. 23, 1996). the terms of the implied contract are "contained decisions of justice malone and the appellate against [his] crotch." papelino asked: "what was that for[?]" 09-4248-cv college knew that papelino had engaged in protected activity. ix"), and breach of contract and tort claims under new york (ii) hostile environment harassment - 5 - nowak responded, with a "grin on her face": "it's an accident," in favor of plaintiffs. id.; pena, 432 f.3d at 107. certification to the florida pharmacy board, we also find an of the means by which the three might have managed to cheat; (2) prior to the hearing, there was a meeting of the3 1999); benzo v. n.y. state div. of human rights, no. 95 civ. 5362 (i) quid pro quo harassment even if the agents who carried out the adverse action against him. in any case, for papelino to recover on his material. nowak invited papelino to sit down. as papelino began must establish that a school official with "authority to address interested!" nowak then persisted and unfit person to lead the disciplinary process. proceeding in state court to challenge the college's decisions. 279 a.d.2d at 771. the third department also held that as "the encouragement of a superior who did have the requisite knowledge. it effectively bar[red] . . . access to an educational about an employee's essential nature or something less permanent spoke to anybody" about the situation, nor did he "go to any there are issues of fact here. to go out with her on a personal level[.] i educ., 49 n.y.2d 408, 413-14 (1980). at the same time, "the court granted summary judgment dismissing all plaintiffs' negligent supervision must prove: (1) the tortfeasor and different prescription drugs. nowak approached papelino and she received an "anonymous note" slipped under the door to her in 1997, papelino, yu, and basile were pharmacy spiegel v. schulmann, 604 f.3d 72, 78 (2d cir. 2010); kassner v. under new york law, an implied contract is formed when negligent supervision claims, and affirmed in all other respects. 'hostile' or 'abusive' can be determined only by looking at all separate rooms and under the watchful eye of a proctor, who reasonable jury could conclude, on this record, that the college engaged in protected activity, they were acting on nowak's explanation is undermined by the college's decision to provide an behavior toward papelino changed -- she became cold and hostile letter to papelino's counsel as much as admits that the "pendency 2000) (title vii context). "neither this nor any other circuit accusing him of cheating. the close temporal proximity between girlfriend, you are married, and i'm not nothing even after the cheating charges were lodged against evidence that the decision-maker was acting on orders or and prosecution of the cheating charges. reinstate certain claims. accordingly, as to the claims b. application district court for the northern district of new york (mordue, "that [was] so severe, pervasive, and objectively offensive that see gregory v. daly, 243 f.3d 687, 693 (2d cir. 2001) (to or about april 6, 1998" about nowak, when he sought advice about - 3 - union university, howard d. colby, individually and as associate the appellate division, third department, held that the college's had reason to know that the employee was unfit for the job. an unlawful retaliation for filing this lawsuit. - 25 - touch me. dean white said, "where did she bring the recipient [institution] into compliance," gebser, 524 retaliation was one motive behind the initiation of the honor nowak's sexual advances: papelino complained to dean white about united states court of appeals case law often turns to the concept of "unfitness." see, e.g., process to engage in what plaintiffs have described as a construing the evidence and drawing all reasonable court's grant of a motion to dismiss under rule 12(b)(6). see we construe the evidence in the light most favorable to and order dated february 5, 2003, the district court dismissed stated: "i wouldn't be too concerned about harassment, retaliation, breach of contract, and negligent conduct as a final sexual taunting of papelino and the others. 20 u.s.c. § 1681 et seq., and all three plaintiffs asserted faith in its dealing with its students." olsson v. bd. of higher student code, he did nothing to investigate papelino's complaint. city of n.y., 165 a.d.2d 58, 68 (1st dep't 1991). the common when describing an employee's "tortious propensities," in october 1997, after the first medicinal chemistry charges, nowak presented evidence, which consisted primarily of certification to the state of florida because it still harbored completes the required courses, the university must award him a nowak has been making passes at me. he asked alone?" sexual harassment and retaliation claims under title ix of the the three students successfully brought an article 78 exams. at some point she approached other instructors as well, tort, negligent infliction of emotional distress, intentional huntington learning ctrs., inc., 78 a.d.3d 896, 896 (2d dep't below on june 7, 2001. plaintiffs filed an amended complaint in department reversed and held that the college's determinations to bd. of educ., 544 u.s. 167, 183 (2005) (quoting davis, 526 u.s. think dean white might be interested in theme, though, is that for whatever reason -- whether something 629, 648 (1999). the alleged discrimination and to institute corrective measures" papelino's complaint of sexual harassment, mishandling the honor degree. carr v. st. john's univ., 17 a.d.2d 632, 633 (2d dep't), second, the record contains evidence of other incidents in the university's bulletins, circulars and regulations made district court's denial of plaintiffs' motion for leave to papelino's final rejection of nowak's advances and her initiation pharm., inc., 616 f.3d 134, 148 (2d cir. 2010). in a retaliation college about the complaint -- because he "didn't want to let it so, the burden shifts back to the plaintiff to demonstrate that - 4 - as for the hostile environment claim, the district particular agents who carried out the adverse action is evidence supervision claim to the extent the claim is based on the filing sexual advances toward him, he rejected them, and nowak initiated her so that she could "teach [him] to dance." when papelino pick up the book, nowak stood up and papelino "felt her hand rub that on several occasions nowak had asked me touch you?" i then explained to him the - 10 - - 2 - that the college is liable for nowak's tortious conduct in two division of professional licensing services in new york -- the professional educators who monitor the progress of their discriminatory reason for its actions. mcdonnell douglas corp. "spoken to nowak" and that the matter had been "taken care of." of this lawsuit" was the reason why the college was no longer "unfit" employee may take a variety of shapes. commonly, she is was negligent in its handling of the proceedings by permitting an the several other incidents that took place. chemistry course, as well as in a pharmacology course taught by college of pharmacy of union univ., no. 01 civ. 909 (nam), 2009 the three students appealed the decision to the college honor code proceedings against him soon thereafter, falsely professors who were going to be presenting the case at the was back-dated to papelino's originally-planned graduation date. vines, papelino and basile received e-mail notices that they had of causality, a jury is entitled to disregard such claims if they plaintiffs filed a motion for leave to file a second action in the supreme court of the state of new york, oneida conclusion - 21 - 603 (2d cir. 2006). similarly, we review de novo a district amended complaint. in a memorandum decision and order dated looked over some papers on the floor, she directed papelino to declined, nowak said: "so that means you are going to make me go papelino complained to white, and thus white was aware that a hearing was held on may 20, 1998. in support of the3 plaintiffs' claims. in a memorandum decision dated march 28, [the college] proposes to complete the - 19 - same statistical methodology" was used to evaluate the charges, caption in accordance with this opinion. file a second amended complaint reinstating certain claims, but cir. 2010) (quoting nat'l r.r. passenger corp. v. morgan, 536 see what happens!" and presented the evidence to the panel, serving as the hearing's honor code appellate board, but the board declined to hear the to adduce evidence that the college or its agents "knowing[ly] - 18 - papelino, basile, and yu countered with (1) the lack of evidence am not interested in any kind of personal here, a jury could find actionable retaliation both in the faculty advisor to the student honor code committee, that she her that she had him "all wrong," and left the office. defendant were in an employee-employer relationship; (2) the - 26 - additional points. when papelino went to nowak's office to pick here, plaintiff's negligent supervision claim asserts the clerk of court is directed to amend the official* with respect to the title ix quid pro quo and hostile environment believed papelino and basile had cheated in her medicinal degree. i would like to discuss with you student honor code committee found papelino guilty of cheating in we review de novo a district court's grant of summary occurred in april 1998, more than three years before suit was a. the facts1 dinners or . . . going out." finally, papelino asserted that he similarly, a title ix hostile education environment was on "actual notice" of nowak's alleged behavior. refus[ed] to take any action in response" to the behavior, such college claims that it refused to give an unqualified defendants-appellees.* in march 1998, nowak asked papelino to stay after class. to a jury trial. papelino adduces evidence that: nowak made in terms of the initiation of the honor code a. standard of review denying (at least initially) papelino and basile a diploma and reported that he had spoken to nowak. the record also includes and basile were expelled, and yu was permitted to retake the one connection, especially given nowak's warning that it would be "a retaliation claim, he need only establish that impermissible (lap), 1997 wl 37961, at *5 (s.d.n.y. jan. 31, 1997), aff'd, 141 following discovery, defendants moved for summary incident that happened on feb. 18, 1998 and affirmed in part, reversed in part, and remanded. specifically, the third department concluded that the honor code against him. third, white testified at his deposition that court (norman a. mordue, chief judge), dismissed all but two of county. papelino asserted claims for sexual harassment and davis, 526 u.s. at 651, 654, or "refus[ed] to take action to unqualified certification to the state of new york two months at 642). as in the context of title vii, a plaintiff claiming example, after plaintiffs were notified by email on may 8, 1998 if she couldn't take "no" for an answer, i individually and as president of albany college of pharmacy of common law. in a decision dated february 5, 2003, the district believed the students were guilty. the district court concluded, leave, she stated: "you know i am always here for you handsome." appeal from a final judgment of the united states students at the college. they were roommates, study partners, and sternly told me that doing so would be a guilty of cheating in six out of nine courses, papelino in three college acted with deliberate indifference. we disagree. and retaliation claims under title ix of the education amendments pick up a book from the shelf above her. when papelino moved to determine whether an environment is hostile or abusive, courts f.3d 128, 140-41 (2d cir. 2003) (citing cosgrove v. sears, guilty of cheating in one class. appeal followed. sought to annul the honor code committee decision. the supreme for an educational facility to be liable, however, the plaintiff this time to discuss a class project. nowak stated in a did not know about the plaintiff's protected activity, the dalton, individually and as chairperson of the appellate board, 2nd ave. delicatessen, inc., 496 f.3d 229, 242 (2d cir. 2007). summary judgment to defendants on all claims, papelino v. albany 2010), and a student may not seek to avoid this rule by couching inc., 510 u.s. 17, 23 (1993) ("[w]hether an environment is to credit this testimony. there is evidence that nowak's courses in which papelino and basile were accused of cheating were true, which may result in the revocation title ix provides a remedy to a student who is appeals process. a reasonable jury could also conclude that even proof of three elements: (1) the rejection of sexual advances; see gordon, 232 f.3d at 117 (2d cir. 2000); henry v. wyeth prosecutor and star witness in the honor code proceedings was enrolled as a student at the defendant-appellee albany college of "arbitrary and capricious" and lacked a "rational basis." basile evidence that members of the college faculty discussed papelino's thought you might be interested in knowing that." papelino told plaintiffs. colavito v. n.y. organ donor network, inc., 438 f.3d complaint -- that he did not speak to nowak or anyone else at the claim is "governed by traditional title vii 'hostile environment' chief judge) dismissing plaintiffs-appellants' sexual harassment papelino's degree to the state of florida. together, this evidence provides a more-than-sufficient basis for individual events in isolation"); accord harris v. forklift sys., discrimination must be "clearly unreasonable" in light of known be part of a hostile environment where the "other adverse v. albany coll. of pharmacy of union univ., 279 a.d.2d 770, 771 on july 9, 2001, after the commencement of this action processing complaints of sexual harassment. he did not "take only "harassing event" alleged to have occurred within the three faculty advisor to the student honor committee, and thomas that nowak was giving him "favorable marks because of actions," we affirm in part and reverse in part. we conclude of lack of causal connection, a plaintiff may counter with employer knew or should have known of the employee's propensity the requisite causal connection." kaytor v. elec. boat corp., march 28, 2005, the district court granted plaintiffs leave to with his hands, if you know what i mean." as papelino tried to student must fulfill [his] end of the bargain by satisfying the jury to find that the college knew or had reason to know that which they were found to have cheated. in august 1998, papelino to depend upon providing sexual favors to someone in authority. knowledge by the defendant of the protected activity; (3) adverse judgment, reversing where there are genuine issues of material plaintiffs' breach of contract, tort, and hostile educational of her breasts at the hearing cannot be viewed in isolation. in explicit encouragement, or that they acted without information b. application certain claims but denied leave to reinstate four claims. and in (2d cir. 2001) (both sex-specific and other adverse treatment can school-related action; and (4) a causal connection between the v. grew to nine. for the second circuit at her deposition, nowak testified that she "kept" the2 "laced with sexual innuendo": "[n]ot everyone got extra points, subjected to sexual harassment by a teacher or professor at an in january 1998, papelino again visited nowak's office, below, papelino requested that the college certify his degree to florida's pharmacy licensing authorities. the college's attorney temporal proximity between the plaintiff's protected activity and wills v. brown univ., 184 f.3d 20, 25 (1st cir. 1999). title ix sexual harassment claim, plaintiffs must show conduct for the tortious conduct; and (3) the tort was committed on the to teach because she had a propensity for sexually harassing lutheran church, 385 f.3d 232, 235 (2d cir. 2004). flirtatious manner: "i can really appreciate a man who is good the orders of the district court are hereby reversed - 12 - a university accepts a student for enrollment: if the student the circumstances."). plaintiffs' filing of this litigation. further, the college's as to the sexual harassment, we agree with the district forward and plaintiffs were exposed to her bare breasts." the of students presented posters and pamphlets of information about for leave to amend a pleading for abuse of discretion, where the up his exam, she informed him that she had awarded him extra motive play[ed] a part in adverse [] actions toward [him], hostile environment [took] place within the statutory time defendants' motions to dismiss and for summary judgment and the her deposition that she first decided to look into whether violates the clear terms of [title ix].'" jackson v. birmingham division, and send the same to florida. a points, and told him, in what papelino described as a voice plaintiffs demonstrated the existence of genuine issues of 609 f.3d 537, 552 (2d cir. 2010). responded to papelino as follows: gordon v. n.y.c. bd. of educ., 232 f.3d 111, 113-14 (2d cir. presentation of the evidence. a reasonable jury could find that fact. see schiano v. quality payroll sys., inc., 445 f.3d 597, a. applicable law complies with the terms prescribed by the university and triable issues of facts existed as to knowledge and causation. we remand for further proceedings. gave white detailed information: uncomfortable and nervous. to ask his question, nowak stood up, and then bent down in front court dismissed their petition, but on appeal, the third we discuss first the quid pro quo claim and then the reasonable jury surely could reach such a conclusion. doubts about papelino's academic integrity, the validity of this - 22 - allegations of sexual harassment during and after the honor code on may 8, 1998, just two days after nowak spoke to "on account of sex." see raniola v. bratton, 243 f.3d 610, 621 then we discuss the remaining claims. - 8 - papelino, basile, and yu brought this case asserting supervision. accordingly, we remand for further proceedings. b. the merits aff'd, 12 n.y.2d 802 (1962); accord clarke v. trs. of columbia the continuing violation doctrine, a plaintiff may bring claims "statistical" evidence. during the hearing, nowak leaned over class. and a claim that the college's refusal to provide an unqualified finally, we also conclude that there is sufficient any of the panel members voted to find him guilty of cheating. papelino spoke to white about "sexual overtures" made by nowak conduct that began with novak's earlier sexual advances. treatment was also suffered on account of sex"). moreover, under material allegations of the amended complaint and proposed second in other respects, a title ix sex discrimination claim intervening in controversies involving a student's academic claims for breach of contract, negligent and intentional while we generally review a district court's denial of a motion "statistical" charts that she had prepared based on her review of papelino and his two roommates, plaintiff-appellant michael yu qualifications, for "the decisions surrounding the issuance of nowak against plaintiffs. a reasonable jury could surely find i told [dean white] that i was having resolution may effect [sic] the award of the context, a jury could reasonably find that nowak engaged in the n.3 (2d cir. 1997) ("we have held that title vii principles apply - 13 - her breasts to plaintiffs at the honor code hearing on may 20, students. b. proceedings below burden shifts to the defendant to articulate a legitimate, non- proceed with his claims for quid pro quo sexual harassment and hearing cannot be so easily dismissed. nowak's alleged exposure attended a "poster session" in the school gymnasium, where groups carl basile, pendency of this lawsuit, which upon there was "no rational explanation" for why basile was found three classes, basile guilty of cheating in six classes, and yu hostile or abusive and that the environment objectively was faith belief that papelino had actually cheated. nowak compiled such a claim as a breach of contract claim. gally, 22 f. supp. adequately respond. gebser, 524 u.s. at 290. a school fails to (2) a tangible school-related (as opposed to employment) student affairs. shortly thereafter, the college accused retaliation under title ix of the education amendments of 1972, contract is the requirement that the institution "act in good students on a regular basis." olsson, 49 n.y.2d at 413. without any reference to the honor code proceedings or the while showing a document to plaintiffs, "whereby her shirt fell an injured party for an employee's tort when the employer knew or of him so that her backside was in papelino's face. as nowak quid pro quo sexual harassment claim under title ix requires administration of the student code." second, in their amended education amendments of 1972, 20 u.s.c. § 1681 et seq. ("title of proceedings combined with the apparent speciousness of the cir. 2005), and, as to the claims dismissed on summary judgment, harassment. while the individual agents' claims of unawareness of my husband, he's in ohio." i told her that remaining claims substantially for the reasons articulated by the has ever held that, to satisfy the knowledge requirement, toward him -- around this time, and papelino asserted that white denied plaintiffs leave to reinstate four claims: prima facie appropriate for a court to intervene. indeed, the third complain of sex discrimination is 'intentional conduct that judgment. on september 11, 2009, the district court granted "what kind of problems?" i told him prof. "[r]etaliation against individuals because they certification and attach thereto the report her to white, and indeed he did so. although white nowak's sexual advances. first, white was a high-ranking member he did not follow the procedures established by acp for proceedings, the district court concluded that the individuals response that "amount[s] to deliberate indifference to voted in may 2001 to award papelino and basile their diplomas. of 1972, 20 u.s.c. § 1681 et seq., and their breach of contract b. application appeal followed. hearing about this. nowak's attitude changed 2d at 207. indeed, courts must show the "utmost restraint" in code proceedings after nowak accused plaintiffs of cheating, and under new york law, a plaintiff asserting a claim for found plaintiffs guilty of cheating only because they actually univ. of n.y., 352 f.3d 733, 749-50 (2d cir. 2003); see also of mr. papelino's degree." that white should have imparted to them. years prior to filing of suit was when nowak purportedly exposed roebuck & co., 9 f.3d 1033, 1039 (2d cir. 1993)). commenced by mr. papelino that the charges implied duty of good faith by, inter alia, failing to investigate we affirm the district court's dismissal of the - 23 - determination that plaintiffs had cheated. largely for the "knowledge" requirement is met if the legal entity was on notice. requires the same kind of proof required in a title vii sex if the panel members were themselves unaware that papelino had papelino spoke to him on or about april 6, 1998, and told him 4. negligent supervision jurisprudence." hayut, 352 f.3d at 744. a title ix plaintiff u.s. 101, 105 (2002)). a reasonable jury could find that the papelino was engaging in protected activity. yet, white did the fact that the three studied together, and therefore had (s.d.n.y. 1998). papelino v. acp [academic] credentials [must] be left to the sound judgment of u.s. at 290. we conclude that papelino did so. white testified once a plaintiff establishes a prima facie case, the faced with proof that petitioners took these examinations in chemistry course taught by professor deanne nowak. while this adverse treatment was not overtly sexual in nature, in chin, circuit judge: had "actual knowledge" of the discrimination and failed to plaintiffs-appellants, - 17 - on may 1, 2001, the college sent papelino's transcripts to the as to the handling of the cheating charges, however, we argued: august 24, 2010 decided: january 24, 2011 a. applicable law district court. - 6 - highly questionable. cf. in re estate of palma, 40 a.d.3d 1157, 1158 (3d dep't 2007) ("conflict, divided loyalty, self-interest, must look at "the totality of the circumstances rather [than] retaliation under title ix must first establish a prima facie and hostility" rendered petitioner "unfit" to serve as a simmons v. roundup funding, llc, 622 f.3d 93, 95 (2d cir. 2010). discerned no evidence of cheating." id. filed (on may 8, 2001). the district court concluded that the 214, 217 (2d cir. 2006). in both instances, we draw all nowak's roommate, professor diane sylvester. nowak testified at sexual advances, and that these actions were part of a pattern of this is an appeal from the district court's grant of1 sexual harassment, title ix retaliation, breach of contract, and and basile "were cheating" and she asked sylvester to check her issue of fact as to impermissible retaliatory motive. though the v. green, 411 u.s. 792, 802 (1973). after the defendant has done consequence; and (3) a causal connection between the two. see pharmacy (the "college"). he complained to the associate dean of in september 1998, plaintiffs commenced an article 78 1. sexual harassment 2. retaliation district court erred in granting summary judgment dismissing praise for his work. out." although white was responsible for administering the proof of the elements of a quid pro quo claim to entitle papelino week, yu was also charged with cheating, and the number of terms of the initiation of the honor code proceedings and the we reverse. first, the incident at the honor code proceedings. statute of limitations as long as "an act contributing to that 772. finally, the third department held that the allegations of and tort claims under new york law. the education context, a tangible consequence occurs when "some on or about may 6, 1998, nowak told elisabeth vines, environment sexual harassment claims, but permitted papelino to plaintiffs' breach of contract claim. willing to provide an unqualified certification. at a minimum, and more situational -- she is unsuited for the task that she has papelino. moreover, papelino told nowak that he was going to employer's premises or with the employer's chattels. ehrens v. behavior, as she started to act cold and unfriendly toward him. a. applicable law before: winter, cabranes, and chin, circuit judges. malone v. hathaway, 64 n.y. 5, 10 (1876); steinborn v. himmel, 9 at his deposition that he "kept . . . quiet" about papelino's conduct had occurred. there is nothing in the record to suggest educational institution receiving federal funds. hayut v. state alan j. pierce, hancock & estabrook, llp, nowak invited papelino to attend a college-sponsored party with in this case, plaintiff-appellant daniel papelino course. according to the president of the college, papelino's reasonable inferences and resolve all conflicts and ambiguities in interpreting title ix."). therefore, as under title vii, a tree credit corp., 159 f.3d 759, 769 (2d cir. 1998). "close reasons set forth above, we conclude that genuine issues exist college's decision to permit her to serve, in essence, as the on the edge of his desk during one class, and gave him excessive a memorandum decision dated september 11, 2009, the district diploma was issued "without notation or qualification," and it dismissed on motion to dismiss, we assume as true all the papelino immediately reported nowak's sexual advances that while the district court properly dismissed certain claims, benefit or adverse action," such as a change in a grade, is made dismissing the second amended complaint in its entirety. this case, a plaintiff is only required to prove that "a retaliatory compilation" that was based upon "false assumptions" and did not exam, many students, including papelino, petitioned nowak for (3d dep't), leave to appeal denied, 96 n.y.2d 708 (2001). the plaintiff has engaged in a protected activity." id. at 116. appropriate language to the effect that: "it plaintiff, they truly have to earn them. you know what i mean, don't you anything more is necessary than general corporate knowledge that a.d.3d 531, 533 (3d dep't 2004). an employer will be liable to environment. id. at 745; see also davis, 526 u.s. at 633 (for 60 a.d.3d 893, 897 (2d dep't 2009), or careless, lawrence v. city period." mcgullam v. cedar graphics, inc., 609 f.3d 70, 75 (2d discussion as "investigat[ing] or put[ting] an end to the harassment," and plaintiff carl basile, of cheating on exams. all three were - 29 - must show that he subjectively perceived the environment to be provide "a rational basis to conclude that petitioners cheated." as well as "something about a blouse" and "something about big mistake" for papelino to report her to white. proffered proof of cheating constitute evidence of a causal hostile or abusive, that is, that it was permeated with dean for academic affairs, elisabeth vines, individually and as fiduciary). the college had a duty to plaintiffs to administer hearing. nowak chaired or ran the meeting and "summarized the - 15 - for discriminatory acts that would have been barred by the reported back to him in late april 1998, stating that he had relationship." nowak said, "c'mon, what are a. applicable law circumstances. davis v. monroe county bd. of educ., 526 u.s. adequately respond if it provides no response or if it provides a pervasive conduct that was sufficiently hostile or abusive to expel basile and papelino and to award yu a failing grade were untimely because the last act of alleged sexual harassment there is sufficient evidence in the record to permit a not recognize a claim for "educational malpractice," introna v. - 16 - of n.y., 82 a.d.2d 485, 503 (2d dep't 1981), or drunk, cygan v. whether the students had cheated. remaining claims. final judgment was entered the same day. this failing yu in a course. accordingly, we conclude that the of hostile conduct within the three-year limitations period. for for trial with respect to whether the college breached its 2005, the district court granted plaintiffs leave to reinstate nowak engaged in this conduct because papelino rejected her evidence of a retaliatory motive and a causal connection. a held, the record contains evidence of the college's actual notice at *5 (s.d.n.y. july 10, 1998), aff'd, 189 f.3d 462 (2nd cir. college of pharmacy, albany, ny, for court dismissed the claim on grounds of timeliness. it held who participated in the honor code panel's decision were unaware data that everyone had given [her]." we address in turn the claims for sexual harassment, court that the record contained insufficient evidence to permit a gerald h. katzman, general counsel, albany cheating raised by the statistical compilation, particularly when retaliation. - 20 - the honor code proceedings in a fair and impartial manner. a a reasonable jury to conclude that white (and hence the college) finally, on april 6, 1998, papelino and his classmates first, there was evidence of knowledge -- evidence that the a month later, in february 1998, papelino visited article 78 decision. background may be determined in a pending action knew or had reason to know that nowak would misuse the honor code - 14 - you worried about?" i said, "i have a answer to the amended complaint, defendants admitted that amended complaint, see pena v. deprisco, 432 f.3d 98, 107 (2d available to the student." vought v. teachers coll., columbia respects: the sexual harassment and her misuse of the honor code material fact for trial with respect to their claims for sexual nowak's "sexual overtures." according to papelino, white defendants-appellees. causation. a reasonable jury could find that nowak initiated the think it's necessary, go ahead and try it and reasonable jury could also find that white should have followed whether or not it was the sole cause." terry v. ashcroft, 336 i told her, "i thought i made it clear that i case by showing: (1) protected activity by the plaintiff; (2) - 7 - and friends. all three were enrolled in a year-long medicinal alter the conditions of papelino's educational environment. to determine that it could rely solely on the inference of sufficiently severe to constitute actionable sexual harassment. honor code proceedings for retaliatory reasons rather than a good nature of nowak's sexual overtures towards him or that the univ., no. 95 civ. 10627 (pkl), 1996 wl 609271, at *5 (s.d.n.y. denial is based on rulings of law, our review is de novo. see the panel, as determined by the third department, is further the . . . adverse action may in itself by sufficient to establish of papelino's complaints against nowak, and that, therefore, they charges by meeting with other professors and leading the torre v. columbia univ., no. 97 civ. 0981 (lap), 1998 wl 386438, asked him to go out with her the next day to celebrate her dan?" on or about may 8, 2001, plaintiffs commenced this proceeding in new york state supreme court, albany county. they i told him these incidents have made me very daniel r. papelino and michael yu, post-may 8, 1998 conduct was part of a continuing course of undertaken to perform. exams taken by papelino, basile, and yu in various courses. august term, 2010 to the college's associate dean for student affairs, albert disciplined, and papelino and basile were expelled. albany college of pharmacy of union university, james gozzo, in and out of class. she would wink and smile at him. she sat also explained that she went so far as to determination that the students had cheated was "arbitrary and


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