09-4248-cv
Papelino v. ACP

                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT

                          August Term, 2010

Argued:     August 24, 2010               Decided: January 24, 2011


                        Docket No. 09-4248-cv



DANIEL R. PAPELINO and MICHAEL YU,

                                          Plaintiffs-Appellants,

CARL BASILE,

                                          Plaintiff,

                                 v.

ALBANY COLLEGE OF PHARMACY OF UNION UNIVERSITY, JAMES GOZZO,
individually and as President of Albany College of Pharmacy of
Union University, HOWARD D. COLBY, individually and as Associate
Dean for Academic Affairs, ELISABETH VINES, individually and as
Faculty Advisor to the Student Honor Committee, and THOMAS
DALTON, individually and as Chairperson of the Appellate Board,

                                          Defendants-Appellees.*




Before:     WINTER, CABRANES, and CHIN, Circuit Judges.

            Appeal from a final judgment of the United States

District Court for the Northern District of New York (Mordue,

Chief Judge) dismissing plaintiffs-appellants' sexual harassment


      *
          The Clerk of Court is directed to amend the official
caption in accordance with this Opinion.
and retaliation claims under Title IX of the Education Amendments

of 1972, 20 U.S.C. § 1681 et seq., and their breach of contract

and tort claims under New York law.

          AFFIRMED in part, REVERSED in part, and REMANDED.


                     ALAN J. PIERCE, Hancock & Estabrook, LLP,
                          Syracuse, NY, for Plaintiffs-Appellants.

                     GERALD H. KATZMAN, General Counsel, Albany
                          College of Pharmacy, Albany, NY, for
                          Defendants-Appellees.


CHIN, Circuit Judge:

          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

                               - 2 -
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.



                             BACKGROUND

A.   The Facts1


     1
          This is an appeal from the district court's grant of
defendants' motions to dismiss and for summary judgment and the
district court's denial of plaintiffs' motion for leave to

                                - 3 -
          In 1997, Papelino, Yu, and Basile were pharmacy

students at the College.   They were roommates, study partners,

and friends.   All three were enrolled in a year-long Medicinal

Chemistry course taught by Professor Deanne Nowak.

          In the fall of 1997, Nowak began to flirt with Papelino

in and out of class.   She would wink and smile at him.   She sat

on the edge of his desk during one class, and gave him excessive

praise for his work.

          In October 1997, after the first Medicinal Chemistry

exam, many students, including Papelino, petitioned Nowak for

additional points.   When Papelino went to Nowak's office to pick

up his exam, she informed him that she had awarded him extra

points, and told him, in what Papelino described as a voice

"laced with sexual innuendo":   "[N]ot everyone got extra points,

they truly have to earn them.   You know what I mean, don't you

Dan?"

          In January 1998, Papelino again visited Nowak's office,




reinstate certain claims. Accordingly, as to the claims
dismissed on motion to dismiss, we assume as true all the
material allegations of the amended complaint and proposed second
amended complaint, see Pena v. DePrisco, 

, 107 (2d
Cir. 2005), and, as to the claims dismissed on summary judgment,
we construe the evidence in the light most favorable to
plaintiffs. Colavito v. N.Y. Organ Donor Network, Inc., 

, 217 (2d Cir. 2006). In both instances, we draw all
reasonable inferences and resolve all conflicts and ambiguities
in favor of plaintiffs. Id.; 

.

                                - 4 -
this time to discuss a class project.    Nowak stated in a

flirtatious manner:    "I can really appreciate a man who is good

with his hands, if you know what I mean."    As Papelino tried to

leave, she stated:    "You know I am always here for you handsome."

            A month later, in February 1998, Papelino visited

Nowak's office a third time, to ask a question about class

material.   Nowak invited Papelino to sit down.    As Papelino began

to ask his question, Nowak stood up, and then bent down in front

of him so that her backside was in Papelino's face.     As Nowak

looked over some papers on the floor, she directed Papelino to

pick up a book from the shelf above her.    When Papelino moved to

pick up the book, Nowak stood up and Papelino "felt her hand rub

against [his] crotch."    Papelino asked:   "What was that for[?]"

Nowak responded, with a "grin on her face":     "It's an accident,"

and then, "Do you know how lonely I've been lately?"     When

Papelino asked why she was telling him that, Nowak replied:       "I



thought you might be interested in knowing that."     Papelino told

her that she had him "all wrong," and left the office.

     In March 1998, Nowak asked Papelino to stay after class.

Nowak invited Papelino to attend a college-sponsored party with

her so that she could "teach [him] to dance."     When Papelino

declined, Nowak said:    "So that means you are going to make me go



                                - 5 -
alone?"

            Finally, on April 6, 1998, Papelino and his classmates

attended a "poster session" in the school gymnasium, where groups

of students presented posters and pamphlets of information about

different prescription drugs.    Nowak approached Papelino and

asked him to go out with her the next day to celebrate her

birthday.    According to Papelino, the following ensued:

            I told her, "I thought I made it clear that I
            am not interested in any kind of personal
            relationship." Nowak said, "C'mon, what are
            you worried about?" I said, "I have a
            girlfriend, you are married, and I'm not
            interested!" Nowak then persisted and
            stated: "I wouldn't be too concerned about
            my husband, he's in Ohio." I told her that
            if she couldn't take "NO" for an answer, I
            think Dean White might be interested in
            hearing about this. Nowak's attitude changed
            and sternly told me that doing so would be a
            "big mistake." She then said, "Well, if you
            think it's necessary, go ahead and try it and
            see what happens!"


            Papelino immediately reported Nowak's sexual advances

to the College's Associate Dean for Student Affairs, Albert

White.    As defendants conceded below, Papelino spoke to White "on

or about April 6, 1998" about Nowak, when he sought advice about

Nowak's "sexual overtures."    According to Papelino, White

reported back to him in late April 1998, stating that he had

"spoken to Nowak" and that the matter had been "taken care of."

Dean White testified at his deposition, however, that he "never

                                - 6 -
spoke to anybody" about the situation, nor did he "go to any

member of the administration . . . 'cause [he] didn't want to let

it out."     Around that time, Papelino noticed a change in Nowak's

behavior, as she started to act cold and unfriendly toward him.

             On or about May 6, 1998, Nowak told Elisabeth Vines,

the Faculty Advisor to the Student Honor Code Committee, that she

believed Papelino and Basile had cheated in her Medicinal

Chemistry course, as well as in a Pharmacology course taught by

Nowak's roommate, Professor Diane Sylvester.     Nowak testified at

her deposition that she first decided to look into whether

Papelino and Basile had been cheating in early December 1997 when

she received an "anonymous note" slipped under the door to her

office.2    She thereafter told Sylvester that she thought Papelino

and Basile "were cheating" and she asked Sylvester to check her

exams.     At some point she approached other instructors as well,

including Professor Jeffrey Voight, who had Papelino and Basile

in their classes, asking them to look at their exams to see

whether the students had cheated.

             On May 8, 1998, just two days after Nowak spoke to

Vines, Papelino and Basile received e-mail notices that they had

been accused of violating the College Honor Code.     Over the next


     2
          At her deposition, Nowak testified that she "kept" the
note, although she could not recall where, and that she was later
unable to find it.

                                 - 7 -
week, Yu was also charged with cheating, and the number of

courses in which Papelino and Basile were accused of cheating

grew to nine.

           A hearing was held on May 20, 1998.3   In support of the

charges, Nowak presented evidence, which consisted primarily of

"statistical" charts that she had prepared based on her review of

exams taken by Papelino, Basile, and Yu in various courses.

Papelino, Basile, and Yu countered with (1) the lack of evidence

of the means by which the three might have managed to cheat; (2)

the fact that the three studied together, and therefore had

similar knowledge bases; and (3) the lack of validity of the

"statistical" evidence.   During the hearing, Nowak leaned over

while showing a document to plaintiffs, "whereby her shirt fell

forward and plaintiffs were exposed to her bare breasts."    The

Student Honor Code Committee found Papelino guilty of cheating in

three classes, Basile guilty of cheating in six classes, and Yu

guilty of cheating in one class.

           The three students appealed the decision to the College

Honor Code Appellate Board, but the Board declined to hear the

appeal.   The students received failing grades in the classes in



     3
          Prior to the hearing, there was a meeting of the
professors who were going to be presenting the case at the
hearing. Nowak chaired or ran the meeting and "summarized the
data that everyone had given [her]."

                               - 8 -
which they were found to have cheated.   In August 1998, Papelino

and Basile were expelled, and Yu was permitted to retake the one

class.

           In September 1998, plaintiffs commenced an Article 78

proceeding in New York State Supreme Court, Albany County.    They

sought to annul the Honor Code Committee decision.   The Supreme

Court dismissed their petition, but on appeal, the Third

Department reversed and held that the College's determinations to

expel Basile and Papelino and to award Yu a failing grade were

"arbitrary and capricious" and lacked a "rational basis."    Basile

v. Albany Coll. of Pharmacy of Union Univ., 

, 771

(3d Dep't), leave to appeal denied, 

(2001).

Specifically, the Third Department concluded that the Honor Code

Committee's determinations were based "solely" on a "statistical

compilation" that was based upon "false assumptions" and did not

provide "a rational basis to conclude that petitioners 

.   The Third Department also held that as "the

same statistical methodology" was used to evaluate the charges,

there was "no rational explanation" for why Basile was found

guilty of cheating in six out of nine courses, Papelino in three

out of nine courses, and Yu in one out of seven courses.     

  Finally, the Third Department held that the allegations of

cheating were based on "either hearsay anonymous notes or . . .



                               - 9 -
sheer speculation," and that "it was irrational of the Committee

to determine that it could rely solely on the inference of

cheating raised by the statistical compilation, particularly when

faced with proof that petitioners took these examinations in

separate rooms and under the watchful eye of a proctor, who

discerned no evidence of cheating."    

Article 78 proceedings, the College faculty

voted in May 2001 to award Papelino and Basile their diplomas.

Yu had already received his diploma after having retaken the one

course.   According to the President of the College, Papelino's

diploma was issued "without notation or qualification," and it

was back-dated to Papelino's originally-planned graduation date.

On May 1, 2001, the College sent Papelino's transcripts to the

Division of Professional Licensing Services in New York --

without any reference to the Honor Code proceedings or the

Article 78 decision.

           On July 9, 2001, after the commencement of this action

below, Papelino requested that the College certify his degree to

Florida's pharmacy licensing authorities.    The College's attorney

responded to Papelino as follows:

           [The College] proposes to complete the
           certification and attach thereto the
           decisions of Justice Malone and the Appellate
           Division, and send the same to Florida. A
           further caveat needs to be added as to the
           pendency of this lawsuit, which upon

                              - 10 -
           resolution may effect [sic] the award of the
           degree. I would like to discuss with you
           appropriate language to the effect that: "It
           may be determined in a pending action
           commenced by Mr. Papelino that the charges
           were true, which may result in the revocation
           of Mr. Papelino's degree."

B.   Proceedings Below

           On or about May 8, 2001, plaintiffs commenced this

action in the Supreme Court of the State of New York, Oneida

County.   Papelino asserted claims for sexual harassment and

retaliation under Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681 et seq., and all three plaintiffs asserted

claims for breach of contract, negligent and intentional

infliction of emotional distress, and prima facie tort.

           Defendants removed the action to the district court

below on June 7, 2001.   Plaintiffs filed an amended complaint in

September 2001, adding, inter alia, negligent supervision claims

and a claim that the College's refusal to provide an unqualified

certification of Papelino's degree to Florida constituted

unlawful retaliation for filing this lawsuit.

           Defendants moved to dismiss.   In a memorandum decision

and order dated February 5, 2003, the district court dismissed

plaintiffs' breach of contract, tort, and hostile educational

environment sexual harassment claims, but permitted Papelino to

proceed with his claims for quid pro quo sexual harassment and


                              - 11 -
retaliation.

            Plaintiffs filed a motion for leave to file a second

amended complaint.    In a memorandum decision and order dated

March 28, 2005, the district court granted plaintiffs leave to

file a second amended complaint reinstating certain claims, but

denied plaintiffs leave to reinstate four claims:    prima facie

tort, negligent infliction of emotional distress, intentional

infliction of emotional distress, and hostile environment sexual

harassment.

            Following discovery, defendants moved for summary

judgment.    On September 11, 2009, the district court granted

summary judgment to defendants on all claims, Papelino v. Albany

College of Pharmacy of Union Univ., No. 01 Civ. 909 (NAM), 

(N.D.N.Y. Sept. 11, 2009), and entered final judgment

dismissing the second amended complaint in its entirety.    This

appeal followed.

                             DISCUSSION

A.   Standard of Review

            We review de novo a district court's grant of summary

judgment, reversing where there are genuine issues of material

fact.   See Schiano v. Quality Payroll Sys., Inc., 

,

603 (2d Cir. 2006).    Similarly, we review de novo a district

court's grant of a motion to dismiss under Rule 12(b)(6).       See


                               - 12 -
Simmons v. Roundup Funding, LLC, 

, 95 (2d Cir. 2010).

While we generally review a district court's denial of a motion

for leave to amend a pleading for abuse of discretion, where the

denial is based on rulings of law, our review is de novo.      See

Spiegel v. Schulmann, 

, 78 (2d Cir. 2010); Kassner v.

2nd Ave. Delicatessen, Inc., 

, 242 (2d Cir. 2007).

B.   The Merits

          We address in turn the claims for sexual harassment,

retaliation, breach of contract, and negligent supervision, and

then we discuss the remaining claims.

     1.   Sexual Harassment

          a.      Applicable Law

          Title IX provides a remedy to a student who is

subjected to sexual harassment by a teacher or professor at an

educational institution receiving federal funds.      Hayut v. State

Univ. of N.Y., 

, 749-50 (2d Cir. 2003); see also

Gebser v. Lago Vista Indep. Sch. Dist., 

, 280 (1998).

For an educational facility to be liable, however, the plaintiff

must establish that a school official with "authority to address

the alleged discrimination and to institute corrective measures"

had "actual knowledge" of the discrimination and failed to

adequately respond.     

.   A school fails to

adequately respond if it provides no response or if it provides a


                                   - 13 -
response that "amount[s] to deliberate indifference to

discrimination."     

response to sex

discrimination must be "clearly unreasonable" in light of known

circumstances.     Davis v. Monroe County Bd. of Educ., 

, 648 (1999).

          In other respects, a Title IX sex discrimination claim

requires the same kind of proof required in a Title VII sex

discrimination claim.      See Torres v. Pisano, 

, 630

n.3 (2d Cir. 1997) ("We have held that Title VII principles apply

in interpreting Title IX.").     Therefore, as under Title VII, a

quid pro quo sexual harassment claim under Title IX requires

proof of three elements:     (1) the rejection of sexual advances;

(2) a tangible school-related (as opposed to employment)

consequence; and (3) a causal connection between the two.      See

Karibian v. Columbia Univ., 

, 778 (2d Cir. 1994).        In

the education context, a tangible consequence occurs when "some

benefit or adverse action," such as a change in a grade, is made

to depend upon providing sexual favors to someone in authority.

Wills v. Brown Univ., 

, 25 (1st Cir. 1999).

          Similarly, a Title IX hostile education environment

claim is "governed by traditional Title VII 'hostile environment'

jurisprudence."     

.   A Title IX plaintiff

must show that he subjectively perceived the environment to be

hostile or abusive and that the environment objectively was

                                 - 14 -
hostile or abusive, that is, that it was permeated with

discriminatory intimidation, ridicule, and insult sufficiently

severe or pervasive to alter the conditions of his educational

environment.   

see also 

(for

Title IX sexual harassment claim, plaintiffs must show conduct

"that [was] so severe, pervasive, and objectively offensive that

it effectively bar[red] . . . access to an educational

opportunity or benefit").

          b.   Application

          We discuss first the quid pro quo claim and then the

hostile environment claim.

               (i)   Quid Pro Quo Harassment

          We conclude that genuine issues of material fact exists

with respect to Papelino's quid pro quo claim.    The district

court concluded that Papelino had failed to present sufficient

evidence that the College had "actual knowledge" of the serious

nature of Nowak's sexual overtures towards him or that the

College acted with deliberate indifference.    We disagree.

          There is sufficient evidence in the record to permit a

reasonable jury to find that the College had actual notice of

Nowak's sexual advances:    Papelino complained to Dean White about

Nowak's sexual advances.    First, White was a high-ranking member

of the College's administration who was "responsible for the


                               - 15 -
administration of the Student Code."    Second, in their amended

answer to the amended complaint, defendants admitted that

Papelino spoke to White about "sexual overtures" made by Nowak

against him.   Third, White testified at his deposition that

Papelino spoke to him on or about April 6, 1998, and told him

that Nowak was giving him "favorable marks because of actions,"

as well as "something about a blouse" and "something about

dinners or . . . going out."   Finally, Papelino asserted that he

gave White detailed information:

          I told [Dean White] that I was having
          problems with Prof. Nowak. He asked me,
          "What kind of problems?" I told him Prof.
          Nowak has been making passes at me. He asked
          me, "What do you mean by that?" I told him
          that on several occasions Nowak had asked me
          to go out with her on a personal level[.] I
          also explained that she went so far as to
          touch me. Dean White said, "Where did she
          touch you?" I then explained to him the
          incident that happened on Feb. 18, 1998 and
          the several other incidents that took place.
          I told him these incidents have made me very
          uncomfortable and nervous.

Together, this evidence provides a more-than-sufficient basis for

a reasonable jury to conclude that White (and hence the College)

was on "actual notice" of Nowak's alleged behavior.

          As for deliberate indifference, Papelino was required

to adduce evidence that the College or its agents "knowing[ly]

refus[ed] to take any action in response" to the behavior, such

as "investigat[ing] or put[ting] an end to the harassment,"

                               - 16 -


, 654, or "refus[ed] to take action to

bring the recipient [institution] into compliance," 

.   We conclude that Papelino did so.   White testified

at his deposition that he "kept . . . quiet" about Papelino's

complaint -- that he did not speak to Nowak or anyone else at the

College about the complaint -- because he "didn't want to let it

out."   Although White was responsible for administering the

Student Code, he did nothing to investigate Papelino's complaint.

He did not follow the procedures established by ACP for

processing complaints of sexual harassment.   He did not "take

care" of the situation as he had told Papelino he would.    He

failed to intervene in the Honor Code proceedings initiated by

Nowak against plaintiffs.   A reasonable jury could surely find

"deliberate indifference" from these facts.

           Finally, we also conclude that there is sufficient

proof of the elements of a quid pro quo claim to entitle Papelino

to a jury trial.   Papelino adduces evidence that:   Nowak made

sexual advances toward him, he rejected them, and Nowak initiated

Honor Code proceedings against him soon thereafter, falsely

accusing him of cheating.   The close temporal proximity between

Papelino's final rejection of Nowak's advances and her initiation

of proceedings combined with the apparent speciousness of the

proffered proof of cheating constitute evidence of a causal



                              - 17 -
connection, especially given Nowak's warning that it would be "a

big mistake" for Papelino to report her to White.

                (ii)     Hostile Environment Harassment

            As for the hostile environment claim, the district

court dismissed the claim on grounds of timeliness.       It held

(correctly) that a three-year statute of limitations applied, see

Torre v. Columbia Univ., No. 97 Civ. 0981 (LAP), 

,

at *5 (S.D.N.Y. July 10, 1998), aff'd, 

(2nd Cir.

1999); Benzo v. N.Y. State Div. of Human Rights, No. 95 Civ. 5362

(LAP), 

, at *5 (S.D.N.Y. Jan. 31, 1997), aff'd, 

(2d Cir. 1998), and determined that the claim was

untimely because the last act of alleged sexual harassment

occurred in April 1998, more than three years before suit was

filed (on May 8, 2001).     The district court concluded that the

only "harassing event" alleged to have occurred within the three

years prior to filing of suit was when Nowak purportedly exposed

her breasts to plaintiffs at the Honor Code hearing on May 20,

1998.   The district court held that this incident was not

sufficiently severe to constitute actionable sexual harassment.

           We reverse.    First, the incident at the Honor Code

hearing cannot be so easily dismissed.     Nowak's alleged exposure

of her breasts at the hearing cannot be viewed in isolation.        In

context, a jury could reasonably find that Nowak engaged in the



                                 - 18 -
conduct as a final sexual taunting of Papelino and the others.

See Gregory v. Daly, 

, 693 (2d Cir. 2001) (to

determine whether an environment is hostile or abusive, courts

must look at "the totality of the circumstances rather [than]

individual events in isolation"); accord Harris v. Forklift Sys.,

Inc., 

, 23 (1993) ("[W]hether an environment is

'hostile' or 'abusive' can be determined only by looking at all

the circumstances.").

          Second, the record contains evidence of other incidents

of hostile conduct within the three-year limitations period.    For

example, after plaintiffs were notified by email on May 8, 1998

of the cheating charges, Nowak spearheaded the prosecution of the

charges by meeting with other professors and leading the

presentation of the evidence.    A reasonable jury could find that

Nowak engaged in this conduct because Papelino rejected her

sexual advances, and that these actions were part of a pattern of

pervasive conduct that was sufficiently hostile or abusive to

alter the conditions of Papelino's educational environment.

While this adverse treatment was not overtly sexual in nature, in

the circumstances here, a reasonable jury could find that it was

"on account of sex."    See Raniola v. Bratton, 

, 621

(2d Cir. 2001) (both sex-specific and other adverse treatment can

be part of a hostile environment where the "other adverse

treatment was also suffered on account of sex").   Moreover, under

                                - 19 -
the continuing violation doctrine, a plaintiff may bring claims

for discriminatory acts that would have been barred by the

statute of limitations as long as "an act contributing to that

hostile environment [took] place within the statutory time

period."   McGullam v. Cedar Graphics, Inc., 

, 75 (2d

Cir. 2010) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 

, 105 (2002)).   A reasonable jury could find that the

post-May 8, 1998 conduct was part of a continuing course of

conduct that began with Novak's earlier sexual advances.

     2.    Retaliation

           a.   Applicable Law

           "[R]etaliation against individuals because they

complain of sex discrimination is 'intentional conduct that

violates the clear terms of [Title IX].'"    Jackson v. Birmingham

Bd. of Educ., 

, 183 (2005) (quoting 

).   As in the context of Title VII, a plaintiff claiming

retaliation under Title IX must first establish a prima facie

case by showing:   (1) protected activity by the plaintiff; (2)

knowledge by the defendant of the protected activity; (3) adverse

school-related action; and (4) a causal connection between the

protected activity and the adverse action.   See Quinn v. Green

Tree Credit Corp., 

, 769 (2d Cir. 1998).   "Close

temporal proximity between the plaintiff's protected activity and

the . . . adverse action may in itself by sufficient to establish

                                 - 20 -
the requisite causal connection."     Kaytor v. Elec. Boat Corp.,

, 552 (2d Cir. 2010).

          Once a plaintiff establishes a prima facie case, the

burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for its actions.     McDonnell Douglas Corp.

v. Green, 

, 802 (1973).    After the defendant has done

so, the burden shifts back to the plaintiff to demonstrate that

the articulated reasons are pretextual.    

          Even if the agents who carried out the adverse action

did not know about the plaintiff's protected activity, the

"knowledge" requirement is met if the legal entity was on notice.

Gordon v. N.Y.C. Bd. of Educ., 

, 113-14 (2d Cir.

2000) (Title VII context).   "Neither this nor any other circuit

has ever held that, to satisfy the knowledge requirement,

anything more is necessary than general corporate knowledge that

the plaintiff has engaged in a protected activity."     

          While the individual agents' claims of unawareness of

the protected activity are relevant to the jury's determination

of causality, a jury is entitled to disregard such claims if they

are unreliable.   Further, while lack of knowledge on the part of

particular agents who carried out the adverse action is evidence

of lack of causal connection, a plaintiff may counter with

evidence that the decision-maker was acting on orders or

encouragement of a superior who did have the requisite knowledge.

                              - 21 -
See 

(2d Cir. 2000); Henry v. Wyeth

Pharm., Inc., 

, 148 (2d Cir. 2010).   In a retaliation

case, a plaintiff is only required to prove that "a retaliatory

motive play[ed] a part in adverse [] actions toward [him],

whether or not it was the sole cause."    Terry v. Ashcroft, 

, 140-41 (2d Cir. 2003) (citing Cosgrove v. Sears,

Roebuck & Co., 

, 1039 (2d Cir. 1993)).

          b.   Application

          Here, a jury could find actionable retaliation both in

terms of the initiation of the Honor Code proceedings and the

College's refusal to provide an unqualified certification of

Papelino's degree to the State of Florida.

          In terms of the initiation of the Honor Code

proceedings, the district court concluded that the individuals

who participated in the Honor Code Panel's decision were unaware

of Papelino's complaints against Nowak, and that, therefore, they

found plaintiffs guilty of cheating only because they actually

believed the students were guilty.    The district court concluded,

therefore, that Papelino failed to establish "knowledge" and a

"causal relationship."

          Construing the evidence and drawing all reasonable

inferences in favor of plaintiffs, however, we conclude that

triable issues of facts existed as to knowledge and causation.

First, there was evidence of knowledge -- evidence that the

                             - 22 -
College knew that Papelino had engaged in protected activity.

Papelino complained to White, and thus White was aware that

Papelino was engaging in protected activity.    Yet, White did

nothing even after the cheating charges were lodged against

Papelino.    Moreover, Papelino told Nowak that he was going to

report her to White, and indeed he did so.    Although White

testified that he never spoke to Nowak, the jury was not required

to credit this testimony.    There is evidence that Nowak's

behavior toward Papelino changed -- she became cold and hostile

toward him -- around this time, and Papelino asserted that White

reported that he had spoken to Nowak.    The record also includes

evidence that members of the College faculty discussed Papelino's

allegations of sexual harassment during and after the Honor Code

appeals process.    A reasonable jury could also conclude that even

if the Panel members were themselves unaware that Papelino had

engaged in protected activity, they were acting on Nowak's

explicit encouragement, or that they acted without information

that White should have imparted to them.

            Second, the record contains substantial evidence of

causation.    A reasonable jury could find that Nowak initiated the

Honor Code proceedings for retaliatory reasons rather than a good

faith belief that Papelino had actually cheated.    Nowak compiled

and presented the evidence to the Panel, serving as the hearing's

primary witness.    The speciousness of the evidence presented to

                               - 23 -
the Panel, as determined by the Third Department, is further

evidence of a retaliatory motive and a causal connection.    A

reasonable jury could also find that White should have followed

up on Papelino's complaint once the cheating charges were brought

against him.   In any case, for Papelino to recover on his

retaliation claim, he need only establish that impermissible

retaliation was one motive behind the initiation of the Honor

Code charges against him -- not that it was the sole reason that

any of the Panel members voted to find him guilty of cheating.



See 

.   From the evidence adduced, a

reasonable jury surely could reach such a conclusion.

           As for the College's refusal to provide an unqualified

certification to the Florida Pharmacy Board, we also find an

issue of fact as to impermissible retaliatory motive.   Though the

College claims that it refused to give an unqualified

certification to the State of Florida because it still harbored

doubts about Papelino's academic integrity, the validity of this

explanation is undermined by the College's decision to provide an

unqualified certification to the State of New York two months

prior.   The only circumstance that changed in the interim was

plaintiffs' filing of this litigation.   Further, the College's

letter to Papelino's counsel as much as admits that the "pendency

of this lawsuit" was the reason why the College was no longer

                              - 24 -
willing to provide an unqualified certification.        At a minimum,

there are issues of fact here.

     3.   Breach of Contract

          a.      Applicable Law

          Under New York law, an implied contract is formed when

a university accepts a student for enrollment:        if the student

complies with the terms prescribed by the university and

completes the required courses, the university must award him a

degree.   Carr v. St. John's Univ., 

, 633 (2d Dep't),

aff'd, 

(1962); accord Clarke v. Trs. of Columbia

Univ., No. 95 Civ. 10627 (PKL), 

, at *5 (S.D.N.Y.

Oct. 23, 1996).    The terms of the implied contract are "contained

in the university's bulletins, circulars and regulations made

available to the student."     Vought v. Teachers Coll., Columbia

Univ., 

, 654 (2d Dep't 1987).        Implicit in the

contract is the requirement that the institution "act in good

faith in its dealing with its students."        Olsson v. Bd. of Higher

Educ., 

, 413-14 (1980).        At the same time, "the

student must fulfill [his] end of the bargain by satisfying the

university's academic requirements and complying with its

procedures."   Gally v. Columbia Univ., 

, 206

(S.D.N.Y. 1998).

          As the district court noted below, New York law does

not recognize a claim for "educational malpractice," Introna v.

                                   - 25 -
Huntington Learning Ctrs., Inc., 

, 896 (2d Dep't

2010), and a student may not seek to avoid this rule by couching

such a claim as a breach of contract claim.     Gally, 

at 207.   Indeed, courts must show the "utmost restraint" in

intervening in controversies involving a student's academic

qualifications, for "the decisions surrounding the issuance of

[academic] credentials [must] be left to the sound judgment of

the professional educators who monitor the progress of their

students on a regular basis."     

.

          b.    Application

          This is one of those rare education cases where it is

appropriate for a court to intervene.    Indeed, the Third

Department has already done so, setting aside the College's

determination that plaintiffs had cheated.    Largely for the

reasons set forth above, we conclude that genuine issues exist

for trial with respect to whether the College breached its

implied duty of good faith by, inter alia, failing to investigate

Papelino's complaint of sexual harassment, mishandling the Honor

Code proceedings after Nowak accused plaintiffs of cheating, and

denying (at least initially) Papelino and Basile a diploma and

failing Yu in a course.   Accordingly, we conclude that the

district court erred in granting summary judgment dismissing

plaintiffs' breach of contract claim.

     4.   Negligent Supervision

                                - 26 -
          a.   Applicable Law

          Under New York law, a plaintiff asserting a claim for

negligent supervision must prove:    (1) the tortfeasor and

defendant were in an employee-employer relationship; (2) the

employer knew or should have known of the employee's propensity

for the tortious conduct; and (3) the tort was committed on the

employer's premises or with the employer's chattels.     Ehrens v.

Lutheran Church, 

, 235 (2d Cir. 2004).

          When describing an employee's "tortious propensities,"

case law often turns to the concept of "unfitness."     See, e.g.,

Loughry v. Lincoln First Bank, N.A., 

, 378 (1986);

Malone v. Hathaway, 

, 10 (1876); Steinborn v. Himmel, 

, 533 (3d Dep't 2004).    An employer will be liable to

an injured party for an employee's tort when the employer knew or

had reason to know that the employee was unfit for the job.    An

"unfit" employee may take a variety of shapes.    Commonly, she is

alleged to be habitually violent, Fernandez v. Rustic Inn, Inc.,

, 897 (2d Dep't 2009), or careless, Lawrence v. City

of N.Y., 

, 503 (2d Dep't 1981), or drunk, Cygan v.

City of N.Y., 

, 68 (1st Dep't 1991).     The common

theme, though, is that for whatever reason -- whether something

about an employee's essential nature or something less permanent

and more situational -- she is unsuited for the task that she has

undertaken to perform.

                                - 27 -
            b.   Application

            Here, plaintiff's negligent supervision claim asserts

that the College is liable for Nowak's tortious conduct in two

respects:    the sexual harassment and her misuse of the Honor Code

proceedings.

            As to the sexual harassment, we agree with the district

court that the record contained insufficient evidence to permit a

jury to find that the College knew or had reason to know that

Nowak would sexually harass a student.    Although, as we have

held, the record contains evidence of the College's actual notice

of Nowak's purported sexual conduct, that notice arose after the

conduct had occurred.    There is nothing in the record to suggest

that the College knew, or should have known, that Nowak was unfit

to teach because she had a propensity for sexually harassing

students.

            As to the handling of the cheating charges, however, we

conclude that issues of fact existed as to whether the College

knew or had reason to know that Nowak would misuse the Honor Code

process to engage in what plaintiffs have described as a

"charade."    Given Nowak's apparent conflict of interest, the

College's decision to permit her to serve, in essence, as the

prosecutor and star witness in the Honor Code proceedings was

highly questionable.    Cf. In re Estate of Palma, 

,

                               - 28 -
1158 (3d Dep't 2007) ("conflict, divided loyalty, self-interest,

and hostility" rendered petitioner "unfit" to serve as a

fiduciary).   The College had a duty to plaintiffs to administer

the Honor Code proceedings in a fair and impartial manner.   A

reasonable jury could conclude, on this record, that the College

was negligent in its handling of the proceedings by permitting an

unfit person to lead the disciplinary process.

          Accordingly, we reverse the dismissal of the negligent

supervision claim to the extent the claim is based on the filing

and prosecution of the cheating charges.

     5.   Remaining Claims

          We affirm the district court's dismissal of the

remaining claims substantially for the reasons articulated by the

district court.

                             CONCLUSION

          The orders of the district court are hereby REVERSED

with respect to the Title IX quid pro quo and hostile environment

sexual harassment, Title IX retaliation, breach of contract, and

negligent supervision claims, and AFFIRMED in all other respects.

We REMAND for further proceedings.




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