09-2680-cv, 09-2923-cv
R .S. v. The B oard of Education of the H astings-on-H udson U nion Free School D istrict


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                       SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9 th day of April, two thousand ten.

PRESENT:
                 ROBERT D. SACK,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
------------------------------------------------------------
R.S., as father and guardian ad litem of S.S.,
D.S., as mother of S.S., and S.S.,

           Plaintiffs-Appellants-Cross-Appellees,

                                  v.                                                        Nos. 09-2680-cv,
                                                                                            09-2923-cv

THE BOARD OF EDUCATION OF THE
HASTINGS-ON-HUDSON UNION FREE
SCHOOL DISTRICT, JOHN J. RUSSELL,
individually and as Superintendent, THOMAS
J. FAZIO, individually and as Principal, MIKE
ROSSI, individually and as Assistant Principal,
SUSAN GUINEY, individually and as
Technology Director,

        Defendants-Appellees-Cross-Appellants.
------------------------------------------------------------
APPEARING FOR APPELLANTS:                         JAMES R. MARSH, White Plains, New York.
APPEARING FOR APPELLEES:                     BRIAN M. SHER (Joan M. Gilbride, on the
                                             brief), Kaufman Borgeest & Ryan LLP, New
                                             York, New York.

       Appeal from the United States District Court for the Southern District of New York

(Paul G. Gardephe, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on June 3, 2009, is AFFIRMED.

       Plaintiffs, S.S., a former student in the Hastings-on-Hudson Union Free School

District (the “School District”), and her parents, R.S. and D.S., appeal a grant of summary

judgment in favor of defendants on their claim that the School District Board of Education

and individual school officials violated Title IX of the Education Amendments of 1972

(“Title IX”), 20 U.S.C. § 1681 et seq., and the Equal Protection Clause of the Fourteenth

Amendment by failing to protect S.S. from sexual harassment. Summary judgment is proper

if “there is no genuine issue as to any material fact and . . . the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). We review the district court’s award of summary

judgment de novo, “resolving all ambiguities and drawing all permissible factual inferences

in favor of the party against whom summary judgment is sought.” Burg v. Gosselin, 591

F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). In applying this standard, we

assume familiarity with the facts and procedural record, which we reference only as

necessary to explain our decision to affirm.

       1.      Title IX


                                                2
       To prevail on their Title IX claim, plaintiffs must demonstrate (1) that the School

District acted with “deliberate indifference” to sexual harassment (2) that was “so severe,

pervasive, and objectively offensive that it effectively bar[red] . . . access to an educational

opportunity or benefit.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999).

Upon de novo review, we agree with the district court that the evidence is insufficient to raise

a triable question of fact on the second issue.1

       Plaintiffs’ claim is based on three email messages received by S.S. during a ten-day

period in March 2005, when she was a ninth-grader at Hastings-on-Hudson High School, on

an email account maintained by the School District. Originating from the email account of

M.X., a classmate, the first message was profane and disparaged S.S.’s appearance; the

second (sent the next day) contained a crude sexual request; and the third declared, in explicit

terms, the author’s intent to have sex with S.S. S.S. promptly reported the emails to School

District staff, including defendant Assistant Principal Michael Rossi, who had been informed

of similar emails sent to at least one other female student from the same account at about the



       1
         Plaintiffs contend that the district court erred by failing to recognize that, in addition
to charging the School District with failing to protect S.S. from peer-on-peer sexual
harassment, they pursue an alternative theory of Title IX liability, i.e., that defendants
subjected S.S. to a hostile environment. Assuming that plaintiffs’ theories are materially
distinguishable, but see Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)
(noting that hostile environment claim requires consideration of, inter alia, “the frequency
of the discriminatory conduct” and “its severity”), the district court did not so err. Plaintiffs’
hostile environment theory is nowhere alleged in their complaint; nor is it advanced in their
memorandum in opposition to defendants’ motion for summary judgment. Accordingly, we
deem any such claim waived. See Coon ex rel. Coon v. Willet Dairy, LP, 536 F.3d 171, 172
(2d Cir. 2008).

                                                3
same time. School District staff discussed the emails with S.S.’s parents and questioned

M.X., who denied sending the emails and claimed other students had gained access to his

email password. The School District changed M.X.’s password and disabled his account,

though there is evidence that it did not take these actions until May 2005. The sender of the

emails was never conclusively identified. Plaintiffs contend that the School District’s

investigation was inadequate and that the resulting uncertainty caused S.S. considerable

anxiety. It is undisputed, however, that S.S. received no further offensive emails and that she

finished the school year with high academic honors.

       We agree with the district court that the record is insufficient as a matter of law to

permit a reasonable jury to find that S.S. endured harassment so severe and pervasive as to

have effectively denied her access to educational resources and opportunities. See Davis v.

Monroe County Bd. of Educ., 526 U.S. at 651. To be sure, “appalling conduct alleged in

prior cases should not be taken to mark the boundary of what is actionable.” Whidbee v.

Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (internal quotation marks

omitted). The trio of offensive emails here at issue, however, falls well short of the kind of

harassment found actionable under Title IX. See, e.g., Davis v. Monroe County Bd. of

Educ., 526 U.S. at 633-34 (describing five-month “string of incidents,” including unwanted

touching, directed at fifth-grade girl and resulting in sexual misconduct conviction); T.Z. v.

City of New York, 634 F. Supp. 2d 263, 271 (E.D.N.Y. 2009) (finding question of fact

existed as to “pervasiveness” where seventh-grade plaintiff was held down by another

student while third student removed her clothing and touched her inappropriately); Riccio

                                              4
v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 227 (D. Conn. 2006) (finding question of

fact existed as to whether harassment was severe and pervasive where eighth-grade plaintiff

was subjected to sex-based name-calling “nearly every school day, in class, in-between

classes, and at lunch,” sometimes “by more than a dozen students,” over eight-month

period).2 No different conclusion is warranted by plaintiffs’ assertion that “for three full

months M.X. continually confronted S.S.” about the emails. Appellants’ Br. at 17. S.S.

testified that she participated in an unknown number of “angry arguments” with M.X. via

“on-line chat,” and that in May 2005 she and M.X. had one five-minute face-to-face

conversation, never reported to the School District, during which M.X. denied sending the

emails. No reasonable juror could conclude that such contacts amount to a “months-long

campaign of intimidation and humiliation.” Appellants’ Reply at 5. Ultimately, plaintiffs’

Title IX claim rests on the emails, which, while lamentable, do not rise to the level of

actionable sexual harassment under federal law.

       Our conclusion that plaintiff has failed to demonstrate severe and pervasive



       2
          The hostile work environment cases cited by plaintiffs are not to the contrary. See
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d at 70-71 (reversing grant of summary
judgment for defendants where plaintiffs were subjected to “a stream of racially offensive
comments over the span of two to three months”); Howley v. Town of Stratford, 217 F.3d
141, 154 (2d Cir. 2000) (reversing grant of summary judgment for defendant where “verbal
assault” “may easily have [had] the effect . . . of . . . impairing [plaintiff’s] ability to lead in
the life-threatening conditions often faced by firefighters”); see also Petrosino v. Bell Atl.,
385 F.3d 210, 221-22 (2d Cir. 2004) (reversing grant of summary judgment in favor of
defendant on hostile work environment claim where plaintiff endured one physical assault
and “workplace disparagement of women, repeated day after day over the course of several
years”).

                                                 5
harassment renders it unnecessary for us to reach defendants’ contention that the district

court erred in identifying a triable question of fact as to whether they exhibited “deliberate

indifference” to such harassment.

       2.     Equal Protection

       Although an equal protection claim pursuant to 42 U.S.C. § 1983 may sometimes

implicate a different standard than that applicable to Title IX claims, see Fitzgerald v.

Barnstable Sch. Comm., 129 S. Ct. 788, 797 (2009) (observing that “standards for

establishing liability may not be wholly congruent”), here we agree with the district court

that, to the extent plaintiffs’ § 1983 claim sounds in sexual harassment, it fails for the same

reason as their parallel claim under Title IX, see Hayut v. State Univ. of N.Y., 352 F.3d 733,

744-45 (2d Cir. 2003) (noting that § 1983 sexual harassment claim was “governed by

traditional Title VII ‘hostile environment’ jurisprudence” and considering frequency and

severity of alleged misconduct).

       Nor are we persuaded by plaintiffs’ contention that the district court overlooked their

alternate theory of disparate treatment based on the School District’s less aggressive response

to her complaints of sexual harassment than to a previous incident of race-based misconduct.

In their brief opposing summary judgment, plaintiffs do cite the School District’s response

to the racial incident as evidence of its deliberate indifference for Title IX purposes. But they

allege only one variety of “constitutional violation[: ] (sexual harassment via offensive

email).” Pls.’ Mem. Opp. Summ. J. at 22. Accordingly, we decline to consider this argument

raised for the first time on appeal. See Matar v. Dichter, 563 F.3d 9, 12 n.4 (2d Cir. 2009).

                                               6
       We have considered plaintiffs’ remaining contentions, and we conclude that they are

without merit.3 The judgment of the district court is therefore AFFIRMED.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court




       3
         In their appellate briefs, plaintiffs allege that “the record supports an inference that
[a school official] . . . could have authored the obscene emails.” Appellants’ Br. at 13; see
also id. at 22 n.9; Appellants’ Reply at 8. The record does not support any such inference.
While we do not assume that plaintiffs’ counsel has intentionally misrepresented the record,
more care should be taken in ascribing liability, particularly on a theory not advanced below.
The district court, and not the court of appeals, is the proper forum in which to pursue any
such allegation. See generally Fed. R. Civ. P. 60(b) (providing for motion for relief from
judgment); Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) (permitting limited
remand after district court signals inclination to grant Rule 60(b) motion). A court of appeals
is not the forum in which to bring an entirely new substantive allegation against a party, and
we caution counsel against pursuing this litigation tactic in the future.

                                               7
