Posts tagged with "abuse"

An Overview of Legal Issues Relating to Bullying and Cyberbullying in Connecticut

The purpose of this article is to explore the laws, statutes, and cases relating to school bullying in Connecticut, specifically “cyberbullying,” and to provide an overview of the types of legal avenues that may be available to a victim of bullying.

According to Connecticut’s General Assembly Commission on Children, “25 percent of Connecticut high school students – and 35 percent of the state’s 9th graders – report having been bullied or harassed on school property in the previous year.”[1] Furthermore, the report states that “[m]ore than 900,000 U.S. high school students reported being cyberbullied in one year.”[2] According to the U.S. Department of Justice, “Bullying may be the most underreported safety problem in American schools.”[3]

The National Crime Prevention Council (NCPC) defines cyberbullying as “similar to other types of bullying, except that it takes place online and through text messages sent to cell phones.” www.ncpc.org.  The NCPC has said that cyberbullying can take the form of:

  • Sending mean or threatening emails, instant messages, or text messages;
  • Excluding someone from an instant messenger buddy list or blocking their email for no reason;
  • Tricking someone into revealing personal or embarrassing information and sending it to others;
  • Breaking into someone’s email or instant message account to send cruel or untrue messages while posing as that person;
  • Creating websites to make fun of another person such as a classmate or teacher;
  • Using websites to rate peers as prettiest, ugliest, etc.

One recent study from Texas describes cyberbullying as bullying in which bullies use the Internet, text messaging, and similar technology, “which give an illusion to anonymity, [and] encourage bullying by those who would not normally engage in such behavior.  They also allow a bully to avoid direct confrontation with the target.”[4]

I. Conn. Gen. Stat. §10-222d

In July 2011, Governor Dannel Malloy signed Public Act 11-232 into law, marking Connecticut’s first anti-bullying legislation.  The Act, known as “An Act Concerning the Strengthening of School Bullying Laws,” defines bullying as “the repeated use by one or more students of a written, oral or electronic communication, such as cyberbullying, directed at or referring to another student attending school in the same district.”[5] The law defines cyberbullying as “any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.”[6]

The law requires that each local and regional board of education develop and implement a specific bullying policy addressing the existence of bullying within its schools.  Specifically, the law requires the school policy to:

  • Enable students to anonymously report acts of bullying to school administrators;
  • Appoint a safe school climate coordinator to facilitate the school’s plan;
  • Enable the parents or guardians of students to file written reports of suspected bullying;
  • Require school administrators (including teachers and staff) who witness bullying or receive reports of bullying to notify a school administrator no more than one day after the employee witnesses or receives the report of bullying; and to file a written report no more than two school days after making such oral report;
  • Provide for the inclusion of language in student codes of conduct concerning bullying;
  • Require each school to notify the parents or guardians of students who commit bullying and the parents or guardians of students who are the victims of bullying, and invite them to attend at least one meeting.

The Governmental Immunity Barrier

The doctrine of governmental immunity may preclude a plaintiff in Connecticut from recovering on a claim against a school district. Where the defendants’ activities in a bullying case are discretionary, they may enjoy the defense of governmental immunity; conversely, where the defendants’ activities alleged in the complaint are ministerial, they cannot be shielded by governmental immunity.[7] A ministerial act is an act which is “performed in a prescribed manner without the exercise of judgment or discretion . . ..”  There must be a “written policy, directive, or guidelines mandating a particular course of action.”[8] If a court deems the acts and responsibilities of a school district to be ministerial, governmental immunity will not serve to provide immunity.

That distinction was tested in Santoro v. Town of Hamden. There, the Connecticut Superior Court held that plaintiffs, parents of a bullying victim, could not maintain a private cause of action under §10-222d, finding that “section 10-222d does not provide a basis for circumventing the doctrine of sovereign immunity.” As such, the court granted defendants’ motion to strike two counts of plaintiffs’ complaint on the grounds that the school district was shielded by governmental immunity.[9]

There is an exception to the immunity defense, which permits a tort action in the circumstance of “perceptible harm to an identifiable person.” Scruggs, at *70.  The “identifiable person, imminent harm exception” applies when the circumstances make it apparent to the public officer charged with the exercise of discretion that his or her failure to act would be likely to subject an identifiable person to imminent harm.  Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349, at *9 (Feb. 6, 2012).  Connecticut courts adhere to a three-pronged test.  Failure of a plaintiff to meet all three prongs will be fatal to a claim. Id. The test requires: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  Id. The Court in Esposito concluded that schoolchildren are a “foreseeable class to be protected.” Esposito, at *28.

II. Criminal Statutes and Cyberbullying

The 2011 revision to Connecticut’s anti-bullying statute included a new provision requiring the school principal, or the principal’s designee, “to notify the appropriate local law enforcement agency when such principal, or the principal’s designee, believes that any acts of bullying constitute criminal conduct.”[10]

Below is a non-exhaustive list of crimes that may be implicated by school bullying.

a. Criminal Harassment

Connecticut General Statute § 53a-182b, Harassment in the first degree, and 53a-183, Harassment in the second degree, are Connecticut’s criminal harassment statutes.  A person is guilty of harassment in the first degree when, “with the intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network, as defined in section 53a-250, or any other form of written communication, in a manner likely to cause annoyance or alarm and has been convicted of [a specifically enumerated felony].”

A person is guilty of harassment in the second degree when, “(1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

Not all cyberbullying, however, rises to the level of statutorily defined harassment.  As one author has noted, “it is more difficult to prosecute bullies under anti-harassment or anti-stalking statutes due to the mens rea requirement in criminal proceedings . . . [and] thus, criminal statutes do not offer victims of cyberbullying a viable option to seek redress against their harassers.”[11]

b. Bias Crimes

A person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.[12] Furthermore, a person is guilty of intimidation based on bigotry or bias when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following:

–          Causes physical contact with such other person;

–          Damages, destroys or defaces any real or personal property of such other person; or

–          Threatens, by word or act, described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.[13]

In an action for damages resulting from intimidation based on bigotry or bias, any person injured in person or property as a result of such an act may bring a civil action against the person who committed such act to recover damages for such injury.  Where a plaintiff in such an action prevails, the court shall award treble damages and may award equitable relief and reasonable attorneys’ fees in its discretion.[14]

c. Criminal Threats

Under Connecticut law, a person is guilty of threatening when: (1) by physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury; (2) such person threatens to commit any crime of violence with the intent to terrorize another person; or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror.[15]

III. Other Legal Issues Relating to Cyberbullying

a. Defamation/Slander

In Connecticut, “a defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”[16] To establish a prima facie case of defamation, a plaintiff must show that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.”  Id.

Cyberbullying by means of social networking sites such as Twitter or Facebook may give rise to defamation claims, if the plaintiff can meet all of the elements of defamation in Connecticut.  Sometimes, however, “the tortious statements are not necessarily published or widely disseminated to cause harm, but are specifically aimed at inflicting distress on a particular target based on the content of the communication itself . . ..”[17]

Therefore, defamation might not be a viable claim if the hurtful speech or writing is not disseminated to a wide enough audience.  It is, however, an avenue to be explored.

b. Intentional Infliction of Emotional Distress

In order for a plaintiff to prevail in an intentional infliction of emotional distress cause of action, the plaintiff must show: (1) that the actor intended to inflict emotional distress, or that he knew or should have known that emotional distress was likely a result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress, and (4) that the emotional distress sustained by the plaintiff was severe.”[18] In order for liability to be imposed, the conduct must exceed “all bounds usually tolerated by decent  of a very serious kind.”[19]

Though it can be difficult to prove that the conduct was of such a level as to be intolerable by any measure of societal standards, egregious cases of cyberbullying may gave rise to successful IIED claims.  To prove an IIED claim, there is no requirement that the plaintiff suffer any physical harm.  As the Connecticut Supreme Court stated in Whelan v. Whelan, “The enormity of the outrage carries conviction that there has in fact been severe mental distress which is neither figured or trivial so that bodily harm is not required.”[20] It should be noted that “mere insults, indignities, threats, petty oppressions, or other trivialities” will not give rise to a successful IIED claim.[21]

An interesting facet of IIED law in Connecticut, and one that may apply to cyberbullying claims, is the invocation of the continuing course of conduct argument. While IIED has a three-year statute of limitations, the Connecticut Supreme Court has stated: “Courts that have applied the continuing course of conduct doctrine to claims for intentional infliction of emotional distress have done so on the ground that it is the repetition of the misconduct that makes it extreme and outrageous.  Watts v. Chittenden, 301 Conn. 575 (2011).  In other words, a cause of action for IIED might not begin to accrue until plaintiff has endured such a repetitive course of conduct such that it has amounted to conduct that is extreme and outrageous.

In a 2003 case, the Connecticut Superior Court denied defendants’ motion to strike plaintiff-student’s claim for IIED, where the defendant co-conspirators locked the plaintiff in a locker, doused him with water, and threatened him with electrocution.[22]

Conversely, in Brodsky v. Trumbull, the court declined to exercise supplemental jurisdiction over plaintiff’s state-law IIED claim, having granted summary judgment as to all of plaintiff’s federal claims in favor of defendants.[23]

c. Negligence

Many bullying cases sound in negligence. In a 2007 case, plaintiff parents alleged that defendant school district owed their son, the victim, “a duty to protect him and prevent intentional harm, provide him with a safe and productive learning environment, and supervise students at [the school] to prevent the alleged acts which harmed [plaintiff].”[24] The Court, finding that plaintiff did not make a proper showing of entitlement to the “identifiable person-imminent harm exception to governmental immunity for tort claims” (discussed infra), granted defendants’ motion for summary judgment on the state-law negligence claim.

In Esposito, plaintiff student, a victim of bullying, brought an action alleging that the defendant school district, town, and the individual defendants were negligent in failing to follow its own bullying policies, thereby failing to ensure that plaintiff could attend school in a harassment-free environment.[25] Unlike in Scruggs, the court in Esposito denied the school board’s motion for summary judgment, finding that governmental immunity did not apply and that the plaintiff met the identifiable person-imminent harm exception, as “schoolchildren are a foreseeable class to be protected.” Id.

Finally, the doctrine of negligent supervision, codified at Conn. Gen. Law 52-572, may be available as a claim against the parents of a bully.

d. Recklessness

In a 2010 decision, a Connecticut court denied defendant school district’s motion for summary judgment, finding that the student-plaintiff stated a plausible cause of action based on the defendants’ “reckless and wanton” supervision of plaintiff’s fellow classmates.[26] The court found that the defendant school board “offered no argument as to why a claim of common-law recklessness [was] not cognizable,” given the specific facts of the case.[27]

e. Privacy Tort Laws

The emergence of cyberbullying by means of Facebook and Twitter and other social networking sites may give rise claims sounding in tort privacy laws.  Connecticut recognizes four distinct kinds of invasion of privacy torts.[28] Connecticut first recognized a cause of action for invasion of privacy in Goodrich v. Waterbury Republican, Inc., 188 Conn. 107 (1982), in which the Supreme Court clarified that the invasion of one’s privacy developed into “four distinct kinds of invasion of four different interests,” each of which “represents an interference of the right of the plaintiff to be let alone.”  Goodrich, at 125.

The four categories of invasion of privacy are: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the other’s name of likeness; (3) unreasonable publicity given to the other’s private life; or (4) publicity which unreasonably places the other in a false light before the public. Id.; 3 Restatement (2d) of Torts.

A cyberbullying claim may implicate the third cause of action – unreasonable publicity given to the other’s private life, and may also implicate the fourth cause of action – false light.  To successfully allege a false light claim, a plaintiff must allege that “defendant gave publicity to a matter concerning the plaintiff.”  Goodrich.  “Publicity” refers to a matter made public through communication “to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.”  3 Restatement of Torts (2d) §252d comment A.  The Restatement clarifies that publication do a small group of people will not give rise to a false light cause of action.   

f. Free Speech

A 2011 article in Law Technology News questioned how Connecticut’s anti-bullying law would fare in the face of free speech issues, noting that “[t]he new law puts school officials in the position of having to pass judgment on off-campus speech with little legal precedent to guide them . . . If they clamp down on online comments, they risk First Amendment challenges.  If they’re too lenient, they could be deemed responsible if cyberbullying leads to tragedy.”[29]

What worries some officials and lawmakers is the prospect of the regulation of speech that doesn’t take place on school grounds.  Legal Director of the ACLU of Connecticut Sandra Staub stated during testimony in March of this year that “simply plugging the phrase ‘cyberbullying’ into the current statute on bullying policies will encourage and allow schools to regulate children’s speech and conduct while they are in their own homes.”[30] Essentially, Staub’s argument sounds in the notion that what children do in their own homes is under the control of their parents, who, pursuant to the United States Supreme Court, have a due process right to raise their children in the manner they see fit.  Permitting schools to regulate such speech turns schools into internet police.  Instead, Staub suggests that it is the school’s responsibility to provide an education that instills in students the means by which to deal with conflicts in an appropriate manner.

g.  Federal Claims

Victims of bullying have brought substantive due process claims against school districts and school district officials. See, Risica ex rel. Risica v. Dumas, 466 F. Supp. 2d 434 (D. Conn. 2006) (granting defendant school district’s motion for summary judgment on the grounds that the School’s failure to prevent continued bullying did not rise to the level of a constitutional violation because the school had no constitutional duty to prevent student-on-student harassment).

Finally, where bullying is based on sexual harassment, a plaintiff may have a cause of action under Title IX of the Education Amendments. See, Brodsky, at *19 (granting defendant school board’s motion for summary judgment on the grounds that defendants acted reasonably and expeditiously in response to any alleged harassment against plaintiff student).  In order to successfully allege a student-on-student sexual harassment claim, the Supreme Court of the United States has clarified that the school administration must have “acted with deliberate indifference to known acts of harassment . . . [and the] harassment [must have been] so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”[31]

IV. Conclusion

With the popularity of social networking sites such as Facebook and Twitter, cyberbullying is as prevalent a problem as ever.  Schools around the country are taking steps to eradicate bullying of all kinds, but for the time being, it is everywhere.  Bullying issues can be handled by attorneys with experience in education law.  Navigating the school district system can be difficult, frustrating, and intimidating, and without the right guidance, you may find yourself reaching dead ends.  If you find yourself with questions relating to bullying, cyberbullying, or education law in general, do not hesitate to contact an attorney in our Westport, Fairfield County office, at 203-221-3100.


[1] Conn. Gen. Assembly Commission on Children, Anti-Bullying Bill Becomes Law, available at http://www.cga.ct.gov/coc/PDFs/bullying/2011_bullying_law.pdf (July 21, 2011).

[2] Id.

[3] http://www.cops.usdoj.gov/Default.asp?Item=2460

[4] Bullying: Legislative Changes, Texas Assc. of School Boards, Legal Servs., available at http://www.tasbrmf.org/training/conference/documents/2012conference_handouts/bullying.pdf.

[5] Conn. Gen. Law §10-222d(a)(1)

[6] Id.

[7] Estate of Girard v. Town of Putnam, 2011 Conn. Super. LEXIS 306 (Conn. Super. Ct. Jan. 28, 2011).

[8] Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349 (Conn. Super. Ct. Feb. 6, 2012).

[9] Santoro, 2006 Conn. Super. LEXIS 2418, at *9 (Aug. 18, 2006); see also, Karlen v. Westport Bd. Of Educ., 638 F. Supp. 2d 293, 302 (D. Conn. 2009) (dismissing plaintiff’s claim pursuant to Connecticut’s anti-bullying statute because the statute does not provide for a private cause of action).

[10] Public Act No. 11-232.

[11] Todd D. Erb, Comment, A Case for Strengthening School District Jurisdiction to Punish Off-Campus Incidents of Cyberbullying, 40 Ariz. St. L.J. 257, 279 (2008).

[12] Conn. Gen. Stat. §53a-181j.

[13] Conn. Gen. Stat. §53a-181k.

[14] Conn. Gen. Stat. §52-571c.

[15] Conn. Gen. Stat. §53a-62.

[16] Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217 (2004).

[17] Andrew S. Kaufman, Cyberbullying and Intentional Infliction of Emotional Distress, 245 New York Law Journal 27, Feb. 9, 2011.

[18] Peytan v. Ellis, 200 Conn. 243 (1986).

[19] Id., quoting Prosser & Keeton, Torts, 5th ed. 12, page 60.

[20] Whelan v. Whelan, 41 Conn. Sup. 519, 522 (1991).

[21] Restatement 2d.

[22] Gasper v. Sniffin, 2003 Conn. Super. LEXIS 1363 (Conn. Super. Ct. May 6, 2003).

[23] Brodsky v. Trumbull Bd. Of Educ., 2009 U.S. Dist. LEXIS 8799, at *28 (D. Conn. Jan. 30, 2009).

[24] Scruggs v. Meriden Bd. Of Educ., 2007 U.S. Dist. LEXIS 58517, 67-68 (D. Conn. Aug. 7, 2007).

[25] Esposito v. Town of Bethany, 2010 Conn. Super. LEXIS 1050, at *1 (Conn. Super. Ct. May 3, 2010).

[26] Dornfried v. Berlin Bd. of Educ., 2010 Conn. Super. LEXIS 2537 (Conn. Super. Ct. Oct. 4, 2010).

[27] Id., at *8.

[28] Law Offices of Frank N. Peluso, P.C. v. Rendahl, 2012 Ct. Sup. 2356 (Aug. 15, 2012).

[29] Jacqueline Rabe, New Conn. ‘Cyberbullying’ Law Prompts Free Speech Debate, Law Technology News (Sept. 7, 2011).

[30] Sandra Staub, Written Testimony Opposing Raised Bill No. 1138 An Act Concerning the Strengthening of School Bullying Laws.

[31] Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999).

When Rites of Passage Turn Ugly A Study on School Hazing

If you have any questions regarding your school hazing, bullying or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Chuck Stenzel. Matthew Carrington. Jay Lenaghan. Garrett Watterson. Gary Devercelly, Jr. What do these individuals have in common?

Think Robert Champion.

In August 2000, Alfred University released the results of a nationwide survey[1] of American high schools on the prevalence of hazing rituals. Under this study, “hazing” was defined as “any humiliating or dangerous activity expected of you to join a group, regardless of your willingness to participate.” In essence, hazing is an initiation rite that goes over the line: while “[i]nitiation rites are comprised of pro-social behaviors that build social relationships, understanding, empathy, civility, altruism and moral decision-making,” hazing is marked by humiliation, harassment, or abuse. It includes:

  1. “Humiliation: socially offensive, isolating, or uncooperative behaviors.”
  2. “Substance abuse: abuse of tobacco, alcohol, or illegal drugs.’
  3. “Dangerous hazing: hurtful, aggressive, destructive, and disruptive behaviors.”

Other forms of humiliating and dangerous behavior include being singled out, physical humiliation, nudity, sexual acts, physical danger, and boundary testing.

Nearly half of those surveyed (48%) were subject to an activity that is considered hazing, though students appeared to be unable to distinguish between fun and hazing. “Only 14 percent said they were hazed… Most said they participated in humiliating, dangerous or potentially illegal activities as part of joining a group because those activities are ‘fun and exciting.’” Hazing starts at a younger age, before age 13, and continues through high school, and males with lower grade point averages were more likely to be the targets of hazing:

Sadly, the consequences of hazing are widespread and significant. Nearly three of every four students who reported they were hazed suffered at least one negative consequence:

As of November 2010, forty-four states had anti-hazing laws – Connecticut’s anti-hazing law is General Statutes § 53-23a.[2] Even with the statutory groundwork, what constitutes hazing behavior “relies on authorities’ subjective interpretation” of the law.[3] As Middlesex (Massachusetts) District Attorney Gerard T. Leone Jr. explained, “What some person finds as hazing, another is going to find as a childish prank.”[4] On the other hand, some coaches and school authorities “say they draw a hard line on any initiation rites – even activities that could seem fairly innocent. ‘I just don’t think there’s any place for it, because there’s always the chance someone is going to take it beyond or too far,’ said [a longtime football coach].”[5]

Even with laws in place, hazing is still prevalent: just yesterday, I learned of the assaults of “Billy” and “John” in La Puente, California. “[Billy and John] among several students allegedly attacked as part of a soccer team hazing ritual that involved sexual assault at La Puente High School said they were grabbed in a storage room by as many as 10 older team players.”[6] One student was sodomized with a pole;[7] the second “was able to escape, to run away before he got the worst of what his attackers were planning for him.”[8] Worse still, it appears the coach knew of the abuse and took no action to prevent or report it. Although several individuals have been arrested, parents are only left with unanswered questions: one parent asked, “Where was the supervision?”[9]

Written by Lindsay E. Raber, Esq.

If you have any questions regarding your school hazing, bullying or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.


[1] “Initiation Rites in American High Schools: A National Survey,” by Nadine Hoover, Ph.D. and Norman Pollard, Ed.D. August 2000, Alfred University: www.alfred.edu/hs_hazing/docs/hazing__student.pdf

[2] Connecticut General Statutes § 53-23a: http://www.cga.ct.gov/current/pub/chap939.htm#Sec53-23a.htm

[3] “Despite law, many still unsure when to sound hazing alarm,” by Stephanie Ebbert and Shelly Murphy. November 15, 2010: www.boston.com/news/education/higher/articles/2010/11/15/states_antihazing_law_still_stirs_confusion_25_years_later/

[4] Id.

[5] Id.

[6] “Victims in La Puente High sexual hazing say there are more attackers,” by Richard Winton. September 25, 2012: latimesblogs.latimes.com/lanow/2012/09/la-puente-soccer-sexual-hazing.html

[7] Id.

[8] “Alleged victims describe hazing at hands of soccer teammates,” by the CNN Wire Staff. September 26, 2012: www.cnn.com/2012/09/26/us/california-student-hazing/

[9] Id.

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial

In August 2006 Robert and Louise Dornfried filed suit against the Berlin Board of Education, its former and current superintendents,  the principal, the athletic director and the coach of Berlin High School football team on behalf of their minor son, Robby.  Robby’s parents alleged on their son’s behalf that, while a student at the high school and a place-kicker on the varsity football team, he was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.

The parents further alleged that they complained of the misconduct to various school administrators, who, despite their knowledge of the behavior, did nothing to stop it.  As a result, Robby was allegedly forced to seek “medical care and treatment” and, halfway through his sophomore year, transferred to Northwest Catholic High School. Robby’s parents brought suit alleging negligence against the various defendants, claiming they knew or should have known that Robby was subjected to incessant bullying, harassment, intimidation, threats and/or acts of violence, but failed to take any action to prohibit, prevent, or even deter such conduct.

In a separate count, the parents claimed the principal, the athletic director and the football coach were reckless in their failure to stop the inappropriate behavior of Robby’s teammates, claiming they exhibited “a blatant and utter disregard for [Robby’s] safety and wellbeing.”  Notably, as permitted by Connecticut law, the plaintiff sought punitive damages under this count. The defendants initially attacked the plaintiff’s suit filing a motion to strike the negligence claims.

Granting the defendants’ motion, the Court held that the principal of governmental immunity barred the negligence claims because, as a general rule, a municipal employee has qualified immunity in the performance of acts that are discretionary in nature.  Although there is an exception when the injured party is an “identifiable person subject to imminent harm,” the Court held that Robby did not fall within that exception, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that, although participation in school sponsored athletic programs is most likely encouraged, participation is on a purely voluntary basis and, therefore, any resulting liability is barred by the doctrine of governmental immunity.  Significantly, although Robby was foreclosed from pursuing his negligence claims, his claim under a theory of recklessness, allowing for the recovery of punitive damages, was left intact. More recently, however, the defendants filed a motion for summary judgment attempting to eliminate that cause of action as well.  The defendants essentially claimed that, with respect to the plaintiff’s recklessness count, there are no factual issues in dispute and that as a matter of law, they are entitled to a judgment in their favor.

The court denied the defendants’ motion, however, preserving the plaintiff’s case, as well as the potential for punitive damages.  Explaining its decision, the Court first noted that Robby’s parents alleged the defendants had actual knowledge of the bullying yet failed to act, resulting in further escalation of the bullying, and that the defendants knew their failure to act would result in further harm to Robby.  Significantly, the Court then explained that summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent, or ones that involve subjective feelings and reactions.

Citing various factual disputes in this particular case, the Court ultimately held that it is “suffused with subjective impressions, intent, motive and pubic issues which do not easily conform to the standards of summary judgment.” This ruling is significant, in part, because, as mentioned, the plaintiffs alleged that the school system, as well as various administrators, were not just negligent, but were actually reckless in their failure to respond to the bullying in question, thus exposing the school system not only to actual or compensatory damages, but punitive damages as well.  This decision is also significant because, although there is always a potential that such rulings will be appealed, the Court effectively gave the plaintiffs a green light to proceed to trial.

By:       Michael DeMeola, Esq.

If you have any questions regarding a school bullying case, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

 

My Child Has Been Moved Out-of-State and May Be Suffering from Abuse, What Should I Do?

If you believe that your child is the victim of abuse you should contact the Department of Children and Families (DCF) and the authorities immediately to report the abuse.  If your child is no longer living in Connecticut DCF may not be able to assist because they are a Connecticut resource.  It would be beneficial to contact a similar resource in whatever state your child is currently residing in.

Further, if your child has been moved out of Connecticut, their residency has been affected.  Jurisdiction will depend on where your child is currently residing.  Regardless of where your child has been relocated to, your divorce decree will still be valid in Connecticut and should be recognized in every state.  You may need to register your Connecticut divorce decree in the new state as an out-of-state judgment in order to have it enforced.

This is a complex issue as you are now possibly dealing with court systems in two different states.  A family attorney will be able to educate you on your rights and options in this situation.  If you have any questions related to family law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

My Child Has Been Moved Out-of-State and May Be Suffering from Abuse, What Should I Do?

If you believe that your child is the victim of abuse you should contact the Department of Children and Families (DCF) and the authorities immediately to report the abuse.  If your child is no longer living in Connecticut DCF may not be able to assist because they are a Connecticut resource.  It would be beneficial to contact a similar resource in whatever state your child is currently residing in.

Further, if your child has been moved out of Connecticut, their residency has been affected.  Jurisdiction will depend on where your child is currently residing.  Regardless of where your child has been relocated to, your divorce decree will still be valid in Connecticut and should be recognized in every state.  You may need to register your Connecticut divorce decree in the new state as an out-of-state judgment in order to have it enforced.

This is a complex issue as you are now possibly dealing with court systems in two different states.  A family attorney will be able to educate you on your rights and options in this situation.  If you have any questions related to family law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Medical Marijuana Use in the Connecticut Workplace

The news this week that Connecticut has given its approval to four medical marijuana growers in Simsbury, West Haven, Portland, and Watertown, inches the state that much closer to full implementation of the medical marijuana law that was passed in 2012.

The state also reported that over 1600 individuals in Connecticut have been certified by the state to receive medical marijuana. That number is expected to grow once production begins in earnest.

Add to that news, the recent legalization of marijuana in Colorado and Washington and employers now have a whole new area of law to familiarize themselves with.

It would be easy to just write some puns on the matter (and who can resist it in the headline) but it’s not such a laughing matter to employers struggling to figure out what the rules of the road are.

There are 5 important takeaways from CT’s medical marijuana laws:

Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.

Employers may discriminate if required by federal funding or contracting provisions.

Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.

Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

While it is clear under [state law] that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees … who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy.

If the employer terminates [the employee] for violating its policy, it risks liability if she proves she was not under the influence at work. On the other hand, if it does not terminate …, the employer risks liability should [the employee] report to work under the influence and injure herself or others.

Another novel issue that is arising? Suppose your employee is on a business trip in Colorado. After a sales meeting, on the way back to his hotel, the employee legally purchases and then consumes some Rocky Mountain marijuana. Can you discipline the employee for engaging in a legal activity while on “company business”?

As long as we have disparate state laws on the subject, we’re not going to get clear cut answers. For employers, be sure to stay up to date on the developments and talk with your legal counsel about the implications for your business now that we are on the outskirts of implementation.

Credit to Daniel Schwartz of Shipman and Goodwin LLP.

If you are the victim of workplace harassment, wrongful termination, or any other labor law crime, it is imperative that you consult with an experienced employment law practitioner. The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at jmaya@mayalaw.com

Keywords: discrimination, harassment, sexual discrimination, sexual harassment, gender, gender discrimination, gender inequality, gender equality, equal pay, equal opportunity, civil rights, sexual orientation, work discrimination, workplace discrimination, harassment in the workplace, harassment at work, workplace harassment, discrimination in the workplace, discrimination law, age discrimination, sex discrimination, touching, inappropriate, women discrimination, women, pregnancy, racial discrimination, abuse, sexual harassment attorney, employment, employment discrimination, hiring discrimination, job discrimination, disability discrimination, wrongful termination, employment, work, workplace, employer, employee, supervisor, hostile work environment, retaliation, EEOC, CHRO, Civil Rights Act, quid pro quo harassment, Title VII, bullying, bullying workplace, gender workplace, harassment policy, workers rights, attorneys at law, employee rights, employee lawyer, discrimination lawyer, employment lawyer, employment law, New York law, Connecticut law, employment attorney, employment law attorney, employment law lawyer, discrimination attorney, harassment attorney, labor attorney, labor lawyers, lawyer, lawyers, attorney, attorneys, civil rights attorney, find a lawyer, new york attorney, new york lawyer, lawyers in nyc, lawyers in Connecticut, employment labor, unemployment, lawyers in ct, ct lawyers, free consultation, find an attorney, legal attorney, legal advice, lawyers Connecticut, attorneys Connecticut, Connecticut law, lawyers Fairfield, lawyers Westport, new haven attorney, Bridgeport attorney, Hartford attorney, Stamford attorney, employment NY, law office, Connecticut law office

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Over 200 Massachusetts Children Abused While in State Custody

State officials found evidence supporting 249 allegations of physical and sexual abuse or poor care involving children in state-monitored settings last year.

The numbers were included in the Office of the Child Advocate’s 2013 report obtained by the Boston Herald (http://bit.ly/18XtUup ).

Thirty percent of the allegations were in foster care; 29 percent were in treatment programs; 19 percent in day cares; 18 percent from schools; and 4 percent from “others.”

State child welfare officials say the total number of abuse and neglect reports in out-of-home settings has remained steady in recent years.

But Sara Bartosz, an attorney for the advocacy group Children’s Rights, points out that the number of children in foster care is down.

A Department of Children and Families spokeswoman says the state works hard to protect all children.

From Boston Herald.

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Deliberate Indifference Required for School to be Liable under Title IX for Student-Student Harassment

In a New York District decision earlier this year, a student’s cause of action under Title IX of the Civil Rights Act against the Monroe-Woodbury School District was denied because it did not show deliberate indifference in response to the student’s claim of student-to-student sexual harassment.[1]

Parents on behalf of their fifteen year old daughter brought suit against Monroe–Woodbury Central School District pursuant to Title IX of the Civil Rights Act of 1964, alleging that she was deprived of an educational environment free from sexual harassment as required by federal law.

Beginning in January 2010, when she was in the eighth grade, the student was subjected to teasing, taunting, and physical bullying by other students, which she reported to her guidance counselor.  She was sexually assaulted by a male classmate who requested a handjob and subsequently ran her  hands over the genital area of his pants and attempted to shove her hands down his pants.[2] As a result of the incident, the student alleges that she was subjected to more taunting and name-calling by other students and in response began to engage in self- injurious behavior by cutting herself. When she began attending Monroe–Woodbury High School in September, another student and friend of the first continued to harass her and in November sexually assaulted her by pinning her against a locker and pushing his hands down her pants and blouse, touching her genital area and breast.[3]  The student began missing school frequently to avoid continued harassment.  At some point she confided in her guidance counselor that her absenteeism and self-injurious behavior was the result of the persistent teasing and the two incidents of sexual assault by her classmates.[4]

The School District recommended that she attend the GO Program, an out-of-district academic program, to which her parents agreed. After her first day there, CF reported to her parents that she was uncomfortable with this placement because the students there were “in many cases, not attending their regular high schools due to serious disciplinary records and incidents.”[5] When her parents again met with the principal, they requested that their daughter be transferred to another public school to continue her high school education.  The principal refused saying there were no other options besides the GO program.[6]

The parent brought suit alleging the school failed to: (1) initiate an investigation upon the parents’ verbal complaint; (2) conduct a prompt, equitable, and thorough investigation of the charges; (3) ensure that immediate corrective action be taken, including subjecting the offending individuals to appropriate disciplinary measures; and (4) inform CF of her right to pursue legal remedies.

Title IX of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a)[7]. Title IX contains an implied private right of action for plaintiffs who bring suit against educational institutions that receive federal funding, and liability may be imposed upon a school district if it is found to be in violation of this law.

Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.[8] A showing of deliberate indifference requires that the school had actual knowledge of the sexual harassment and either responded in a “clearly unreasonable manner in light of the known circumstances,”[9] or responded with remedial action only after a “lengthy and unjustified delay.”[10]

The Court rejected the plaintiff’s assertions that the GO Program was an “inappropriate” placement for her because it did not provide her with a “regular high school environment.” Saying even if it was inappropriate, “Title IX simply does not require recipient school districts to provide students with a ‘regular high school environment.’ Title IX does not prescribe any particular educational experience at all. Rather, Title IX merely prohibits schools from excluding anyone, on the basis of sex, from participating in an educational program that receives federal assistance; or denying the benefits of such programs on the basis of sex; or subjecting anyone in such programs to discrimination on the basis of sex.”[11]  Finding that the school did not cause the discrimination and the School District took some remedial action (not clearly unreasonable under the circumstances) in response to the student’s complaints, the Court dismissed the action.

Bullying and harassment in school should never be tolerated.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable education law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about bullying, student harassment, school liability or any other matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)

[2] Compl.¶¶ 10-11

[3] Compl.¶¶ 12-13

[4] Id.

[5] Compl.¶¶ 14

[6] Id.

[7] Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)

[8] Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)

[10] Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)

[11] KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.

 

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Faragher-Ellerth Defense Applied to Protect Employer from Liability for Sexual Harassment

In a recent 11th Circuit Court case decided this year, that Court applied the Faragher/Ellerthdefense to bar an employee’s sexual harassment suit under Title VII and state law.[1]

There, a male hairdresser filed suit against his employer alleging sexual harassment in violation of Title VII and the Florida’s Civil Rights Act.  The employee alleged that his employer Creative Hairdressers was liable for allowing his former manager at a Hair Cuttery salon to sexually harass him. The United States District Court for the Southern District of Florida granted the employer’s motion for summary judgment, finding that there were no genuine issues of material fact that Hair Cuttery exercised reasonable care to prevent and correctly promptly any sexually harassing behavior, and that White unreasonably failed to take advantage of preventive or corrective opportunities or to avoid harm.

The Supreme Court in Faragher v. City of Boca Raton[2] and its companion case Burlington Industries, Inc. v. Ellerth[3] recognized certain affirmative defenses an employer can assert to preclude liability when an employee alleges sexual harassment by a supervisor.  Even if an employee establishes a prima facie case of sexual harassment, an employer can avoid liability under the Faragher/Ellerth defense if the employer shows (1) that it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to otherwise avoid harm. Both elements must be satisfied for the employer to avoid liability, and the employer bears the burden of proof on both elements.

In affirming District Court’s grant of summary judgment in favor of the employer, the 11th Circuit held that the Faragher/Ellerth defense applied to bar the employee’s claims under Title VII and the FCRA.  The Court recognized that the undisputed evidence demonstrated that Hair Cuttery had promulgated and adequately disseminated sexual harassment policies and complaint procedures to its employees.  Further, the court held that the employee failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and complaint procedures by not promptly notifying the company of his harassment.[4]

Failure to follow employer harassment policies can prevent a valid harassment claim.  If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York City, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.



[1] White v. Creative Hairdressers Inc., 11-16121, 2013 WL 203312 (11th Cir. Jan. 18, 2013)

[4] White v. Creative Hairdressers Inc. at 11-16121

 

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The Best Employment Lawyers in Connecticut and New York

Discrimination
Employment Discrimination Lawyers in New York and Connecticut
State and national laws protect employees from being subjected to discriminatory treatment and termination in the workplace because of the employee’s gender, race, age, national origin, religion, pregnancy, sexual orientation, or disability. If you have reason to believe that you have experienced discrimination on the job, you should contact Joseph C. Maya, Esq. right away. Mr. Maya has a national reputation for successfully handling employment discrimination matters. He can be contacted via e-mail at JMaya@Mayalaw.com or by dialing (203) 221-3100 in Connecticut or (212) 682-5700 in New York.

Laws Protect Employees from Sexual Harassment in the Workplace
These laws also protect employees from sexual harassment , a hostile work environment, and from being touched in an offensive manner in the workplace by supervisors, coworkers, or even clients. Employees have a right to stop discriminatory conduct in the workplace. If an employee tries to stop that conduct or notifies a supervisor that discriminatory conduct has occurred, that employee also has protection, under state and national laws, from retaliation by the supervisor or employer. In fact, any person who complains to his or her superior or employer has protection from the law against retaliation by his or her employer. If you feel you might be a victim of racial, gender, or sexual discrimination on the job, you should contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or by dialing him at (203) 221-3100 or (212) 682-5700. Let our experience guide you and protect your legal rights at work.
Serving Stamford, Greenwich, Norwalk and surrounding communities including Darien, New Canaan, Westport, Wilton & Weston; the greater Bridgeport area including Fairfield, Stratford, Monroe & Redding; the greater Danbury area including Ridgefield, Newtown & Bethel; and the communities surrounding Milford and New Haven. We also serve all of Westchester and New York Counties.

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