FAIRFIELD — Three minority students at Fairfield High School – arrested after a brawl last February in the school’s parking lot –plan to sue the town, claiming they were singled out for arrest because of their race and ethnicity. Continue Reading
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.
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. 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. 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.
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.” 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.
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). 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. 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,” or responded with remedial action only after a “lengthy and unjustified delay.”
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.” 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.
 KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 12 CIV. 2200 ER, 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013)
 Compl.¶¶ 10-11
 Compl.¶¶ 12-13
 Compl.¶¶ 14
 Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681(a)
 Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir.2007)
 Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir.2003)
 KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist.
Here in Connecticut and across the nation, employees from all walks of life routinely face unlawful discriminatory practices and treatment in the workplace. Depending on the nature of the claim, he or she may file civil lawsuits under Title VII (which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin) or the Connecticut Fair Employment Practices Act (CFEPA).
However, employees need to keep in mind that before they seek recourse with the courts, they must first exhaust all of their administrative remedies. “The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action.” Failure to do so will result in dismissal of the case (see, for example, this previously-discussed case).
Furthermore, employees must pay attention to statutory time restrictions for filing administrative charges under Title VII and CFEPA:
To sustain a claim for unlawful discrimination under Title VII in a deferral state such as Connecticut, a plaintiff must file administrative charges with the EEOC [Equal Employment Opportunities Commission] within 300 days of the alleged discriminatory acts. … CFEPA requires that a complainant file the administrative charge with the CCHRO [Connecticut Commission on Human Rights and Opportunities] within 180 days of the alleged discriminatory act.
Courts are particularly cognizant of these requirements and endorse “strict adherence… [as] the best guarantee of the evenhanded administration of the law.” As a result, the time bar will begin running for each individual adverse employment action against the employee on the date it occurred. Failure to timely file a claim may prevent it from being reviewed by the EEOC or CCHRO.
However, employees often endure discriminatory practices over a prolonged period of time, so even if alleged conduct falls outside of the charging period, it may be reviewable. An important exception to strict adherence is the continuing violation exception, which involves incidents occurring both within and outside the time bar. A continuing violation occurs “where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.”
As an employee, it is imperative that you understand Connecticut’s statutory scheme surrounding hiring, evaluation, and termination processes, as well as the requirements for filing a lawsuit under State and federal anti-discrimination law. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions regarding any employment law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d. Cir. 1985).
 Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000).
 Connecticut General Statutes § 46a-82e.
 Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).
 Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
Most people who have lived for some period of time here in Connecticut are amply familiar with the Lady Huskies and Lady Vols fierce decade-long rivalry. Before regular season matches discontinued five years ago, these games were the highlight of the season. Thus, fans have come to form a love-hate relationship with Pat Summitt, Head Coach of the Lady Vols who has the most wins of any (both male and female) NCAA basketball coach. It came as a shock to hear on April 18, 2012, after thirty-eight years of coaching, Summitt would be retiring from her post after being diagnosed with early-onset dementia-Alzheimer’s disease just before the start of the 2011-2012 season. “I’ve loved being the head coach at Tennessee for 38 years, but I recognize that the time has come to move into the future and to step into a new role,” explained Summitt.
As it turns out, the decision may not have been entirely that of Summitt.
In a recently released affidavit, Summitt revealed that on March 14, 2012, she met with the University of Tennessee (UT) Athletics Director David Hart, who informed her that she would no longer be the coaching the Lady Vols. Summitt further explained:
This was very surprising to me and very hurtful as that was a decision I would have liked to have made on my own at the end of the season after consulting with my family, doctors, colleagues, and friends and not be told this by Mr. Hart. I felt this was wrong.
UT spokeswoman Margie Nichols denied allegations that Summitt was forced out of her position. “It’s absolutely not true… It was Pat’s idea to become the head coach emeritus. I think she made that really clear at her press conference earlier this year.” Regardless, this leaves many asking: was Summitt forced to resign because of her disability?
Under Connecticut law, employees enjoy a very comprehensive statutory scheme (found here) prohibiting discriminatory practices in the workplace. Unless the employer and its agents (such as administration or management) have a “bona fide occupational qualification or need,” it is a violation of the General Statutes:
To refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.
In addition, employees enjoy federal protection of their rights through such legislation as the Americans with Disabilities Act, the Rehabilitation Act, and the Family Medical Leave Act, to name just a few.
Discrimination on the basis of disability or another protected class is unfortunately a common occurrence in the workplace, but its prevalence in no way makes it lawful. If you are a teacher, coach, or any employee and you find yourself being the target of adverse employment action on any of the above bases, it is imperative that you consult an experienced and knowledgeable school or employment law practitioner. Should you have any questions regarding employment discrimination or other education law or employment law matters, 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 (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
 “Pat Summitt’s Early-Onset Dementia: Lady Vols Coach Resigns Less Than A Year After Diagnosis.” Published April 18, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/04/18/pat-summitt-dementia-early-onset-alzheimers-memory_n_1435380.html
 “Affidavit of Coach Pat Head Summitt.” Accessed October 5, 2012: http://www.documentcloud.org/documents/452632-pat-summitts-affidavit.html
 “Pat Summitt Affidavit: Ex-Tennessee Coach Initially Felt Forced Out Of Job Over Early-Onset Dementia,” by Steve Megargee. Published October 3, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/10/04/pat-summitt-affidavit-tennessee-coach-job_n_1937730.html
 Connecticut General Statutes § 46a-60(a). Accessed October 5, 2012: http://www.cga.ct.gov/current/pub/chap814c.htm#Sec46a-60.htm
I’m struggling to stay in this world, because everything just touches me so deeply. I’m not doing this for attention. I’m doing this to be an inspiration and to show that I can be strong. I did things to myself to make pain go away, because I’d rather hurt myself then someone else. Haters are haters but please don’t hate, although im sure I’ll get them. I hope I can show you guys that everyone has a story, and everyones future will be bright one day, you just gotta pull through. I’m still here aren’t I ?
In a heart-wrenching video posted to YouTube five weeks ago, 15-year-old Amanda Todd revealed to the world the bullying, abuse, teasing, and ridicule she endured on a daily basis by her peers at school and on the Internet. At the end of her nearly 9-minute index card confession, she simply wrote: “I have nobody… I need someone L My name is Amanda Todd…”
On October 10, 2012, Amanda took her own life.
Over the past couple of weeks, a colleague and I have gone into fourth gear posting articles regarding bullying and, as I’ve described it before, its technological brother, cyberbullying. Nearly three out of every four students face some form of bullying, with 5-15 percent characterized as “chronic victims.” Though nearly every State has some form of anti-bullying legislation, many have questioned its effectiveness and sources: to quote Jennifer Livingston of CBS WKBT, “this behavior is learned… We need to teach our children to be kind, not critical, and we need to do that by example.” A Canadian social psychologist described Amanda’s death as the consequence of “a generation [raised to be] passive bystanders,” indicating the problem as one of community rather than institution. Thus, despite the laws on the books, bullying tactics will undoubtedly remain pervasive and claim more victims.
Bullying and its impact on children and young adults is no joke, and both the short- and long-term effects can be devastating. We need only remember Tyler Clementi, Phoebe Prince, Megan Meier, and now Amanda Todd as harsh, stark reminders of this lesson. As a parent, it is imperative that your child understands that he or she ought not view their self-worth through the eyes of their tormentors.
Should you have any questions regarding school bullying or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.
By Lindsay E. Raber, Esq.
 “Bullied teen Amanda Todd took her own life, B.C. Coroners Service confirms,” by Tiffany Crawford. October 12, 2012: http://www.vancouversun.com/life/Bullied+teen+Amanda+Todd+took+life+Coroners+Service+confirms/7381793/story.html
 “Star brother Ron Livingston defends ‘fat’ anchor sister, Jennifer,” by News Limited Network. October 5, 2012: http://www.news.com.au/entertainment/celebrity/tv-anchor-jennifer-livingston-takes-on-bully-who-criticised-her-weight/story-e6frfmqi-1226488835303
 “Bullying victim Amanda Todd’s death a consequence of ‘passive bystanders,’ says expert,” by Misty Harris. October 12, 2012: http://www.calgaryherald.com/news/national/Bullying+victim+Amanda+Todd+death+consequence+passive/7382674/story.html
 See Footnote 4.
SEPTEMBER 20 @ 1:00 PM – 2:30 PM
Lauren A. Jacobson, Esq. and Robert G. Brody, Esq. will be presenting “New Laws Impacting Connecticut Employers – What you Need to Know” for the Fairfield County Bar Association.
About the Program
The Connecticut General Assembly recently enacted a number of significant employment laws at the end of its recent regular and special sessions that will dramatically affect our state. This program will highlight the most prominent legislation passed, and provide important updates on what employers need to know. Topics will include, among others:
- Mandatory Salary Range Disclosure for Applicants and Employees
- New Sex Wage Discrimination Standard: Moving from “Equal” to “Comparable” Work
- Covid Recall-by-Seniority Law for Certain Employees Laid Off in the Hotel, Food Service and Building Service Industries
- New Workplace Rules for Regulating Recreational Marijuana
- New Breastfeeding Guidelines
- The CROWN ACT- “Creating A Respectful And Open World For Natural Hair” – Protection Again Discrimination Based on Race-Based Hair Styles
Click here to register.
A Bronx school employee is suing the Board of Education for $100 million for employment discrimination – saying she was denied a transfer, even though officials knew she was being harassed by her boss. Continue Reading
The city’s Board of Education settled a discrimination and retaliation lawsuit brought by a former Bronx School Board employee last week for $100,000. Continue Reading
Is a Bonus a ‘Wage’?: Not According to a Recent Connecticut Supreme Court Decision
Are you currently employed in Connecticut and have been promised a year-end bonus or had been promised a year-end bonus and never received it? A recent Connecticut Supreme Court decision may affect the amount of protection you are afforded under Connecticut law if your employer defaults or has defaulted on that promise.
This recent case addressed the question of whether a year-end bonus promised by an employer is considered a ‘wage’ for the purposes of the Connecticut Wage Act. Answering that question in the negative, the Supreme Court denied a Connecticut employee the ability to proceed with a wrongful withholding of wages claim that he had initially pursued after his employer failed to pay out what the employee had thought to be a promised year-end bonus.
Under this decided Supreme Court case, the amount of liability your employer will face for failing to pay out a promised year-end bonus will hinge upon how your employer defined the conditions under which a bonus would be paid. If the conditions are specific goals set for you as an individual employee (e.g. a certain number of billable hours need to be reached), then under the Connecticut Wage Act your employer will be required to pay out that bonus as wages in accordance with their promise. If they do not, you are afforded the protections of the Wage Act and can bring an action against your employer for wrongfully withholding wages. If successful, it is possible that you could receive, by way of damages, twice the full amount of your bonus and any attorney fees incurred in pursuing the action. In addition, due to the serious nature of such an offense, your employer could potentially be fined and/or imprisoned for their actions.
Unfortunately, however, if your employer was more ambiguous about the requisite conditions for a bonus, under this new case law, it is likely that they will be able to avoid liability for wrongfully withholding your wages. If that is the case, while you can still pursue other causes of action against your employer, you will not be able to receive twice the full amount of your bonus or attorney fees.
The events of this recently decided case unfolded as follows: At the beginning of the employment relationship between an employee and a Connecticut law firm, the parties agreed that the employee’s annual compensation would consist of a base salary and a year-end bonus. The employment contract called for this year-end bonus to be based on factors such as seniority, business generation, productivity, professional ability, pro bono work, and loyalty to the firm. The employee remained at the firm for several years and each year he received his salary and the promised year-end bonus. When the employee left the firm he discovered that he was not going to receive the year-end bonus for that last year of his employment. To try and recover what he had thought was a promised bonus; the employee commenced an action against his employer alleging breach of contract and wrongful withholding of wages.
The trial court dismissed the wrongful withholding of wages claim, determining that the year-end bonus was not ‘wages’ as defined by the Connecticut Wage Act. The breach of contract claim, however, went to trial. The Trial Court found in favor of the employee and awarded him damages in the amount of his year-end bonus plus interest. On appeal, the Appellate Court upheld the Trial Court’s finding as to the breach of contract claim but reversed the Trial Court’s decision to dismiss the wrongful withholdings of wages claim. The Appellate Court determined that the structure of the agreement as to the year-end bonus meant that the bonus could have been classified as ‘wages’ under the Connecticut Wage Act and therefore held that the employee could proceed with his wrongful withholding of wages claim.
The issue of the wrongful withholdings of wages claim was appealed to the Connecticut Supreme Court where the Court decided that because the employee’s bonus was discretionary, (not ascertainable by applying a formula) it did not constitute ‘wages’ under the Connecticut Wage Act. The employee, therefore, was not able to proceed with his wrongful withholding of wages claim.
Although the employee did recover some monetary damages through his breach of contract claim, it was not anywhere near as much as he would have received if he had been able to proceed with his wrongful withholding of wages action.
It is quite possible that after the release of this opinion many employers will revisit their bonus policies to make the language a little less precise or announce that their bonuses are discretionary in order to take advantage of the protections afforded under this recent case. It is important, therefore, that as an employee you are aware of what kind of bonus you have been promised so that you know how strongly to rely on that promised bonus and what options are available to you if the employer refuses to pay.
If you have already been denied your year-end bonus and believe that it was a discretionary bonus, there are still ways in which you can potentially recover that lost income, such as the breach of contract claim pursued by the employee in this recent case. If you have been denied a year-end bonus that was not discretionary and you had met the required conditions for receiving that bonus, you are still protected under the Connecticut Wage Act and can bring a wrongful withholding of wages action against your employer. This action may allow you to receive damages in the amount double your bonus and possibly receive any incurred attorney fees.
If you have any questions regarding employment and labor law in Connecticut, please contact Joseph C. Maya, Esq. He can be reached at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com. Mr. Maya handles cases involving employment contracts, separation agreements, non-competition agreements, restrictive covenants, union arbitrations, and employment discrimination cases in New York and Connecticut.
Keywords: annual compensation, bonus, breach of contract, Supreme Court, Connecticut Wage Act, employment contract, liability, non-compete, non-solicit, wage, wages, 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, New Canaan, New Haven, Bridgeport, Stamford, Darien, Greenwich, Westport, Weston, Fairfield, Maya Murphy
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.” Furthermore, the report states that “[m]ore than 900,000 U.S. high school students reported being cyberbullied in one year.” According to the U.S. Department of Justice, “Bullying may be the most underreported safety problem in American schools.”
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.”
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.” 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.”
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. 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.” 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.
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.”
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.”
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. 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.
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.
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.
III. Other Legal Issues Relating to Cyberbullying
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.” 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 . . ..”
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.” In order for liability to be imposed, the conduct must exceed “all bounds usually tolerated by decent of a very serious kind.”
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.” It should be noted that “mere insults, indignities, threats, petty oppressions, or other trivialities” will not give rise to a successful IIED claim.
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.
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.
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].” 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. 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.
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. 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.
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. 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.”
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.” 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.”
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.
 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).
 Bullying: Legislative Changes, Texas Assc. of School Boards, Legal Servs., available at http://www.tasbrmf.org/training/conference/documents/2012conference_handouts/bullying.pdf.
 Conn. Gen. Law §10-222d(a)(1)
 Estate of Girard v. Town of Putnam, 2011 Conn. Super. LEXIS 306 (Conn. Super. Ct. Jan. 28, 2011).
 Rigoli v. Town of Shelton, 2012 Conn. Super. LEXIS 349 (Conn. Super. Ct. Feb. 6, 2012).
 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).
 Public Act No. 11-232.
 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).
 Conn. Gen. Stat. §53a-181j.
 Conn. Gen. Stat. §53a-181k.
 Conn. Gen. Stat. §52-571c.
 Conn. Gen. Stat. §53a-62.
 Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217 (2004).
 Andrew S. Kaufman, Cyberbullying and Intentional Infliction of Emotional Distress, 245 New York Law Journal 27, Feb. 9, 2011.
 Peytan v. Ellis, 200 Conn. 243 (1986).
 Id., quoting Prosser & Keeton, Torts, 5th ed. 12, page 60.
 Whelan v. Whelan, 41 Conn. Sup. 519, 522 (1991).
 Restatement 2d.
 Gasper v. Sniffin, 2003 Conn. Super. LEXIS 1363 (Conn. Super. Ct. May 6, 2003).
 Brodsky v. Trumbull Bd. Of Educ., 2009 U.S. Dist. LEXIS 8799, at *28 (D. Conn. Jan. 30, 2009).
 Scruggs v. Meriden Bd. Of Educ., 2007 U.S. Dist. LEXIS 58517, 67-68 (D. Conn. Aug. 7, 2007).
 Esposito v. Town of Bethany, 2010 Conn. Super. LEXIS 1050, at *1 (Conn. Super. Ct. May 3, 2010).
 Dornfried v. Berlin Bd. of Educ., 2010 Conn. Super. LEXIS 2537 (Conn. Super. Ct. Oct. 4, 2010).
 Id., at *8.
 Law Offices of Frank N. Peluso, P.C. v. Rendahl, 2012 Ct. Sup. 2356 (Aug. 15, 2012).
 Jacqueline Rabe, New Conn. ‘Cyberbullying’ Law Prompts Free Speech Debate, Law Technology News (Sept. 7, 2011).
 Sandra Staub, Written Testimony Opposing Raised Bill No. 1138 An Act Concerning the Strengthening of School Bullying Laws.
 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999).