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Philip Baldessarre, and Valentina Baldessarre, On Behalf of Their v. Monroe-Woodbury Central School District

June 29, 2011


The opinion of the court was delivered by: Kenneth M. Karas, District Judge:


Philip and Valentina Baldessarre (collectively, "Plaintiffs") are the parents of Daniel Baldessarre ("Daniel"), a child in the Monroe-Woodbury Central School District ("the District") with a diagnosed disability.*fn1 Plaintiffs have sued the District, Daniel's former teacher, Claire Nalick ("Nalick"), and the District's Director of Pupil Personnel Services, Althea Schepperly ("Schepperly") (collectively, "Defendants"), asserting claims under Section 504 of the Rehabilitation Act of 1973 ("Section 504" or "Rehabilitation Act"), 29 U.S.C. § 701 et seq.,and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Nalick and Schepperly are sued only in their official capacities. Plaintiffs allege that Defendants discriminated against Daniel because of his disability when he was in kindergarten. Pending before the Court is Defendants' motion for summary judgment, which the Court is treating as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative, as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 14.)*fn2 Defendants argue that the Amended Complaint should be dismissed because Plaintiffs failed to exhaust their administrative remedies under the Individuals with Disabilities Education Act ("IDEA") and that the claims against Nalick and Schepperly should be dismissed for failure to state a claim. Plaintiffs argue that their claims fall within an exception to the IDEA exhaustion doctrine and thus exhaustion of administrative remedies was not required. Plaintiffs also maintain that their claims against Schepperly are viable, but agree that Nalick should be dismissed from the case. For the reasons stated herein, Defendants' motion is granted.

I. Background

The Court assumes the following facts, as alleged in the Amended Complaint, to be true for purposes of this motion.

A. Facts Daniel has been diagnosed with a speech impairment. (Am. Compl. ¶ 8.) When Daniel was two-years old, he was classified as a preschooler with a disability and "placed in a non-integrated 12:1:2 preschool class." (Id. ¶ 9.)*fn3 Plaintiffs allege that in April 2009, the District declassified Daniel at a Committee on Special Education ("CSE") meeting, terminated special education and related services, and placed Daniel in a regular classroom for kindergarten beginning in September 2009. (Id. ¶ 10.) According to Plaintiffs, the teaching style of Nalick, Daniel's kindergarten teacher, was "ineffective, inflexible, and ultimately exacerbated Daniel's difficulties" with socialization and academics. (Id. ¶ 11.) Plaintiffs claim that instead of convening a CSE to address Daniel's problems, the District "punished and suspended Daniel on a near daily basis." (Id. ¶ 12.)

The Amended Complaint does not mention whether an Individualized Education Program ("IEP") was ever created for Daniel.*fn4 However, the Amended Complaint does indicate that throughout Daniel's kindergarten year, several CSE meetings were held, and that issues as to the proper classification and placement of Daniel were frequently addressed. Plaintiffs allege that when they requested a CSE meeting on October 7, 2009, a subordinate of Schepperly indicated that a meeting could not be held until November and recommended placing Daniel in an Intensive Day Treatment ("IDT") program in the meantime. (Id. ¶¶ 15-16.) Plaintiffs refused such a placement and allege that they instead contacted the Superintendent of Schools, which resulted in a CSE meeting on October 14, 2009. (Id. ¶ 17.) Plaintiffs allege that at this meeting, Schepperly "unilaterally recommended that Daniel be classified as 'emotionally disturbed'" and insisted that Daniel should be removed from the school and placed in a segregated IDT or Board of Cooperative Educational Services ("BOCES") program. (Id. ¶¶ 13, 18.) Plaintiffs rejected both this classification and placement, maintaining that Daniel's problems were caused by Nalick's "refus[al] to accommodate Daniel's disability." (Id. ¶¶ 14, 18.)

During this time period, Plaintiffs allege that Daniel was evaluated by both his developmental pediatrician, Dr. Hugh Bases ("Dr. Bases"), and, at the request of the District, a psychiatrist, Dr. Richard Hahn ("Dr. Hahn"). (Id. ¶¶ 19, 21.) According to Plaintiffs, Dr. Bases concluded that although Daniel still had a speech impairment or articulation disorder and had developed "impulsive and oppositional behaviors," he "was not emotionally disturbed and should continue to receive services in a regular classroom with a 1:1 aide to assist him." (Id. ¶¶ 19-20 (emphasis in original).)*fn5 Dr. Hahn's report noted that Daniel had difficulties with attention, focus, impulsivity, and anxiety, but, according to Plaintiffs, also did not support the emotionally disturbed classification. (Id. ¶ 22.) Plaintiffs again rejected the emotionally disturbed classification and IDT placement on November 25, 2009. (Id. ¶ 23.)

Plaintiffs allege that at the next CSE meeting on December 7, 2009, the District continued to insist that Daniel was emotionally disturbed and should be placed in a segregated BOCES program. (Id. ¶¶ 25-26.) According to Plaintiffs, the District maintained this position despite a "lack of any support for its recommendation" and evidence presented at the meeting that Daniel's negative behavior in the classroom was caused by being required to undertake occupational therapy ("OT") tasks such as handwriting. (Id.)*fn6 Plaintiffs allege that when the CSE next convened on December 14, 2009: (1) the principal of the proposed BOCES program stated that he had agreed to conduct an intake of Daniel but had not determined whether the program was appropriate for him; (2) Nalick stated that she had spoken with Daniel's preschool teacher who indicated that Daniel had experienced similar difficulties with transitioning and tantrums at the beginning of preschool; and (3) Dr. Bases reiterated that Daniel could continue in his current setting with the "provision of necessary related services in speech and OT" and a 1:1 aide to assist him with transition issues. (Id. ¶¶ 27-31.) However, Plaintiffs claim that despite this evidence that Daniel simply "required more support to assist him in succeeding in a mainstream environment, [] Schepperly continued to press for Daniel's classification as 'Emotionally Disturbed,' his removal from his general education class and his placement in an out-of-district segregated class." (Id. ¶ 32.) Plaintiffs were accompanied at this meeting by their attorney, Mary Jo Whateley, who indicated that she would "invoke due process." (2010-2011 IEP at 2-3.)*fn7 However, there is no evidence that Plaintiffs did "invoke due process" at this, or any other, time and Plaintiffs have not alleged otherwise.*fn8

On January 7, 2010, the school psychologist convened an informal meeting between Mrs. Baldessarre and several school staff members "in an attempt to resolve Daniel's in-school behaviors." (Am. Compl. ¶ 33.) Plaintiffs allege that at this meeting, when Director of Special Education Eric Eulau ("Eulau") suggested that Nalick "could modify her responses to Daniel's behavior and not remove him from the classroom," Nalick purportedly "stated openly and unequivocally that she would not modify her teaching, 'even for one child with a disability.'" (Id. ¶¶ 34-35 (emphasis in original).) Plaintiffs further claim that the next day, Eulau contacted Mrs. Baldessarre to suggest that Plaintiffs consider changing Daniel's class "because of the staff's 'apparent taint against Daniel'" and, that at a meeting the following week, the school principal allegedly acknowledged that "Nalick was not 'the right match' for Daniel." (Id. ¶¶ 36-37.) According to Plaintiffs, they then agreed to remove Daniel from Nalick's class and place him in a different kindergarten class in early February 2010 because the District - rather than addressing Nalick's alleged "refusal to accommodate Daniel's disability" through training, supervision, or reprimand - told Plaintiffs that removal from the class was their only option. (Id. ¶¶ 38-39.)

Plaintiffs allege that on March 22, 2010, the District tried to "illegally" use IDEA procedures to remove Daniel from the school to an interim alternative education setting, despite evidence that he had improved in the new class and that his problematic behavior had decreased. (Id. ¶ 40.)*fn9 The Amended Complaint is not entirely clear, but it appears that an impartial hearing was scheduled to address this potential removal. Defendants claim that the District "initiated an expedited impartial due process hearing under IDEA to seek [Daniel's] temporary removal" from the school. (Answer to Am. Compl. ¶ 40.) Plaintiffs do not allege any facts that contradict Defendants' contention. Instead, Plaintiffs allege that at a resolution meeting on April 9, 2010,*fn10 the District and Plaintiffs agreed to postpone the scheduled hearing in order to allow time to see if Daniel's behavior continued to improve in the new class. (Am. Compl. ¶ 41.) In fact, Daniel's behavior did improve, which led the District to withdraw its due process complaint. (Id. ¶ 42.) Defendants also assert that Plaintiffs never requested an impartial hearing for any issue. (Eulau Aff. ¶ 6.)

Plaintiffs allege that prior to entering kindergarten, Daniel looked forward to school and was very interested in learning; however, while in Nalick's class, Daniel became sad and withdrawn, developed a negative view of himself, and now hates school. (Am. Compl. ¶¶ 43-46.) Plaintiffs assert that Daniel's statutory rights were violated because Schepperly was aware of Nalick's "ongoing discrimination against Daniel" but was "deliberately indifferent and intentionally hostile" in failing to rectify the discrimination. (Id. ¶¶ 47-48.) According to Plaintiffs, these alleged violations "deprived Daniel of educational opportunities available to other non-disabled students and to which he is entitled by law" and have isolated, distressed, and humiliated Daniel and Plaintiffs. (Id. ¶¶ 49-50.)

B. Procedural History

Plaintiffs filed their initial Complaint in this action on March 23, 2010. (Dkt. No. 1.) In their Complaint, Plaintiffs brought causes of action pursuant to the IDEA, the Rehabilitation Act, and the ADA - based on the same set of facts for each claim - and sought compensatory damages, compensatory education, an injunction prohibiting Defendants from discriminating against Daniel because of his disability, and attorneys' fees and costs. (Compl. ¶¶ 47-49; id. § V.) After the Parties appeared before the Court at a pre-motion conference on July 14, 2010, Plaintiffs submitted an Amended Complaint dated July 28, 2010. (Dkt. No. 18.)*fn11 The Amended Complaint only contains causes of action pursuant to the Rehabilitation Act and the ADA; Plaintiffs removed their IDEA cause of action. (Am. Compl. ¶¶ 52-68.) In their Amended Complaint, Plaintiffs seek an award of compensatory damages, attorneys' fees and costs, and to enjoin Defendants from engaging in discriminatory practices, including an order that Nalick receive education-related training and an order that Nalick and Schepperly both receive anti-discrimination and/or diversity training. (Id. § V.)

Defendants submitted an Answer to the Amended Complaint dated August 16, 2010. (Dkt. No. 19.)*fn12 In their Answer to the Amended Complaint, Defendants assert that the Court lacks subject matter jurisdiction because Plaintiffs failed to either exhaust their administrative remedies under the IDEA or demonstrate that exhaustion would be futile (Answer to Am. Compl. ¶ 5), and also assert, as an affirmative defense, that Plaintiffs' claims are barred by this failure to exhaust, (id. ¶¶ 70-72). On October 22, 2010, Defendants filed the instant motion for summary judgment, which as already explained, the Court is treating as a motion to dismiss for lack of subject matter jurisidction or, alternatively, as a motion for judgment on the pleadings. (Dkt. No. 14.) The Court held oral argument on Defendants' motion on May 18, 2011. (Dkt. No. 16.)

II. Discussion

A. Standard of ...

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