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Firestone v. Berrios

United States District Court, E.D. New York

January 22, 2013


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For Plaintiffs: Ross Merrit Gerber, Esq., Of Counsel, Minerva & D'Agostino, P.C., Valley Stream, NY.

For Dr. Jean Kendall, Defendant: Paul F. Callan, Esq., Stephen James Barrett, Esq., Of Counsel, Callan, Koster, Brady & Brennan, LLP, New York, NY.

For Board of Education of the Manhasset Union Free School District and the Manhasset Union Free School District, Defendants: Steven C. Stern, Esq., Mark A. Radi, Esq., Of Counsel, Sokoloff Stern, Carle Place, NY.

Victor Berrios, Defendant, Pro se, Bellport, NY.

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ARTHUR D. SPATT, United States District Judge.

The present action was initiated by the Plaintiffs Lisa Morales Firestone (the " Plaintiff" or " Firestone" ) and her husband Scott Craig Firestone in state court, which was subsequently removed to this Court by the Defendants--the Board of Education of the Manhasset Union Free School District (the " Board" ) and the Manhasset Union Free School District (collectively the " municipal Defendants" ), Dr. Jean Kendall (" Dr. Kendall" ), and Victor Berrios (" Berrios" ). Presently before the Court are four separate motions: (1) a motion to dismiss the Plaintiff's claims, filed by the municipal Defendants; (2) a motion for judgment on the pleadings, filed by Dr. Kendall; (3) a cross-motion to compel the Court to reinstate a Title IX claim, filed by the Plaintiff; and (4) a motion to dismiss Dr. Kendall's cross-claims, filed by the municipal Defendants. For the reasons set forth below, the motion to dismiss the Plaintiff's claims is denied; the motion for judgment on the pleadings is granted in part and denied in part; the cross-motion to compel is denied; and the motion to dismiss the cross-claims is granted.


A. Factual Background

The Plaintiff Lisa Morales Firestone is a kindergarten teacher at the Munsey Park Elementary School (the " School" ) in the Manhasset Union Free School District (the " District" ). (Am. Compl., ¶ 9.) She has been employed there since 2000. The Defendant Victor Berrios was a custodian at the Munsey Park Elementary School. However, he was not working at the time of the incidents set forth in the complaint because he was on Workers' Compensation leave. (Am. Compl., ¶ ¶ 3-4.) The Defendant Dr. Kendall is the principal of the School. According to the Amended Complaint, Dr. Kendall is intimately involved with the selection and retention of staff and also supervises and controls employee work schedules and conditions of employment. (Am. Compl., ¶ ¶ 13, 102.)

According to the Plaintiff, Berrios sent her two " suggestive/provocative emails" . (Am. Compl. ¶ ¶ 17-21.) The first email, dated February 17, 2010, contained the following statements: " mi amore; " " Hey, I miss you girl," and " Love you girl." (Am. Compl., ¶ 19.) While the Amended Complaint does not specifically allege that Firestone reported this email to anyone, it asserts that it was sent over the District's email system which " could be accessed by an Administrator." (Am. Compl., ¶ 20.)

The second email was received on March 2, 2010. The Plaintiff alleges that this latter email stated: " I guess you don't love me anymore because I only have one arm, but let me tell you that I don't need two hands to make you, happy OK. I could have you jumping with just one. Well I'm doing ok this Thursday I start my Therapy and hopefully I'll be in your arms and you be eating my special P.R. meals that you like so much. Feel free to right (sic) to me whenever. My regards to all my Kindergarten Teachers. Hope to see you

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soon. Love Victor." (Am. Compl., ¶ 21.) She found this email inappropriate and began to fear for her personal safety. (Am. Compl., ¶ 20-22.)

The Plaintiff reported this email on the following day, March 3, 2010. (Am. Compl., ¶ 23.) In particular, she forwarded the email to her Principal, the Defendant Dr. Kendall. As a result of this complaint, on March 3, 2010, the Plaintiff had two meetings with Dr. Kendall regarding the communications from Berrios. She allegedly told Dr. Kendall at that time that something " had to be done", although she did not want her name to be used in connection with any action against Berrios. (Am. Compl., ¶ ¶ 24, 25.) The Plaintiff specifically alleges that she told Dr. Kendall that she was frightened and concerned that Berrios would appear at the school. The Plaintiff further contends that despite showing the March 2nd email to Dr. Kendall, " neither the defendant, Dr. Jean Kendall, nor any other administration officials of the defendant, School District, nor the Board of Education took any appropriate action to put in a plan to protect the plaintiff, Lisa Morales Firestone, or to assuage any of her concerns regarding the sexually suggestive/provocative emails from the defendant, Victor Berrios." (Am. Compl., ¶ 26.)

On March 4, 2010, the Defendant Berrios, who " despite being on Worker's Compensation Leave," and who " had no justification to being present at the school", entered the Plaintiff's classroom and allegedly sexually assaulted her. (Am. Compl., ¶ 30.) Firestone claims that the District, the Board, and Dr. Kendall " failed to take appropriate measures to protect the plaintiff ...." (Am. Compl., ¶ 33.)

B. Procedural History

The Plaintiff initially filed this action in the Supreme Court, Nassau County, on June 1, 2011, asserting causes of action against the Defendants under New York State law based on negligence/failure to protect; assault and battery; acquiescence and improper investigation into the battery; sexual harassment pursuant to N.Y. Exec. Law § 296 (the " Human Rights Law" ); and that the District failed to follow its own sexual harassment policy. The Plaintiff's husband, Scott Craig Firestone, also asserted a derivative cause of action based on the alleged loss of service of his wife.

On June 19, 2011, the municipal Defendants moved to dismiss the state court action on the grounds that: the case was filed after the one-year statute of limitations expired for the Plaintiff's intentional tort and Human Rights Law claims; the Court lacked subject matter jurisdiction, as the notice of claim only asserted a claim based upon failure to provide a safe workplace and none of the other causes of action; the municipal Defendants had no duty to protect the Plaintiff; the municipal Defendants are entitled to discretionary immunity under state law; the action was precluded by the Workers' Compensation bar; the purported violation of the District's sexual harassment policy was not a legally cognizable claim; Scott Firestone's derivative claims failed for the same reasons as his wife's claims; and punitive damages are not available against a school district or board of education.

In response to this motion to dismiss, the Plaintiffs withdrew all of the prior claims, and cross-moved to amend the complaint to assert new, federal causes of action against the Defendants. Specifically, the Plaintiffs requested leave to amend the complaint to include two Fourteenth Amendment claims, pursuant to 42 U.S.C. § 1983, both asserting a violation of the Equal Protection Clause; a Title IX claim based on alleged sexual harassment; and a

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derivative claim on behalf of Scott Firestone. The proposed amended complaint also included a cause of action against co-defendants Dr. Kendall and Berrios for violations of the Human Rights Law.

On January 12, 2012, Nassau County Supreme Court Justice Anthony L. Parga acknowledged the voluntary dismissal of the Plaintiffs' claims that were set forth in the original complaint. He also granted their motion to amend the complaint to include the Section 1983 claims against the municipal Defendants and Human Rights Law claims against co-defendants Dr. Kendall and Berrios. However, Justice Parga denied the motion to amend the complaint to include a Title IX claim and dismissed Scott Firestone's derivative claims. Consequently, the only claims that remain are Plaintiff Lisa Morales Firestone's Fourteenth Amendment Equal Protection claims against the Defendants and her Human Rights Law claims against Dr. Kendall and Berrios. In this vein, the Defendants submit that the caption should be amended to remove Scott Craig Firestone's name, as he is no longer a plaintiff in this case.


A. Legal Standard

In general, " the standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006).

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is " plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. Harris v. Mills, 572 F.3d 66 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

" First, although 'a court must accept as true all of the allegations contained in a complaint,' that 'tenet' 'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Id. at 72 (quoting Iqbal, 129 S.Ct. at 1949). " 'Second, only a complaint that states a plausible claim for relief survives a motion to dismiss' and '[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 129 S.Ct. at 1950). Thus, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and . . . determine whether they plausibly give rise to an entitlement of relief." Iqbal, 129 S.Ct. at 1950.

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the Plaintiff's favor. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir. 2007). Only if this Court is satisfied that " the complaint cannot state any set of facts that would entitle the plaintiff to relief will it grant dismissal pursuant to Rule 12(b)(6)" . Hertz Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir. 1993). The issue on a motion to dismiss is " not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (quoting

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Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 ...

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