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Parent and Student v. Pittsford Central School District

United States District Court, W.D. New York

February 17, 2017

PARENT and STUDENT, Plaintiffs,
PITTSFORD CENTRAL SCHOOL DISTRICT, MICHAEL PERO, Superintendent of the Pittsford Central School District, KARL THIELKING, Principal of Pittsford Mendon High School, LAURA HEFNER, Assistant Principal of Pittsford Mendon High School, MICHAEL LEONE, Pittsford Central School District Human Resource Officer, and ANDREW BELLUSH, formerly a teacher at Pittsford Mendon High School, Defendants.

          For Plaintiff: R. Brian Goewey, Esq. Law Office of R. Brian Goewey, Esq.

          For Defendants: Michael P. McClaren, Esq. Jeremy A. Colby, Esq.


          CHARLES J. SIRAGUSA United States District Judge


         Plaintiffs maintain that Defendants discriminated against Student, a former high school student, in violation of federal disability statutes, and also committed various torts under New York State Law. Now before the Court is Defendants' motion to dismiss the Amended Complaint, for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1), and for failure to state a claim, pursuant to FRCP 12(b)(6). The application is granted, and all of Plaintiffs' claims are dismissed without prejudice.


         Unless otherwise noted, the following facts are taken from the Amended Complaint. At all relevant times, Student was a high-school student at defendant Pittsford Central School District, with an alleged disability. According to the Amended Complaint, Student “had a 504 Plan that was designed to accommodate Student's impairments.”[1] However, the Amended Complaint never describes either the disability or the contents of the 504 Plan, alleging instead that such information is “protected information from public disclosure” under HIPAA, FERPA, “and other statutes.” Consequently, the Court has before it a lawsuit based on an alleged failure to accommodate a disability, and an alleged violation of a Section 504 Plan, where neither the disability nor the Section 504 Plan is explained.[2] Indeed, the only informative statements in the Amended Complaint concerning either the alleged disability or the 504 Plan are that the 504 Plan “acknowledge[d] that Student's learning and social functions [were] impacted by Student's impairments, ”[3] that Student had a “504 Plan Tutor, ”[4] and that Defendants' actions caused Student “distress, ” which was “exacerbated by” Student's unspecified impairments.[5]

         Against this vague backdrop, Plaintiffs allege that Defendants mis-handled an employee disciplinary matter in such a way that it caused Student to experience emotional distress. More specifically, the Amended Complaint alleges that Parent became aware that defendant Andrew Bellush (“Bellush”), a high-school English teacher employed by the Pittsford School District, had posted a video on his personal Facebook page, in which he appeared to be intoxicated. At the time, Student was enrolled in Bellush's 10th grade English class. Parent learned about the video after Parent overheard Student's friends talking about the video. Parent discreetly emailed Bellush about the video, and suggested that he ought to consider removing it from his Facebook page, as it was being viewed by students. Shortly thereafter, Parent sent Bellush a second email message, asking Bellush to refrain from telling Student, who was enrolled in Bellush's English class, that Parent had notified him about the video, since “Student had certain impairments resulting in a 504 Plan, ” and the knowledge that Parent had contacted Bellush about the Facebook video “would exacerbate Student's impairments.”[6]

         Bellush responded by taking a screen-shot of Parent's initial email message, and placing it on his Facebook page, evidently to mock Parent's suggestion. That is, Bellush published the message suggesting that he remove the video from his Facebook page, which included Parent's name; he did not publish the second message, which referred to Student's alleged disability. Parent was unaware that Bellush had published the email. Subsequently, approximately three months passed, during which Parent apparently gave no further thought to the matter.

         However, after that passage of time, Student was told, by classmates who had viewed Bellush's Facebook page, that Bellush had published Parent's email message on the Facebook page. Student experienced a “panic attack” over the matter, and notified Parent of what Bellush had done. Parent contacted the school, which suspended Bellush for one week. In reaction to Bellush's suspension, “several” unnamed classmates “confronted and blamed Student for Bellush's absence from school.”[7]

         Student “felt betrayed” by Bellush's actions, and “experienced emotional distress that was exacerbated by Student's [unspecified] impairments.”[8] Consequently, Student became upset at the prospect of being in Bellush's classroom after he returned from his suspension, and Parent communicated that fact to school officials. Parent requested a meeting to discuss the matter, and on March 21, 2014, Parent and Student's therapist met with administrators and staff at the High School, including defendant Assistant Principal Laura Hefner and the school psychologist. Parent indicated that Student was experiencing “extreme distress” at the thought of Bellush returning to school, and Student's therapist opined that Student “should not have to return to Bellush's class.”[9] In response to those concerns, school administrators offered Student “two alternatives” -- “either return to Bellush's class or transfer to the other 10th grade English class.”[10] Plaintiff's do not claim that there was any appreciable qualitative difference between the two English classes.

         Nevertheless, Plaintiffs maintain that “[t]ransferring to the other 10th grade English class would have required Student to change Student's schedule which would have been disruptive to Student, ” and would have “exacerbated Student's mental distress due to Student's impairments.”[11] Specifically, the Amended Complaint states that switching classes “would have reinforced Student's peers' perception that Student and Parent were responsible for Bellush's suspension since Student would no longer be in Bellush's English class.”[12] In sum, Student was worried that switching classes would draw negative attention to her from classmates.

         Parent and Student discussed the matter with Student's therapist, who “advised that remaining in Bellush's class was the better of the two options[.]”[13] Consequently, Plaintiffs chose to have Student remain in Bellush's class. Neither Parent, Student nor the therapist requested any additional options at that time, nor did they claim that the School District was required to offer additional options based upon Student's 504 Plan. Indeed, the Amended Complaint admits that the 504 Plan was not discussed at the meeting.[14]

         Upon Bellush's return to school, he made a statement to Student's English class, that “I won't try to ruin your life like you tried to ruin mine.”[15] Bellush directed the comment to the class, and not to Student personally. Nevertheless, Student “understood” Bellush's comment as “Bellush's way of blaming Student for his suspension.”[16] Following Bellush's statement to the class, Student experienced additional “severe emotional distress” and feelings of betrayal by Bellush. Without providing an actual date, the Amended Complaint alleges that “after a while, ” Student “stopped attending [Bellush's] class.”[17] In May 2014, the high school provided an English tutor for Student, and Student completed the course with a grade of 96.[18]

         On June 18, 2015, Plaintiffs commenced this action. The Amended Complaint purports to state eight separate causes of action: 1) denial of a “free appropriate public education” (“FAPE”) in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), based upon the School District's failure to provide an English tutor, rather than merely giving Student the option of either staying in Bellush's class or moving to the other English class; 2) violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § § 12131-34, based on the School District's discrimination against Student on the basis of a disability, “in not providing a tutor for 10th grade English”; 3) negligence under New York State law, based upon the School District's breach of duty in “not providing Student with a tutor” after allowing Bellush to return to work; 4) negligence under New York State law, based on the School District's negligent hiring and supervision of Bellush; 5) “negligence” based on the School District's violation of a “statutory duty” under Section 504 of the Rehabilitation Act, by failing to consider the impact that Bellush's return might have on Student, who had a 504 Plan, and by failing to modify Student's 504 Plan; 6) “negligent infliction of emotional harm” based upon Bellush's misconduct and the School District's failure to modify Student's 504 Plan; 7) “violation of civil rights under 42 U.S.C. § 1983, ” based upon the School District's violation of Section 504 and the ADA, with “deliberate indifference, ” by allowing Bellush to return to his job and by not offering Student an English tutor; and 8) a claim for money damages by Parent, resulting from the School District's failure to provide Student with a FAPE.

         On August 1, 2016, Defendants filed the subject motion (Docket No. [#36]) to dismiss the Amended Complaint. Defendants first contend that all of Plaintiffs' federal claims must be dismissed for lack of subject-matter jurisdiction pursuant to FRCP 12(b)(1), since Plaintiffs failed to exhaust their administrative remedies before commencing this action. Alternatively, Defendants claim, pursuant to FRCP 12(b)(6), that Plaintiffs' claims fail as a matter of law. Plaintiffs oppose the application.[19] On January 25, 2017, counsel for the parties appeared before the undersigned for oral argument.[20]


         Defendants' motion is made pursuant to both FRCP 12(b)(1) and FRCP 12(b)(6). With regard to the 12(b)(1) application to dismiss for lack of subject-matter jurisdiction, the standard to be applied in pertinent part is as follows:

In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction. But where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.

Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citations and internal quotation marks omitted).

         With regard to Defendant's motion to dismiss for failure to state a claim, the general legal principles concerning motions under FRCP 12(b)(6) are well settled:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative ...

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