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Yennard v. Boces

United States District Court, N.D. New York

March 14, 2017

HERKIMER BOCES; SARA NICOLETTE, Adult Vocational Nursing Programs Coordinator; LESA STEELE, Nursing Instructor; and MARY KLINE, Dir. of Adult and Cmty. Outreach Educ., Defendants.

          SADOWSKI KATZ LLP Counsel for Plaintiff.

          OFFICE OF FRANK W. MILLER Counsel for Defendants.




         Currently before the Court, in this disability discrimination action filed by Autumn Yennard ("Plaintiff") against Herkimer BOCES, Sara Nicolette, Lesa Steele, and Mary Kline (collectively, "Defendants"), are Defendants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Dkt. No. 21), and Plaintiff's cross-motion for leave to file an Amended Complaint pursuant to Fed.R.Civ.P. 15(a) (Dkt. No. 30). For the reasons set forth below, Defendants' motion is granted in part and denied in part, and Plaintiff's cross-motion is granted in part and denied in part.


         A. Plaintiff's Complaint

         Generally, in her Complaint, Plaintiff alleges as follows. (Dkt. No. 1 [Plf.'s Compl.].)

         1. General Background Regarding Plaintiff

         Plaintiff suffers from bipolar disorder, a "lifelong illness" defined by "[e]pisodes of mania and depression" that "typically come back over time." (Id. at ¶¶ 15, 17.) Common symptoms experienced by individuals with bipolar disorder (which is also sometimes referred to as "manic depression") include "[d]epressed mood, " "[p]oor concentration or having difficulty making decisions, " and "[t]hinking about death or suicide." (Id. at ¶ 16.) Plaintiff was diagnosed with bipolar disorder eight or nine years before she commenced this action, and receives "regular counseling by a psychotherapist to improve her organization, communication and socialization skills." (Id. at ¶ 18.)

         In the fall of 2014, Plaintiff was accepted into the Licensed Practical Nurse ("LPN") program offered by Herkimer Board of Cooperative Educational Services ("BOCES"). (Id. at ¶ 19.) At the start of the 2014-15 school year, "Plaintiff's disability was clearly disclosed [and] documented on her physical examination forms." (Id. at ¶ 20.) To assist in ensuring that Plaintiff succeeded in the program, she worked with Marguerite Pywar ("Pywar"), a vocational rehabilitation counselor from the New York State Education Department Office of Adult Career and Continuing Education Services ("ACCES-VR"). (Id. at ¶ 21.)

         2. May 2015 Incident and Plaintiff's Discharge from the LPN Program

         In May 2015, Plaintiff and her classmates "attended a clinical class at" a nursing home. (Id. at ¶ 22.) During a discussion after the clinical class, Plaintiff commented that one of the other students' care plan was "good" because "the teacher had provided that student with extra help." (Id. at ¶ 22.) In response, another student commented to Plaintiff, "Snitches get stitches." (Id.) Plaintiff replied, "so when we get back to class[, ] someone is going to get stitches [meaning Plaintiff]." (Id.) After this exchange, the clinical instructor called Defendant Sara Nicolette, BOCES' Adult Vocational Nursing Programs Coordinator ("Nicolette"), reported Plaintiff's comment, and "accused her of threatening the entire class with that comment." (Id.) As a result of this "baseless allegation, " Nicolette "commenced her campaign against Plaintiff and unreasonably discharged [her] from the LPN program." (Id. at ¶ 23.) Nicolette informed Plaintiff that "the discharge was due to an alleged failure in [her] clinical session and unspecified conduct, " despite the fact that Plaintiff's grades were "good" and the alleged conduct was never documented. (Id.) Plaintiff "appealed the discharge decision" and "requested implementing a behavior plan that would allow her to finish" the school year. (Id. at ¶ 25.)

         3. Plaintiff's Readmission to the LPN Program

         On June 22, 2015, Nicolette informed Plaintiff that she could be readmitted to the LPN program if she did the following things: (1) "[o]btain counseling as appropriate to deal with identified issues . . ."; (2) "[c]omplete the BOCES LPN medical form . . ."; and (3) [a]pply for readmission for the Fall of 2016 program." (Id. at ¶ 24.) At some point, Plaintiff contacted Disability Rights New York ("DRNY"), and, on October 13, 2015, Kathryn Robertson, a staff attorney with DRNY, wrote to an attorney for BOCES and "complain[ed] that[, ] having been admitted to [BOCES] as a qualified individual with a disability under the ADA, Plaintiff should not have to reapply for admission." (Id. at ¶ 27.) On October 14, 2015, BOCES readmitted Plaintiff to the LPN program. (Id. at ¶ 28.)

         On January 5, 2016, Plaintiff was provided with certain accommodations in a written agreement signed by Plaintiff, Pywar, Nicolette, and Defendant Mary Kline, BOCES' Director of Adult Community and Outreach Education ("Kline"). (Id. at ¶¶ 12, 14, 30.) The "agreed reasonable accommodations" included the following: (1) that Plaintiff would "receive 'Classroom Quick Check' and 'Clinical Quick Check Level II' forms completed on days [that] she ha[d] interaction with the clinical instructor"; (2) that ACCES-VR would be "notified of any concerns as they arise . . ."; (3) that "communications between [BOCES and its] representatives and [Plaintiff] remain related to learning and issues directly impacting her educational outcome, " and that "[a]ny other concerns . . . be addressed with the assistance of ACCES-VR"; (4) that BOCES would "provide weekly updates to ACCES-VR relating to academic and professional progress via email"; and (5) that "[r]easonable accommodations will be developed throughout this process as needed with the assistance of ACCES-VR." (Id. at ¶ 30.)

         4. Intensive Care Unit Clinical Session

         In January 2016, Plaintiff resumed classes and began a "virtual lab" at a hospital intensive care unit that used mannequins as patients. (Id. at ¶ 31.) Plaintiff was to receive "reasonable accommodations" during these clinical training sessions, including daily feedback from instructors (i.e., "quick checklists" that BOCES "had already agreed would be a reasonable accommodation for [her] disability"). (Id.) The purpose of this accommodation was to allow Plaintiff to "correct any issue during clinical sessions in lieu of being bombarded with errors at the end of the session, which would create and trigger tension and depression." (Id.) Plaintiff failed her "clinical session" in 2015 as a result of BOCES' failure "to abide by the agreed reasonable accommodation of quick checklists on a daily basis." (Id.)

         Nicolette and another instructor met with Plaintiff-without Pywar present-and advised her that her "nursing skills were not up to standard" and that she "needed to make videos of her nursing skills" and submit them for evaluation. (Id. at ¶ 32.) Plaintiff made and submitted the videos, but she did not receive a passing score and was placed on "clinical probation." (Id. at ¶¶ 32, 34.)

         5. St. Luke's Hospital Clinical Session

         On January 30, 2016, Plaintiff and four other students were assigned to perform "an observational, maternal and baby clinical session" at St. Luke's Hospital in Utica, New York. (Id. at ¶ 35.) During the session, the instructor, Defendant Lesa Steele ("Steele"), discussed "infant deaths, . . . some photographs, and pamphlets to educate mothers." (Id.) Steele also discussed "mothers who give birth when addicted to drugs." (Id.) During a break, Plaintiff asked Steele if Plaintiff "could make a telephone call because her child was ill and [her] mother had tried to reach [her] three times." (Id.) Steele "said that was fine." (Id.)

         At the conclusion of the session, Steele filled out "observation sheets" for each student. (Id.) Plaintiff "received all positive checkmarks for her performance, " including that St. Luke's "would accept this student for a future independent clinical session." (Id.) However, in the "comments section" of Plaintiff's observation sheet, Steele wrote the following: "Asks inappropriate questions regarding drugs-adoption-CPS [child protective services]. Had to reel her in & have her focus on real Pt opportuni [sic] [illegible] little too chatty @ X's & little inappropriate had to speak about her phone on her person during clinical." (Id. [emphasis omitted].)

         6. February 2016-Meeting with Nicolette

         On February 9, 2016, Plaintiff and Pywar met with Nicolette and another instructor who attended to take notes. (Id. at ¶ 36.) During the meeting, Pywar "confirmed an earlier conversation with Nicolette that there were no concerns with Plaintiff's performance in the classroom or at her clinical sites." (Id.) Moreover, Nicolette told Plaintiff that her "video presentation documenting proficiency in her skills was acceptable, " and complimented Plaintiff for "work[ing] hard to accomplish the assignment." (Id. at ¶ 36.)

         With respect to her clinical session at St. Luke's Hospital, Nicolette advised Plaintiff for the first time that, according to Steele, Plaintiff had asked "inappropriate" questions during the session. (Id. at ¶ 38.) Nicolette explained to Plaintiff and Pywar that, when Nicolette asked Steele for more information, Steele reported that Plaintiff "stated that she wanted another child, that she failed to conceive, . . . had attempted adoption without success, and that she knew a drug addicted mother who gave birth to a baby." (Id.) Based on her observations of Plaintiff during the session, Steele reported to Nicolette that Plaintiff "raised enough red flags for concern that Steele would not advise Plaintiff to work in the community with infants, " and that Steele "had changed the clinical routine and did not take the students where sick infants are cared for because of her fear that Plaintiff was considering abducting an infant." (Id.) Steele also reported that, in response to Plaintiff's behavior, she "did not take the students to the nursery"; but, in actuality, "the students made five trips to the nursery during that clinical session." (Id.) Nicolette provided Plaintiff and Pywar "with a booklet on child abduction." (Id.)[1] Nicolette advised Plaintiff that she could finish her clinical rotation because she "was being watched there, " but would not be permitted to participate in her next rotation, which was "at a daycare center." (Id. at ¶ 39.) Instead of attending the next rotation, Nicolette "directed Plaintiff to report to school, sit in a classroom[, ] and study while all other students were at their clinical sites." (Id.) Moreover, Nicolette "directed Plaintiff, [Pywar], and Plaintiff's mental health counselor to submit a formal response." (Id.)

         Nicolette's revelation of Steele's concerns related to Plaintiff's behavior during the clinical session "shocked Plaintiff and triggered extreme stress." (Id. at ¶ 38.) Plaintiff denied having said "anything that Steele reported" except with regard to the use of her cell phone, which Steele had expressly permitted. (Id.) Pywar asked "if there were any witness that she could talk to" regarding the events at St. Luke's Hospital, and Nicolette "denied the request." (Id.)

         On February 17, 2016, Pywar e-mailed Nicolette, asking whether "another student [could] help Plaintiff with her clinical skills." (Id. at ¶ 44.) ACCES-VR also offered to "pay for a tutor, " but Nicolette did not respond to Pywar's e-mail. (Id.)

         On February 22, 2016, Pywar wrote to BOCES' Adult Practical Nursing Program that, in her opinion, Plaintiff "continues to be appropriate for [the] LPN program and is currently meeting academic standards." (Id. at ¶ 40.) Pywar opined that Plaintiff "has attended the same clinical experiences in the past and has shown no behavior to lead me to believe that she is anything but an inquisitive student. Inquisitive behavior does not constitute fitting the guidelines of a typical child abductor. She has been a very dedicated student and works hard . . . ." (Id.) On February 26, 2016, Pywar asked Nicolette whether Plaintiff would be permitted to attend "the clinical observation for Head Start, " and Nicolette responded, "It will not happen. She did it last year [and] that will count." (Id. at ¶ 44.) Despite the "false accusation" against Plaintiff, "every qualified mental health professional who knows and works with [her] completely disagreed with the contrived and malicious accusation against" her. (Id.)

         7. Plaintiff's Dismissal from BOCES

         In March 2016, Plaintiff participated in a clinical session at Little Falls Hospital. (Id. at ¶ 45.) Despite the fact that Plaintiff "performed well, " the instructor subjected her to "extreme supervision" and "hovered over" her, making her "nervous." (Id.) Plaintiff asked the instructor "for help and for her daily checklist" so that she could study it, but the instructor advised her that she would receive the checklist the next day, "contrary to [Plaintiff's] plan for accommodation." (Id.) Thereafter, the instructor "reported to Nicolette, who lowered Plaintiff's daily grade." (Id.) "Ultimately, Nicolette ensured that Plaintiff would fail her clinical requirements and be dismissed from the program." (Id.)

         Plaintiff "appealed" her dismissal, and she, her husband, and Pywar (by telephone) met with Nicolette. (Id. at ¶ 46.)[2] During the meeting, Plaintiff's husband explained that, contrary to the "accusation" made by Steele, Plaintiff's daughter was eight years old (rather than ten years old), he and Plaintiff "had never discussed adoption, " and Plaintiff "could still have children" but "decided not to have more children." (Id.) However, Nicolette advised Plaintiff that the reason she "failed her clinical" was that she "did not prioritize patient[s'] problems, was unorganized[, ] and did not utilize time wisely[.]" (Id.) Plaintiff was "surprise[d]" to learn this because these shortcomings had never been brought to her attention in the "perfunctory and useless" checklists that instructors had (only occasionally) provided to her. (Id.)

         Plaintiff "appealed" her dismissal to BOCES' superintendent, and, thereafter, met with the superintendent, Nicolette, and Kline. (Id. at ¶ 47.) Plaintiff also filed a complaint with the "New York State Department of Education Office of Civil Rights, " which "assigned an attorney" who "requested a mediation" with the superintendent. (Id.) The superintendent agreed to participate in mediation, but stated that "he was unaware of . . . Plaintiff's accommodation, did not understand it, and asked [her] and . . . Pywar to explain how the checklists were either not used or used improperly." (Id.)[3] Plaintiff was "surprised to learn that the superintendent" had not been informed of "the accusation . . . that she was considered a potential child abductor, " and Nicolette "tried to make light of this slander" by characterizing Plaintiff's exclusion from clinical sessions at the daycare as a "precautionary measure." (Id. at ¶ 48.) At the conclusion of the meeting, the superintendent stated that there would be "a response to the appeal" in three weeks; but, to date, Plaintiff has not received such a response. (Id.)

         In sum, "Plaintiff succeeded academically" and received "consistently good" grades. (Id. at ¶ 50.) However, "[a]s a result of the denial of the approved reasonable accommodation, Plaintiff struggled in clinical settings, " received lower grades, and was "denied the same opportunity" afforded to non-disabled students-that is, to demonstrate her ability to succeed in the profession. (Id. at ¶¶ 52, 54.) Plaintiff "inquired and pled with the faculty, supervisors, [and] administration through all of the appeal process" to accommodate her disabilities as BOCES had "promised, " but "[t]o no avail." (Id. at ¶ 57.)

         8. Plaintiff's Claims

         Based upon these factual allegations, Plaintiff asserts eleven claims: (1) a claim for discrimination pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("RA"), based on Defendants' denial of reasonable and necessary accommodations and failure to engage in the interactive process to consider Plaintiff's requested accommodations (id. at ¶¶ 79-85); (2) a claim for retaliation pursuant to section 504 of the RA (id. at ¶¶ 86-91); (3) a claim for retaliation pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") (id. at ¶¶ 92-97); (4) a claim for hostile learning environment pursuant to the RA (id. at ¶¶ 98-100); (5) a claim for hostile learning environment pursuant to the ADA (id. at ¶¶ 101-03); (6) a claim for disability discrimination pursuant to the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL") (id. at ¶¶ 104-06); (7) a claim for defamation (in the forms of both slander and libel) (id. at ¶¶ 107-09); (8) a claim for negligence (id. at ¶¶ 110-13); (9) a claim for breach of contract (id. at ¶¶ 114-120); (10) a claim for intentional infliction of emotional distress ("IIED") (id. at ¶¶ 121-23); and (11) a claim pursuant to 42 U.S.C. § 1983 for the "violation of [her] rights under the [U.S.] Constitution" (id. at ¶¶ 124-29).

         B. Parties' Briefing on the Pending Motions and Cross-Motion

         1. Defendants' Memorandum of Law

         Generally, in support of their motion for judgment on the pleadings, Defendants advance eleven arguments: (1) Plaintiff's retaliation, hostile educational environment, and discrimination claims pursuant to the ADA and RA must be dismissed because she has failed to allege facts plausibly suggesting that her bipolar disorder qualifies as a "disability" under these statutes (that is, that it substantially limits her engagement in any life activities, or that she suffers any particular symptoms as a result of her bipolar disorder) (Dkt. No. 21, Attach. 7, at 6-9 [Defs.' Memo. of Law]); (2) Plaintiff's first claim (i.e., that BOCES failed to provide reasonable accommodations for her disability and/or to engage in the interactive process must be dismissed because she has failed to allege facts plausibly suggesting that BOCES had notice of her alleged disability or any limitation related thereto (id. at 9-10); (3) Plaintiff's hostile-learning-environment claims must be dismissed because (a) the Second Circuit has never explicitly recognized the existence of such a theory of recovery and (b) she has failed to allege facts plausibly suggesting that she was harassed (or, for that matter, dismissed from the nursing program) because of a disability or, that Defendants knew of any such disability (id. at 10-12); (4) Plaintiff's retaliation claims must be dismissed because she has failed to allege facts plausibly suggesting that (a) she engaged in a protected activity (i.e., by complaining about disability-based discrimination or requesting accommodations related to her disability), (b) Defendants were aware that she was engaging in a protected activity, and (c) a causal connection between a protected activity and an adverse action against Plaintiff existed (id. at 12-16); (5) Plaintiff's § 1983 claim must be dismissed because (a) she has failed to allege facts plausibly suggesting that her constitutional rights were violated, (b) the basis for her claim is the same as the basis for her retaliation and discrimination claims, and a plaintiff may not resort to § 1983 merely to vindicate rights conferred by another statute that provides for private enforcement of those rights, and (c) Nicolette, Steele, and Kline are entitled to qualified immunity from such a claim (id. at 16-18); (6) Plaintiff's state-law claims must be dismissed because she failed to comply with the notice- of-claim requirements set forth in New York Educ. Law § 3813 (id. at 18-19); (7) Plaintiff's discrimination claim under NYSHRL § 296 must be dismissed because (a) New York State law does not recognize such a cause of action asserted by a student against public school entities such as BOCES, and (b) to the extent that she may be understood to assert a claim of "aider and abetter" liability under NYSHRL § 296(6), such a claim must be predicated on an underlying violation of the NYSHRL, which, as noted above, cannot be established against BOCES (id. at 19-20); (8) Plaintiff's defamation claim must be dismissed because she has failed to allege facts plausibly suggesting that (a) the statement that she was a "potential child abductor" was published to a third party (i.e., someone other than another faculty member) and (b) Defendants' "qualified common interest privilege" does not apply (given that the statements about Plaintiff were made by and between BOCES faculty members who were evaluating her academic performance) (id. at 20-22); (9) Plaintiff's negligence claim must be dismissed because (a) she has failed to allege facts plausibly suggesting that Defendants owed her a duty, or that Defendants were provided notice of the nature of that duty, and (b) to the extent that she may be understood to assert a claim of "educational malpractice, " New York State law does not recognize such a claim (id. at 22-23); (10) Plaintiff's IIED claim must be dismissed because (a) she has failed to allege facts plausibly suggesting that she was subjected to sufficiently extreme and outrageous conduct, and (b) as a matter of public policy, such claims may not be asserted against a governmental entity (id. at 23-24); and (11) Plaintiff's breach-of-contract claim must be dismissed because school policy handbooks containing "general statements of antidiscrimination" may not form the basis of such a claim (id. at 24-25).

         2. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion and in Support of Her Cross-Motion for Leave to Amend Her Complaint

         Generally, in response to Defendants' motion for judgment on the pleadings, Plaintiff advances nine arguments: (1) she should be granted leave to amend her Complaint because each of the factors outlined in Foman v. Davis, 371 U.S. 178, 182 (1962), weigh in favor of granting leave to amend (i.e., there has been no undue delay, bad faith, or dilatory tactics on her part, Defendants will not be unduly prejudiced by permitting amendment, and, for the reasons argued in relation to each of her claims, amendment is not futile) (Dkt. No. 31 at 3-6 [Plf.'s Opp'n Memo. of Law]); (2) her RA and (proposed) ADA Title II discrimination claims should not be dismissed because she has pleaded facts plausibly suggesting that (a) her bipolar disorder qualifies as a disability (given that her symptoms related to her bipolar disorder "substantially limit[]" major life activities such as "learning, concentrating, and communicating"), (b) Defendants had notice of her disability (given that, among other things, she disclosed the disability on "physical examination forms" and requested a behavior plan, BOCES expressly agreed to make accommodations for her, and a DRNY attorney contacted BOCES on Plaintiff's behalf to protest the requirement that she be re-admitted to the LPN program based on the fact that she was admitted as a qualified individual with a disability under the ADA), and (c) Defendants discriminated against her by failing to implement reasonable accommodations in light of her disability that they had committed, in writing, to provide to her (id. at 7-13); (3) her retaliation claims should not be dismissed because (a) she has alleged facts plausibly suggesting that (i) she repeatedly requested reasonable accommodations from both instructors and administrators and (ii) she suffered adverse actions (specifically, the denial of "academic opportunities and credentials" and dismissal from the program) as a direct result her requests, and (b) to the extent that Defendants argue that she was dismissed for legitimate, non-discriminatory reasons, those reasons present a factual issue and are not an appropriate basis for dismissal (id. at 13-15); (4) her hostile-learning-environment claims should not be dismissed because she has alleged facts plausibly suggesting that (a) she was subject to "unwelcome harassment" when Steele "baselessly characterized [her] as a potential child abductor" and she was subsequently excluded from her class's clinical rotation, (b) this harassment resulted from her "asking inappropriate questions" and "being a 'little too chatty, '" conduct "wholly consistent with [her] manic behavior, " and (c) institutional liability is appropriate, given that Nicolette should have known to question Steele's conclusions and that Plaintiff would be traumatized to hear Steele's comments (id. at 15-16); (5) her state-law claims should not be dismissed based on her failure to serve Defendants with a notice of claim because she has commenced a collateral proceeding in New York State Supreme Court, Herkimer County, seeking leave to file and serve a late notice of claim and to have her notice of claim deemed to have satisfied N.Y. Educ. Law § 3813 nunc pro tunc (id. at 16-17); (6) her defamation claim should not be dismissed because she has alleged facts plausibly suggesting that Steele sent an e-mail in February 2016 to Nicolette, insinuating that Plaintiff "was a potential abductor of newborns, " and, as a result, Plaintiff suffered special damages (in that she was precluded from completing BOCES' LPN program and entering the field as a career) (id. at 17-18); (7) her negligence claim should not be dismissed because she has alleged facts plausibly suggesting that (a) BOCES' agreement to provide accommodations in light of her disability gave rise to a duty to her and (b) BOCES' failure to implement these accommodations constituted ...

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