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Bied v. County of Rensselaer

United States District Court, N.D. New York

March 30, 2018

MICHAELA BIED, Plaintiff,
v.
COUNTY OF RENSSELAER, HUDSON VALLEY COMMUNITY COLLEGE, WENDY A. MEEHAN f/k/a WENDY A. HUDY, ALEXANDER J. POPOVICS, HUDSON VALLEY COMMUNITY COLLEGE DEPARTMENT OF PUBLIC SAFETY, and AMANDA J. MILLER-KALBFIESH, Defendants.

          DECISION & ORDER

          THOMAS J. MCAVOY, SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The Amended Complaint alleges claims under the Americans with Disabilities Act, 42 U.S.C. § 12132; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); 42 U.S.C. § 1983 (false arrest and malicious prosecution); and New York State law (false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress). All claims arise from Defendants' alleged conduct while Plaintiff was a student at Hudson Valley Community College (“HVCC”).

         Defendants move for summary judgment seeking to dismiss all of Plaintiffs' claims, dkt., # 55, and to strike Plaintiff's expert witness's report and preclude him from testifying at trial. Dkt. # 62. Plaintiff opposes these motions. For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part. Defendants' motion to strike Plaintiff's expert's report and precluded the expert from testifying at trial is denied.

         II. STANDARD OF REVIEW

         On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S.Ct. 1769, 1776 (2007), and may grant summary judgment only where “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see O'Hara v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011). When deciding a summary judgment motion, “[t]he court resolves all ambiguities and draws all reasonable inferences against the moving party.” Villante v. Vandyke, No. 9:04CV759 FJS DRH, 2008 WL 163596, at *1 (N.D.N.Y. Jan. 15, 2008).

         III. BACKGROUND

         Unless indicated otherwise, the following are the relevant and material facts admitted in the parties' Local Rule 7.1(a)(3) Statements of Material Facts (“SOMF”), or are supported by one party and not properly disputed by the other.[1] All facts are set forth in the light most favorable to Plaintiff.

         When Plaintiff was in high school at the Voorheesville Central School District, she received an Individualized Education Plan that provided for accommodations for a learning disability. Her accommodations included additional time to complete tests. On April 24, 2013, Plaintiff submitted a Registration Form to HVCC's Learning Disabilities Services office. This form indicated that her disability was characterized as “developmental delays in speech development, cognitive functioning and motor skills, ” and her functional limitation as “learning disability that impacts the processing of information.” Plaintiff's father testified that, to his knowledge, Plaintiff's cognitive impairment did not prevent her from understanding instructions although her “other diagnosed conditions” may cause her to take longer in processing information relative to instructions. Def. Ex. 5, p. 31.

         The Voorheesville Central School District Confidential Psychological Report (“Psychological Report ”) that was provided to HVCC as part of Plaintiff's application indicates: “At the college level, teachers feel Michaela will need extra time to complete assignments, assistance with note taking and help with time management skills. Both in the world of work and in college, teachers feel that Michaela will continue to need support with social skills including making eye contact, speaking clearly and navigating social situations.” Pl. Ex. A., p. 3.[2] This report also indicates that in a telephone conversation with Plaintiff's mother, Mrs. Bied stated that she feels Plaintiff will ultimately be able to achieve a four-year college degree, but her “weaknesses include not knowing how to approach people and having difficulty making friends.” Id. Mrs. Bied also stated that Plaintiff “might have difficulty self-advocating at the college level.” Id.

         The Psychological Report's Summary and Conclusion provides in pertinent part:

Michaela Bied, and 18-year, 10-month old, female has received special education services since preschool. Initially, she received services for delays in speech, motor and cognitive skills. In the primary grades, she exhibited delays in reading and writing skills and, in the fourth grade her classification was changed to Learning Disabled. Michaela also has a history of pragmatic communication and social skill weaknesses which have impacted her socially. . . . Michaela continues to be identified with the Learning Disability and has in IEP which includes a period of resource room support every day. Psycho-educational evaluation is being conducted at this time to provide updated information regarding Michaela's abilities and skills, and to make recommendations for support she will need as she transitions out of high school.
On the current cognitive testing using the WAIS-IV, Michaela earned a Full Scale IQ of 80 (9th percentile). However, Michaela displayed some significant variability among subtest scores indicating that the Full Scale IQ is not a good representation of Michaela's abilities. Michaela displayed relative strengths in the area of long-term memory for factual information, working memory and some perceptual reasoning abilities. Weaknesses are seen in the areas of understanding of vocabulary, verbal associative reasoning ability and processing speed.
Achievement testing found Michaela's math skills to fall in the Average range and to be an area of personal strength. Reading and writing skills were in the Average to Low Average range on this assessment. Qualitatively, Michaela continues to have difficulties understanding inferential reading material, and per report of her teachers, may need additional tutoring to grasp new concepts. Although Michaela knows how to put sentences together and can write an essay, teachers report that she has difficulty analyzing and synthesizing information into her papers and will continue to need some assistance with this process. Michaela's slow processing speed impacts all academic areas. Her fluency for all academic skills is well below age expectancies.
Some significant delays were seen in Michaela's daily living skills in both home and school settings on the Adaptive Behavior Assessment System. Michaela's pragmatic communication skills, self-care skills and home living skills are reported to be significantly below age mates. Michaela has a tendency to avert eye contact, and exhibits difficulties initiating and maintaining conversations, and making friends. Additionally, her speech can continue to be difficult for others to understand at times which adds to her communication issues. Michaela also possesses a more limited interest in her appearance and grooming and comparison to age mates. All of these are issues that Michaela will continue to have to learn how to handle as she enters the adult world, especially the world of work.
In summary, Michaela continues to possess a language-based learning disability and processing disorder that impacts her reading and writing skills and her processing speed. Michaela also continues to exhibit some vestiges of her earlier speech impairment in her articulation and she possesses some difficulty with pragmatic social skills. Michaela will continue to need support services to be successful at the college level. She may also need some support as she enters the world of work.

Id. pp. 10-11.

         On May 8, 2013, before beginning classes at HVCC, Plaintiff signed a form acknowledging that she was to “[m]ake an appointment with Learning Disabilities Services during the first week of class to get your accommodation letters. These letters are the official record of your accommodations. You must deliver them in person to each of your instructors.” Def. Ex. 14 (emphasis in original).

         Plaintiff matriculated at HVCC in August of 2013. She enrolled in five courses in the fall 2013 semester, including Financial Accounting with Prof. Wendy Meehan (f/k/a Wendy Hudy). In the fall 2013 semester, Plaintiff received her accommodation letters, and, as is relevant here, delivered an accommodation letter to Prof. Meehan and obtained accommodations in the Financial Accounting course taught by Prof. Meehan.[3] According to Deanne Martocci, Director for the Center for Access and Assistive Technology (“the CAAT”) at HVCC, there is a requirement at HVCC that a person with a disability, in order to receive disability accommodations, submits a written accommodation form to each professor teaching each class each semester. Def. Ex. 13, pp.111-13. Ms. Martocci further testified that the requirement that a student personally deliver accommodation letters to each professor served two important functions - it required the students to be responsible self-advocates, and it offered them the opportunity to discuss their accommodations directly with course instructors and to decide whether they wished to be accommodated in particular courses. Id. pp. 113-14. Ms. Martocci explained that each student plays a role in the accommodation process at HVCC. She indicated that, as adults in the college setting, students are allowed to choose whether or not they want to use the accommodations they are provided each semester. Id. pp. 114, 121. Plaintiff challenges the existence of this policy because it is not contained in any written policy manual, and notes that Ms. Martocci testified when questioned whether a student would be denied a disability accommodation if the student failed to provide the written accommodation letter to a professor during a semester:

So faculty has the ability, at any point, to work with any student and make alternative arrangements, regardless of disability. The form that the student with a disability is going to be delivering to their instructor clearly states that it's regarding the disability and there's certain accommodations that they are eligible for, so if a student, ... didn't turn in - didn't - chose not to get the accommodation form or had a conversation with their instructor, I would not be a part of it, but certainly the instructor could make arrangements with the student on their own.

Id. p. 113.

         The accommodations afforded to Plaintiff in the fall 2013 semester were double time to complete timed examinations and in-class assignments; tests and quizzes administered in a distraction-reduced location; and permission to use a word processor with spell checking capabilities. The distraction-reduced location where Plaintiff was allowed to take tests and quizzes was at the CAAT. With those accommodations, Plaintiff passed all of her classes in the fall 2013 semester, earning a 2.10 GPA, including a “B” in the Financial Accounting course taught by Prof. Meehan. Def. Ex. 40.

         Plaintiff enrolled in four classes in the spring 2014 semester, including Principles of Marketing taught by Prof. Meehan. Plaintiff was eligible for her same accommodations in the spring 2014 semester. Pl. Ex. II, pp. 120-121. In December 2013, Plaintiff emailed Norina Dowd, CAAT Office Manager, asking whether she needed to “pick up accommodation letters” for that semester or if they were “just for the first semester.” Ms. Dowd responded: “At the start of each semester please see [Jennifer Miller] to get new forms as you have new classes each semester.” Def. Ex. 15. At the start of the spring 2014 semester, Plaintiff did not pick up her accommodation letters for that semester, nor did she deliver them to her professors. Def. Local Rule 7.1 Statement of Material Facts (“SOMF”) ¶ 13.[4]

         On January 28, 2014, February 3, 2014, and February 11, 2014, Plaintiff emailed Ms. Dowd regarding scheduling tests #1 and #2 for the Principles of Marketing class at the CAAT, and on each occasion Ms. Dowd replied that Plaintiff was “all set.” Pl. Ex. LL. Plaintiff went to the CAAT to take these tests, but the tests had not been sent there. As indicated, at this point Plaintiff had not provided Prof. Meehan with an accommodation letter for that semester. Prof. Meehan testified that the tests were not initially sent to the CAAT because, without the accommodation letter presented to her, it would been contrary to HVCC protocol to send the tests. Pl. Ex. UU, p. 199. Prof. Meehan further testified: "I followed the normal rules, and our normal regulations and part of being a professor of a community college is empowering your students to complete work on their own, empowering themselves to be an individual, and part of that is to manage their lives, so a reminder was the path I chose to empower her to obtain her paperwork. . . . When I became an instructor at the college, I was instructed if a student has an accommodation and is electing to utilize those accommodations, they will provide you with the paperwork. At this point in time, I did not know if Michaela was electing to use the accommodations. Only Michaela knew if she was electing to use the accommodations." Id., pp. 211-13. Prof. Meehan could not identify whether this regulation was contained in a rule book. Id. p. 212.

         Prof. Meehan testified that after the class took the first test, she approached Plaintiff and told her that she needed to schedule a time with Prof. Meehan to take the missed test or present Prof. Meehan with paperwork from the CAAT so that Plaintiff could complete the test there. Pl. Ex. EE, p. 97; see also Pl. Ex. UU, p. 171. When questioned why Prof. Meehan did not “reach out” to the CAAT and inquire whether Plaintiff had an accommodation letter that she had not turned in to Prof. Meehan, Prof. Meehan testified: “I approached the student, which is protocol for us to do, to ask the student to provide me with the documentation, the students are treated as adults by the college and we are to deal directly with them to help them help themselves.” Pl. Ex. UU, p. 200. When Prof. Meehan was asked to explain what she meant by “the students are treated as adults, ” Prof. Meehan testified: “I mean, that they're responsible for all paperwork that is necessary for them to get. I asked her for it and she led me to believe that she understood she needed it and, I believe, for her to give it to me.” Id. p. 201. When Prof. Meehan was asked whether she treats her students as adults, or “as an adult with a disability, ” Prof. Meehan explained:

I treat all my students the same, that they are all taught the same material, they are all extended every office hour, every tutoring session, every help that they would need, in addition to that, if Michaela needed an accommodation at the CAAT center, I spoke with her on more than one occasion, to ask her to provide me with that work, that paperwork, so that I could have her take advantage of the accommodation that she needed for the semester.

Id. pp. 202-03.

         When asked whether she thought that Plaintiff did not understand that it was her obligation to bring the accommodation letter to Prof. Meehan, Prof. Meehan testified: “I believe that Michaela understands everything she does. She's a very intelligent girl.” Id. p. 201. When questioned further why she did not email the CAAT herself to find out if Plaintiff had accommodations and was electing to use them that semester, Prof. Meehan stated: “I am not Michaela's parent, so it's not my job to email on behalf of the student. I don't speak for students, I'm their professor.” Id. p. 221. She also indicated that it is not her function as a student's advisor to speak for the student. Id.

         Prof. Meehan caused an Early Alert e-mail and notification to be sent to Plaintiff on February 21, 2014, alerting Plaintiff to concerns about her “academic progress this semester.” Def. Ex. 16; Def. Ex. 5, pp. 76-77. Plaintiff received the Early Alert e-mail, but did not tell her parents. Plaintiff and Prof. Meehan exchanged a number of emails between February 21 and February 24, 2014 relative to this subject. At 5:12 PM on February 21, Plaintiff sent an email to Prof. Meehan indicating: “This is the first time in a while since I've been on a computer. I have had a personal family situation come up these past couple weeks that I am getting really annoyed with. I will be back on Monday. Do you want me to give you a number you can reach me at or is there a number I could reach you at to discuss what is going on with me. When you get this message could you please respond back to me ASAP I would appreciate it.” Pl. Ex. H. Prof. Meehan responded at 5:22 PM on February 21, indicating “I would love to talk to you but I have laryngitis right now so I don't have a voice. I will be at HVCC on Monday at 8:30 AM ... Do you want to meet me then? We'll work things out - I am here for you.” Id. On February 22, 2014 at 6:42 PM, Plaintiff emailed Prof. Meehan indicating “I won't know until tomorrow afternoon what time the person who is driving me wants to leave in the morning on Monday. Would you like me to let you know if I can make it there at that time. When you get this message could you please respond back to me ASAP I would appreciate it.” Id. Prof. Meehan responded back at 6:54 PM on February 22, indicating “No problem, I will be in at 8:30. I will either be in my office (Fitz 210) or in Brahan 205 ... See you Monday.” Id. On Sunday, February 23, 2014 at 8:31 PM, Plaintiff emailed Prof. Meehan indicating “My ride said that I'll be there a little after 8:00. Where should I wait to talk to you. When you get this message could you please respond back to me ASAP I'd appreciate it.” Id. Prof. Meehan responded back on February 24, 2014 at 8:34 AM indicating: “I am in Brahan 205 - come see me there.” Id.

         In a subsequent statement that Prof. Meehan provided to the HVCC Department of Public Safety, she indicates that on February 24, 2014, she found Plaintiff crying on the floor in the hallway of Brahan Hall. Def. Ex. 32. Prof. Meehan convinced Plaintiff to get up, and she walked with her to the HVCC Counseling Center, where Prof. Meehan arranged for Plaintiff to speak with a counselor. Id. Prof. Meehan indicates that during their walk to the Counseling Center, Plaintiff shared that her grandfather was in the hospital dying. Also during the walk, Prof. Meehan asked Plaintiff to “please submit her paperwork to the CAAT so she could get on track in Principles of Marketing.” Id. Prof. Meehan indicates that Plaintiff spoke with a counselor and scheduled a second appointment, but to Prof. Meehan's knowledge Plaintiff did not keep that second appointment. Id. [5]

         On March 4, 2014, Plaintiff gave Prof. Meehan her cell phone number, but represented that it was her mother's cell phone. Plaintiff contends that she did this because she wanted Prof. Meehan to call her mother on Plaintiff's phone. Prof. Meehan contends that Plaintiff did this so Plaintiff could obtain Prof. Meehan's telephone number when Prof. Meehan made a call thinking she was going to speak with Mrs. Bied.

         Prof. Meehan emailed Plaintiff on March 10, 2014, reminding her that her third test in Principles of Marketing was March 11, and reminding her that she had missed two other tests in the course. Plaintiff did not provide Prof. Meehan with her accommodation letter before March 11, and Plaintiff did not take Test #3 on this date.

         On March 13, 2014, Prof. Meehan found Plaintiff facing a wall and crying, and called HVCC Public Safety. Plaintiff refused to go to the Counseling Center or the hospital, and had to be picked up by her father. This incident was Plaintiff's first interaction with HVCC Public Safety. At this point, Plaintiff's behaviors came to the attention of the HVCC Student Behavioral Assessment Team (“SBAT”). Def. Ex. 13, pp. 64, 67-68. The SBAT is a committee formed in response to situations that happen nationally with students on college campuses, such as the 2007 shooting at Virginia Polytechnic Institute and State University in Blacksburg, Virginia. Id. p. 64. The committee is comprised of various individuals from throughout the campus who assess student behavior and attempt to “head off any situations that could occur negatively on campus.” Id. Defendant Alexander J. Popovics, Vice President for Enrollment Management and Student Development at HVCC, is a member of this team. Pl. Ex. FF, p. 76; see id., pp. 84-85.[6] During a SBAT meeting in March 2014, Ms. Martocci advised SBAT committee members that Plaintiff was “socially awkward, ” and might have advised them that “she may have difficulty interacting socially with anyone on campus.” Pl. Ex. II, pp. 67-68, 75-76. There is no indication that the SBAT took any action with regard to Plaintiff at this time. Id. p. 88.

         Plaintiff and her mother met with Prof. Meehan on March 17, 2014. During the March 17 meeting, Prof. Meehan, who was Plaintiff's faculty advisor, discussed with Plaintiff and Mrs. Bied that Plaintiff had not taken any of the tests in any of her classes, [7] including Principles of Marketing. Prof. Meehan also told Plaintiff that before she could make up the missed tests, she would have to go to the CAAT office and pick up her accommodation letters. Def. Ex. 2, p. 113. After meeting with Prof. Meehan, Plaintiff and her mother decided Plaintiff would withdraw from her Managerial Accounting and Legal and Ethical Environment of Business classes, but remain enrolled in Prof. Meehan's class. Plaintiff also remained enrolled in an English class where her grade was based on papers and no tests.

         Plaintiff first picked up her accommodation letter for the Principles of Marketing course on March 19, 2014. Def. SOMF ¶ 23. However, it appears that Plaintiff did not deliver an accommodation letter to Prof. Meehan. Pl. Ex. UU, p. 214. Nevertheless, Plaintiff received her accommodation to take her tests at the CAAT because Ms. Dowd contacted Prof. Meehan and told her that Plaintiff had accommodations allowing for tests at the CAAT for the spring 2014 semester and was electing to use these accommodations. Id. pp. 214-18. Prof. Meehan testified that when she heard this, she said: “Great, let's get this girl started with her tests so she can catch up because I really wanted her to be successful.” Id. p. 218. When asked why she did not insist on Plaintiff delivering the accommodation form to her, Prof. Meehan explained: “Because I was extending --- I didn't want to make it any harder for Michaela to get these tests scheduled. I didn't want to waste any more time.” Id. 218-19

         Prof. Meehan emailed Plaintiff on March 21 and March 26, 2014, to remind her that she still needed to take three outstanding exams before the Principles of Marketing class took test #4 the following week. After consultation between Plaintiff and Professor Meehan, it was decided that Plaintiff would complete tests #1, #2, and #3 by the close of business on April 2, 2014 because the entire class was taking test #4 the following day. However, Plaintiff failed to complete these three exams by the April 2 deadline.

         On April 7, Prof. Meehan granted Plaintiff what was characterized as “one last extension, ” indicating that all tests given in the course to that point (tests #1, #2, #3, and #4) would need to be completed by April 11, 2014. Def. SOMF, ¶ 27. These extended dates in April 2014 were more than one month after the tests were administered to the class.[8]Plaintiff took Test #1 on Monday, April 7, 2014, and took Test #2 on Wednesday, April 9, 2014. Pl. Add. SOMF ¶ 118.

         On April 10, which was one day before a student could withdraw from a course without penalty, Plaintiff's mother contacted Prof. Meehan and requested that she advise Plaintiff what her grades were on tests #1 and #2 so Plaintiff could determine whether she wanted to withdraw from Principles of Marketing. Pl. Ex. HH, pp. 120-22. Plaintiff's mother also asked for an extension of time to take test #4. Id. Plaintiff learned that she received grades of 76 and 72 on the first two tests in Principles of Marketing. Id. After learning this, Plaintiff had a discussion with her father and it was agreed that she would stay in the course and take the remaining tests. Id. p. 120. Plaintiff also received an email on April 10 indicating that she could take test #3 on Friday, April 11, and schedule an appointment to take tests #4 the following Monday, April 14. Id. p. 124. Until Plaintiff received this email she was studying for both tests #3 and #4 which she thought she had to take on April 11. Id.

         On April 11, when Plaintiff did not show up at the CAAT to take test #3, a CAAT representative called Plaintiff's mother who relayed the message to Plaintiff's father, Dr. Joseph Bied, M.D. Pl. Ex. HH, pp. 113-14, 116. Dr. Bied called Ms. Martocci at the CAAT on April 11 and expressed concern with Prof. Meehan's demand that Plaintiff take four exams within one week. Pl. Ex. II, p. 104. During this telephone call, Dr. Bied said to Ms. Martocci: “Don't you think that's kind of demanding of Michaela, who has a learning disability, to take that many tests in one week?” Id. Ms. Martocci indicated that students with learning disabilities often take four tests during finals week, and without Plaintiff expressing to her that she was worried about taking the four tests she did not think that it was inappropriate. Id. pp. 105-06. Dr. Bied stated that Plaintiff was not ready to take the tests because she was not finished studying for tests #3 and # 4. Pl. Ex. HH, p. 117. Ms. Martocci initially told Dr. Bied that Plaintiff had to show up by 3 PM to take test #3. Id., p. 126. Dr. Bied then stated: “Can't you accommodate [Plaintiff] and let her take the test, like, next week, so she has time over the weekend to complete her studying?” Id. pp. 126-27. Ms. Martocci put Dr. Bied on hold and contacted Prof. Meehan. Id. When Ms. Martocci returned to speaking with Dr. Bied, she indicated that Prof. Meehan said: “Okay, we'll let her take test number three on Monday and we are going to drop test number four.” Id. p. 127.[9]

         At the time of this conversation, Dr. Bied was driving his car and Plaintiff was in the passenger's seat. Id. Dr. Bied testified:

So I turned to Michaela and I said Michaela ... they're going to let you take test number three on Monday and they want you to drop test number four because there is a total of six test and they drop one of the exams, the one with the lowest grade. And Michaela was in agreement with that.
She had already started studying for test number four. So I talked to [Ms. Martocci], I said I talked to Michaela she wants to take tests three and four. Well, Prof. Hudy is going to drop test four. So I said do you think that's really a good idea to do with a learning disabled individual, who already painstakingly started studying for a test to tell them, we're going to drop that test and make you take tests five.
So I said would it be better if she's going to drop one of the test, why don't you drop test five and let her take test three and test four. And they would not agree to that. It would seem to me, if they're working with somebody and you know they have a disability, the last thing you want to do is, if they're studying for a test, to say you can't take that test.
I have decided to drop it and then you take test number five. So at that point I said, okay here's the deal, we got the agreement for test three on Monday, right? Yeah. Okay. We'll take test three on Monday and then we'll take up the issue of test four at a later time.
So and then [Ms. Martocci] said, you know, she's an adult. Yeah. I said you're not making accommodations for her. And she said she's an adult. And then I ended the conversation there, but basically the gist of the conversation was, I told them they were violating the regulations of the ADA by having - not writing accommodations, modifications to policies.
Policies, like you have to pick up the accommodation letter, bring it to your teacher. By having that protocol, violates it because, according to the law, they have to provide modifications of their policies and protocols, unique to that person's individual disability.

Id. pp. 127-28.

         Plaintiff took the Principles of Marketing test #3 on April 14, 2014. Plaintiff asserts in her Additional Material Facts that "Prof. Hudy never graded the test, per ‘College Grade Record.'” Pl. Add. SOMF ¶ 119.

         Plaintiff was scheduled to take test #5 at the CAAT at 12:00 noon on April 17, 2014. However, Plaintiff's father called the CAAT at 11:20 A.M. on April 17 insisting that the CAAT administer both test #4 and test #5 to Plaintiff at noon. Pl. Ex. O. Plaintiff's father was told that the CAAT did not have test #4 and that it would administer test #5 at noon. Id. The CAAT representative attempted to explain that it was agreed that Plaintiff would take test #5 that day. Id. Plaintiff's father responded: “Michaela did not agree to that, it was all that teacher's doing.” Id. The CAAT representative told Plaintiff's father that it was “out of [her] hands” and that she would transfer him to the marketing department so we could discuss this with that department and with Prof. Meehan. Id. Although Plaintiff's father was transferred to the operator and instructed to ask for the marketing department, Plaintiff did not arrive to take test #5. Id. When Prof. Meehan learned of these developments by email from the CAAT representative, she responded that it was her understanding that arrangements to skip test #4 were made between Plaintiff's father and Ms. Martocci on April 11, which Prof. Meehan approved when she was contacted by Ms. Martocci. Id. Prof. Meehan further indicated that she was contacted by Ms. Martocci on April 15 and advised that Plaintiff had lost her syllabus and was questioning what chapters to study for test #5. Id. Prof. Meehan also indicated that Ms. Martocci told Plaintiff to approach Prof. Meehan to get a new syllabus, but Plaintiff did not do so. Id. Plaintiff never took Principles of Marketing test #4 or #5.

         During the spring semester 2014, Plaintiff frequently would stand outside Prof. Meehan's office and classroom. Def. Ex. 1, p. 60. Plaintiff disputes whether this was a regular occurrence, but Plaintiff testified that "most of the days" between March 19 and April 11 she stood outside of Prof. Meehan's classroom. Id.; see also Def. Ex. 3, p. 32 (Plaintiff testified that she went to Prof. Meehan's office often but would not go in and would only stand outside the office.). When Prof. Meehan spoke to Plaintiff during these times, Plaintiff would not respond. Plaintiff asserts that she would not say anything because, although she was trying to talk to Prof. Meehan, Prof. Meehan “wouldn't let me. I couldn't because I'm too shy.” Def. Ex. 3, p. 32; see also Def. Ex. 1, p. 60.

         Also in the spring semester 2014, Plaintiff would follow Professor Meehan down the hallways at HVCC, but not say anything. Plaintiff testified that there was a point in time during the spring semester that she followed Prof. Meehan every day but did not talk to her because Plaintiff “felt invisible.” Def. Ex. 3, pp. 45-50. On a number of occasions while following Prof. Meehan, Plaintiff would hide if Prof. Meehan turned around. Plaintiff never told Prof. Meehan why she was following her and hiding.

         This non-communicative, non-responsive behavior came to the attention of the SBAT. Ms. Martocci advised the SBAT that, based upon her review of Plaintiff's high school Psychological Report, Plaintiff's behavior was probably the result of her communication difficulties. Pl. Ex. II, pp. 80-82.

         Plaintiff called Professor Meehan several times in the spring 2014 semester and would not speak when the call was received. Def. Ex. 2, pp. 57, 65-66, 76. Prof. Meehan would say “hello, hello, ” and ask who was on the other end, but received no response. On at least one occasion, Plaintiff remained on the phone for more than 30 seconds without speaking.

         On April 24, 2014, Plaintiff was in the hallway outside of Prof. Meehan's office. When Prof. Meehan asked Plaintiff if she needed something, Plaintiff did not respond. Prof. Meehan called HVCC Public Safety and told them that Plaintiff was in the hallway outside of her office, would not speak her, and had been following her. HVCC Public Safety Officer Steven Denio responded to the scene, spoke with Plaintiff, informed Plaintiff that she could not “hang out in the Fitz 211 area, ” could not continue to follow Prof. Meehan, and cautioned her that if she continued to follow Prof. Meehan she would face disciplinary action. Def. Ex. 22 (April 24 Incident Report).[10] Prof. Meehan did not voice an objection when Off. Denio told Plaintiff that if she needed to speak with Prof. Meehan she should go to her office, knock on her door, and speak with her there. Pl. Ex. EE, pp.. 238-29. When asked why she did not voice an objection to this advice, Prof. Meehan explained: “I never said I wanted her to leave me alone, I wanted to have her stop the behavior that she was exhibiting, this stalker behavior in the hallway, following me. That is much different than knocking on the door to have a discussion about your course.” Id. p. 239.

         Prof. Meehan asked Public Safety to escort her to her class during the spring 2014 semester because she was concerned about Plaintiff's behaviors. Def. SOMF ¶ 55.[11]HVCC Public Safety Director Fred Aliberti sent the April 24 incident report to Dr. Popovics because he believed the incident violated HVCC's student code of conduct.

         Plaintiff stopped attending Principles of Marketing class in mid-April 2014. Plaintiff notes that she was warned to stop “stalking” Prof. Meehan on April 24, 2014, and she also testified that she stopped going because Prof. Meehan would not help her with the class. Plaintiff admits that she never informed anyone at HVCC that she felt Prof. Meehan was not helping her in the spring semester.

         On April 28, 2014, Prof. Meehan called HVCC Public Safety and told them that Plaintiff again was in a room across from her office and would not leave. Def. SOMF ¶ 57.[12]Prof. Meehan indicated that Plaintiff was “in the classroom, across from my advisement office in Brahan, and was hiding in the classroom. . . . She was in the classroom, peering around the corner, to view me in my office.” Pl. Ex. EE, p. 40. She could not recall if she made any attempt to initiate any communication with Plaintiff that day and did not know whether it was a violation of any policy for a student to stand in a classroom. Pl. Add. SOMF ¶ 183. Public Safety officials responded to the scene, and Public Safety Off. Amanda Miller-Kalbfiesh told Plaintiff that she needed to leave the area and could not remain in a room near Prof. Meehan's office. Def. SOMF, ¶ 58.[13]

         Plaintiff did not tell her parents about the April 24 or April 28 incidents.

         After receiving the April 28 incident report, Dr. Popovics, whose duties included being responsible for student discipline, Pl. Ex. FF, pp. 4, 56, wrote a Notice of Charges under the HVCC Student Code of Conduct and had it delivered to Plaintiff. Id. p. 118. The Notice of Charges related to incident reports concerning Plaintiff's conduct on March 13, April 24, and April 28, and alleged that Plaintiff harassed a member of the faculty and refused to follow the directives of college personnel. Pl. Ex. Q; see Def. SOMF ¶ 61.

         On April 29, Dr. Popovics organized a meeting with Plaintiff to discuss these charges, and report Prof. Meehan's concerns about Plaintiff's ongoing behaviors and her need to moderate those behaviors. Def. SOMF. Id. ¶ 62. Also present at the meeting were HVCC Public Safety Director Fred Aliberti, Director of Disability Services Deanne Martocci, Director of the Center for Counseling and Transfer Dr. Kathleen Sweener, and Technical Assistant Elaine Maloney. Dr. Popovics explained that the individuals present wanted to help Plaintiff. Pl. Ex. Q. Dr. Popovics “expressed concern about the behavior that [Plaintiff] had been exhibiting toward Prof. Wendy Hudy and ask [Plaintiff] to comment on this behavior. [Plaintiff] did not respond to the question and kept her head down.” Id. Ms. Martocci “shared that Prof. Hudy was uncomfortable when [Plaintiff] followed her and explained that it would be fine if [Plaintiff] set up an appointment to speak to her professor instead of following her around and sitting outside of her office.” Id. Dr. Sweener asked Plaintiff whether she had any thoughts of hurting herself or others, to which Plaintiff responded “No.” Id. “Mr. Aliberti explained the term ‘stalking, ' and directed [Plaintiff] to stop her behavior. He shared that the next action would be an arrest.” Id.; see also Def. Ex. 1, pp. 55-57, 62-63.[14] Plaintiff was also given a Warning Letter at this meeting. The Warning Letter reads:

“Continued stalking of Professor Hudy will result in appropriate sanctions which may include criminal charges. It is recommended that you utilize appropriate support services including the Center for Access and Assistive Technology, Center for Counseling and Transfer and the Learning Disabilities Specialist." Pl. Add. SOMF, ¶ 130; see Def. Ex. 25.

         Also on April 29, Plaintiff discussed the Warning Letter with Ms. Martocci. Ms. Martocci explained to Plaintiff that she could still go to Prof. Meehan class, could still go to Prof. Meehan's office, could still ask “legitimate questions about work”, and could still email Prof. Meehan. Pl. Ex. II, pp. 161-162, 230. In a separate meeting, Plaintiff met with Ms. Martocci and Prof. Meehan to further discuss Prof. Meehan's concerns. Prior to this meeting, Prof. Meehan requested that a Public Safety officer be stationed outside of the room where they met.

         Plaintiff did not give the Warning Letter to her mother or father, and did not tell them about the ...


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