United States District Court, N.D. New York
DECISION & ORDER
J. MCAVOY, SENIOR UNITED STATES DISTRICT JUDGE
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
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
STANDARD OF REVIEW
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).
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. All facts are set forth in the light most
favorable to Plaintiff.
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,
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.
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.
Psychological Report's Summary and Conclusion provides in
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.
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).
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. 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
Id. p. 113.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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,  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.
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
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.
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.Plaintiff took Test #1 on Monday, April
7, 2014, and took Test #2 on Wednesday, April 9, 2014. Pl.
Add. SOMF ¶ 118.
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.
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.
time of this conversation, Dr. Bied was driving his car and
Plaintiff was in the passenger's seat. Id. Dr.
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
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.
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.
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.
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.
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.
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.
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
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). 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.
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.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.
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.
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.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, ¶
did not tell her parents about the April 24 or April 28
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.
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. 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.
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.
did not give the Warning Letter to her mother or father, and
did not tell them about the ...