UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -X COLLEEN PARKER-LEON and STEVEN LEON,on behalfoftheir minor son J.L,
Plaintiffs, MEMORANDUM & ORDER -against- 17.CV-4548(NGG)(RML)
MIDDLE VILLAGE PREPARATORY CHARTER SCHOOL,
Defendant. X NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiffs Colleen Parker-Leon and Steven Leon ("Plaintiffs") bring this action on behalf
oftheir minor son, J.L., against Defendant Middle Village Preparatory Charter School("MVP")
alleging various common law causes of action and statutory violations under 29 U.S.C. § 701
("Section 504 ofthe Rehabilitation Act")and 42 U.S.C. § 12132(the "Americans with
Disabilities Act" or"ADA"). (Compl.(Dkt. 2).) Plaintiffs maintain that J.L. was subjected to
ongoing and pervasive bullying and harassment at MVP. (Id.)
Before the court is Defendant's motion to dismiss for lack ofsubject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1). (See Def. Mot. to Dismiss("Mot.")(Dkt. 19).) For the
reasons stated below. Defendant's motion is DENIED.
I. BACKGROUND
The court takes the following statement offacts from Plaintiffs' complaint. Plaintiffs
Colleen Parker-Leon and Steven Leon are the parents of J.L., an 11-year old child and sixth
grade student at Middle Village Preparatory Charter School in Queens, New York. (Comp.) J.L.
was diagnosed with ADHD and social anxiety and participated in an Individualized Education
Program ("lEP") while attending MVP during the 2016-17 school year. (Id.^ 16.)
Plaintiffs allege that although J.L. initially enjoyed attending MVP,he started to
complain about bullying within the first month of the school year. (Id 1[1[ 17-18.) Specifically,
Plaintiffs allege that J.L. was repeatedly mocked because of his disability and describe instances
wherein one particular student("A.O.")called J.L."dumb" and "stupid," and pushed and
"picked [him] up." (Id. KK 18-33.) Plaintiffs aver that J.L. was bullied on a "near daily basis,"
and although other students were involved, A.O. was the main perpetrator. (Id If 22.)
Plaintiffs maintain that they contacted MVP,including the Board of Trustees, multiple
times from October 2016 through March 2017 regarding their son's complaints about bullying,
but the school failed to respond and/or take remedial action. (Id Ij^f 19-33.) Plaintiffs allege that
they notified the Board of MVP,and state that "six and a half months after [their] first
complaint" they received a response that the Board "found no evidence of bullying and would
take no further action." (Id If 39.) On April 6,2017,Plaintiffs sent an e-mail to MVP,including
the Board, stating in part: "I have informed you at least [eight] times of J.L. being bullied about
his hairline, being called stupid and dumb by several classmates. I don't feel you are properly
handling these issues." Qd If 33.) Plaintiffs maintain that MVP was made aware ofthe bullying
and harassment repeatedly over the school year and that A.O. was transferred to a different
classroom only after Plaintiffs retained an attorney. (Id 39-41.)
Plaintiffs contend that J.L. suffered significant emotional distress as a result of MVP's
alleged failure to address the bullying, and that he frequently made statements at home that he
"hate[d] school" and "hate[d] life." (Id Iflf 34-36.) Plaintiffs further allege that as a result ofthe
bullying, J.L. stopped attending after-school programs and,therefore, no longer received
assistance with his homework. (Id H 35.)
II. PROCEDURAL fflSTORY
Plaintiffs filed their complaint with this court on August 2, 2017. (Compl.) Defendant
answered Plaintiffs' complaint on August 29,2017. (Answer(Dkt. 5).) Defendant then
requested a pre-motion conference in anticipation oftheir motion to dismiss the case for lack of
subject matter jurisdiction. fSee Defs. Aug. 1,2018 Letter(Dkt. 15).) The court granted
Defendant's leave to move to dismiss the complaint. (Sep. 24,2018 Order.) On October 26,
2018, Defendant filed the fully briefed motion to dismiss for lack ofjurisdiction of subject
matter. (See Mot.; Defs. Reply(Dkt. 19-3); see also PI. Mem in Opp'n to Mot.("PL Opp'n")
(Dkt. 19-5).).
III. LEGAL STANDARD
A claim is "properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."
Makarova v. United States. 201 F.3d 110,113(2d Cir. 2000). "Pursuant to Rule 12(b)(1),
dismissal for lack of subject matter jurisdiction is appropriate ifthe Court determines that it lacks
the constitutional or statutory power to adjudicate the case." Lleshi v. Kerrv. 127 F. Supp. 3d
196,199(S.D.N.Y. 2015)(citations omitted); s^ Makarova. 201 F.3d at 113. "A plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance ofthe
evidence thatjurisdiction exists." Giammatteo v. Newton.452 F. App'x 24,27(2d Cir.
2011)(citing Makarova. 201 F.3d at 113). In resolving a motion to dismiss for lack of subject
matter jurisdiction,"the court must take all facts alleged in the complaint as true and draw all
reasonable inferences in favor of plaintiff," Nat. Res. Def. Council v. Johnson. 461 F.3d 164,171
(2d Cir. 2006)(internal quotation and citation omitted), but "jurisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings inferences favorable
to the party asserting it," Shipping Fin. Servs. Corp. v. Drakos. 140 F.3d 129,131 (2d Cir.
1998h see also APWU v. Potter. 343 F,3d 619,623(2d Cir. 2003); Amidax Trading Grp. v.
S.W.I.F.T. SCRL.671 F.3d 140,145(2d Cir. 2011). On such a motion, a court may consider
evidence outside the pleadings, such as affidavits and exhibits. Makarova,201 F.3d at 113.
IV. DISCUSSION
Plaintiffs bring claims under Section 504 ofthe Rehabilitation Act of 1983 (the
"Rehabilitation Act"), 29 U.S.C. § 794,and the Americans with Disabilities Act("ADA"),42
U.S.C. § 12101 et seq.. alleging that Defendant "failed to protect J.L. from the repeated and
frequent bullying which occurred because of his disability [] on the schools' premises"("Count
One" and "Count Two," respectively). (Compl.flf 42-60.) Plaintiffs also bring a variety of
common-law claims, including negligence, negligent infliction of emotional distress, and
negligent hiring and supervision("Count Three,""Count Four," and "Count Five," respectively).
(1411161-90.)
Defendant argues that Plaintiffs must first exhaust their administrative remedies with
respect to any disability claim pursuant to the Individuals with Disabilities Education Act
("IDEA"),20 U.S.C. § 1400 et seq prior to bringing the suit. (Mot. 4-10.) Plaintiffs, by contrast,
contend that exhaustion oftheir claims is not necessary because their claims do not pertain to
access to a free appropriate public education("FAPE"),a right guaranteed by IDEA. (PI. Opp'n
at 3-4.)
For the following reasons, the court DENIES Defendant's motion to dismiss for lack of
subject matter jurisdiction.
A. Statutory Background
"The IDEA requires States receiving federal funds to provide 'all children with
disabilities' with a FAPE." Mr.P v. W.Hartford Bd. ofEduc.. 885 F.3d 735, 741 (2d Cir. 2018)
(quoting 20 U.S.C. § 1412(a)(1)(A)), cert, denied subnom..l39 S. Ct. 322(mem.)(2018). "A
FAPE must provide 'special education and related services tailored to meet the unique needs of a
particular child, and be reasonably calculated to enable the child to receive educational
benefits.'" Id (internal citations and quotation marks omitted). "A State covered by the IDEA
must provide a disabled child with such special education and related services 'in conformity
with the [child's] individualized education program,' or lEP." Endrew F. ex rel. Joseph F. v.
Douglas Ctv. Sch. Dist. RE-1.137 S. Ct. 988,994(2017)(alteration in original)(quoting 20
U.S.C. § 1401(9)(D)).
The "reach and requirements" ofthe Rehabilitation Act and Title 11 ofthe ADA "are
precisely the same." Weixel v. Bd. ofEduc. OfNYC.287 F.3d 138, 146 n.6(2d Cir. 2002). To
establish a violation of either law, a plaintiff must demonstrate:"(1)that she is a qualified
individual with a disability;(2)that the defendants are subject to one ofthe Acts; and(3)that she
was denied the opportunity to participate in or benefit from defendants' services, programs, or
activities, or was otherwise discriminated against by defendants, by reason of her disability."
De?>r> V. Univ. at Buffalo Sch. of Med.& Biomedical Scis.> 804 F.3d 178,187(2d Cir. 2015)
(internal quotation marks and citation omitted). "Under both statutes, schools are required to
provide 'a free appropriate public education' through special education and related services." Scaggs V. N.Y. Den't of Educ.. No.06-CV-799(JFB),2007 WL 1456221, at *15(E.D.N.Y. May
15, 2007)(citing 28 C.F.R. § 35.103 and 34 C.F.R. § 104.33).
B. The IDEA'S Exhaustion Requirement
1. Overview
Under the IDEA,parents of disabled children are guaranteed "a variety of procedural
safeguards," Mr. P. 885 F.3d at 741,including the right "to request a due process hearing in
order to present complaints as 'to any matter relating to the identification, evaluation, or
educational placement ofthe child, or the provision ofa free appropriate public education.'"
Cave V. B. Meadow Union Free Sch. Dist.. 514 F.3d 240,245(2d Cir. 2008)(quoting 20 U.S.C.
§ 1415(b)(6)(A)). These administrative proceedings are determined by and conducted pursuant
to the laws of each state. 20 U.S.C. § 1415(f)(1)(A),(g). "New York has opted for a two-
tier administrative system" for review oflEPs:
First, an impartial hearing officer is selected from a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision. That decision can then be appealed to a state review officer ofthe New York Education Department.
Cave. 514 F.3d at 245. "Only after exhaustion ofthese procedures has an aggrieved party the
right to file a suit in a federal or state court." Id (citing 20 U.S.C. § 1415(i)(2)(A)).
The exhaustion requirement applies to all suits that "seek relieffor the denial ofa FAPE,"
regardless of whether the suit was brought under the IDEA or "similar laws," which include the
ADA,the Rehabilitation Act, and 42 U.S.C. § 1983. Frv v. Napoleon Cmtv. Schs.. 137 S. Ct.
743,752(2017); s^ 20 U.S.C. § 1415(1)("Nothing in this chapter shall be construed to restrict
or limit the rights, procedures, and remedies available under ... other Federal laws protecting the
rights of children with disabilities, except that before the filing of a civil action under such laws
seeking reliefthat is also available under this subchapter, the procedures imder subsections(f)
and(g)shall be exhausted to the same extent as would be required had the action been brought
under [the IDEA].").
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"[I]ii determining whether a suit indeed 'seeks' relieffor such a denial, a court should
look to the substance, or gravamen, ofthe plaintiffs complaint." Fry. 137 S. Ct. at 752. "[I]f, in
a suit brought under a different statute, the remedy sought is not for the denial of a FAPE,then
exhaustion ofthe IDEA'S procedures is not required." Id. at 754;s^ L.K. v. Sewanhaka Cent.
High Sch. Dist.. 641 F. App'x 56,57(2d Cir. 2016)(summary order)("[I]fthe 'theory' behind a
claim relates to the 'education of disabled children,' IDEA exhaustion is required "(quoting
Polerav. Bd. ofEduc.. 288 F.3d 478,481,487-88(2d Cir. 2002))).
"[T]he exhaustion requirement does not apply 'in situations in which exhaustion would
be futile.'" Coleman v. Newburgh Enlarged City Sch. Dist.. 503 F.3d 198, 205(2d Cir. 2007)
(quoting Polera. 288 F.3d at 488). "To show futility, a plaintiff must demonstrate that adequate
remedies are not reasonably available or that the wrongs alleged could not or would not have
been corrected by resort to the administrative hearing process." Id (internal quotation marks and
citations omitted). Futility may exist where the case involves "systemic violations that could not
be remedied by local or administrative agencies." Baldessarre ex rel. Baldessarre v. Monroe-
Woodburv Cent. Sch. Dist.. 496 F. App'x 131,134(2d Cir. 2012)(summary order)(quoting
Cave. 514 F.3d at 249); accord J.S. ex rel. N.S. v. Attica Cent. Schs.. 386 F.3d 107,113(2d Cir.
2004). "The rationale behind this exception is that while the administrative hearing officers have
the authority to enforce established regulations, policies[,] and procedures,they generally do not
have the authority to set new policies or to alter existing ones." King v. Pine Plains Cent. Sch.
Dist.. 918 F. Supp. 772,781 (S.D.N.Y. 1996). While claims ofsystemic violations are often
asserted as part of a class action, they "can be made at the individual level, provided 'a systemic
policy is at stake' and 'the administrative officer has no power to correct the violation.'" J.Z. v.
N.Y.C. Dep't ofEduc.. 281 F. Supp. 3d 352, 362(S.D.N.Y. 2017)(quoting F.C. v. N.Y.C. Dep't
ofEduc.. No. 15-CV-6045(PAE),2016 WL 8716232, at *8(S.D.N.Y. Aug. 5,2016)). "The
burden of demonstrating futility rests with the party seeking to avoid the exhaustion
requirement." Coleman. 503 F.3d at 205.
Exhaustion may also be excused where "the parents have not been notified that
[administrative] remedies were available to them." Weixel. 287 F.3d at 149;s^ Dervishi ex rel.
T.D. V. Stamford Bd. ofEduc.. 691 F. App'x 651,652(2d Cir. 2016)(summary order)
("[EJxhaustion is excused ifthe defendant failed to notify the plaintiff of her procedural rights
under the IDEA.").
2. Application
In Fry, the Supreme Court provided guidance for determining whether "the gravamen of
a complaint against a school concerns the denial of a FAPE,or instead addresses disability-based
discrimination," in the form oftwo hypothetical questions:
First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say,an employee or visitor—^have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial ofa FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obhgation and yet the same basic suit could go forward. But when the answer is no,then the complaint probably does concern a FAPE,even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.
137 S. Ct.at756.
Fry itself concerned a disabled student who claimed that the elementary school she
attended had violated her rights under Title II ofthe ADA and § 504 ofthe Rehabilitation Act for
refusing to accommodate her service animal. Id. at 752. While the Supreme Court did not apply
its newly-crafted standard, instead remanding the case for reconsideration, it gave some
indication, in dicta, of how the analysis might proceed:
[Plaintiffs'] complaint alleges only disability-based discrimination, without making any reference to the adequacy ofthe special education services [the] school provided The complaint contains no allegation about the denial of a FAPE or about any deficiency in [the disabled student's] IE? [Individualized Education Plan]. More,it does not accuse the school even in general terms ofrefusing to provide the educational instruction and services that [the student] need[ed].
Id. at 758. Thus, as "nothing in the nature ofthe [plaintiffs'] suit suggest[ed] any implicit focus
on the adequacy of[the student's] education," the Supreme Court indicated that the IDEA'S
exhaustion requirement likely did not apply to those particular ADA/Rehabilitation
Act claims. Id.
While the Second Circuit has yet to interpret Frv. cases from this district provide further
guidance. In Martinez v. New York Citv Department of Education, this court held that
ADA/Rehabilitation claims alleging a failure to provide a reasonable accommodation for the
plaintiffs nut allergy were subject to the IDEA'S exhaustion requirement. No. 17-CV-3152
(NGG),2018 WL 4054872, at *5(E.D.N.Y. Aug. 24,2018). In applying Fry, this court took
notice ofthe fact that the plaintiffs complaint explicitly alleged that defendants had violated the
IDEA by failing to provide plaintiff with a FAPE. Id Next,this court considered the two
questions posed in Frv, answering each in the negative: "As to the first question, the right that
[d]efendants are said to have violated is specifically based on [plaintiffs] status as a student to
whom special-education services are owed. As to the second question, the DOE does not have
an obligation to provide special-education services to adult employees or visitors—-just
students." Id Therefore, this court concluded that the ADA/Rehabilitation Act claims were
subject to the exhaustion requirement and dismissed them for failure to exhaust. Id
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In Lawton v. Success Academy Charter Schools. Inc.. 323 F. Supp. 3d 353(E.D.N.Y.
2018),the plaintiffs, five students with disabilities, brought ADA/Rehabilitation Act claims
alleging that a former principal had maintained a "Got to Go" list, which was intended to remove
the plaintiff-students and other disabled students from the school. Id at 361. The plaintiffs (
alleged that, pursuant to this policy,the former principal deliberately targeted and discriminated
against disabled students, segregated disabled students from other students, and repeatedly
suspended disabled students. Id at 362. In applying Frv, Judge Block held the claims to be
outside of the IDEA'S exhaustion requirement:
[W]hile plaintiffs' allegations occasionally touch on denial of a FAPE and failure to reasonably accommodate the students, the vast majority ofthe allegations, and thus the gravamen ofthe complaint, concem intentional discrimination and retaliation... .These allegations extend far beyond simple denial ofa FAPE. The two questions posed by Frv support this conclusion. The disabled children would have a claim against a public library that placed them on a list of excluded patrons, used strict disciplinary rules to remove them on a daily basis, and threatened to call the police when faced with complaints about the mistreatment. So would disabled adults. Id
Finally, in Patrick v. Success Academv Charter Schools.. Inc.. 354 F. Supp. 3d 185
(E.D.N.Y. 2018),the plaintiffs brought ADA/Rehabilitation Act claims in connection with the
school's disciplinary procedures and use ofemergency medical services. Id at 195. Judge Chen
found that the ADA/Rehabilitation Act claims Plaintiffs advanced were beyond the reach of
IDEA'S exhaustion requirement because the primary concem ofthe case was the school's
"allegedly discriminatory suspension processes and the alleged retaliatory calling ofEMS or
threats to do so." Id at 228. Therefore, the court found that the "gravamen of plaintiffs'
ADA/Rehabilitation Act claims does not concem the denial of a FAPE and that [plaintiffs']
ADA/Rehabilitation Act claims are not subject to the IDEA exhaustion requirement." Id
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Here, viewed in the light most favorable to Plaintiffs, the non-moving party, the claims
Plaintiffs advance are beyond the reach ofthe IDEA'S exhaustion requirement. See J.S.. Ill, ex
rel. J.S. Jr. v. Houston Ctv. Bd. ofEduc., 877 F.3d 979, 986(11th Cir. 2017)(holding, post-Fry,
that allegations that a disabled student was repeatedly removed from class could not be analyzed
simply as a FAPE violation but were "cognizable as a separate [ADA/Rehabilitation Act] claim
for intentional discrimination"); Martinez. 2018 WL 4054872, at *5. Plaintiffs'
ADA/Rehabilitation Act claims primarily concem the discriminatory harassment oftheir son and
the school's alleged failure to prevent such conduct,(Compl. atf 41),' and therefore are not
subject to the IDEA'S exhaustion requirement.
Moreover,the application ofthe two-question Fry inquiry yields substantially the same
answers as in Lawton and Patrick: the repeated harassment and bullying of a disabled student at a
public library or a disabled adult employed at MVP could form the basis of a claim under the
ADA/Rehabilitation Act. Lawton,323 F. Supp. 3d at 362; Fry, 137 S.Ct. at 756. In Martinez,
this court found that "the right that Defendants are said to have violated is specifically based on
J.C.'s status as a student to whom special-education services are owed. As to the second
question, the DOE does not have an obligation to provide special-education services to adult
employees or visitors—just students." 2018 WL 4054872,at *5. Here, however,the gravamen
ofPlaintiffs' ADA/Rehabilitation Act claim does not concem the denial of a FAPE and is
therefore not subject to the IDEA exhaustion requirement. (See e.g., Compl.^ 1 ("This case
^ Defendant argues that this case is analogous to T.K. v. N.Y.C. Dep't ofEduc., 779 F. Supp. 2d 289(E.D.N.Y. 2011), a case in which parents ofa disabled child brought an action against the DOE for the school's alleged failure to prevent bullying oftheir child. (Mot. at 7-8.) However, in T.K.. Plaintiffs' claim was explicitly pled under IDEA, and much ofPlaintiffs complaint revolved around concems that the school improperly determined the child's Individualized Education Plan ("lEP"), id. at 294, neither of which are applicable to the case at hand. In other words, simply because a court has found that bullying cm be a basis for finding the denial ofa FAPE does not mean that bullying claims must be brought pursuant to IDEA.
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involves a charter schoors failure to protect its student, J.L., from bullying and harassment
despite nearly seven(7) months of complaints from his parents.");13("Plaintiffs' claims arise
out ofthe repeated bullying and harassment their son J.L. endured during the 2016-2017 school
year.");^ 41 ("Defendant failed to take appropriate action to investigate, discipline, prevent or
correct the bullying. Defendant's failure to investigate and act contributed to an atmosphere of
tolerance for bullying in Middle Village Prep")). Although Defendant contends that Plaintiffs' complaint explicitly pleads FAPE(Mot. at 4); see also (Id. ^ 45), the complaint, read as a whole,
is primarily about the school's failure to protect J.L. from the alleged harassment and bullying.
See, e.g, Condit v. Bedford Cent. Sch. Dist.. No. 16-CY-6566(CS),2017 WL 4685546, at *9
(S.D.N.Y. Oct. 16, 2017)("Plaintiffs' Amended Complaint as a whole sounds in a concem that
the Defendants failed to protect [the student] from harassment and bullying by another student,
not that Plaintiff Parents were displeased with [the student's] EEP or were seeking changes to
it.").
4: H: *
Defendant has not raised any other arguments supporting dismissal ofPlaintiffs
ADA/Rehabilitation Act Claims. Thus,in light ofthis court's finding that Plaintiffs'
ADA/Rehabilitation Act claims are not subject to exhaustion and Defendant's failure to briefthe
merits ofthese claims. Defendant's motion to dismiss is denied and the court need not address
arguments pertaining to exceptions to the IDEA exhaustion requirement.
C. Supplemental Jurisdiction
The only argument Defendant raises with regard to Plaintiffs' state law claims is that they
should be dismissed because the district court lacks subject matter jurisdiction over Plaintiffs'
federal claims. (Mot. at 10). Because the court has denied Defendant's motion to dismiss
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Plaintiffs federal claims for lack of subject matter jurisdiction, the court declines to dismiss
Plaintiffs state law claims.
V. CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss for lack of subject matter
jurisdiction (Dkt. 19)is DENIED.
SO ORDERED. s/Nicholas G. Garaufis
Dated: Brooklyn, New York NICHOLAS G. GARAUFI! June^ ,2019 United States District Judge
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