Behalf v. U.S. Sec'y of Transp.
| Decision Date | 04 December 2018 |
| Docket Number | 17-CV-7868 (CS) |
| Parties | JANE DOE, a minor; R.C., on his own behalf and as a natural parent on behalf of JANE DOE, a minor; and E.D., on her own behalf and as a natural parent on behalf of JANE DOE, a minor, Plaintiffs, v. THE U.S. SECRETARY OF TRANSPORTATION, THE U.S. DEPARTMENT OF TRANSPORTATION, THE U.S. ATTORNEY GENERAL, THE U.S. DEPARTMENT OF JUSTICE, NEW YORK STATE ATTORNEY GENERAL, THE STATE OF NEW YORK, and KATONAH-LEWISBORO SCHOOL DISTRICT, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Robert Cisneros
Eva Doukakis
South Salem, New York
Steven J. Kochevar
Assistant United States Attorney
Southern District of New York
New York, New York
Steven L. Banks
Assistant Attorney General
State of New York
New York, New York
Lewis R. Silverman
Caroline B. Lineen
Silverman & Associates
White Plains, New York
Counsel for Defendant Katonah-Lewisboro Union Free School District
Before the Court is the motion to dismiss of the U.S. Attorney General, the U.S. Department of Justice, the U.S. Department of Transportation, and the U.S. Secretary of Transportation (collectively, "the Federal Defendants"), (Doc. 55); the motion to dismiss of the New York State Attorney General and the State of New York (collectively, "the State Defendants"), (Doc. 59); and the motion to dismiss of the Katonah-Lewisboro School District ("KLSD"), (Doc. 66).
I accept as true the facts, but not the conclusions, set forth in Plaintiff's First Amended Complaint ("FAC"). (Doc. 49.)
Plaintiffs are Jane Doe, a minor child, and her parents R.C. and E.D., who bring this action on their own behalf and on behalf of Jane. (FAC at 1.) Jane has a disability because she has chronic asthma and food and environmental allergies, including an allergy to dogs. (Id. ¶ 12.) Jane suffers allergy symptoms and her asthma is triggered when she contacts dogs, dog dander, or protein emitted by dogs. (Id. ¶¶ 12-13.) Her symptoms upon contact with dogs include "asthma attacks, difficulty breathing, wheezing, hives, rashes, excessively runny and/or clogged nose, watering eyes, coughing, sneezing, nose bleeds, difficulty concentrating, difficulty performing the functions of daily living and difficulty interacting with others, among other symptoms." (Id.¶ 13.) Dog dander and proteins emitted by dogs may remain in an indoor space after the dog is removed, and they do not necessarily lose their toxicity toward people with allergies and asthma over time. (Id. ¶¶ 16-18.)
In September 2014, Jane entered sixth grade at the KLSD middle school, and thereafter began experiencing more asthma and allergy symptoms than she used to experience, requiring R.C. and E.D. to administer more medicine to Jane than usual. (Id. ¶¶ 23-24.) Presumably attributing Jane's symptoms to the presence of dogs at her school, Plaintiffs repeatedly asked KLSD to exclude dogs from school property, but KLSD refused and explained, in part, that it was bound by federal and state laws that required it to allow dogs at the school. (See id. ¶¶ 20-21.)
In mid-November, 2014, despite objections from R.C. and E.D., KLSD invited a parent, who uses a service dog and is the CEO of an organization that trains and promotes the use of service dogs, to come to Jane's school and give a lecture to the sixth grade students. (Id. ¶ 26.) R.C. and E.D. provided KLSD with a letter from Jane's physician explaining that the dog should not be allowed in Jane's school, and initially KLSD planned to prohibit the dog from entering, but changed its mind after speaking with the parent who was to present. (Id. ¶¶ 27-29.) On November 25, 2014, the service dog came to the school for the presentation. (Id. ¶ 30.) Jane was in school that day and suffered asthma and allergy symptoms, although Plaintiffs do not allege that Jane attended the presentation. (Id. ¶¶ 30-31.)
Beginning in January 2015, Plaintiffs requested from KLSD a plan to accommodate Jane's disability pursuant to § 504 of the Rehabilitation Act, see 29 U.S.C. § 701 et seq., and on January 22, 2015, KLSD found that Jane is a student with a disability pursuant to the Act and developed a § 504 accommodation plan for her. (Id. ¶¶ 15, 32.) Plaintiffs allege that the plan required KLSD to prevent contact between Jane and service dogs, employ a cleaning protocol anywhere a service dog had been, and notify Plaintiffs of known or expected visits to school by aservice dog. (Id. ¶¶ 25, 32.) Plaintiffs asked for additional, unspecified accommodations, but KLSD refused to make any additional accommodations. (Id. ¶ 32.)
On February 23, 2015, Jane was required as part of her orchestra class to perform a concert. (Id. ¶ 35.) Over Plaintiffs' objections, the same parent who had previously brought a service dog into the school attended the concert. (Id. ¶ 36.) Plaintiffs do not allege how close the dog came to Jane, but she suffered asthma and allergy symptoms. (See id. ¶ 39.)
On May 15, 2015, KLSD held a fundraiser for a service dog organization, and a service dog was brought to the fundraiser. (Id. ¶¶ 40, 43.) Plaintiffs allege that KLSD did not notify them of the event until a week before, when they had already heard about it, but do not allege that Jane was present. (Id. ¶¶ 40-44.) On June 1, 2015, Jane was part of another orchestra concert. (Id. ¶ 46). Pursuant to the § 504 plan, Jane was seated in the corner of the auditorium, closest to the basement exit, and was escorted out of the auditorium immediately after the concert ended. (Id.) She was not able to mingle in the lobby after the concert. (Id.) In the spring of 2015, Jane selected orchestra as her music class for the following year, but Plaintiffs withdrew Jane from that class before it began because of their concerns that KLSD would fail to adequately protect Jane. (Id. ¶¶ 48-49.) On September 3, 2015, KLSD personnel instructed Jane to sit in the auditorium near where the service dog had been in June 2015, and she suffered asthma and allergy symptoms the following day. (Id. ¶¶ 50-52.)
In November 2015, Plaintiffs learned that Jane's class was going on a field trip to a nursing home that dogs regularly inhabited. (Id. ¶¶ 58-59.) KLSD proposed to keep the students in an area where dogs were not allowed and have Jane enter and exit through a different entrance than the other students, (id. ¶ 61), but Plaintiffs disputed the adequacy of the plan, having been told by the nursing home that dogs were allowed in all parts of the facility, (id. ¶¶ 59, 62).Plaintiffs decided Jane would not go on the field trip, and instead she was required to write an essay. (Id. ¶¶ 64-65.) On December 9, 2015, one of Jane's teachers would not allow her to eat a snack because of Jane's food allergies, despite Jane's insistence that she was not allergic to any of the ingredients. (Id. ¶¶ 53-56.)
On December 18, 2015, KLSD instituted a revised § 504 plan, with no special accommodation for field trips, and removed the requirement that Plaintiffs receive notice as soon as practicable of the presence of a service dog at Jane's school. (Id. ¶ 63.) On May 25, 2016, a service dog was allowed into the middle school, and thereafter Jane suffered asthma and allergy symptoms, although Plaintiffs do not allege that Jane saw or was exposed to the dog. (Id. ¶ 66.)
On November 11, 2016, after Plaintiffs filed a complaint, Impartial Hearing Officer Nancy Lederman found KLSD to be in violation of § 504 of the Rehabilitation Act. (See id. ¶ 67.)1 Lederman ordered KLSD to develop and implement a concrete plan as to how visitors accompanied by dogs would be kept away from Jane, with a priority that, to the extent possible, Jane not be singled out or her education disrupted. (Id. ¶67.)2 On December 12, 2016, KLSDinstituted a new § 504 plan that required, among other things, that any service dog within 30 feet of Jane had to be moved. (Id. ¶ 75.)
Plaintiffs allege that KLSD did not comply with Lederman's orders or the revised plan on two occasions. First, on June 21, 2017, at Jane's middle school graduation ceremony, Jane "came upon a service dog" outside of the school in an area where students were gathered to take pictures and congratulate each other. (Id. ¶¶ 71-72.) She had to remain vigilant throughout the event to avoid the dog. (Id. ¶ 72.) Second, on January 30, 2018, Jane performed at a concert as part of her orchestra class, and she was seated at the front of the stage for the first half of the show, within thirty feet of a dog. (Id. ¶¶ 73-74, 77.) She thereafter suffered asthma and allergy symptoms. (Id. ¶ 78.)
Plaintiffs allege that the school doctor was hostile to their positions at the § 504 meetings, (see id. ¶¶ 88-92), and that the middle school assistant principal, in what she said was a joke to the principal, made a comment ridiculing Jane's condition, (id. ¶¶ 33-34). The same assistant principal was the administrator on duty at the February 23, 2015 orchestra concert and the May 15, 2015 fundraiser, and did not maintain awareness of the service dogs' location. (Id. ¶¶ 38, 44).3
In 2014 and 2015, Plaintiffs took three interstate trips to visit relatives. (Id. ¶ 93.) At airports in New York, California, New Jersey, and New Mexico, Plaintiffs saw dogs, (id. ¶ 95), and service dogs were on four of their six flights, (id. ¶ 96). While at airports and on flights, Jane suffered asthma and allergy symptoms. (Id. ¶ 94.) No procedure was available to Plaintiffsto request that dogs not be allowed near Jane, and airline personnel told Plaintiffs that service dogs could not be prohibited from planes due to federal regulations. (Id. ¶¶ 98-101.) "Plaintiffs have been forced to forgo taking interstate trips by air because of the danger to Jane's health posed by the presence of dogs in airports and on airplanes." (Id. ¶ 102.)
On three occasions, Plaintiffs...
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