O'Hara v. Bd. of Coop. Educ. Servs.
| Decision Date | 16 March 2020 |
| Docket Number | No. 18-CV-8502 (KMK),18-CV-8502 (KMK) |
| Parties | KATHLEEN O'HARA, Plaintiff, v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES, SOUTHERN WESTCHESTER; et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Sean Michael O'Hara, Esq.
Leeds Brown Law, P.C.
Carl Place, NY
Counsel for Plaintiff
Caroline Beth Lineen, Esq.
Karen Chana Rudnicki, Esq.
Lewis R. Silverman, Esq.
Silverman & Associates
White Plains, NY
Kathleen O'Hara ("Plaintiff") brings this Action against Defendants Board of Cooperative Educational Services, Southern Westchester ("BOCES") and certain of its employees: Dr. Harold Coles, District Superintendent ("Coles"); James Gratto, Assistant Superintendent ("Gratto"); David Pulley, Assistant Superintendent ("Pulley); Lisa Schuchman, Director of Special Education ("Schuchman"); and John Knight, Title IX Officer ("Knight").1Plaintiff alleges violations of the Fourteenth Amendment; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; and Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq., claiming that Defendants discriminated and retaliated against her based on her purported disability. Before the Court is Defendants' Motion To Dismiss the Second Amended Complaint (the "Motion"), pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 36).) For the reasons discussed below, the Motion is granted.
The following facts are drawn from Plaintiff's Second Amended Complaint ("SAC") (Dkt. No. 31), exhibits attached thereto, and other matters of which the Court may take judicial notice, and are taken as true for purposes of the instant Motion.
"New York Education Law § 1950 permits supervisory school districts in New York State to create boards of cooperative educational services . . . for the purpose of distributing the cost of certain educational services among school districts." Gorton v. Gettel, 554 F.3d 60, 61 (2d Cir. 2009).2 BOCES, one such board, is based in Rye, New York. (Second Am. Compl. ("SAC") ¶ 8 (Dkt. No. 31).) All Individual Defendants are officials of BOCES. (Id. ¶¶ 8-9.)
In October 1988, Plaintiff began employment with BOCES as "a full-time Teacher of the Speech and Hearing Handicapped ("TSHH")" in a school administered by BOCES. (Id. ¶ 10.) Plaintiff was employed by BOCES for over 28 years, during which time she provided "speechand language therapy to lower functioning children" and developed a specialty in "designing and adapting augmentative communication systems for nonverbal students." (Id. ¶ 18.) While employed by BOCES, Plaintiff continued her professional development, earning a New York State clinical license as a speech and language pathologist, a Certificate of Clinical Competence ("CCC") from the American Speech and Hearing Association ("ASHA"), and a Certificate in Assistive Technology. (Id. ¶ 11.) Until approximately 2011, Plaintiff received "favorable performance evaluations for her work." (Id. ¶¶ 19-20.)
During her employment, Plaintiff was diagnosed with several medical conditions impacting her gastrointestinal tract, heart, and pulmonary system. (Id. ¶ 12.) In particular, Plaintiff suffers from irritable bowel syndrome, hiatal hernia, gastritis, gastroesophageal reflux disease, ulcers, mitral valve prolapse, and reactive asthma. (Id. ¶ 13-15.) These conditions interfere with Plaintiff's sleep and work, and cause severe pain, irregular heartbeat, palpitations, and shortness of breath. (Id.) These conditions, as well as the related symptoms, are exacerbated by stress. (Id. ¶ 16.) Throughout her employment with BOCES, Plaintiff discussed her conditions with her supervisors, often by making complaints about painful symptoms. (Id. ¶ 17.)
Beginning in the 2010-2011 academic year, Plaintiff "began experiencing increasing pressure from supervisors to use her clinical license to 'sign off' on services provided to students." (Id. ¶ 20.) Such "sign offs" would indicate that therapy services "were provided in a manner which adheres to the rules and regulations set forth by Medicaid," thus "enabling BOCES' component School Districts to . . . bill for Medicaid reimbursement." (Id. ¶ 21.) Plaintiff, however, had been "hired as a teacher" rather than a therapist, and she did not believe that the relevant services met the standard for Medicaid billing. (Id. ¶¶ 20, 23.)
After "investigating the matter," Plaintiff discovered that her colleague, Marlane Amelio ("Amelio"), had "falsely been signing off on Service Recommendations" by stating that Plaintiff was acting under her direction. (Id. ¶ 22.) Plaintiff also discovered several instances in which she believes her name or signature were used improperly. (Id.) "Plaintiff complained to then-Director Mary Ellen Betzler and other staff, including a compliance specialist, Ana Reluzco," about the perceived irregularities, but "no action was taken." (Id.) Instead, Plaintiff was instructed to use her clinical license to "sign off" on therapy sessions, "even though they did not meet the standard for Medicaid billing." (Id. ¶ 23.) Plaintiff was told that if she did not do so, Amelio would "come to [her] sessions." (Id.) Plaintiff explains that this "was a continuous threat for the remainder of [her] career at BOCES." (Id.)
From 2011 to the conclusion of the 2015-2016 academic year, Plaintiff continued to "voice opposition to the use of her clinical license to 'sign off' on Medicaid billing, where services did not meet the clinical standard." (Id. ¶ 25.) As a result, Plaintiff began "receiving impossible workloads, involuntary transfers, assignments outside of her scope of practice, and [was allotted] inadequate travel time [to reach service locations.]" (Id. ¶¶ 24, 26.) In fact, according to Plaintiff, during the 2011-2012 academic year, Assistant Director Michael Schulman ("Schulman"), acknowledged that Plaintiff's caseload was too heavy. (Id. ¶ 35.) Nevertheless, Supervisor Will Guterman ("Guterman") assigned Plaintiff an even heavier caseload for the following year. (Id.)
Additionally, during the 2012-2013 academic year, Plaintiff sought a transfer due to "repeated acts of physical violence by students" at a Rye Lake campus. (Id. ¶ 27.) Although Plaintiff had been involuntarily transferred several times, and several appropriate cases to which she might have been transferred remained unassigned, Plaintiff's transfer request was denied.(Id. ¶ 27-29.) Subsequently, Plaintiff suffered two fractures, two concussions, and "repeated incidents of being bitten, struck, and choked by students, while working at the Rye Lake campus." (Id. ¶ 30.) Plaintiff filled out appropriate forms for each incident of injury, "formally placing BOCES on notice of each incident." (Id. ¶ 31.) Plaintiff also complained to Guterman about the assignments and lack of support. (Id. ¶ 32.) Plaintiff was then "subjected to increased workplace bullying and hostility" by her colleagues. (Id. ¶ 32-33.)
In January 2013, Plaintiff "reported Guterman's workplace bullying" to Assistant Superintendent Sheila McGuinness ("McGuinness"), as well as to Defendant Coles; however, "no relief was provided." (Id. ¶ 37.) In June 2013, Plaintiff requested to meet, and met, with Coles concerning her allegations of bullying by Guterman; however, Coles "did not appear to investigate the situation and did not request any further information." (Id. ¶ 37.) Once again, Plaintiff "faced even greater increases to her caseload, and a significant increase in a practice of adding and transferring students in her care." (Id. ¶ 38)
In Fall 2014, Plaintiff suffered another concussion from an additional student attack, and was again required to take medical leave for treatment. (Id. ¶ 42.) Plaintiff was also diagnosed with "post-concussion syndrome," and again, Plaintiff notified her employer of the attack and the diagnosis using the appropriate forms. (Id. ¶ 43-44.)
During the beginning of the 2014-2015 academic year, BOCES hired Defendant Schuchman as an Assistant Director overseeing Plaintiff. (Id. ¶ 39.) Throughout the following two years, "repeated comments" were made during weekly meetings attended by Schuchman, Defendant Knight, and several school principals about Plaintiff's taking of sick leave. (Id. ¶ 41.) Such comments included the assertions that Plaintiff was "always sick," that she "took a lot oftime off," that she "was always on medical leave," and "that her sick days and medical leave were a hardship." (Id.)
On December 1, 2014, Plaintiff sent an email to Schuchman complaining that her new schedule violated her contract and provided inadequate time to drive to the locations where she would provide therapy to students. (Id. ¶ 45.) On December 22, 2014, Plaintiff was directed to meet with Defendant Pulley, then serving as the BOCES Medicaid Compliance Officer. (Id. ¶ 47.) During the meeting, Pulley "used threatening terminology," made "false allegations" and informed Plaintiff that if any of her sessions "lasted less than 30 minutes, he would recommend that charges be filed against [her], which could subject her to penalties up to and including termination." (Id.) Plaintiff's assigned schedule, however, made rendering full sessions of 30 minutes impossible. (Id. ¶ 49.) Pulley and Guterman also instructed her to "include the travel time in the billing." (Id.)
On January 19, 2015, Plaintiff complained to Coles about Pulley's "intimidation," but "no action was taken to address her complaints." (Id. ¶¶ 51-52.) On February 12, 2015, Plaintiff discovered that "falsified notes," including "disparaging comments about [her] and her work as a therapist, had been entered into her students' electronic files." (Id. ¶ 53.) Plaintiff believes that these notes were made by Amelio, and were "intended to harass and intimidate" Plaintiff, to discredit her work, and to place her licenses in jeopardy. (Id. ¶¶...
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