Individually v. Uniondale Union Free Sch. Dist.

Decision Date31 March 2010
Docket NumberNo. 09-CV-0449(JS)(MLO).,09-CV-0449(JS)(MLO).
PartiesConroy A. SIMPSON, Jr. an infant by his father and natural guardian, Conroy A. SIMPSON, Sr., and Conroy A. Simpson, Sr., individually, Plaintiffs, v. UNIONDALE UNION FREE SCHOOL DISTRICT, Annette O'Ferrall, 1 individually and in the capacity as Principal of Turtle Hook Middle School, Marcia Lake, individually and in the capacity of “parent volunteer” and/or President or Past President of Turtle Hook Middle School Parents Teacher Association (PTA), Cherise Daly, John Does 1-250, Jane Does 1-250, individually and in their capacity as employees of Uniondale Union Free School District, Defendants.
CourtU.S. District Court — Eastern District of New York






Richard Anton Kubick, Jr., Esq., New York, NY, for Plaintiffs.

Julie Ann Rivera, Esq., Lewis R. Silverman, Esq., Rutherford & Christie LLP, New York, NY, for Defendants Uniondale Union Free School Dist.

Guy William Germano, Law Offices of Frederick K. Brewington, Hempstead, NY, for Defendants Annette O'Ferrall.

No Appearances for Other Defendant. 2


SEYBERT, District Judge:

On February 4, 2009, Plaintiffs commenced this action alleging a “violation of privacy rights” under the Family Educational Rights and Privacy Act (“FERPA”), 42 U.S.C. §§ 1981, 1983, and 1985. Additionally, Plaintiffs assert that the infant Plaintiff has suffered a violation of his right to “education free of discrimination[,] but make only passing reference to the statutory basis for their claims. Finally, the Complaint alleges a claim for negligent/intentional infliction of emotional distress and negligent hiring supervision.

Pending before the Court are motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure by Defendants Uniondale Union Free School District (District) and Annette O'Ferrall (O'Ferrall). For the reasons that follow, the District's and O'Ferrall's motions are GRANTED.


The District is a municipal corporation established under New York State Education Law in order to provide a variety of educational programs and services to the residents within its jurisdiction. Plaintiff Conroy A. Simpson, Sr. is the parent of Conroy A. Simpson, Jr. (CJ) (collectively, Plaintiffs), a student who attends school within the District. Casilda Roper-Simpson (Roper-Simpson), CJ's mother and a non-party in this matter, is a trustee of the District's Board of Education.

Defendant O'Ferrall was the principal of Turtle Hook Middle School. During the 2006-2007 school year, O'Ferrall promoted a non-District art competition which was sponsored by Nostrand Gardens Civic Association (“Nostrand Gardens”). Students who participated in the competition were required to submit either a piece of art, sculpture or poetry. At some point, a piece of CJ's work was submitted to the competition, but it is unclear who made the submission. Although CJ did not win the competition, Nostrand Gardens provided him, along with the other participants, with a certificate of participation. While taking his Science final exam, someone in the District delivered the certificate to him.

Upon bringing the certificate home, CJ showed his mother. Shortly thereafter, Roper-Simpson contacted school guidance counselor Caron Cox (“Cox”) to inquire as to how CJ was entered into the competition and how he came to receive the certificate. In a letter dated June 19, 2007, Roper-Simpson wrote a letter to O'Ferrall and Cox expressing, inter alia, her “annoyance” with not being notified of any “ceremony” for the certificate of participation. Approximately one week later, on or about June 26, 2007, O'Ferrall was informed by the District's Superintendent that a recommendation would be made to the Board for the termination of her employment. On August 14, 2007, after exhausting her grievances to the recommendation, O'Ferrall submitted her resignation.

For reasons that remain unclear, on or about November 16, 2007, O'Ferrall submitted a three-page letter to the Board of Education complaining about her termination. In her letter, O'Ferrall discusses her achievements, her issues with the District's Central Administration, and the Nostrand Gardens competition. While she made reference to the letter from Roper-Simpson regarding the competition and the participation letter given to CJ, O'Ferrall never mentions CJ by name. She did, however, attach a copy of the list of the winners of the Nostrand Gardens' competition. CJ's name does not appear on that list.

Based on this information, Plaintiffs commenced this case.

I. Standard Of Review Under Rule 12(b)(6 )

To survive a Rule 12(b)(6) motion, plaintiff's complaint must set forth sufficient factual allegations to “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). This standard has been explained as one of “flexible plausibility ..., which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original) (internal citations omitted). While the Complaint “does not need detailed factual allegations,” Twombly, 127 S.Ct. at 1964, a plaintiff must provide “more than labels and conclusions [or] a formulaic recitation of the elements of a cause of action.” Id. at 1964-65. In essence, a plaintiff is required to plead enough facts to provide the defendant with fair notice of the basis of the plaintiff's claims. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 999, 152 L.Ed.2d 1 (2002).

When deciding a Rule 12(b)(6) motion to dismiss, the district court must presume to be true all facts contained in the complaint, and must draw all reasonable inferences in favor of the Plaintiff. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001). Generally, the court's review is limited to reviewing only the facts contained within the four corners of the complaint, Chambers, 282 F.3d at 153; however, the complaint is treated as inclusive of “any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991); Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989). In conducting its review, the court must “merely ... assess the legal feasibility of the complaint, not ... assay the weight of the evidence which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). 4

II. 20 U.S.C. § 1232g

As the District properly points out, FERPA states that no federal funding should be made available to an educational institution that has a practice or policy of releasing education records to unauthorized personnel. 20 U.S.C. § 1232g. Under 20 U.S.C. § 1232g(f)-(g), an aggrieved individual may seek administrative remedies for the enforcement of FERPA provisions; however, FERPA does not create a private cause of action by itself. Gonzaga Univ. v. Doe, 536 U.S. 273, 276, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); see also Rabin v. Wilson-Coker, 362 F.3d 190, 201 (2d Cir.2004). Moreover, FERPA is not enforceable under Section 1983.

As the Gonzaga Court pointed out:

Plaintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes. Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983. But the initial inquiry-determining whether a statute confers any right at all-is no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute “confer[s] rights on a particular class of persons.” California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). This makes obvious sense, since § 1983 merely provides a mechanism for enforcing individual rights “secured” elsewhere, i.e., rights independently “secured by the Constitution and laws” of the United States. [O]ne cannot go into court and claim a ‘violation of § 1983'-for § 1983 by itself does not protect anyone against anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

Gonzaga Univ., 536 U.S. at 284-85, 122 S.Ct. 2268 (internal citation and footnote omitted). But the starting point in this analysis is whether Congress intended to create a right at all.

We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Accordingly, it is rights, not the broader or vaguer “benefits” or “interests,” that may be enforced under the authority of that section. This being so, we further reject the notion that our implied right of action cases are separate and distinct from our § 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.

Id. at 284, 122 S.Ct. 2268. Thus, the Court found

there is no question that FERPA's nondisclosure provisions fail to confer enforceable rights. To begin with, the provisions entirely lack the sort of “rights-creating” language critical to showing the requisite congressional intent to create new rights. Unlike the individually focused terminology of Titles VI and IX (“No person ... shall ... be subjected to discrimination”), FERPA's provisions speak only to the Secretary

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