Jolly v. Excelsior Coll.
| Decision Date | 12 June 2020 |
| Docket Number | 1:19-CV-1317 |
| Parties | MAKETA S. JOLLY, Plaintiff v. EXCELSIOR COLLEGE, Defendant. |
| Court | U.S. District Court — Northern District of New York |
LAURA B. JUFFA, ESQ.
MEMORANDUM-DECISION and ORDER
Plaintiff Maketa S. Jolly ("Jolly" or "plaintiff") is an African American woman and a Licensed Practical Nurse ("LPN"). At some point during the mid-to-late 2000s, she began to consider progressing her career and looked into becoming a Registered Nurse ("RN"). Dkt. 2 ("Comp."), pp. 25, 115.1 In 2009, plaintiff stumbled across Excelsior College ("Excelsior" or"defendant"), an online college that offered a program that, upon graduation, would qualify its students to sit for an examination to become RNs. See id.
Jolly enrolled in Excelsior's nursing program in 2009, but was ultimately dismissed without graduating on March 1, 2014 after failing a required course for the third time. Comp. 115. For her part, however, plaintiff asserts that there was a technical error in her third test and she should have been permitted to take the test a fourth time. Id.
Nevertheless, on March 5, 2018, absent both a degree from Excelsior and any directive as to whether she would be permitted to take the failed course again, Jolly applied to sit for the NCLEX-RN examination—apparently the required test to become an RN—in Vermont. Comp. 25, 115. As part of the test application, plaintiff was asked to enter the date she graduated from a program that would make her qualified to work as an RN. Id. at 25-26. Plaintiff alleges that she was attempting to apply for the examination through an alternate qualification process, and never intended to state that she had graduated from defendant's program, but Vermont's system still required her to list her graduation date. Id.
On March 7, 2018, Jolly received an email from Vermont's Licensing Administrator, Michelle Lavoie ("Lavoie") informing plaintiff that she had received plaintiff's college transcripts, but that her application remained incomplete. Comp. 26. After several volleys of communication back and forth, Lavoie ultimately told plaintiff that her paperwork could not be accepted and that she would need a verification of education form from Excelsior. See Comp. 95-99.
On July 31, 2018, an unnamed party allegedly informed New Jersey's Board of Nursing ("the Jersey board") that Jolly had attempted to receive an RN license in Vermont by misrepresenting that she had an associate degree from Excelsior's RN program. Comp. at 102. On August 15, 2018, defendant allegedly confirmed to the Jersey Board that plaintiffhad attended Excelsior's nursing program but had received no degree. Id. at 102-03. The Jersey Board brought a disciplinary action against plaintiff, and she ultimately waived her right to a hearing and accepted a five-year -suspension of her LPN license in New Jersey on December 6, 2018.2 Id. at 104.
In February of 2019, Jolly alleges that New Jersey's Lieutenant Governor's office sent her an email containing the Jersey board's formal decision and punishment. Comp. 28. Plaintiff does not know whether it was Vermont's Board of Nursing ("the Vermont board") or Excelsior who informed the Jersey board that she did not have the requisite degree to become an RN. Id. at 28-29. In any event, plaintiff alleges that defendant had reached out to several states' nursing boards to proactively inform them that plaintiff was misrepresenting herself as a graduate. Id. at 113.
On May 21, 2019, Jolly filed the present complaint in the Eastern District of Pennsylvania against Excelsior, the Jersey board, and the Vermont board. Dkt. 2. On May 24, 2019, United States Magistrate Judge Joel H. Slomsky transferred the case to the Northern District of New York but dismissed plaintiff's claims against the state boards with prejudice for lack of subject matter jurisdiction. Dkt. 5. On May 11, 2020, defendant moved to dismiss plaintiff's complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim. That motion, having been fully briefed, will now be decided on the parties' submissions without oral argument.
"To survive a Rule 12(b)(6) motion to dismiss, the '[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Ginsburg v. City of Ithaca, 839 F. Supp.2d 537, 540 (N.D.N.Y. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, the complaint must contain sufficient factual matter that it presents a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In assessing the plausibility of the plaintiff's complaint, "the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiff's favor." Ginsburg, 839 F. Supp. 2d at 540. Especially, a pro se plaintiff must have her submissions scrutinized with "special solicitude," and they "must be . . . interpreted to raise the strongest arguments that they suggest." Triestman v. BOP, 470 F.3d 471, 47475 (2d Cir. 2006) (cleaned up).
The complaint may be supported by "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." L7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)).
As an initial matter, Excelsior argues that Jolly's claims are barred by a settlement agreement she entered with defendant in 2019. Defendant argues that in that agreement, plaintiff ceded all claims against it accruing before the date of the release on March 26, 2019. For her part, plaintiff argues that the release should not be extended to these unrelated claims.
It may be that Excelsior is correct, and the release broadly ceded all of Jolly's rights to sue. But that question cannot be answered on a motion to dismiss, not when the release itself is not available for review. To be sure, defendant has cited to pages and paragraphs from the document, but those are of little use when the Court cannot access the actual document. After all, in citing to the release, defendant referred the Court to a docket entry inthe Eastern District of New York. Though this means of citation is not a problem in a vacuum, in this particular case the docket entry containing the settlement agreement is sealed, and cannot be accessed through any available means other than requesting the District Court of the Eastern District of New York to unseal it.
As it stands, there are two different interpretations of the settlement release, and neither can be verified. By extension, it would be improper to take judicial notice of the effects of a release based purely on Excelsior's word when Jolly's interpretation—as a pro se plaintiff—stands opposite to it, especially in the context of a Rule 12 motion. Accordingly, the release cannot dispose of plaintiff's claims at this juncture, and review of defendant's motion must pass on to the adequacy of the complaint.3
Jolly's complaint can be read to assert seven claims: (I) disclosure of personal information; (II) violation of 18 U.S.C. § 242 ("§ 242"); (III) conspiracy under 42 U.S.C. § 1985 ("§ 1985"); (IV) discrimination under 42 U.S.C. § 2000e ("Title VII"); (V) Excelsior's violation of attorney-client privilege; (VI) another Title VII claim; and (VII) a defamation claim, which defendant correctly notes lies hidden in the "Analysis" section of the complaint, but which must nevertheless be considered in light of plaintiff's pro se status.
Jolly's Count I claim for disclosure of personal information lists several potential statutory and regulatory bases, spanning federal and state law. First, plaintiff references 32 C.F.R. § 505.7 ("§ 505.7"). This regulation forms part of the Army Privacy Act Program, which regulates the disclosure of personal information stored in the Army's system of records to other agencies and third parties. Thundathil v. Lynch, 2016 WL 5485123, at *7 (W.D. Okla.Sept. 29, 2016). Because plaintiff does not allege at any point in her complaint that the records defendant apparently disclosed were stored in an Army database, plaintiff cannot rely on § 505.7 to support her claim.
Second, Jolly refers to Vermont's Public Records, Privacy, and Electronic Access Handbook ("the Handbook"). Much as the name suggests, the Handbook plaintiff refers to is simply a reference guide to Vermont's policies regarding the listed topics, among them the privacy of public records. There is therefore similarly no authority stemming from the Handbook to support a viable action against Excelsior. Moreover, the allegations rooted in the Handbook are aimed exclusively at former defendant the Vermont board, without reference to the only remaining defendant. Thus, the Handbook cannot support plaintiff's claim.
Third, Jolly relies on Vermont's Public Records Law, 1 V.S.A. §§ 315-20. Her reliance is, once again, misplaced. The only portion of that statute which even arguably creates an individual right of the sort plaintiff alleges is 1 V.S.A. § 317a(b), which states that "[a] custodian of public records shall not destroy, give away, sell, discard, or damage any record or records in his or her charge[.]" Even assuming, but of course not deciding, that this language afforded plaintiff an actionable right, she could not assert that right against Excelsior, who can hardly be said to be a custodian of public records under the authority of Vermont's state legislature.
Fourth and finally, Jolly refers in her complaint to the Privacy Act of 1974 ("the Privacy Act"), 5 U.S.C. § 552a. Even that argument is unavailing, however, because the Second...
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