Marino v. City Univ. of N.Y.

• Decision Date: 09 May 2014
• Docket Number: No. 11–CV–3640 WFK.,11–CV–3640 WFK.
• Citation: 18 F.Supp.3d 320
• Parties: Victoria MARINO, Plaintiff, v. CITY UNIVERSITY OF NEW YORK; Hunter College; Donna L. Roberts, in her official capacity; Lorri Gumanow, in her official capacity; Timothy Lackaye, Chair, Department of Special Education, in his Official capacity; Michael Schleifer, Chair, Senate Grade Appeals Committee, in his Official capacity; Hunter College Senate; Jennifer J. Raab, President of Hunter College, in her official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

18 F.Supp.3d 320

Victoria MARINO, Plaintiff

v.CITY UNIVERSITY OF NEW YORK; Hunter College; Donna L. Roberts, in her official capacity; Lorri Gumanow, in her official capacity; Timothy Lackaye, Chair, Department of Special Education, in his Official capacity; Michael Schleifer, Chair, Senate Grade Appeals Committee, in his Official capacity; Hunter College Senate; Jennifer J. Raab, President of Hunter College, in her official capacity, Defendants.

No. 11–CV–3640 WFK.

United States District Court, E.D. New York.

Signed May 9, 2014.

Ira S. Newman, The Law Offices of Ira S. Newman, Great Neck, NY, Christine Anne Ryan, Office of the Attorney General, New York, NY, for Plaintiff.

Christine Anne Ryan, Office of the Attorney General, New York, NY, for Defendants.

DECISION AND ORDER

WILLIAM F. KUNTZ, II, District Judge:

PRELIMINARY STATEMENT

The Plaintiff in this action invites the Court to change her grade to pass from fail. Federal Courts must reject the temptation to invade the essence of the Academy. For the reasons stated below, this Court dismisses this Complaint.

Plaintiff Victoria Marino brings this action against Defendants City University of New York (“CUNY”), Hunter College, the Hunter College Senate,¹ and five individuals in their official capacities: Donna L. Roberts, Lorri Gumanow, Timothy Lackaye, Michael Schleifer, and Jennifer J. Raab (collectively, the “Individual Defendants”). Plaintiff, a former graduate student at the College's School of Education (the “Master's Program”), alleges that the College, its professors, and administrators discriminated against her on the basis of her disabilities, in violation of the Fifth and Fourteenth Amendments to the Constitution, the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983, and 42 U.S.C. § 1985, Title II of the Americans With Disabilities Act (“ADA”), codified at 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act of 1973, 28 U.S.C. § 794 et seq.

Defendants move this Court to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure arguing that CUNY and its officials are immune from suit under the Eleventh Amendment. In addition, Defendants ask this Court to dismiss all of Plaintiff's claims for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons that follow, Defendants' motion is granted.

FACTUAL AND PROCEDURAL BACKGROUND

In resolving a motion to dismiss, the Court assumes all facts pled in the Complaint (“Compl.”) to be true, and draws all reasonable inferences in favor of the plaintiff. See LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir.2009).

Plaintiff graduated summa cum laude from Hunter College in 2002 with a bachelor's degree in psychology and a 3.967 grade point average (GPA). Id. at ¶ 1920. After her college graduation, Plaintiff suffered through a series of incidents, including a brain tumor

, a stroke, and a serious automobile accident. Id. at ¶ 22. These events left Plaintiff with both physical and mental disabilities, including permanent paralysis of her right hand and difficulty processing new information. Id. at ¶ 22.

In August 2007, Plaintiff enrolled in a Master's program at the Hunter College School of Education (the “Master's Program”). Id. at ¶ 23. Plaintiff sought to obtain a Master of Special Education, which is a prerequisite for certification to teach special education in New York's public schools. Id. at ¶ 23. In recognition of Plaintiff's disabilities, Hunter College's School of Education made several accommodations for Plaintiff when she enrolled in the Master's Program, such as providing a notetaker and allowing her additional time to complete exams. Id. at ¶ 25. Plaintiff completed 51.0 credits of graduate work in nineteen courses between August 2007 and December 2010 accruing a cumulative GPA of 3.68. Id. at ¶ 24.

During the fall semester of 2009, Plaintiff enrolled in a Student Teaching Seminar led by Defendant Gumanow. Id. at ¶ 26. The Student Teaching Seminar required the students to observe and ultimately co-teach a special education class with and under the supervision of a certified teacher. Id. at ¶ 28. It was expected that by the end of the semester, students in the seminar would be responsible for two full days of instruction and activities in their special education classrooms each week. Id. Students' grades in the course were to be based, inter alia, on an evaluation of their lesson plans, three observations of their teaching activities, a video clip demonstration, and a book review. Id. at ¶ 33. Plaintiff sought out and secured an opportunity to conduct her student teaching in a combined fourth and fifth grade special education class taught by Lisa Roerden at the Henry Gradstein School, Public School 166 (“P.S. 166”), in Long Island City, New York. Id. at ¶¶ 35–36.

Defendant Roberts, a CUNY instructor, was assigned as Plaintiff's student teaching field supervisor. Id. at ¶¶ 8, 38. During and after her observations of Plaintiff's teaching, Plaintiff alleges that Ms. Roberts had several conversations with Ms. Roerden about Plaintiff's work. Id. at ¶¶ 48–49. In these conversations, according to the Complaint, Ms. Roberts expressed her belief that Plaintiff should not be a teacher because of her disabilities. Id. at ¶ 50. Plaintiff also alleges that Ms. Roberts asked Ms. Roerden questions about whether and how Plaintiff's disabilities affected her work, including whether Ms. Roerden prepared Plaintiff's lesson plans for her, whether Plaintiff's disabilities had ever caused her to be violent with the students, and whether Ms. Roerden thought that Plaintiff should not be a teacher in light of her disabilities.Id. at ¶ 51. According to the Complaint, Ms. Roerden disagreed with Ms. Roberts's concerns and assessment of Plaintiff's classroom performance. Id. at ¶ 59.

After Ms. Roberts's first observation of Plaintiff's teaching performance, Ms. Roberts awarded Plaintiff a “B-” grade. Id. at ¶ 42. Following the second and third observations, however, Ms. Roberts awarded Plaintiff “F” grades. Id. at ¶ 45. Plaintiff alleges that Ms. Roberts also shared her beliefs and opinions to Defendant Gumanow that Plaintiff should not become a teacher because of her disabilities. Id. at ¶ 56. By contrast, Ms. Roerden submitted a positive written evaluation of Plaintiff's performance as a student teacher. Id. at ¶ 60. Ms. Roerden assessed Plaintiff as either “proficient” or “exemplary” in every category she evaluated. Id. Plaintiff alleges that her peers reviewed a video of her teaching performance and found her teaching to be of a high quality. Id. at ¶¶ 6163.

Because of the poor grades Plaintiff received from Ms. Roberts on the second and third observations, she received an overall grade of “C” in the seminar. Id. at ¶ 73. In the Master's Program, a “C” is considered a failing grade.² Id. at ¶ 34. As a result, Plaintiff lost her academic scholarship for individuals with disabilities, which she had been receiving from the New York State Department of Education. Id. at ¶¶ 7576. Plaintiff alleges that was precluded from attaining a Master's degree and certification to teach, and was therefore unable to commence her intended career as a special education teacher. Id. at ¶ 77. According to the Complaint, upon a review of Plaintiff's classmates' performances,³ Plaintiff claims that she can prove that Ms. Roberts's evaluation of her work was disproportionately negative compared to the evaluations of her classmates who were not suffering from disabilities. Id. at ¶ 70.

Plaintiff appealed her grade in the seminar to the Hunter College Grade Appeals Committee (the “College Committee”), and appeared before that body to express her belief that Ms. Roberts had discriminated against her because of her disabilities. Id. at ¶ 78. Although no representative of the Master's Program appeared to rebut Plaintiff's allegations, the College Committee considered and denied her appeal. Id. Plaintiff then appealed the College Committee's decision to the Grade Appeals Committee of the Hunter College Senate (the “Senate Committee”), expressing her belief that she had been the subject of discrimination due to her disabilities. Id. at ¶¶ 7980. Again, no representative from the Master's Program appeared. Id. at ¶ 83. As a result, the Chair of the Senate Committee, Defendant Michael Schleifer, wrote that the Committee was “left [with] no choice but to accept the student's assertions as stated.” Id. at ¶ 88. Despite this conclusion, the Committee declined to raise Plaintiff's grade, instead offering her an opportunity to repeat the seminar. Id.

Plaintiff filed this action against Defendants on July 28, 2011, alleging Defendants discriminated against her because of her disabilities, in violation of the Fifth and Fourteenth Amendments to the Constitution, the ADA, § 504 of the Rehabilitation Act, and §§ 1983 and 1985. Currently pending before the Court is Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6).

ANALYSIS

Defendants now move this Court to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), arguing that CUNY and its officials are immune from suit under the Eleventh Amendment. In addition, Defendants ask this Court to dismiss all of Plaintiff's claims for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

The Court agrees that the Eleventh Amendment bars Plaintiff's constitutional claims against CUNY, her claims against the Individual Defendants for monetary damages under § 1983, and her claims under the ADA. Those claims are dismissed on grounds of sovereign immunity. As § 1983 provides a remedy for Plaintiff's alleged constitutional violations, her claims arising directly under the Fourteenth Amendment against the Individual Defendants are also dismissed. Furthermore, Plaintiff concedes that her claim under § 1985 is not viable, Pl.'s Br. at 25, and that claim is dismissed in its entirety...