Warters v. Laura et al

Filing 61

MEMORANDUM-DECISION and ORDER - That Warters' motion for partial summary judgment (Dkt. No. 46) is DENIED. That defendants' cross motion for summary judgment (Dkt. No. 47) is GRANTED and Warters' Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/29/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JESSICA WARTERS,
Plaintiff,

3:10-cv-850
(GLS/DEP)

v.
JOHN LAURA et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
d’Arcambal Ousley & Cuyler Burk, LLP JACLYN DILASCIO MALYK,
40 Fulton - Suite 1005
ESQ.
New York, NY 10038
STEPHEN D. CUYLER, ESQ.
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Office of Attorney General
The Capitol
Albany, NY 12224

ADELE M. TAYLOR-SCOTT
MICHAEL C. McCARTIN
Assistant Attorneys General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Jessica Warters commenced this action against defendants1
1

John Laura, Jennifer Marshall, B. Jean Fairbairn, Sunha Choi,
Laura R. Bronstein, Brian Flynn, Diane Weiner, Josephine Allen, Patricia

pursuant to 42 U.S.C. § 1983 for relief related to her dismissal from a
graduate degree program at the State University of New York at
Binghamton (“the University”). (See Dkt. No. 1, Compl.) Pending is
Warters’ motion for partial summary judgment on the issue of liability, (see
Dkt. No. 46), and defendants’ cross motion for summary judgment
dismissing the Complaint, (see Dkt. No. 47). For the reasons that follow,
Warters’ motion is denied and defendants’ cross motion is granted.
II. Background
A.

Facts2
Warters enrolled at the University in 2007 in pursuit of a Masters of

Social Work (MSW) degree in the Department of Social Work (DSW) of the
College of Community and Public Affairs (CCPA). (See Pl.’s Statement of
Material Facts (SMF) ¶¶ 1, 5, Dkt. No. 46, Attach. 2.) To obtain a MSW
degree, students in the program were required to complete two segments
of field study, which was graded on a satisfactory/unsatisfactory—in

Wallace Ingraham, Sharon L. Holmes, Dennis Chapman, Pamela
Mischen, Tamara Behonick, Marilyn Tallerico, Robert Guay, Mark Fowler,
Dara Silberstein, Cassandra Bransford, John Does 1-10, and John Roes
1-10. (See Dkt. No. 1, Compl.)
2

Unless otherwise noted, the facts are undisputed.
2

essence, pass/fail—basis. (See id. ¶¶ 6-7.) These courses, known as
Field Instruction I (SW 591) and Field Instruction II (SW 592), could
collectively be completed over either thirty-two or fifty weeks. (See id. ¶¶ 6,
16, 18; Dkt. No. 46, Attach. 3 at 38-46.) During the 2007 fall semester,
Warters began Field Instruction under the thirty-two week plan, which
would span the fall and spring semesters and require fifteen hours per
week at her assigned placement with Broome Developmental Center
(BDC). (See Pl.’s SMF ¶¶ 4, 5, 16, 19.) The placement with BDC was
arranged and approved by defendant Jennifer Marshall, Director of Field
Education at the DSW. (See id. ¶¶ 19, 22.) Defendant John Laura, an
employee of BDC, was Warters’ field instructor for the internship. (See id.
¶¶ 21.)
Just prior to the start of Field Instruction I, scheduled to begin the first
week of September 2007, Warters was involved in an automobile accident,
which resulted in “serious neck and back” injuries, and vision deficits. (See
id. ¶¶ 24-25.) Warters presented at BDC for the first time on September
10, 2007 and stayed for about an hour. (See id. ¶¶ 25, 28.) Two days
later, Marshall appointed herself as Warters’ field liason, a position filled by
“faculty and staff from the Division of Social Work whose role is as a
3

contact for students and field instructors during the student’s field
instruction.” (Dkt. No. 46, Attach. 3 at 19; see Pl.’s SMF ¶¶ 14, 29.) After
having difficulty meeting the weekly hour requirement for the thirty-twoweek-long Field Instruction, Warters reduced her hours to ten per week
with the approval of Marshall and Laura. (See Pl.’s SMF ¶¶ 32-33.)
Laura completed a mid-term evaluation in November and graded
Warters as “‘Satisfactory[,]’ the highest mark for Overall Impression.” (Id.
¶¶ 36-39.) In January 2008, Warters switched to the fifty-week version of
Field Instruction “due to her continuing back pain.” (Id. ¶ 40.) Warters
alerted Marshall in February that she was having physical difficulties with
her internship, and, in March or April, she explained that she was
concerned about a lack of supervision by Laura, his conduct at meetings
held in public places, and the advanced skills required for the placement.
(See id. ¶¶ 41-42, 44-45.) In March, Warters was put on notice that her
performance in Field Instruction was not satisfactory; in fact, Marshall
suggested a medical leave of absence, which Warters declined to pursue.
(See Defs.’ SMF ¶¶ 25-26, Dkt. No. 47, Attach. 1.) Laura thereafter
completed another mid-term evaluation of Warters’ performance in Field
Instruction, this time scoring her as needing improvement as an overall
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impression. (See Pl.’s SMF ¶¶ 52-53.)
The working relationship between Warters and Laura apparently
began to deteriorate afterward. In June 2008, Warters requested a
meeting with Marshall to discuss the possibility of Laura no longer being
able to serve as her field instructor because of “issues” he was having at
BDC. (Id. ¶¶ 58-59.) On July 1, 2008, Laura told Warters not to return to
BDC and recommended a failing grade. (See id. ¶¶ 68.)3 Two weeks later,
Marshall informed Warters that she failed Field Instruction and would be
terminated from the MSW degree program. (See id. ¶¶ 75-77.)
Warters then began a series of administrative appeals regarding the
failing grade she received. (See generally id. ¶¶ 78, 80, 90, 104.) After
three unsuccessful attempts by Warters at challenging her failing
grade—first, directly to Marshall; second, to the Ad Hoc Hearing
Committee; and, third, to the CCPA Grievance Committee—Associate
Dean of the Graduate School defendant Dara Silberstein found, against the
recommendation of a specially-conveved committee after a formal hearing,

3

Defendant Brian Flynn, a professor in the DSW, acted as Warters’
field liason for the summer term. (See Pl.’s SMF ¶ 60.) Flynn directed
Warters not to return to BDC after he learned of Laura’s decision. (See id.
¶ 69.)
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that Warters grade should be changed to “Incomplete” and she be afforded
an “opportunity to complete the SW 592 course requirement.” (Dkt. No. 46,
Attach. 3 at 95-97; see Pl.’s SMF ¶¶ 79, 87, 101, 104-105, 113, 118, 119.)
Silberstein’s decision, which was issued in late December 2008, was based
upon “procedural problems,” namely, the DSW’s failure to use the
“Advancement Process and Procedure” set out in its own policy, and other
“irregularities with respect to previous hearings particularly with respect to
the CCPA Ethics and Integrity Committee.” (Dkt. No. 46, Attach. 3 at 9597; see Pl.’s SMF ¶¶ 120-126.) Ultimately, Silberstein concluded that
Warters “was denied due process.” (Pl.’s SMF ¶ 132.) Although Marshall
attempted to appeal Silberstein’s decision, her appeal was rejected as
untimely. (See Defs.’ SMF ¶ 76.)
Silberstein’s ruling had the effect of changing Warters’ grade in Field
Instruction II (SW 592) to an “Incomplete” and providing her with an
opportunity to “re-take or complete the course in the Spring 2009
semester.” (Id. ¶ 77.) In February 2009, Marshall formally notified Warters
of certain shortcomings in her performance, and she also identified steps
Warters could take to be more successful. (See id. ¶¶ 84-85.) The
following month, an Advancement Committee met and further advised
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Warters that her advancement in the MSW degree program depended on
better communication on her part. (See id. ¶¶ 86-87.) Although several
draft versions of a formal Advancement Plan pertaining to Warters had
been previously circulated for changes and approval, the final draft was not
approved by Warters until March 31, 2009. (See Pl.’s Supplemental SMF
¶¶ 51-52, Dkt. No. 50, Attach. 2.)
Marshall eventually arranged an interview for Warters, on March 25,
2009, with a new potential Field Instruction placement. (See id. ¶ 37.)
Warters arrived late for the interview, failed to contact Marshall afterward
as specifically requested by Marshall, and failed thereafter to attend
mandatory orientation sessions for the new placement. (See Defs.’ SMF
¶¶ 92, 93, 95; Dkt. No. 47, Attach. 12 ¶ 7.) On April 2, 2009, based upon
Warters’ failures to correct “issues that had repeatedly been brought to
[her] attention,” defendant Laura R. Bronstein, Director of the DSW,
determined that Warters should be given a failing grade for the course she
was permitted to retake by Silberstein’s decision, and, further, that she
would again be dropped from the degree program. (See Defs.’ SMF ¶¶ 9699.) Warters did not appeal Bronstein’s decision; however, she sought and
was granted a medical withdrawal retroactive to April 1, 2009. (See id.
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¶¶ 100-01; Pl.’s Supplemental SMF ¶ 59.) At some point, Warters applied
to a similar degree program at the University at Albany, the State University
of New York, but her application was rejected. (See Pl.’s Supplemental
SMF ¶ 57.)4
B.

Procedural History
Warters commenced this action in July 2010, and alleged claims

pursuant to 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act
(ADA),5 and section 504 of the Rehabilitation Act.6 (See Compl. ¶¶ 15073.) Following joinder of issue and discovery, the parties stipulated to the
dismissal of Warters’ ADA and Rehabilitation Act claims, leaving only her
first claim, which asserts that defendants deprived her of “due process of
law.” (Compl. ¶¶ 151, 170-73; see Dkt Nos. 33, 45.)7 After the parties filed
4

In light of the transcript issued on February 10, 2009 to “SUNY
Center Albany,” it appears that Warters applied to the University at Albany
prior to receiving a failing grade and being dismissed from the program for
the second time. (See Dkt. No. 50, Attach. 2 at 71.)
5

See 42 U.S.C. §§ 12131-12165.

6

See 29 U.S.C. § 794.

7

Although Warters claims that she is entitled to relief under 42
U.S.C. § 1988 and punitive damages, (see Compl. ¶¶ 170-73), those
“claims” are dependent on and subordinate to the only remaining claim of
any independent substance. See Panetta v. Vill. of Mamaroneck, No.11
CV 4027, 2012 WL 5992168, at *7 (S.D.N.Y. Feb. 28, 2012) (explaining
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the instant motions, the action, which had been pending before Senior
United States District Judge Thomas J. McAvoy, was reassigned to this
court. (See Dkt. No. 59.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
IV. Discussion
In support of her motion, Warters makes two principal arguments.
First, she contends that “[s]ummary [j]udgment is appropriate because
[defendants] cannot overcome the burden of proof required to overturn an
administrative agency decision.” (Dkt. No. 46, Attach. 1 at 14-19.)
Particularly, Warters alleges that Silberstein’s decision, which is based
upon specialized expertise, is entitled to a “high degree of deference” that
can only be overturned if arbitrary and capricious, irrational, made in bad
faith or contrary to the Constitution or statute. (Id. at 14-15.) Warters also

that claims for punitive damages and attorney’s fees under section 1988
“should not be . . . separately-delineated cause[s] of action”).
9

takes issue with defendants “refus[al] to implement Silberstein’s decision,”
asserting that she was never given a meaningful opportunity to complete
Field Instruction II (SW 592). (Id. at 18.) Second, Warters claims that
Silberstein’s decision went unchallenged by defendants, resulting in a
failure to exhaust their administrative remedies, and is entitled to preclusive
effect. (See id. at 19-21.)
As to their cross motion, defendants first argue that Warters was
“granted substantial procedural due process.” (Dkt. No. 47, Attach. 33 at
13-18.) Specifically, defendants maintain, that, among other things,
Silberstein’s decision cured any error occurring prior to the appeal. (See
id. at 16.) According to defendants, Warters failed to avail herself of
available remedies with respect to any post-appeal wrongdoing by
defendants. (See id. at 11, 18.) Next, defendants contend that Warters
cannot make out a plausible substantitve due process claim because the
failing grades she was given and her dismissal from the MSW degree
program were justified by her poor performance in Field Instruction. (See
id. at 18-22.) Defendants also claim that Warters’ due process claims are
moot because of the medical withdrawal granted to her that effectively
nullified the failing grade issued by Marshall in April 2009, and that they are
10

entitled to qualified immunity. (See id. at 22-23.)
In response to defendants’ arguments, Warters asserts, among other
things, that: (1) defendants wrongly and intentionally failed to implement
Silberstein’s favorable decision, which serves as evidence of both
procedural and substantive due process violations; (2) she was not
required to exhaust her administrative remedies regarding the post-appeal
conduct of defendants, and, in any event, to do so “would clearly have
been futile”; and (3) the action is not moot in light of the medical withdrawal
retroactive to April 1, 2009 because she has lost her scholarship,
significant time, and money as a result of defendants’ conduct even if she
is able seek readmission to the MSW degree program. (Dkt. No. 50 at 518; see Dkt. No. 53 at 1-5.)
A.

Mootness
As a threshold issue, the court must consider whether this case has

been rendered moot by the medical withdrawal, which was issued after
Warters received the second failing grade, but was also retroactive to
before that time. (See Dkt. No. 47, Attach. 33 at 22-23.) The burden on a
party asserting mootness is a “heavy” one. Lillbask ex rel. Mauclaire v.
Conn. Dep’t of Ed., 397 F.3d 77, 84 (2d Cir. 2005). The fundamental
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question is whether the dispute is “real and live.” Id. Here, defendants
have failed to meet their hefty burden. While the retroactive medical
withdrawal may have excused some conduct that forms the basis of
Warters’ claims, Warters’ transcript apparently continues to reflect a failing
grade despite the issuance of the medical withdrawal. (See Pl.’s
Supplemental SMF ¶ 58; Dkt. No. 47, Attach. 24 ¶ 53; Dkt. No. 50, Attach.
2 at 71.8) Moreover, even though Warters can now apparently seek
readmission to the MSW degree program provided that she is “medically
cleared to return,” (see Dkt. No. 47, Attach. 24 ¶ 52), her academic career
has been derailed by a significant passage of time dealing with the
underlying events. As such, the court is satisfied that a live controversy
remains.
B.

Due Process
Warters’ remaining claim boils down to an allegation that defendants

denied her due process as a result of their interference with her “right to
obtain a graduate degree.” (See Compl. ¶¶ 150-155.) As further explained

8

The court notes that the copy of Warters’ transcript contained
within the record was issued nearly two months prior to the time she was
informed of the medical withdrawal. (Compare Dkt. No. 47, Attach. 5 at
74, with Dkt. No. 50, Attach. 2 at 71.)
12

in her brief, Warters claims that the process leading up to each of the
failing grades she was given was flawed, and defendants’ intentional and
arbitrary failure to implement Silberstein’s decision violated her due
process rights. (See Dkt. No. 50 at 1-13, 17-18.)
The Due Process Clause of the Fourteenth Amendment contains
both substantive and procedural components, which may give rise to a
claim provided that the plaintiff can demonstrate the deprivation of a
protected property or liberty interest. See Johnson v. N.Y.C. Police Dep’t,
25 F. App’x 32, 33 (2d Cir. 2001). New York state law recognizes an
implied contract requiring academic institutions to deal with their students
in good faith. See Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
“Such an implied contract, recognized under state law, provides the basis
for a property interest that would be entitled to constitutional protection.”
Id. Indeed, defendants concede that, at least in this Circuit, Warters has a
protected property interest. (See Dkt. No. 47, Attach. 33 at 13 n.2.)
Although exhaustion of administrative remedies is generally not a
prerequisite to the commencement of a section 1983 action, such as this
one, see Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982), “the
existence of state remedies is relevant” to procedural due process claims,
13

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis omitted). On the
other hand, substantive due process violations are actionable as soon as
the wrongful conduct occurs, and, thus, the availability of some postconduct remedy is irrelevant. See id.
1.

Procedural Due Process

At its core, procedural due process requires notice and an
opportunity to be heard. See Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). Because this variety of due process is
concerned with the process itself, there is no violation unless the state
either provides no process whatsoever or provides a constitutionally
inadequate one. See Zinermon, 494 U.S. at 126. Procedural protections
are necessarily flexible; however, “formal hearings before decisionmaking
bodies need not be held in the case of academic dismissals.” Bd. of
Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 88 (1978).
Importantly, administrative redress is part of the due process protection a
plaintiff receives, and, if a favorable result is achieved in challenging the
denial of process on an administrative level, it can cure any procedural
defects that may have occurred. See Young v. Hoffman, 970 F.2d 1154,
1156 (2d Cir. 1992).
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Here, while the court is skeptical that Warters’ right to procedural due
process was violated prior to her successful appeal, see generally
Horowitz, 435 U.S. at 85-86, any wrongdoing by defendants was assuaged
by Silberstein’s decision to award Warters an “Incomplete” and permit her
to retake Field Instruction II, (Dkt. No. 46, Attach. 3 at 95); see Young, 970
F.2d at 1156 (“The administrative reversal constituted part of the due
process protection he received, and it cured any procedural defect that
may have occurred.”). As for defendants’ post-appeal conduct, which
includes the implementation of Silberstein’s decision as discussed more
fully below, the second failing grade, and decision to dismiss Warters from
the program, no violation occurred because the process available to
Warters—namely, the appeal process that she previously used
successfully—was constitutionally adequate. See Rivera-Powell v. N.Y.C.
Bd. of Elections, 470 F.3d 458, 468 n.12 (2d Cir. 2006). The court notes
that Warters’ argument regarding the futility of the appeals process, (see
Dkt. No. 50 at 14-15), is inapposite because the measure of procedural due
process is the “process the State provided, and whether it was
constitutionally adequate,” Zinermon, 494 U.S. at 126. As Warters aptly
notes, (see Dkt. No. 50 at 14), exhaustion, and its corresponding
15

exceptions, is not a prerequisite to recovery under section 1983. See
Patsy, 457 U.S. at 516.9 Accordingly, defendants are entitled to summary
judgment as to procedural due process.
2.

Substantive Due Process

The threshold question in considering an alleged violation of
substantive due process, “‘is whether the behavior of the governmental
officer is so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.’” Graziano v. Pataki, 689 F.3d 110, 119 (2d Cir.
2012) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998)). The success of such a claim relies upon a showing “that the
defendants infringed [the plaintiff’s] property interest in an arbitrary or
irrational manner.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494,
503 (2d Cir. 2001).

9

The court notes that Silberstein’s finding that Warters was “denied
the . . . due process protections as the School itself . . . set forth,” is not
entitled to any preclusive effect, and, accordingly, does not establish that
Warters’ is entitled to summary judgment as to liability. (Dkt. No. 46,
Attach. 3 at 97.) Silberstein’s determination does not amount to a
determination that constitutional due process was violated, for the
minimum procedural requirements owed to a plaintiff are a matter of
federal law, not state specification. See Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532, 541 (1985). For this simple reason, Warters’
motion must be denied.
16

In the context of academic decisions, such as those in this case,
made by public educational institutions, “[c]ourts are particularly illequipped to evaluate academic performance.” Horowitz, 435 U.S. at 9192. Thus, academic decision-making should not be intruded upon by the
courts “unless [there] is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee
responsible did not actually exercise professional judgment.” Regents of
the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985). Further,
“educational institutions have the right to receive summary judgment unless
there is evidence from which a jury could conclude that there was no
rational basis for the decision or that it was motivated by bad faith or ill will
unrelated to academic performance.” Clements v. Nassau Cnty., 835 F.2d
1000, 1004 (2d Cir. 1987).
Initially, the court highlights that Warters makes no claim that
substantive due process was violated prior to her successful administrative
appeal. (See Dkt. No. 50 at 13, 17-18.) Instead, she contends that the
intentional failure of defendants to implement Silberstein’s decision violates
her substantive due process rights. (See id. at 17-18.) However, as a
factual matter, Silbertein’s decision was fully implemented. That decision
17

only required that “Warters’ grade . . . be changed to an ‘Incomplete’
allowing her an opportunity to complete the [Field Instruction II] SW 592
course requirement.” (Dkt. No. 46, Attach. 3 at 95.) Marshall assisted
Warters in that regard, and commenced the Advancement Process, which
was identified by Silbestein as the only error occurring outside of the
appeals process and the primary basis of her decision. (See id. at 96-97;
Defs.’ SMF ¶¶ 86-88, 90.)
In any event, summary judgment for defendants is appropriate
because there is no evidence that treatment of Warters was without a
rational basis or “motivated by bad faith or ill will unrelated to academic
performance.” Clements, 835 F.2d at 1004. Despite the fact that the
Advancement Plan was only in place for two days before Warters was
given her second failing grade and dismissed from the program, (compare
Defs.’ SMF ¶ 99, with Pl.’s Supplemental SMF ¶ 52), those decisions are
supported by Warters’ continual inability to meet the expectations of the
DSW.
For example, dating back to her interaction with Laura, Warters’
participation and completion of assignments was “[b]elow expectation.”
(Dkt. No. 47, Attach. 23 at 17.) By March 2008, Laura found Warters’
18

performance in the internship to be unsatisfactory. (See Defs.’ SMF ¶ 25.)
After her successful appeal, Warters continued to fall below the DSW’s
expectations. As summarized in Bronstein’s letter to Warters advising her
that she would be given a failing grade for a second time, Warters failed to:
(1) “get back to [Marshall] (as instructed) after the interview with the
potential field instructor to move the placement process forward”; (2)
“return necessary paperwork to the agency in a timely fashion”; (3)
“communicate with [her] field instructor regarding plans for a start date”;
and (4) “attend two agency orientation meetings required for [her] to begin
[her] field placement with the agency.” (Dkt. No. 47, Attach. 5 at 72.)
Warters admitts each of those accusations to some degree. (See Defs.’
SMF ¶¶ 93-95.) Warters’ shortcomings in performance and
professionalism provide an entirely non-arbitrary and rational basis for
defendants’ conduct and Bronstein’s letter leaves no doubt that the
academic decision made here was the result of professional judgment. As
such, defendants are entitled to judgment regarding Warters’ claim that her
substantive due process rights were violated.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
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ORDERED that Warters’ motion for partial summary judgment (Dkt.
No. 46) is DENIED; and it is further
ORDERED that defendants’ cross motion for summary judgment
(Dkt. No. 47) is GRANTED and Warters’ Complaint (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 29, 2013
Albany, New York

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