Yennard v. Herkimer BOCES et al
Filing
75
DECISION AND ORDER granting # 66 Defendant's Motion for Summary Judgment; and Plaintiff's Amended Complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 2/12/19. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
AUTUMN YENNARD,
Plaintiff,
v.
6:16-CV-0556
(GTS/ATB)
HERKIMER BOCES,
Defendant.
___________________________________________
APPEARANCES:
OF COUNSEL:
SANDOWSKI KATZ LLP
Counsel for Plaintiff
11 Broadway, Suite 615
New York, New York 10004
RAPHAEL KATZ, ESQ.
ROBERT W. SADOWSKI, ESQ.
OFFICE OF FRANK W. MILLER
Counsel for Defendant
6575 Kirkville Road
East Syracuse, New York 13057
FRANK W. MILLER, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this disability discrimination action filed by Autumn
Yennard (“Plaintiff”) against Herkimer BOCES (“Defendant”), is Defendant’s motion for
summary judgment. (Dkt. No. 66.) For the reasons set forth below, Defendants’ motion for
summary judgment is granted.
I.
RELEVANT BACKGROUND
A.
Relevant Procedural History and Plaintiff's Amended Complaint
On August 24, 2016, Defendant (along with dismissed parties Mary Kline, Sara
Nicolette, and Lesa Steele) filed a motion for judgment on the pleadings, in response to which
Plaintiff filed a cross-motion to file an amended complaint. (Dkt. Nos. 21, 30.) The Court
issued its Decision and Order on Defendant’s motion on March 14, 2017, in which it dismissed
Plaintiff’s claims for retaliation under the Rehabilitation Act and the Americans with Disabilities
Act (“ADA”), hostile learning environment under the Rehabilitation Act and the ADA, state law
defamation, state law negligence, state law breach of contract, and state law intentional infliction
of emotional distress (which were present in the initial Complaint), as well as her claims for
disability discrimination under the New York State Human Rights Law and violation of her civil
rights under 42 U.S.C. § 1983 (which were added in the proposed Amended Complaint). (Dkt.
No. 38 [Decision and Order filed Mar. 14, 2017].) Plaintiff then filed her Amended Complaint
on March 16, 2017. (Dkt. No. 39.) On March 27, 2017, the Court issued a Decision and Order
clarifying that its Decision and Order of March 14, 2017, dismissed Plaintiff’s individual claims
against Ms. Kline, Ms. Nicolette, and Ms. Steele. (Dkt. No. 43 [Decision and Order filed Mar.
27, 2017].) Pursuant to that Decision and Order, only the following two claims are still pending
in this action and thus challenged by Defendant’s current motion for summary judgment: (1)
Plaintiff’s claim for discrimination under the Rehabilitation Act; and (2) Plaintiff’s claim for
discrimination under the ADA. (Id.)
As to both claims, Plaintiff alleges that (a) she is a qualified individual with a disability
(i.e., bipolar disorder), (b) Defendant subjected her to discriminatory acts because of her
disabilities, including denying reasonable and necessary accommodations and failing to engage
in an interactive process to consider Plaintiff’s requested accommodations, and (c) Defendant
acted with deliberate indifference toward Plaintiff. (Dkt. No. 39, at ¶¶ 79-92 [Pl.’s Am.
Compl.].) More specifically, Plaintiff alleges that, although Defendant agreed to provide
2
Plaintiff with certain reasonable accommodations, including providing daily “quick checks” to
give her feedback on her performance in the clinical setting, it ultimately did not consistently
provide these accommodations. (Id. at ¶¶ 31-33, 47, 53-57, 60-65, 77.) Plaintiff also alleges that
Defendant refused to provide additional accommodations that she requested, including provision
of a peer tutor for clinical skills. (Id. at ¶¶ 34, 44.)
B.
Undisputed Material Facts on Defendant’s Motion for Summary Judgment
Unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendant in its Statement of Material Facts and expressly admitted by
Plaintiff in her response thereto or denied without appropriate record citations. (Compare Dkt.
No. 66, Attach. 21 [Def.’s Rule 7.1 Statement] with Dkt. No. 69 [Pl.’s Rule 7.1 Resp.].)
Before reciting the material facts of this case, the Court finds it appropriate to address
two general issues it has identified with regard to Plaintiff's response to Defendant's Statement of
Undisputed Material Facts. First, on numerous occasions, although Plaintiff expressly admits
the facts asserted by Defendant, she then follows those admissions with commentary for the
Court's consideration. (See, e.g., Dkt. No. 69, at ¶¶ 7, 9, 10-15, 17, 22-25, 41, 45, 49, 52, 56, 62,
64-69, 77, 78.) This is impermissible,1 regardless of whether the commentary is intended to
assert a related fact,2 place in context or “spin” the asserted fact,3 or deny a perceived
1
See CA, Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3
(E.D.N.Y. Apr. 8, 2015) (“[T]he Court will consider the statement provided by [Plaintiff] as
undisputed because [Defendant’s] initial response in each instance is, in fact, 'Undisputed.'");
Washington v. City of New York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y. June 5,
2009) (“[T]he statement provided by Defendants is taken as true because Plaintiff[’]s initial
response in each instance is ‘Admit.’”).
2
See Maioriello v. New York State Office for People With Developmental
Disabilities, 272 F. Supp. 3d 307, 311 (N.D.N.Y. 2017) (“[T]hroughout Plaintiff's Rule 7.1
3
implication of the asserted fact.4
Second, on numerous occasions, in her responses, Plaintiff refuses to expressly admit or
deny the facts asserted by Defendant in its Rule 7.1 Statement. (See, e.g., Dkt. No. 69, at ¶¶ 16,
21, 40, 42, 46, 47, 53, 61, 73.) This too is impermissible.5
Having said that, before Defendant’s factual assertions may be deemed to have been
“admitted” by Plaintiff pursuant to Local Rule 7.1(a)(3) of the Local Rules of Practice for this
Court, those factual assertions must be (1) supported by the record evidence to which Defendant
has cited in its Rule 7.1 Statement, and (2) not contradicted by any record evidence that the
Court has come across during its review of the record (in order to verify the accuracy of
Response, she ‘admits’ many of the facts asserted by Defendants in their Rule 7.1 Statement but
then includes additional facts and/or legal argument in those responses. . . . Where this occurs,
the Court will deem those facts admitted and disregard the additional factual assertions and/or
argument that Plaintiff provides in her responses.”); Baity v. Kralik, 51 F. Supp. 3d 414, 417
(S.D.N.Y. 2014) (holding that plaintiff’s response to defendant's Rule 56.1 Statement failed to
comply with the rule because “counsel neither admits nor denies a particular fact, but instead
responds with equivocal statements such as: ‘Admit, but defendant omits the balance of
plaintiff's testimony’”).
3
See Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1
(S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1 Statement, in part, because plaintiff
added “argumentative and often lengthy narrative in almost every case the object of which is to
‘spin’ the impact of the admissions plaintiff has been compelled to make”).
4
See Yetman v. Capital Dis. Trans. Auth., 12-CV-1670, 2015 WL 4508362, at *10
(N.D.N.Y. July 23, 2015) (citing authority for the point of law that the summary judgment
procedure involves the disputation of asserted facts, not the disputation of implied facts).
5
See N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response shall mirror the
movant’s Statement of Material Facts by admitting and/or denying each of the movant’s
assertions in matching numbered paragraphs. . . . The Court shall deem admitted any properly
supported facts set forth in the Statement of Material Facts that the opposing party does not
specifically controvert.”) (emphasis in original); In re Horowitz, 14-CV-36884, 2016 WL
1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“[A] response contending to neither admit
or deny an allegation does not create a genuine issue of fact.”).
4
Defendant’s citations in its Rule 7.1 Statement, and verify the accuracy of Plaintiff's citations in
its Statement of Additional Material Facts in Dispute). The following factual assertions meet
those requirements.
1.
Plaintiff is a resident of Gloversville, New York, United States.
2.
Defendant is a public entity within the meaning of Title II of the ADA.
3.
Plaintiff first attended the Herkimer BOCES LPN Program in September 2014.
4.
Plaintiff testified that, before being admitted to the Herkimer BOCES LPN
Program, she had been charged with and convicted of grand larceny.
5.
Plaintiff was also charged with welfare fraud in 2016.
6.
Plaintiff pled guilty to one count of welfare fraud and served a ten-day sentence.
7.
Plaintiff admitted that her criminal record might preclude her from getting her
nursing license.
8.
When Plaintiff applied to the Herkimer BOCES LPN Program, she familiarized
herself with and signed the student nursing handbook.
9.
The Herkimer BOCES Practical Nursing Program Handbook states that
[a] student receiving a 2.0-2.9 in a clinical evaluation period
will be placed on clinical probation. The student must
achieve a 3.0 or higher clinical performance grade by the next
evaluation period to be removed from clinical probation
status. Failure to do so may result in dismissal.
10.
The Herkimer BOCES Practical Nursing Program Handbook also lists
“[h]arassment of other students” as prohibited student conduct in school or
clinical settings.
5
11.
Plaintiff admitted that, on one particular occasion during the 2014-2015 year, she
told another student “to shut her mouth before I shut it for her.” The other student
Plaintiff was speaking to was Rebecca Fuller.
12.
Plaintiff also admitted that threatening another student was contrary to the
Herkimer BOCES code of conduct.
13.
Plaintiff was discharged from the Herkimer BOCES LPN Program on June 22,
2015.
14.
Plaintiff testified that Ms. Nicolette discharged her from the program for
threatening Rebecca Fuller.
15.
The June 22, 2015, letter to Plaintiff from Ms. Nicolette states that Plaintiff’s
“actions involving the threatening of another student in the school parking lot and
at clinical are direct violations of the Herkimer BOCES Code of Conduct.” The
letter goes on to state that this conduct “resulted in your ultimate removal from
the clinical setting.”
16.
The June 22, 2015, letter also references Plaintiff’s “last clinical” having been
scored as “incomplete/failing.”
17.
The letter concludes, “Because of these combined events, you were dismissed
from the Herkimer BOCES LPN program on [May 11, 2015].”
18.
The “last clinical” referred to in the June 22, 2015, letter was at Folts Nursing
Home.6
6
Without expressly denying this asserted fact, Plaintiff responds to it by arguing
that the citation does not support the asserted fact and that, in any event, the asserted fact is
immaterial. (Dkt. No. 69 at ¶ 18 [Pl.’s Rule 7.1 Resp.].) However, the cited source establishes
6
19.
Plaintiff testified that, during that last clinical, at the request of a patient, she
“pretended to sit on his lap.”
20.
Plaintiff’s grade for that last clinical was 0.75.7
21.
Plaintiff testified that “you get a score for every clinical, every day for clinical,
and you have to have a 4 to pass. So you get 1, 2, 3, 4, and anything below 3 is
failing.”8
22.
Plaintiff also testified that Ms. Nicolette “told us on many occasions that it’s her
program, she will run it the way she wants to run it.”
23.
Plaintiff also testified that Ms. Nicolette’s manner of running the Herkimer
BOCES LPN Program applied to all students.
24.
By letter dated June 22, 2015, Plaintiff was readmitted to the Herkimer BOCES
LPN Program for the fall of 2016.
the alleged fact. (See Dkt. No. 66, Attach. 4, at 27 [Pl.’s Dep.] [when discussing the grade noted
for the last clinical, Plaintiff was asked “it appears from reading this that the grade was based on
interactions with the nursing home staff. Is that the Folts Nursing Home?”, to which she replied
“yes.”].) Additionally, the Court finds that this fact is not immaterial. Therefore, Plaintiff’s
denial of the asserted fact is ineffective and this fact is deemed admitted.
7
Plaintiff denies this asserted fact, appearing to argue that there was nothing
inappropriate in her actions with the nursing home staff on that day. (Dkt. No. 69, at ¶ 20 [Pl.’s
Rule 7.1 Resp.].) However, the June 22, 2015, letter cited by Defendant establishes that
Plaintiff’s rubric score was 0.75 at the time of her dismissal, and Plaintiff has offered no
evidence substantiating that her grade was anything different. This asserted fact is therefore
deemed admitted.
8
The Court acknowledges Plaintiff’s notation that Plaintiff misspoke in her
deposition when she stated that a student needed a 4 to pass; however, this is an accurate
representation of what Plaintiff testified to at her deposition, and she never subsequently
corrected her deposition transcript. Moreover, Plaintiff provides no record citation to support
her response. The Court therefore finds no reason to exclude this asserted fact from this
statement of undisputed facts.
7
25.
Plaintiff had appealed her dismissal.
26.
In the course of reapplying for admission, Plaintiff reviewed and signed a clinical
orientation sign-off sheet.
27.
The clinical orientation sign-off sheet addressed the clinical requirements for the
school year.
28.
The clinical orientation sign-off sheet signed by Plaintiff included the following
language:
I understand that final clinical grades are given at the end of
each rotation. This score is the average of the daily scores for
that clinical. A score of 1.9 or below is considered a clinical
failure and cause for dismissal. A score of 2 to 2.9 is a
probationary pass and must be followed by a clinical pass to
remain in the LPN program. A 3 to a 4 is considered a pass.
29.
At the time of her readmittance, Plaintiff was a client of ACCES-VR.
30.
Together with her ACCES-VR advocate Marguerite Pywar-House and Ms.
Nicolette, Plaintiff developed what she termed a “special accommodation plan” to
assist her in her clinical classes.
31.
Plaintiff testified that her disability was bipolar disorder.
32.
Ms. Nicolette requested medical records confirming Plaintiff’s diagnosis of
bipolar disorder, but none were provided.9
33.
According to the terms of the Reasonable Accommodation Plan, Plaintiff was to
receive “Classroom Quick Check” and “Clinical Quick Check Level II” forms
completed on days she had interaction with the clinical instructors.
9
Plaintiff denies this asserted fact, but fails to provide any evidentiary support for
that denial. (Dkt. No. 69, at ¶ 32 [Pl.’s Rule 7.1 Resp.].) Because the asserted fact is supported
by the evidence cited by Defendant, this fact is deemed admitted.
8
34.
Plaintiff testified that she needed the “quick checklist . . . every day for the things
I’m doing wrong.”
35.
Plaintiff testified that, except for her clinical rotation at Little Falls Hospital, she
received her quick check forms “on a regular basis” at the time she was
participating in clinicals.10
36.
Plaintiff failed her Little Falls Hospital clinical rotation.
37.
The stated reason that Plaintiff failed the Little Falls Hospital clinical rotation was
a critical safety error she had committed.11
38.
The critical safety error was “droplet precautions, no mask, clipboard in room.”
39.
Plaintiff explained that a “critical safety is something that could immediately
harm the patient or the student, so droplet precaution means that they were on
isolation.”
40.
Plaintiff admitted that “I went in there with no mask and I had my clipboard in
my hand. Normally, if they’re on isolation, you would wear a mask and gown
and you would not go in there with anything at all, including a clipboard.”
41.
Plaintiff testified that she was told about this critical safety error on the day it
happened.
10
Although Plaintiff denies this asserted fact, the record evidence cited in support of
that denial does not actually controvert the fact asserted, which regards what she testified to in
her deposition. (Dkt. No. 69, at ¶ 35 [Pl.’s Rule 7.1 Resp.].) This fact is therefore deemed
admitted.
11
Although Plaintiff denies this asserted fact, she fails to cite record evidence that
actually supports her denial. (Dkt. No. 69, at ¶ 37 [Pl.’s Rule 7.1 Resp.].) This fact is therefore
deemed admitted.
9
42.
This was not Plaintiff’s only safety violation during her second admission to the
Herkimer BOCES LPN Program.
43.
Plaintiff admitted that she did not give a call bell to one of her patients at Little
Falls Hospital.
44.
This safety violation was brought to Plaintiff’s attention at the time it occurred.
45.
Plaintiff’s cumulative clinical score for Little Falls Hospital clinical rotation was
2.8.
46.
This clinical score was not a passing grade.
47.
The 2.8 clinical score was based on an average of the scores for each day.
48.
Plaintiff also earned a clinical score of 2 on January 11, 2016.12
49.
This was not a passing score.
50.
As for the deficiency that was the reason for the failing clinical score on January
11, 2016, Plaintiff testified that “[m]ost of it was my skills.”
51.
The Clinical Quick Check form for January 11, 2016, indicates in the nursing
skills section that something had been “contaminated,” and the words “sterile
technique” are circled.
12
Plaintiff denies this asserted fact, arguing that a written note includes a notation
by Ms. Nicolette that Plaintiff had “passed” this virtual lab clinical. (Dkt. No. 69, at ¶ 48 [Pl.’s
Rule 7.1 Resp.].) However, the evidence does not support Plaintiff’s argument. Although there
is a handwritten note indicating that Plaintiff was to perform certain skills on videotape to be
submitted by January 27, 2016, and this handwritten note includes the “passed” notation, Ms.
Nicolette explains in her deposition that this skills tape was not the same as the virtual lab;
rather, the skills tape was required because it was deemed that Plaintiff needed to bring her skills
to an acceptable level before attending any further clinicals, and the indication that she passed
the skills tape does not mean that she also passed the virtual lab. (Dkt. No. 68, Attach. 20, at 1;
Dkt. No. 68, Attach. 31, at 42-43 [Nicolette Dep.].) Other evidence supports Defendant’s
assertion that Plaintiff received a 2 on the January 11, 2016, clinical, and therefore this asserted
fact is deemed admitted.
10
52.
Plaintiff testified that these entries refer to the fact that “I contaminated my gloves
during the sterile technique.”
53.
These deficiencies were brought to Plaintiff’s attention at the time they occurred.
54.
On January 12, 2016, Plaintiff received a clinical grade of 2 and the words “sterile
technique” are again circled on the Clinical Quick Check form.13
55.
Plaintiff was also given a clinical score of 2 on January 27, 2016.
56.
That was a failing score.
57.
The stated reason for the January 27, 2016, score was a critical safety violation.14
58.
The critical safety error was the result of Plaintiff being told she pushed a patient
(a mannequin in the virtual lab) “back into bed with great force.”15
59.
By letter dated March 30, 2016, Plaintiff was discharged from the Herkimer
BOCES LPN Program for a second time.
13
Plaintiff denies this asserted fact, arguing that she actually received a score of 3
for this clinical date. (Dkt. No. 69, at ¶ 54 [Pl.’s Rule 7.1 Resp.].) In support of this argument
Plaintiff points to her deposition testimony. However, after carefully reviewing the cited
testimony, the Court finds that the score of 3 had nothing to do with the January 12, 2016,
clinical; rather, that score was received for a clinical on January 26, 2016. (See Dkt. No. 68,
Attach. 34, at 105 [referring to a page on which the top shows a passing score of 3, while below
is the quick check for January 27, 2016]; Dkt. No. 66, Attach. 14, at 2 [quick check form
showing a score of 3 on the top entry for January 26, 2016, and an entry for January 27, 2016,
below that entry].) Because it is clear that the cited deposition testimony was not referring to the
relevant page containing the score for January 12, 2016, Plaintiff’s denial is unsupported by
contrary evidence and this fact is deemed admitted.
14
Plaintiff denies this asserted fact, arguing that she did not push the mannequin
with great force as was alleged in the quick check form. (Dkt. No. 69, at ¶ 57 [Pl.’s Rule 7.1
Resp.].) However, Plaintiff’s unsupported belief that her force was justified or not excessive
does not negate the fact that her clinical instructor (who is notably not one of the persons that
Plaintiff alleges were unfairly discriminating against her) found that force to be concerning in
terms of patient safety. The mere fact that Plaintiff disagrees with the amount of force perceived
by her instructor does not create an issue of fact. This asserted fact is therefore deemed
admitted.
15
See, supra, note 14 of this Decision and Order.
11
60.
Ms. Nicolette gave the March 30, 2016, letter to Plaintiff personally.
61.
The letter states that Plaintiff failed to meet clinical standards.
62.
Plaintiff acknowledged that the letter indicates that she was dismissed for failing
to obtain a passing grade in the clinical setting.
63.
Plaintiff testified that, when returning to the program, she understood that she
would have to obtain a score of 3 or better in order to graduate.
64.
Plaintiff testified that the standard of nursing care requires a nurse to provide care
that is in the patient’s best interests.
65.
Plaintiff testified that fall prevention is in the patient’s best interests.
66.
Plaintiff testified that sterile technique is in the patient’s best interests.
67.
Plaintiff testified that a failure by a nurse to meet patient safety needs is not in the
patient’s best interests.
68.
Plaintiff testified that she wanted her patients to receive medical care according to
accepted standards.
69.
Plaintiff acknowledged that, in her experience, the Herkimer BOCES LPN
Program was designed to teach safe and appropriate nursing care.
70.
The March 30, 2016, letter from Ms. Nicolette indicates that Plaintiff was
provided with information about the appeals process at the same time.
71.
Plaintiff filed an appeal for reinstatement.
72.
BOCES superintendent Dr. Mark Vivacqua upheld Plaintiff’s dismissal from the
Herkimer BOCES LPN Program.
12
73.
Dr. Vivaqua wrote that “the Adult Nursing program staff followed proper
procedures detailed in the nursing handbook. In regard to [Plaintiff’s]
accommodation plan, I further believe that reasonable accommodations were
made.”16
74.
Plaintiff testified that she agreed with Dr. Vivacqua’s statement that reasonable
accommodations were made.17
75.
Dr. Vivacqua testified that, in connection with Plaintiff’s 2016 appeal, he
reviewed Plaintiff’s student file (including the accommodation plan) as well as
the nursing handbook.
76.
Dr. Vivacqua also met with Plaintiff, Ms. Pywar-House, and Ms. Nicolette at a
hearing concerning Plaintiff’s appeal.
77.
Dr. Vivacqua testified that “there were no behaviors from BOCES employees, it
seemed to me, that were out of proportion and aimed at ensuring the student
would fail.”
78.
Plaintiff’s ACCES-VR counselor, Ms. Pywar-House, acted as Plaintiff’s
“advocate.”
16
Without expressly denying this asserted fact, Plaintiff makes some assertions and
provides some record citations that do not actually controvert this fact. (Dkt. No, 69, at ¶ 73
[Pl.’s Rule 7.1 Resp.].) This asserted fact is therefore deemed admitted.
17
Although Plaintiff denies this asserted fact, she fails to cite record evidence that
actually supports her denial. (Dkt. No. 69, at ¶ 74 [Pl.’s Rule 7.1 Resp.].) This asserted fact is
therefore deemed admitted.
13
79.
Ms. Pywar-House testified that she did not observe anything that she would be
able to ascribe to discrimination by Ms. Nicolette based on Plaintiff’s disability.18
C.
Parties’ Briefing on Defendant’s Motion for Summary Judgment
1.
Defendant’s Memorandum of Law
Generally, in its motion for summary judgment, Defendant argues that Plaintiff cannot
show a triable issue of fact as to her remaining claims of disability discrimination. (Dkt. No. 66,
Attach. 22, at 4-6 [Def.’s Mem. of Law].) More specifically, Defendant argues that (a) Plaintiff
has failed to show how her alleged bipolar disorder resulted in her failure to meet clinical
standards or in the need for accommodations, (b) the evidence establishes that Plaintiff was
unable to meet standards even with the provided accommodations, and (c) the evidence of
repeated safety violations establishes that Plaintiff was dismissed for her inability to meet
program standards rather than because of bias against her. (Id. at 4-5.) Defendant also argues
that Plaintiff was provided with quick checks, that her readmission in 2015 is proof that she was
not being purposefully driven out of the program, and that her request for her ACCES-VR
advocate to be present at all meetings between her and BOCES staff was a burdensome and
impractical request that the school did not need to accept. (Id. at 5-6.) Finally, Defendant argues
that there is no evidence of deliberate indifference to Plaintiff’s complaints of bullying by other
students (and that the record in fact shows that Plaintiff herself engaged in threatening behavior
towards other students). (Id. at 6.)
18
Although Plaintiff (without expressly denying this asserted fact) responds to the
asserted fact, the response does not actually controvert the asserted fact, nor does it cite any
supporting record evidence. (Dkt. No. 69, at ¶ 79 [Pl.’s Rule 7.1 Resp.].) This fact is therefore
deemed admitted.
14
2.
Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendant’s motion for summary judgment, Plaintiff asserts
three arguments. (Dkt. No. 68, at 19-28 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that
her bipolar affective disorder is a qualifying disability that substantially limits her major life
activities; she argues that she was diagnosed with the disorder more than a decade ago, that she
experiences symptoms such as mood swings, marked difficulty with social interaction, anxiety
and difficulty concentrating and organizing, and that she obtains treatment in the form of
prescription medication, weekly counseling, and monthly appointments with her primary care
physician. (Id. at 19-23.) Plaintiff also notes that her ACCES-VR counselor recognizes her as
having a disability. (Id. at 23.)
Second, Plaintiff argues that Defendant knew of Plaintiff’s disability, but failed to
provide reasonable accommodations for it, engaging in discrimination and producing a hostile
educational environment. (Id. at 24-28.) More specifically, Plaintiff argues that Defendant was
aware of her bipolar disorder and agreed to provide reasonable accommodations but informed
only two of her instructors of the requirement to provide daily quick checks, and that at least one
of those required quick checks were provided a day late. (Id. at 24.) Plaintiff also argues that
the evidence establishes that she was able to pass her clinicals when she was provided with these
quick checks and that it was “hostile taunting, false accusations, and failure to provide the
accommodations” that resulted in her failing her clinical requirement. (Id. at 24-25.)
Third, Plaintiff argues that the Court should recognize a claim for hostile learning
environment in this case (although she acknowledges that the Second Circuit has not yet
recognized such a claim) based on the evidence of bullying, taunts, failure to investigate
15
incidents before putting the fault on Plaintiff, singling Plaintiff out in front of classmates,
denying her requests, and implying that Plaintiff is a potential child abductor. (Id. at 26.)
3.
Defendant’s Reply Memorandum of Law
Generally, in reply to Plaintiff’s opposition memorandum of law, Defendant asserts three
arguments. (Dkt. No. 72, Attach. 1, at 4-9 [Def.’s Reply Mem. of Law].) First, Defendant notes
that only the discrimination claims are still at issue in this case, not the retaliation or hostilelearning-environment claims, which were dismissed previously by this Court, and therefore
Plaintiff’s arguments related to those dismissed claims are irrelevant. (Id. at 4-5.)
Second, Defendant argues that Plaintiff has failed to raise a triable issue of fact with
regard to her discrimination claims because (a) she received all of her clinical quick checks in a
timely manner with the exception of the final one for her Little Falls Hospital clinical rotation,
(b) the evidence shows she failed a clinical on January 11, 2016, then earned a probationary pass
upon repeating it, but was still on probation as of March 30, 2016, when she was dismissed, and
(c) the evidence shows multiple failing daily clinical scores due to critical patient safety errors
regardless of whether she passed single days within the clinical rotation. (Id. at 6-7.) Defendant
also argues that Plaintiff has failed to explain how her disability in particular impacted her ability
to complete the clinical program. (Id. at 7-8.)
Third, and finally, Defendant argues that Plaintiff’s response to Defendant’s statement of
material facts and her separate statement of material facts in dispute contain improper
conclusions of law. (Id. at 8-9.)
16
II.
LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).19 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).20
19
As a result, "[c]onclusory allegations, conjecture and speculation . . . are
insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998) [citation omitted]. As the Supreme Court has explained, "[The non-movant] must do more
than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
20
Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching number paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
17
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute.21 Of course,
when a non-movant willfully fails to respond to a motion for summary judgment, "[t]he fact that
there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be
granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as
indicated above, the Court must assure itself that, based on the undisputed material facts, the law
indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R.
7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's
burden.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement.22
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
21
Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.)
(citing cases).
22
Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching numbered paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
18
Rule 7.1(b)(3).23 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL
2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
III.
ANALYSIS
After carefully considering whether Plaintiff has met her burden to establish a prima
facie case of disability discrimination, the Court answers this question in the negative for the
reasons stated in Defendant’s memoranda of law. (Dkt. No. 66, Attach. 22, at 4-6 [Def.’s Mem.
of Law]; Dkt. No. 72, Attach. 1, at 6-7 [Def.’s Reply Mem. of Law].) To those reasons, the
Court adds the following analysis.
“In the education context, the ADA and Rehabilitation Act require a covered institution
to offer reasonable accommodations for a student’s known disability unless the accommodation
would impose an ‘undue hardship’ on the operation of its program.” Dean v. Univ. at Buffalo
23
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
19
Sch. of Medicine and Biomedical Scis., 804 F.3d 178, 186-87 (2d Cir. 2015). To establish a
prima facie case for failure to provide a reasonable accommodation, a plaintiff must show “(1)
that she is a qualified individual with a disability; (2) that the defendants are subject to [the ADA
or the Rehabilitation Act]; and (3) that she was ‘denied the opportunity to participate in or
benefit from defendants’ services, programs, or activities, or was otherwise discriminated against
by defendants, by reason of her disability.’” Dean, 804 F.3d at 187. Additionally, “in the
education context, a plaintiff alleging a failure to accommodate a disability bears the burdens of
both production and persuasion as to the existence of some accommodation that would allow the
plaintiff to meet the essential requirements of the service, program, or activity at issue,” after
which the burden shifts to the defendant “to persuade the fact-finder that the proposed
accommodation is unreasonable” because it either (a) imposes an “undue hardship on the
operation of defendant’s service, program, or activity,” or (b) requires a “fundamental or
substantial modification to the nature of its academic program or standards.” Id. at 190. Lastly,
although reasonable accommodations are required, an institution “does not have to provide a
disabled individual with every accommodation he requests or the accommodation of his choice.”
Id. at 187.
Although Defendant argues that it has never received conclusive medical proof of
Plaintiff’s bipolar disorder, it nonetheless appears to have treated her as having that disability,
particularly by agreeing to provide accommodations to her; Ms. Kline acknowledged that, based
on her understanding, an individual must have some type of disability in order to qualify for
services with ACCES-VR. (Dkt. No. 68, Attach. 30, at 15-16.) The parties also do not appear to
dispute that the essential issue before this Court is whether Plaintiff was denied the opportunity
to participate in and benefit from the Herkimer BOCES LPN Program, or was otherwise
discriminated against, because of her bipolar disorder.
20
As part of her readmission to the Herkimer BOCES LPN Program in January 2016,
Defendant agreed to provide Plaintiff with the following accommodations: (1) Plaintiff would
received “Classroom Quick Check” and “Clinical Quick Check Level II” forms on days she has
interaction with the clinical instructor; (2) ACCES-VR would be notified of “any concerns as
they arise as well as be given the opportunity to be present via phone conference or in person”;
(3) communications between the school and Plaintiff would remain related to learning and issues
directly impacting her educational outcomes; (4) Defendant would provide weekly updates to
ACCES-VR by email related to Plaintiff’s academic and professional progress; and (5)
reasonable accommodations would be developed throughout as needed with the assistance of
ACCES-VR. (Dkt. No. 66, Attach. 11, at 2.) Of note, these accommodations are relevant only
to Plaintiff’s clinicals as of January 2016, when she began her first courses after being
readmitted to the Herkimer BOCES LPN Program. (Id.)
The record shows that Plaintiff first attended a virtual lab clinical in January 2016 with
instructor Ms. Propopienko. In her deposition, Ms. Nicolette testified that she instructed Ms.
Propopienko to provide Plaintiff with quick checks. (Dkt. No. 68, Attach. 31, at 13-14
[Nicolette Dep.].) The record contains quick check forms from this clinical dated January 11,
2016 (score of 2), January 12, 2016 (score of 2), January 26, 2016 (score of 3), and January 27,
2016 (score of 2), all of which were signed by Plaintiff on those same dates. (Dkt. No. 66,
Attach. 14, at 2-3.) Plaintiff acknowledged at her deposition that she had in fact signed these
quick check sheets and that all the deficiencies in performance outlined in those quick check
sheets were brought to her attention at the time they were noticed. (Dkt. No. 68, Attach. 34, at
101-02, 108 [Pl.’s Dep.].) Additionally, Plaintiff states in her opposition memorandum that she
21
“admits that Propopienko gave her the clinical quick checks for the virtual lab clinical sessions.”
(Dkt. No. 68, at 24 [Pl.’s Opp’n Mem. of Law].) There is therefore no genuine issue of fact as to
whether Defendant provided Plaintiff’s accommodation for quick checks as to this clinical: it did
so.24
Plaintiff next attended an observational clinical at Saint Luke’s Hospital with instructor
Ms. Steele on January 30, 2016. Ms. Steele testified that she was never informed of Plaintiff’s
need for quick checks or other accommodations and that she never provided Plaintiff any quick
check forms. (Dkt. No. 68, Attach. 32, at 40-41 [Steele Dep.].) Ms. Nicolette admitted that she
did not tell Ms. Steele to do quick checks because that observational clinical was not graded,
testifying that it was her understanding that, “if it was a graded clinical, . . . she needed to have
[quick checks] done every day and given to [Plaintiff].” (Dkt. No. 68, Attach. 31, at 10-15, 35
[Nicolette Dep.] [emphasis added].) Plaintiff argues that her accommodations required her
instructors to provide a clinical quick check for any day that she had an interaction with a
24
The Court rejects Plaintiff’s argument that her ability to pass this clinical with
provision of her accommodations establishes that she was able to meet the requirements of the
clinicals when provided her granted accommodations. (Dkt. No. 68, at 24 [Pl.’s Opp’n Mem. of
Law].) The evidence of record shows that she primarily obtained daily scores of 2 due to noted
critical safety violations, and that she received only a probationary pass in this clinical; as
discussed above, it is undisputed that anything below a final grade of 3 is failing. Additionally,
Plaintiff’s argument that Ms. Nicolette told her she had passed the virtual clinic based on doing a
successful skills video is not supported by the evidence. Rather, Ms. Nicolette testified that the
skills tape was a prerequisite to continuing with her clinical because she had demonstrated
insufficient skills and required remediation. (Dkt. No. 68, Attach. 31, at 43 [Nicolette Dep.].)
The written sheet indicating the instructions for the skills tape and noting Plaintiff’s passing
mark on that skills tape does not contradict that testimony, but rather merely states that the video
“must be complete and proper to get a probationary or full pass.” (Dkt. No. 68, Attach. 20, at 1.)
Of note, the record shows that Plaintiff continued in the virtual lab following her pass on the
skills tape, which further supports a finding that it was merely a requirement to qualify for the
virtual lab, not a substitute for a graded clinical. (Dkt. No. 66, Attach. 14, at 2.)
22
clinical instructor, whether or not that clinical was graded. (Dkt. No. 68, at 24 [Pl.’s Opp’n
Mem. of Law].) The signed letter regarding her accommodations simply states that Plaintiff
would receive quick check forms “on the days she has interaction with the clinical instructor.”
(Dkt. No. 66, Attach. 11, at 2.)
Under the circumstances, the Court finds that there is a genuine dispute of material fact
as to whether Plaintiff was entitled to quick checks for any sessions with Ms. Steele because it is
not clear whether Defendant agreed to provide that accommodation only for graded clinicals (as
Ms. Nicolette believed) or for all clinicals where Plaintiff interacted with an instructor (as
Plaintiff believed). Although an argument can be made that, because the accommodation was
intended to help Plaintiff remedy mistakes in her actions before being provided with her final
grade in a given clinical session, such accommodation would serve no purpose in a clinical
setting where there was no grade at stake. However, because the quick checks informed Plaintiff
of mistakes, including critical safety errors, providing her with such feedback even for a nongraded clinical could be pertinent to her graded clinicals if identifying those mistakes prevented
her from performing them in future graded clinicals. Because the evidence is conflicting as to
whether Plaintiff’s accommodation pertained to all clinical sessions or graded clinical sessions
only, the Court is unable to determine whether Plaintiff was provided with her agreed-upon
quick check accommodation for this clinical.
Based on concerns about Plaintiff’s behavior at the Saint Luke’s clinical, Plaintiff was
placed in a virtual lab for her next clinical rather than being permitted to attend the Head Start
clinical. Ms. Nicolette testified that the Head Start clinical was not graded, but rather another
observational rotation, and she indicated in an email that, because Plaintiff had attended the
23
Head Start clinical the previous year, that attendance would meet her requirement for this year.
(Dkt. No. 68, Attach. 31, at 28 [Nicolette Dep.]; Dkt. No. 68, Attach. 6, at 1; Dkt. No. 68,
Attach. 8, at 1.)
Lastly, Plaintiff attended a graded clinical at Little Falls Hospital in March 2016, with
instructor Ms. Lynch. (Dkt. No. 68, Attach. 16, at 2-3.) Both parties acknowledge that Ms.
Lynch failed to provide Plaintiff with the quick check on the final day of the clinical, providing it
to her instead the following morning. (Dkt. No. 66, Attach. 22, at 3 [Def.’s Mem. of Law]; Dkt.
No. 6, at 14-15 [Pl.’s Opp’n Mem. of Law]; Dkt. No. 72, Attach. 1, at 6 [Def.’s Reply Mem. of
Law].) However, Defendant argues that Ms. Lynch was late in providing only this last quick
check form, while Plaintiff argues that Ms. Lynch’s notes over the course of Plaintiff’s
participation in the clinical rotation suggest that Ms. Lynch provided a quick check form on only
a single day of the multi-day clinical. (Dkt. No. 66, Attach. 22, at 3 [Def.’s Mem. of Law]; Dkt.
No. 68, at 15 [Pl.’s Opp’n Mem. of Law].) The record contains a copy of a quick check form
with assessments for March 15 and 22, 2016; however, only the form from March 15, 2016, is
signed by Plaintiff (the form from March 22, 2016, is cut off before the signature line, so it is
impossible to tell whether Plaintiff also signed for this date). (Dkt. No. 66, Attach. 12, at 2.) In
Ms. Lynch’s notes related to the course of Plaintiff’s work in the clinical session, March 15,
2016, is the only date on which Ms. Lynch specifically notes that she gave Plaintiff a quick
check sheet. (Dkt. No. 68, Attach. 16, at 2-3.) Additionally, Plaintiff’s testimony does not
support Defendant’s argument that Plaintiff admitted that she had received all the quick checks
from Ms. Lynch other than the one on the last day that was provided late; Plaintiff’s testimony,
taken in context, does not clearly suggest that interpretation. (Dkt. No. 68, Attach. 34, at 110
24
[Pl.’s Dep.].) Instead, Plaintiff’s testimony appears to indicate only that she had regularly
received her quick checks until attending the Little Falls Hospital clinical rotation.25 However,
Plaintiff also later testified that she “had all her checklists” and used them to calculate her
potential final grade, after which she determined she would be below a passing score and
requested to be able to attend another clinical section for a day to raise her grade. (Id. at 11214.) Given the conflicting evidence and either parties’ failure to provide copies of quick check
forms signed by Plaintiff for any day other than March 15, 2016, the Court cannot determine on
the record whether Plaintiff was provided with her accommodation for this clinical rotation or to
what extent.
Despite the above questions of fact as to whether the granted accommodations were
actually provided on a consistent basis, the Court finds that Plaintiff has nonetheless not met her
burden to show that she was capable of satisfactorily meeting the essential requirements of the
Herkimer BOCES LPN Program, even with reasonable accommodations, given the existence of
evidence that she committed multiple critical safety violations during her clinical sessions. In a
letter to Ms. Pywar-House dated January 4, 2016 (before Plaintiff had begun attending clinical
sessions with her accommodations), Ms. Nicolette provided an overview of the grading system,
25
In her deposition, Plaintiff was asked the following questions and gave the
following answers:
Q: Okay. So, up until the Little Falls Hospital quick checks, had you been
getting them on a regular basis at the time you were going through the
clinicals”
A: Yes.
Q: So it was just the last one that you weren’t–you feel you weren’t given
timely?
A: Yes.
(Dkt. No. 68, Attach. 34, at 110 [Pl.’s Dep.].) The Court notes that it is ambiguous as to
whether “last one” in the second question above is intended to refer to her last clinical as a whole
or the last day of that clinical.
25
noting in particular that an overall score of 2 to 2.9 was considered a probationary pass, that a
probationary pass must be followed by a pass to remain in the program, and that “critical safetys
can result in dismissal.” (Dkt. No. 68, Attach. 13, at 1 [emphasis in original].) As already
discussed above, Plaintiff’s scores in her first virtual lab resulted in a probationary pass. Her
only other graded clinical was the Little Falls Hospital clinical in March 2016, during which it is
undisputed that Plaintiff committed two critical safety errors: failure to observe droplet
precautions on March 15, 2016, and failure to place the call bell in reach of her patient on March
22, 2016. (Dkt. No. 68, Attach. 16, at 2-3.) Additionally, although she gave Plaintiff passing
scores on multiple days of the clinical session, Ms. Lynch repeatedly noted deficiencies in
Plaintiff’s performance even on these days, including poor documentation skills for patient
assessments, needing to be redirected to her responsibilities, difficulties working as a team with
others, and needing to improve time management and organization. (Id.) The record therefore
shows that, not only did Plaintiff receive a cumulative failing score for this clinical rotation
despite some passing days (while already on probation from her previous graded clinical
rotation), but she committed two critical safety errors during this clinical rotation. The program
handbook states that “[a]ny action or lack of action by the student in the clinical setting which in
the judgment of the instructor, places the patient in physical or psychological jeopardy may be
cause for dismissal from the program.” (Dkt. No. 66, Attach. 6, at 25.) Therefore, based on
Herkimer BOCES’ written policy, those critical safety violations could constitute sufficient
grounds for dismissing Plaintiff from the program, notwithstanding her failing score.
Of course, this is the same clinical rotation that Plaintiff alleges she was not provided her
quick check forms, and therefore it must be determined whether any alleged failure to provide
26
the granted accommodations negatively impacted Plaintiff’s ability to perform the essential
requirements of the clinical portion of the Herkimer BOCES LPN Program. However, the Court
is not convinced that the evidence in the record as a whole establishes that provision of the
formal quick checks (if in fact not done) would have prevented Plaintiff from committing these
very same critical safety violations. In particular, Ms. Lynch’s notes related to Plaintiff’s
performance indicate that (a) on March 15, 2016, the day on which she failed to follow proper
droplet precautions, Ms. Lynch spoke to her directly about her failure to wear a mask and gloves
despite signs indicating the need to take those precautions and instructed her about her priorities
and duties in such a situation, and (b) on March 22, 2016, Ms. Lynch spoke to Plaintiff twice
during the clinical session about Plaintiff’s failures to ensure that her patient’s bed alarm was
activated and the call bell was within reach. (Dkt. No. 68, Attach. 16, at 2-3.) This evidence
establishes that Plaintiff was directly spoken to and informed about the critical safety errors at
the time they were committed, whether or not a quick check form was provided on both days.
Additionally, Ms. Lynch’s notes establish that Plaintiff committed the second critical safety error
on March 22, 2016, despite the fact she had been explicitly provided a quick check form after the
first critical safety error on March 15, 2016. (Id.) Such evidence suggests that receipt of quick
check forms would not have inevitably prevented Plaintiff from performing these critical safety
errors during her clinical sessions, particularly as the rest of Ms. Lynch’s notes do not suggest
that providing a quick check form on preceding days would have corrected or prevented the
specific behaviors or failings that resulted in the two critical safety violations. This finding is
also supported by the fact that, although Plaintiff received a probationary pass in the January
2016 virtual lab, she was noted to have committed a critical safety violation during that clinical
27
rotation, specifically being too rough with the mannequin patient.26 (Dkt. No. 66, Attach. 14, at
2.) This critical safety violation notably occurred despite the fact that it is undisputed that
Plaintiff was receiving her quick check forms during that clinical rotation.
Because the Herkimer BOCES LPN Program handbook specifically states that critical
safety violations (which place a patient in jeopardy) can constitute grounds for dismissal,
Plaintiff’s multiple critical safety violations show that Plaintiff could not meet the essential
requirements of the clinical portion of the Herkimer BOCES LPN Program, even if she were
provided with her granted accommodations. Of note, in a May 3, 2016, email related to
Plaintiff’s appeal of her dismissal, Mr. Vivacqua specifically states that “[y]our failure in the
program was due to critical safety errors which you made, and not due to BOCES’ lack of
attention to accommodating your disability.” (Dkt. No. 66, Attach. 16, at 2.) The evidence
simply would not allow a reasonable fact finder to determine that Plaintiff would have been able
to avoid committing these critical safety errors had she simply been provided with sufficient
reasonable accommodations, and therefore Plaintiff has not shown that there is a genuine dispute
of material fact as to whether she was able to meet the essential requirements of the Herkimer
BOCES LPN Program, or that any failure to provide these accommodations in a more consistent
matter prevented her from meaningfully accessing and participating in the Herkimer BOCES
LPN Program. See Adams v. Rochester Gen. Hosp., 977 F. Supp. 226, 234-35 (W.D.N.Y. 1997)
26
Plaintiff disputes that she was not too rough with the mannequin, stating that she
did not believe that she pushed the mannequin as hard as Ms. Propopienko asserted; however,
Plaintiff’s unsupported belief is not sufficient to create any issue of fact as to the validity of this
critical safety error. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 852 (2d Cir. 2013)
(“[The plaintiff’s] subjective disagreement with her employer’s assessment of her performance is
not sufficient to demonstrate retaliatory intent and defeat summary judgment.”).
28
(finding that the fact that the plaintiff’s difficulty with repairing equipment according to accepted
practice and procedures, for which he was disciplined multiple times, might have stemmed from
his alleged mental health condition did not excuse his failure to perform the essential functions
of his job).
The Court notes that the record contains evidence that Plaintiff had passed a clinical
rotation with a score of 4 in November 2014, which she points to as proof that she was able to
meet the essential requirements of the program. (Dkt. No. 68, Attach. 28, at 1-2.) However, as
Ms. Nicolette testified, this was the geriatric clinical, which “is very basic,” while the clinical
sessions she attended after the geriatric clinical were of an increasing intensity in terms of the
skills and level of performance required. (Dkt. No. 68, Attach. 31, at 49, 55-57 [Nicolette
Dep.].) Because this passed clinical was testing basic skills, while the clinical sessions in 2016
tested more involved skills, the fact that Plaintiff passed the geriatric clinical does not serve as
proof from which a reasonable factfinder could conclude that she possessed the ability to pass
the higher-level (yet still required) clinical rotations. In particular, Plaintiff has not pointed to
any additional reasonable accommodation that would have prevented her from making the
critical safety errors that occurred during her clinical sessions. See McBride v. BIC Consumer
Prods. Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009) (“The plaintiff bears the burden of both
production and persuasion as to the existence of some accommodation that would allow her to
perform the essential functions.”).
Plaintiff additionally argues that Defendant failed to comply with the granted
accommodation for having Ms. Pywar-House present (either in person or via phone) for
conversations between Plaintiff and Defendant’s staff. However, Plaintiff points to only one
29
specific instance in which this accommodation was not complied with: a meeting between her,
Ms. Nicolette, and Ms. Propopienko regarding Plaintiff’s need to do a skills video in order to
continue with her virtual lab clinical session. (Dkt. No. 68, Attach. 34, at 102 [Pl.’s Dep.].) The
letter outlining Plaintiff’s accommodations states that “ACCES-VR will be notified of any
concerns as they arise as well as be given the opportunity to be present via phone conference or
in person.” (Dkt. No. 68, Attach. 2, at 1.) Based on the wording of this letter, there was no
absolute requirement that Ms. Pywar-House be present in some form at every meeting, only that
she be given the opportunity to be present. Plaintiff has presented no evidence that Ms. Nicolette
or Ms. Propopienko failed to offer Ms. Pywar-House the opportunity to participate in this
meeting, nor that Ms. Pywar-House was prevented from participating in any other relevant
meetings. The Court consequently finds that Plaintiff has not shown that she was denied this
particular accommodation.27 More importantly, Plaintiff has not provided any evidence as to
how complying with this accommodation in a more thorough way would have prevented her
from committing the critical safety errors that resulted in her failing clinical score and ultimate
dismissal from the Herkimer BOCES LPN Program.
As to Plaintiff’s arguments that Defendant unlawfully denied her requests for additional
accommodations, namely access to a peer tutor for clinical sessions and the ability to join
another clinical section for a day when the last day of her own clinical section was cancelled by
the instructor, those arguments are not persuasive. As to the request for a peer tutor, Ms.
Nicolette testified in her deposition that the LPN program did not provide peer tutors because
27
Additionally, the Court notes that Ms. Pywar-House testified that Defendant
provided her with weekly emails about Plaintiff’s performance, satisfying the fourth granted
accommodation. (Dkt. No. 68, Attach. 29, at 21, 27 [Pywar-House Dep.].)
30
there were concerns that learning from or being assisted by a fellow student without instructor
supervision would raise the possibility of the peer tutor teaching inaccurate or unsafe practices,
which in turn would endanger the safety of the patients; Ms. Nicolette indicated that, rather than
receiving a tutor, students could receive more direction from the instructor, and that “[t]he
clinical instructor gave [Plaintiff] a lot of assistance is my understanding.” (Dkt. No. 68, Attach.
31, at 56-58 [Nicolette Dep].) In addition to the patient safety concerns that would compromise
the standards of the Herkimer BOCES LPN Program, the availability of the clinical instructors to
assist Plaintiff during the clinical sessions appears to reasonably address her concern about the
need for extra assistance; as discussed above, an educational institution is not required to provide
accommodations in the specific form demanded by a student so long as the provided
accommodation reasonably addresses the needs of the student’s disability. Dean, 804 F.3d at
187. As to the request for an additional day of clinical experience in order to obtain a passing
grade, Plaintiff has failed to connect such accommodation with her alleged disability, i.e., she
has failed to argue how her bipolar disorder specifically required her to be allowed an extra day
of clinical compared to the other students in her clinical section, or how denial of this extra day
constituted an exclusion from participation in (or the benefits of) the program by reason of her
disability. Instead, Plaintiff argues that she required this extra day simply because her
cumulative scores from the other days of that clinical had not been sufficient to produce a
passing score, in large part due to her commission of two critical safety errors on two separate
days. (Dkt. No. 68, Attach. 34, at 112-116 [Pl.’s Dep.].) Although Defendant was required to
provide reasonable accommodations to put Plaintiff on a level playing field with her nondisabled peers and grant her meaningful access to the Herkimer BOCES LPN Program, it was
31
not required to do everything possible to ensure that she passed her courses, including allowing
her the opportunity to complete an additional day of clinical that other students in her clinical
section were not afforded merely because Plaintiff was failing that clinical and wanted to try to
raise her grade. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218 (2d Cir.
2001) (“Congress intended simply that disabled persons have the same opportunities available to
them as are available to nondisabled persons.”); Buckley v. Consolidated Edison Co., 155 F.3d
150, 156 (2d Cir. 1998) (stating that the ADA does not require an employer to make
accommodations for needs unrelated to the recognized disability). As a result, the Court does
not find that the denial of these other requests for accommodations constitutes a denial of
reasonable accommodations; additionally, as already discussed, Plaintiff has not shown that any
of the asserted accommodations would have allowed her to successfully meet the essential
clinical requirements of the Herkimer BOCES LPN Program.
In sum, Plaintiff has failed to establish a prima facie case of disability discrimination
because the evidence does not support a reasonable finding that Plaintiff could meet the essential
requirements of the Herkimer BOCES LPN Program even with the provided reasonable
accommodations. Nor does the evidence support a reasonable finding that she was denied the
ability to have meaningful access to the Herkimer BOCES LPN Program on the basis of her
bipolar disorder. As a result, Plaintiff’s disability discrimination claims must be dismissed.
ACCORDINGLY, it is
ORDERED that Defendant’s motion for summary judgment (Dkt. No. 66) is
GRANTED; and it is further
32
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 39) is DISMISSED.
Dated: February 12, 2019
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?