Casey v. Pittsford Central School District et al

Filing 12

DECISION AND ORDER denying 5 Motion to Dismiss. Pursuant to Fed.R.Civ.P. 12(a)(4)(A), Defendants shall file and serve an answer to the Complaint within fourteen days after entry of this Decision and Order. Signed by Hon. Charles J. Siragusa on 12/4/18. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
SHANNON CASEY,
Plaintiff,

DECISION and ORDER

-vs17-CV-6768 CJS
PITTSFORD CENTRAL SCHOOL DISTRICT,
BOARD OF EDUCATION FOR THE PITTSFORD
CENTRAL SCHOOL DISTRICT, KATHY HERRICK,
MICHAEL LEONE, BOB CHANTRA,
Defendants.
__________________________________________

APPEARANCES
For Plaintiff:

Ryan C. Woodworth
The Woodworth Law Firm
16 West Main Street, Suite 732
Rochester, New York 14614

For Defendants:

Heather Dechert
Webster Szanyi, LLP
424 Main Street, Suite 1400
Buffalo, New York 14202

INTRODUCTION
Shannon Casey (“Plaintiff”) commenced this action after she was fired from her
job as a “bus attendant” for the Pittsford Central School District. Now before the Court
is the Defendants’ motion (Docket No. [#5]) to dismiss the Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The application is denied.

BACKGROUND
The following facts are taken from Plaintiff’s Complaint [#1] and are presumed to
be true for purposes of this Decision and Order. The events relevant to Plaintiff’s
action occurred between September 2016 and December 2016. At all relevant times
Plaintiff was employed as a bus attendant by the Pittsford Central School District (“the
District”). At all relevant times the Board of Education for the Pittsford Central School
District (“the Board”) was “responsible for prescribing and enforcing rules and
regulations at [the District].”1 At all relevant times, defendant Kathy Herrick (“Herrick”)
was employed as the Director of Transportation for the District, defendant Michael
Leone (“Leone”) was employed as the Assistant Superintendent of Human Resources
for the District and defendant Bob Chantra (“Chantra”) was employed as Special Needs
Liaison for the District.
On or about September 13, 2016, Plaintiff began her employment with the
District. Herrick and Chantra were Plaintiff’s direct supervisors. Plaintiff’s job required
her to monitor and supervise students as they were being transported to and from
school on buses operated by a bus driver also employed by the District. In that
capacity, on September 26, 2016, Plaintiff was supervising a student, J.C., who swore
at her and kicked her twice in her rib cage. The Complaint does not indicate J.C.’s age
or indicate that Plaintiff suffered any actual injury from the kicks.2 Afterward, Plaintiff
told Chantra about the incident and that she did not feel comfortable supervising violent
children such as J.C.. However, Chantra indicated that he thought Plaintiff could handle

1
2

Complaint [#1] at ¶ 12.
During oral argument counsel referred to J.C. as being six years of age.

2

the job and encouraged her to document “every concerning event she experienced or
witnessed in a notebook” that he would review each day.3 The Complaint alleges that
Plaintiff was never trained on how to handle violent students and was not offered the
opportunity to transfer to a different bus assignment.
Subsequently, Plaintiff continued to work on the bus that transported J.C., as well
as his siblings I.T. and E.S. During this period the siblings acted violently toward each
other, such as by slapping each other’s faces, but were not violent toward Plaintiff. On
one occasion, J.C. told Plaintiff that his sister, I.T., had slammed his face into a car door
and his head into a wall. On September 29, 2016, J.C. violently swung a tree branch at
three District employees, though it is unclear whether Plaintiff was one of those
employees. The Complaint indicates that Plaintiff documented these incidents in her
notebook.
On October 4, 2016, Plaintiff was again assigned to the afternoon bus run that
was to transport J.C., I.T. and E.S. from school to their residence. J.C. and E.S. were
on the bus, but the bus had to wait for I.T. to arrive. Upon I.T.’s arrival, Plaintiff told her
that her tardiness had inconvenienced the others on the bus, which caused I.T. to flare
her nostrils and clench her fists in anger. The situation escalated when E.S.
announced to I.T. that while they had been waiting for I.T. to board the bus, Plaintiff had
been “talking smack and cussing” about I.T., though Plaintiff denies that she did so. In
any event, when the bus arrived at the residence of J.C., I.T. and E.S., the students
executed an attack on Plaintiff that they had apparently planned out during the bus ride.

3

Complaint [#1] at ¶ 34.

3

Specifically, I.T. punched Plaintiff in the face, J.C. repeatedly kicked her and E.S. filmed
the incident. (The Complaint also refers to a “surveillance” recording of the incident,
which apparently means the bus was equipped with a surveillance camera that captured
the incident.) The bus driver blandly told the students to stop attacking Plaintiff but did
not leave his seat or otherwise intervene. Plaintiff asked the bus driver to call 911, but
he declined to do so.
After the incident, at approximately 3:30 p.m. that day, Plaintiff sent a text
message to Chantra stating, “I’m having major issues with [I.T.].4 She is very
confrontational and threatening me!!!! I need to speak with you about it!!!.” Oddly, the
text apparently did not mention the physical assaults by I.T. or J.C., even though
Plaintiff claims to have required treatment at a hospital emergency room following the
incident. The Complaint indicates that Chantra took “no action” in response, except to
say that he would speak to Plaintiff the next day. The Complaint does not indicate
what, if anything, happened the following day.
However, two days later, on October 6, 2016, Plaintiff was interviewed by “a local
Rochester, NY radio station discussing various topics regarding the October 4, 2016
incident.”5 The Complaint alleges that during the interview, Plaintiff spoke as a public
citizen and not as an employee of the District, and that the interview covered the
following topics:

4
The Complaint says “IM,” but the Court assumes that is a typographical error, since no one is referred
to IM in the Complaint. Complaint [#1] at ¶ 46.
5
Complaint [#1] at ¶ 48. Although the Complaint does not explain how the interview came about, during
oral argument counsel seemed to be in agreement that Plaintiff had called into the radio program, which
led to an “on air” discussion, that is, the “interview.”

4

Freedom of Information Law and the disclosure by [the District] of the assault
surveillance tape;
The McKinney-Vento Act and [the District’s] transportation of J.C., I.T. and E.S;
[The District’s] code of conduct as to the acceptable civil and respectable
treatment of teachers, school administrators, and other school personnel;
[The District’s] code of conduct as to disciplinary measures to be taken in
incidents involving the use of force by students against teachers, school
administrators, and other school personnel;
[The District’s] code of conduct as to the removal of students from the classroom
and from school property who use . . . physical force . . . against teachers, school
administrators, and other school personnel; and
[The District’s] code of conduct as to detention, suspension and removal of
students from the classroom who use . . . physical force against teachers, school
administrators, and other school personnel.
Complaint [#1] at ¶ 50.
The day after the interview, October 7, 2016, Plaintiff met with Herrick and
Leone. Leone accused Plaintiff of “making false and/or malicious accusations during
the radio interview including but not limiting [sic] statements involving one or more of the
children involved in the October 4, 2016 incident.”6 Plaintiff responded that Leone’s
accusation was untrue. Plaintiff also showed Leone the notebook that she had been
keeping to document incidents, and Leone took the notebook from her.
Plaintiff, who had apparently stopped working after the incident on October 4th,
continued to remain out of work. On or about November 2, 2016, Herrick contacted

6

Complaint [#1] at ¶ 54.

5

Plaintiff and inquired whether her doctor had cleared her to return to work.
On November 3, 2016, Plaintiff met with Leone, Herrick and a union
representative. During the meeting Leone questioned Plaintiff for about an hour
concerning the radio interview.
On November 9, 2016, Plaintiff attended another meeting with Leone and
Herrick. During the meeting, Leone notified Plaintiff that her employment was being
terminated, and provided her with a “termination letter” explaining the decision. The
actual letter is not before the Court. However, according to the Complaint the
termination letter “informed Plaintiff she was terminated because of certain statements
she made on the live radio interview.”7 The Complaint contends, though, that the
reasons contained in the termination letter were false, and that Plaintiff was actually
terminated in retaliation for her statements about “matters of public concern.”8
On November 9, 2017, Plaintiff commenced this action. The Complaint purports
to assert the following six causes of action: 1) a claim under 42 U.S.C. § 1983 alleging
retaliation in violation of Plaintiff’s First Amendment rights against Leone and Herrick; 2)
a retaliation claim under the New York State Constitution, Article I, § 8, against all
defendants except Chantra; 3) a claim under New York law for breach of the special
duty to protect, against all defendants except Leone; 4) a claim under New York law for
negligent supervision against all defendants except Leone; 5) a claim under New York
law for negligent training against all defendants except Leone; and 6) a claim under
New York law for intentional infliction of emotional distress (“IIED”) against Leone,

7
8

Complaint [#1] at ¶ 65.
Complaint [#1] at ¶ ¶ 65-66.

6

Herrick and Chantra. The Complaint demands relief including compensatory and
punitive damages.
On January 23, 2018, Defendants filed the subject motion [#5] to dismiss the
Complaint pursuant to Rule 12(b)(6). The motion asserts the following arguments: 1)
the third, fourth, fifth and sixth causes of action are barred because New York Worker’s
Compensation Law provides Plaintiff’s exclusive remedy for work-related injuries; 2)
punitive damages cannot be recovered against the District; 3) the state law claims are
barred by the doctrine of Governmental immunity for discretionary acts; and 4) Leone
and Herrick are entitled to qualified immunity as to the Section 1983 claim. With regard
to the qualified immunity argument, Defendants contend that Plaintiff was fired for
making inappropriate comments about students, and it is not clearly established that
terminating an employee for that reason would violate the Constitution.
On March 16, 2018, Plaintiff filed a response [#8]. Plaintiff has agreed to
voluntarily withdraw the third, fourth and fifth causes of action, but maintains that the
sixth cause of action for IIED is not barred by the New York Worker’s Compensation
Law, apparently on the theory that the District and/or the Board caused or directed
Leone, Herrick and Chantra to commit the intentional tort of IIED against Plaintiff.
Plaintiff further contends that the second cause of action, alleging retaliation under the
New York State Constitution, is not barred by doctrine of governmental immunity for
discretionary acts. In that regard, Plaintiff states that the doctrine provides immunity
from liability for discretionary acts but not ministerial acts, and that it is not presently
clear whether the decision to terminate her employment was a discretionary act or a
7

ministerial act. Additionally, Plaintiff contends that Leone and Herrick are not entitled to
qualified immunity as to the § 1983 retaliation claim, since it was clearly established that
public employees cannot be fired for speaking on matters of “public concern” such as
“school policies” and “safety in the workplace.” Finally, Plaintiff contends that she is
entitled to pursue punitive damages against the individual defendants.
On April 6, 2018, Defendants filed a reply [#9] in which they essentially reiterate
the points raised in their initial memorandum of law.
Based on the foregoing submissions, and Plaintiff’s decision to withdraw the
third, fourth and fifth causes of action, there appear to be three issues for the Court to
resolve: First, whether Leone and Herrick are entitled to dismissal of the § 1983 claim
as a matter of law based on the affirmative defense of qualified immunity; second,
whether Defendants (except Chantra, who is not named in the claim) are entitled to
dismissal of the New York retaliation claim as a matter of law based on the doctrine of
governmental immunity for discretionary acts; and third, whether Leone, Herrick and
Chantra are entitled to dismissal of the IIED claim as a matter of law based on the New
York Worker’s Compensation Law’s exclusivity provision. There does not appear to be
any real dispute over punitive damages, as Defendants assert only that such damages
cannot be recovered against the District, and Plaintiff asserts that he is only seeking
such damages against the individual defendants.
On November 29, 2018, counsel for the parties appeared before the undersigned
for oral argument.

8

DISCUSSION
Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, and the legal standards applicable to such a motion are clear:
To survive a motion to dismiss, a complaint must plead Aenough facts to state a
claim to relief that is plausible on its face.@ Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible
Awhen the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.@
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. May 1, 2018).
In its review, the Court is entitled to consider facts alleged in the complaint and
documents attached to it or incorporated in it by reference, documents Aintegral@
to the complaint and relied upon in it, and facts of which judicial notice may properly
be taken under Rule 201 of the Federal Rules of Evidence.
Heckman v. Town of Hempstead, 568 F. App’x 41, 43 (2d Cir. Jun. 3, 2014) (citations and
internal quotation marks omitted).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964B65, 167 L.Ed.2d 929 (2007);
see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (ATo
survive dismissal, the plaintiff must provide the grounds upon which his claim rests through
factual allegations sufficient >to raise a right to relief above the speculative level.= @) (quoting Bell
Atl. Corp. v. Twombly ) (footnote omitted).
9

When applying this Aplausibility standard,@ the Court is guided by Atwo working principles@:
First, although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,
do not suffice. Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss, and determining whether a complaint states a
plausible claim for relief will be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks omitted).
A[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has allegedCbut it has not shownCthat the pleader is entitled to
relief.@ Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009) (citation omitted).
A[A]s Iqbal makes clear, a plausible claim must come before discovery, not the other way
around.@ Angiulo v. Cty. of Westchester, No. 11-CV-7823 CS, 2012 WL 5278523, at *3 (S.D.N.Y.
Oct. 25, 2012) (citation omitted); see also, McBeth v. Porges, 171 F. Supp. 3d 216, 236 (S.D.N.Y.
2016) (Observing that pursuant to Iqbal=s pleading standard, Athe Federal Rules of Civil
Procedure do >not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions or speculation.=@) (quoting Iqbal).\
Qualified Immunity
It is clear that when deciding a Rule 12(b)(6) motion the Court must accept the plausible
factual allegations contained in the complaint as true and draw all reasonable inferences in favor
of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den. 531
U.S. 1052, 121 S.Ct. 657 (2000). It is also clear that an affirmative defense such as qualified
immunity may be granted under Rule 12(b)(6) only “if the defense appears on the face of the

10

complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) (emphasis
added). Because of these principles,
[i]t is certainly true that motions to dismiss a plaintiff's complaint under Rule 12(b)(6) on
the basis of an affirmative defense will generally face a difficult road. . . . But that does
not mean that qualified immunity can never be established at the pleading stage. To the
contrary, every case must be assessed on the specific facts alleged in the complaint. The
Supreme Court has made clear that qualified immunity can be established by the facts
alleged in a complaint, see Wood v. Moss, [572] U.S.[744], 134 S.Ct. 2056, 188 L.Ed.2d
1039 (2014), and indeed, because qualified immunity protects officials not merely from
liability but from litigation, that the issue should be resolved when possible on a motion to
dismiss, before the commencement of discovery, to avoid subjecting public officials to
time consuming and expensive discovery procedures.
Garcia v. Does, 779 F.3d 84, 96–97 (2d Cir. 2015) (emphasis added, citations omitted); see
also, Vincent v. Yelich, 718 F.3d 157, 167 (2d Cir. 2013) (“Where the nonexistence of a
constitutional right [or violation] may be discerned from the face of the complaint, an official
defendant sued in his individual capacity may be granted a dismissal on the ground of qualified
immunity pursuant to Rule 12(b)(6)[.]”) (emphasis added).
In sum, Leone and Herrick would only be entitled to dismissal of the § 1983 claim on the
basis of qualified immunity if the face of Plaintiff’s Complaint established their entitlement to the
affirmative defense. However, the Court finds that the Complaint does not plead facts
establishing the affirmative defense. In that regard, Leone and Herrick contend that they are
entitled to qualified immunity because Plaintiff’s employment was terminated due to the fact that
she made inappropriate comments about a student, and it was not clearly established that firing
her under those circumstances would violate her First Amendment right of free speech. 9

9

See, Def. Memo of Law at p. 9 (“Here it was not clearly established that terminating Plaintiff for inappropriate
comments about students would violate any federal right. At the very least, reasonable school administrators
could disagree whether or not this course of action was reasonable.”) (emphasis added).
11

However, the Complaint denies that Plaintiff made inappropriate comments concerning the
students during her radio interview, and instead asserts that Leone’s characterization of her
comments was false and that the reason offered by Defendants for firing her is pretextual.10
Consequently, the motion to dismiss based on qualified immunity cannot be granted because it
rests on disputed facts as opposed to facts that appear on the face of the Complaint. The
motion to dismiss the § 1983 First Amendment retaliation claim against Leone and Herrick is
therefore denied.
Doctrine of Governmental Immunity for Discretionary Acts
Defendants next contend that the second cause of action alleging retaliation in violation
of the New York State Constitution is barred by the doctrine of governmental immunity for
discretionary acts. On this point, Defendants contend that the alleged retaliation was the
termination of Plaintiff’s employment, which was a discretionary act covered by the doctrine of
governmental immunity. Plaintiff agrees that Defendants would be entitled to such immunity if
the termination of her employment was a discretionary act but maintains that at this stage of the
proceeding it is not clear whether the termination of her employment was a discretionary act or
a ministerial act.11
New York’s doctrine of governmental immunity for discretionary acts “shields public
entities from liability for discretionary actions taken during the performance of governmental

10

See, e.g., Complaint [#1] at ¶ 54 (“Leone’s accusations were false”) and ¶ 65-66 (“[T]he statements she
allegedly made leading to her termination were entirely false and misleading. . . . The statements she allegedly
made leading to her termination were pretext for her termination.”).
11
See, Pl. Memo of Law [#8] at p. 12 (“Judicial efforts to distinguish between discretionary and ministerial acts
have produced an array of differing decisions. Accordingly, an analysis of the governmental immunity elements
including whether Defendants’ conduct amounts to discretionary and ministerial acts is inherently fact specific,
and therefore requires the parties to engage in discovery to the [sic] develop the record.”).
12

functions.” Santaiti v. Town of Ramapo, 162 A.D.3d 921, 928, 80 N.Y.S.3d 288, 295–96 (2d
Dept. 2018) (citation and internal quotation marks omitted). Pursuant to this doctrine,
a state or municipal defendant engaging in a governmental function can avoid liability if it
timely raises the defense and proves that the alleged negligent act or omission involved
the exercise of discretionary authority. However, the governmental function immunity
defense cannot attach unless the municipal defendant establishes that the discretion
possessed by its employees was in fact exercised in relation to the conduct on which
liability is predicated. Furthermore, the availability of the governmental immunity
defense requires that judgment and discretion are exercised in compliance with the
municipality's procedures, because the very basis for the value judgment supporting
immunity and denying individual recovery becomes irrelevant where the municipality
violates its own internal rules and policies and exercises no judgment or discretion.
Santaiti v. Town of Ramapo, 162 A.D.3d at 928, 80 N.Y.S.3d at 296 (citation and internal
quotation marks omitted).
Similar to the defense of qualified immunity, New York’s doctrine of governmental
immunity for discretionary acts is an affirmative defense. See, Santaiti v. Town of Ramapo, 162
A.D.3d at 928, 80 N.Y.S.3d at 295 (“The doctrine of governmental immunity refers to an
affirmative defense on which a defendant bears the burden of proof.”) (citation and internal
quotation marks omitted). Accordingly, a Rule 12(b)(6) motion on this ground may only be
granted if the defendant’s entitlement to the affirmative defense is clear from the face of the
Complaint. However, that is not usually the case.
For example, in the Santaiti decision cited above, the New York State Supreme Court,
Appellate Division Second Department, affirmed the trial court’s denial of a motion to dismiss
based on the doctrine of governmental immunity, stating:
Here, contrary to the Town's contention, the allegations contained in the complaint do not
establish, as a matter of law, that the Town police department was engaged in a
discretionary act when it returned the handgun to Groesbeck. Rather, the complaint
13

alleges that Groesbeck's possession of the handgun was illegal and that, under the
circumstances of this case, the Town police department lacked the legal authority to
return it to him.
The Town nevertheless contends that the release of the handgun was discretionary
because Groesbeck was a former police officer entitled to possession of the handgun
pursuant to 18 USC § 926C. However, that provision sets forth several requirements
before a retired law enforcement officer may be considered a “qualified retired law
enforcement officer” within the meaning of that statute, including retirement in good
standing, service for an aggregate of 10 years or more, and qualification for firearms
training for active law enforcement officers in the most recent 12–month period (18 USC
§ 926C[c]). The question of whether Groesbeck satisfied those requirements is not
addressed in this record, and involves issues of fact beyond the scope of a motion to
dismiss pursuant to CPLR 3211(a).
Even assuming that the allegedly negligent act of returning the handgun was discretionary
in nature, it cannot be said, as a matter of law, that the discretion possessed by the Town
was in fact exercised, or that any such exercise of discretion was in compliance with the
municipality's procedures. Accordingly, resolution of the Town's argument that it is
entitled to governmental immunity—an affirmative defense on which it bears the burden
of proof—is not appropriate at this stage of the proceedings.
Santaiti v. Town of Ramapo, 162 A.D.3d at 928–29, 80 N.Y.S.3d at 296–97 (citations and internal
quotation marks omitted); see also, Guichard v. Town of Brookhaven, 26 F. Supp. 3d 219, 229
(E.D.N.Y. 2014) (“The Court finds that Defendants' motion to dismiss on the ground of
governmental immunity is premature and better reserved for a motion for summary judgment
following discovery, which will shed light on the precise role that Tohill, Incagliato, and other
Town employees played in the decision to clean up Plaintiff's property. Moreover, at this stage,
the allegations of the Complaint preclude any argument that Defendants' actions were the result
of ‘the exercise of reasoned judgment which could typically produce different acceptable results’
because Plaintiff alleges that Defendants used the Town's nuisance abatement ordinance as a
pretext to cause damage to Plaintiff's property and to dump garbage on Plaintiff's property and
14

assess Plaintiff a fine for the cleanup.”) (footnote omitted).
In the instant action, Defendants have not shown that their entitlement to the defense is
evident from the Complaint. Rather, they merely assert as follows:
Here, it is without question that Plaintiff’s claims involve the exercise of discretion by Mr.
Leone, Ms. Herrick and Mr. Chantra with regard to assigning, training and supervising
Bus Attendants, and handling Plaintiff’s inappropriate comments made during the radio
show. Accordingly, Plaintiff’s state law claims must be dismissed under the doctrine of
governmental immunity.12
This conclusory assertion ignores the fact that the Complaint expressly denies that Plaintiff made
inappropriate comments during the radio interview and alleges that such reason was a mere
pretext. Moreover, it is not clear from either the Complaint or Defendants’ motion what role
each of the defendants may have played in the decision to terminate Plaintiff’s employment or
what District policies may have provided the discretion that was exercised. Accordingly, the
motion to dismiss based on the doctrine of governmental immunity is denied.
Intentional Infliction of Emotional Distress
The last issue for consideration is whether Leone, Herrick and Chantra are entitled to
dismissal of the IIED claim as a matter of law based on the New York Worker’s Compensation
Law’s exclusivity provision.13 The parties do not appear to dispute the law that is generally
applicable to this issue, which is as follows:
Workers' Compensation Law provides the exclusive remedy for an employee who seeks
damages for injuries which he or she incurs in the course of employment[, though] an
12

Def. Memo of Law [#5-1] at p. 8.
IIED claims are rarely established, since they require “conduct so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Trujillo v. Transperfect Glob., Inc., 164 A.D.3d 1161, 1162, 84 N.Y.S.3d 446, 447 (1st
Dept. 2018). Despite that, Defendants have not argued that the Complaint fails to plausibly plead facts
supporting such a claim, but have instead focused on the alleged procedural bar under the Worker’s
Compensation Law.
13

15

exception to the exclusivity provisions of the Workers' Compensation Law exists where
the employer commits an intentional or deliberate act directed at causing harm to the
injured employee.
Doe v. State, 89 A.D.3d 787, 788, 933 N.Y.S.2d 688, 690 (2d Dept. 2011) (citations omitted).
Initially, Defendants’ motion based on the Worker’s Compensation Law was specifically
directed at the third, fourth, fifth and sixth causes of action, but Plaintiff has now withdrawn all of
those except the sixth cause of action, which alleges IIED. Regarding that claim, Defendant’s
moving memorandum of law states in pertinent part:
Plaintiff’s claims of . . . IIED arising from her work-related injury are barred and must be
dismissed. . . . Further, to the extent Plaintiff’s IIED [claim] is based on the October 4,
2016 incident, it is also barred by the exclusivity of the Workers’ Compensation Law.
Intentional torts do not fall into the exception unless perpetrated by the employer or at the
employer’s direction. In this case, Plaintiff does not allege an intentional or deliberate
act by District employees that caused her to be injured on October 4, 2016.
Def. Memo of Law [#5-1] at p. 5. Of course, October 4th is the date that Plaintiff was attacked
on the school bus by I.T. and J.C., while E.S. filmed the incident. Plaintiff’s response to this
aspect of Defendant’s motion, consisting of a mere three sentences, agrees with Defendants
that “workers’ compensation exclusivity does not preclude an employee’s suit if the employer
committed an intentional tort or another person committed such intentional wrong at the
employer’s direction,” but unfortunately does not explain how her IIED claim fits into that
exclusion.

Indeed, neither the Complaint nor Plaintiff’s response to Defendant’s motion

explains the particular conduct on which the IIED claim is based. Because of that, it is not clear
whether Plaintiff is actually attempting to rely on the October 4th incident as a basis for the IIED
claim, as Defendants suggest. Because of this lack of clarity, and because Defendant’s motion
in this regard is based solely on the Worker’s Compensation Law exclusivity rule, the Court
16

cannot presently find as a matter of law that Defendants are entitled to dismissal on that basis.
Defendants’ motion to dismiss the IIED claim is therefore denied.
CONCLUSION
Defendants’ motion to dismiss [#5] is denied. Pursuant to Fed.R.Civ.P. 12(a)(4)(A),
Defendants shall file and serve an answer to the Complaint within fourteen days after entry of
this Decision and Order.14
SO ORDERED.
Dated:

Rochester, New York
December 4, 2018
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

14

See, Fed.R.Civ.P. 12(a)(4)(A) (“if the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the court's action”).
17