Close v. Bedford Cent. Sch. Dist.

1

KAREN CLOSE, GIOVANNI and DIANA PICCOLINO, individually and as parents of JC and AP, and CRAIG STERNSCHEIN, individually and as legal guardian of BS, whose names have been redacted due to the sensitive nature of these claims, Plaintiffs, v. BEDFORD CENTRAL SCHOOL DISTRICT, KEITH ALLEYNE, BRETT MILLER, JASON SPECTOR, JOEL ADELBERG, DEBORAH DORMANDY, EDWARD ESCOBAR, and DANIEL MULVEY, Defendants.

No. 23-CV-4595 (CS)

United States District Court, S.D. New York

July 16, 2024

Andrew C. Laufer

Law Office of Andrew C. Laufer, PLLC

New York, New York

Counsel for Plaintiffs

Lewis R. Silverman

Silverman & Associates

White Plains, New York

Counsel for Defendants

OPINION & ORDER

CATHY SEIBEL, U.S.D.J.

Before the Court is Defendants' motion to dismiss. (ECF No. 42.) For the following reasons, the motion is GRANTED.

I. BACKGROUND

For purposes of this motion, the Court accepts as true the facts, but not the conclusions, alleged by Plaintiffs in their Amended Complaint. (See ECF No. 40 (“AC”).)

A. Facts

Defendants Keith Alleyne, Brett Miller, Jason Spector, Joel Adelberg, Deborah Dormady, Edward Escobar, and Daniel Mulvey (together, the “Individual Defendants”) were employees of the Bedford Central School District (the “District” and together with the Individual Defendants, the “Defendants”) during the events relevant to this lawsuit. (See AC ¶¶ 4-5.)^[1] Plaintiffs are JC, AP, and BS (together, the “Infant Plaintiffs”) - three minors with autism who were students at Fox Lane High School (“FLHS”) in the District - and their parents or legal guardians Karen Close, Giovanni and Diana Piccolino, and Craig Sternschein. (See id. ¶¶ 1-3, 17-31.)

Starting in the fall of 2021, the Infant Plaintiffs were verbally and sexually harassed by certain general education students who took photographs of them in the bathroom while their pants were down. (Id. ¶ 32.) On Friday, March 11, 2022, a student informed special education teacher Mary Downes - a non-party - and Defendant Alleyne^[2] that unidentified students had taken pictures and videos of JC and AP in the bathroom with their pants down, (the “March 11 Incident”). (Id. ¶¶ 33-34.) On Monday, March 14, 2022, Downes and other special education staff implemented new procedures for supervision of the boys' bathroom so that similar incidents would not recur. (AC Ex. A (“Kroll Report”) at 9; see AC ¶ 73.) On March 17, 2022, Downes informed Close and Diana Piccolino about the “hostile environment” to which JC and AP were subjected. (AC ¶ 34.)

Giovanni Piccolino left a voicemail for Defendants Miller, Alleyne and Dormady,^[3] informing them that AP was involved in the March 11 Incident. (Id. ¶ 35.) Miller acknowledged receipt of the voicemail on March 18, 2022 and communicated that he had launched an investigation into the March 11 Incident, which included interviewing various students who witnessed and were involved in the incident, and reviewing footage captured by cameras located throughout FLHS. (Id. ¶ 36.)

On March 20, 2022, the Piccolinos gave a statement about the March 11 Incident to Detective Keane of the Bedford Police Department, based on information they received from Miller, Alleyne, and Dormady. (Id. ¶ 37.) Close and Giovanni Piccolino also spoke with Defendant Spector, the Assistant Principal of FLHS, who assured them that an official police investigation concerning the March 11 Incident was underway. (Id. ¶ 38.) Soon after, Miller “acknowledged” that the District had “failed to properly communicate and rectify the incidents of sexual harassment and bullying that occurred on or before March 11, 2022.” (Id. ¶ 39.) Plaintiffs maintain, without further elaboration, that Alleyne, Miller, Spector, Adelberg, Dormady, Escobar, and Mulvey^[4] were aware of the sexual harassment and bullying to which the Infant Plaintiffs were subjected and did nothing to stop it. (Id. ¶ 40).^[5] At some point in March 2022, the Piccolinos discovered that photographs of the Infant Plaintiffs in the bathroom were circulating across social media platforms. (Id. ¶ 42.) Close and the Piccolinos complained about the continued harassment and bullying to Miller, who informed them that he would begin an investigation. (Id. ¶ 43.) Close and Giovanni Piccolino then emailed Adelberg, Miller, Spector, Dormady, and Escobar a copy of a Dignity for All Students Act (“DASA”) Harassment and/or Bullying Complaint form and formally requested that they explore out-of-district special education programs for AP and JC. (Id. ¶ 44.)

On March 24, 2022, the Piccolinos met with Miller, Dormady and Bedford Police Officer Chris Colello and were assured that the inappropriate behavior and harassment targeted at AP would stop and that new bathroom protocols were being implemented to prevent similar bullying incidents from occurring in the future. (Id. ¶ 45.) Those protocols consisted of male aides who would accompany the students to the boys' bathroom at 9:00 a.m. and at 2:00 p.m. each day, which Plaintiffs contend “result[ed] in a loss of freedom and independence” for JC, AP, and BS. (Id. ¶ 47.) Miller again acknowledged the District's lack of communication and failure “to notify the parents of the [March 11 Incident] immediately when it occurred.” (Id. ¶ 46.)

The District committed to investigating the March 11 Incident, (id. ¶ 48), but because of a lack of information from the Defendants, on March 30, 2022 Giovanni Piccolino purchased a cellphone and created a flyer offering a $1,000 dollar reward for information about the March 11 Incident, (id. ¶ 49). Within hours of distribution of the flyers throughout FLHS and on social media, anonymous text messages and screenshots of pictures taken of AP, JC, and BS were sent to the cellphone. (Id. ¶ 50.) The next day, the cellphone was provided to Detective Keane for further investigation and to Miller, Adelberg and Dormady in the hopes that the individuals who had taken the pictures could be identified. (Id. ¶ 51.) According to Plaintiffs, those students were “not fully disciplined or punished” in connection with the March 11 Incident, other than being questioned by Miller, and no involved student was “disciplined immediately” during the investigation. (Id. ¶ 52-53.)

On March 31, 2022, Dormady sent a letter to the families of special education students detailing the March 11 Incident, (id. ¶ 54), and shortly thereafter Adelberg sent a similar letter to the entire District, prompting the Board of Education (the “Board”) to become involved, (id. ¶ 55). Close, the Piccolinos, and Sternschien contacted Miller on several occasions to voice concerns as to AP, JC, and BS, and to obtain information as to the investigation into the March 11 Incident and its resolution. (Id. ¶ 56.) On each such occasion, Miller advised them that the investigation was still underway and that he was unable to identify the students who had taken pictures of JC, AP, and BS based on student interviews. (Id. ¶ 57.) Spector, Adelberg and Dormady assured Plaintiffs that if there were any further problems, they would be addressed. (Id. ¶ 58.) Plaintiffs expressed their outrage and discomfort with the language being used to describe the March 11 Incident, as well as the lack of communication regarding the investigation, (id. ¶ 59), resulting in Miller promising that the bullying and harassment “would be taken care of,” (id. ¶ 60). Plaintiffs were never informed of what additional steps, if any, were taken in response to the behavior of the students who participated in the March 11 Incident. (Id. ¶ 61.)

On April 6, 2022, the Board held a regularly scheduled meeting at which Close and Giovanni Piccolino spoke about the March 11 Incident, (id. ¶ 62), resulting in a unanimous Board vote to retain a third-party firm to investigate the Incident, (id. ¶¶ 63-64). The firm that was retained - Kroll - did not begin its investigation until July 2022. (Id. ¶ 64.)^[6] The investigation revealed that on or about March 21, 2022, Miller, Spector, Escobar and Mulvey had received handwritten statements from three students stating that they were involved in photographing the Infant Plaintiffs in the March 11 Incident. (Id. ¶ 65.)^[7] Plaintiffs allege that the existence of these statements was never disclosed to them, (id. ¶ 66), and according to the Kroll investigation, Miller and Spector believed that the handwritten statements were not “sufficient enough evidence to notify parents,” (id. ¶ 67). Plaintiffs allege upon information and belief that the District informed Kroll that it lacked a formal policy “spelling out how much evidence would be sufficient to notify parents their children were potential victims of student misconduct.” (Id. ¶ 69.)

The Kroll investigation also determined that a similar bullying incident may have occurred in or about December 2021. (Id. ¶ 68.) Kroll reviewed the District's policies and procedures and determined that the March 11 Incident may have violated the District's DASA policy, (id. ¶ 70; see Kroll Report at 30), as well as its non-discrimination and anti-harassment policy, which incorporates Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, (AC ¶ 71; Kroll Report at 31), and that the Infant Plaintiffs may have been harassed in a way that would unreasonably interfere with their wellbeing, (AC ¶ 72; Kroll Report at 33).

The Kroll investigation concluded that

[t]he FLHS special education staff should be applauded for the prompt steps it took after receiving the Whistleblower's report of misconduct on March 11th to strengthen the protocols around the supervision of special education students in the boys' bathroom to ensure similar acts affecting their security and privacy would not recur. As described in this report, however, the FLHS

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