CIVIL RIGHTS COMPLAINT

Transcription

1 ANDREW C. RISOLI, ESQ. LAW OFFICES ANDREA RISOLI, OF COUNSEL 484 White Plains Road Eastchester, New York (917) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X EMILY PIERCE Plaintiff, Docket No.: -against- FORDHAM UNIVERSITY, Inc. Graduate School of Social Services Rev, Joseph McShane, President Dean Debra M. McFee, Ph D. Dean Susan Egan Dean Keith Eldredge U.S. DEPARTMENT OF EDUCATION OFFICE OF CIVIL RIGHTS Rachel Pomerantz, Esq. Acting Director Ronald M. Scott, Esq., New York Enforcement Office COMPLAINT JURY TRIAL DEMANDED Defendants X CIVIL RIGHTS COMPLAINT 1. Plaintiff, EMILY PIERCE, (Pierce) on behalf of herself, by her attorney, ANDREA RISOLI, ESQ., as for her Complaint against the Defendants, FORDHAM UNIVERSITY (Fordham) and U.S. Department of Education Office of Civil Rights (OCR), Corporate Defendants, states as follows: 1

2 NATURE OF THE ACTION 2. Plaintiff brings this action on behalf of herself in order to recover unspecified compensatory and punitive damages under the Americans with Disabilities Act, As Amended (ADAA), pursuant to Title II and Title III, and Section 504 of the Rehabilitation Act of 1973 on the grounds of discriminatory practices relating to all Defendants course of conduct stated herein. See Americans With Disabilities Act of 1990, Pub. L. No , 104 Stat. 328 (1990), and as Amended 2008, 42 U.S.C PARTIES, JURISDICTION, AND VENUE 3. At all relevant times herein, Plaintiff, Pierce, was and is still a resident of Westchester County, New York. 4. At all relevant times herein, Corporate Defendant, Fordham University, and its employees named herein that was and is still domestic business corporation duly organized under, and existing by virtue, of the laws of the State of New York, and presenting having its primary place of business at 441 East Fordham Road Administration Building, Room 111, Bronx, New York 10458, the office for Fordham University Graduate School of Social Services is Lincoln Center, 333 West 60 th Street, New York, New York At all times, herein, Governmental Defendant, OCR, and its employees named herein, is a government entity, that was and is still a domestic governmental entity duly organized under, and existing by virtue, of the laws of the State of New York, and presenting having its place of business at 950 Pennsylvania Avenue, N.W., Disability Rights, NYAV, Washington, D.C., and assigned this case to a satellite office at Office for Civil Rights, New York Enforcement Office, Department of Education, 32 Old Slip 26 th Floor, New York, New York , for jurisdictional purposes. 6. The claims are alleged under the ADAA, as amended and Section 504 of the Rehabilitation Act of See 29 U.S.C. 794, and its implementing regulation at 34 C. F. R., Part 104, which prohibits discrimination on the basis of disabilities. See also 34 C.F.R ; 34 C.F. R (e); 42 U.S. C. 2000d et. seq.; ; 42 U.S. C ; 42 U.S. C The Court has subject matter jurisdiction over this action pursuant to ADAA, Title II, III, and Section 504 of the Rehabilitation Act of The Court has personal jurisdiction over the Defendants in that all Defendants are doing business in the State of New York. 9. The Court is a proper venue for this action, pursuant to, and to any other relevant grounds 28 U.S. C. 139(b). 2

3 JURY DEMAND 10. Plaintiff demands a trial by jury of all issues so triable in this action. FACTUAL BACKGROUND 11. The Corporate Defendant and Government Entity Defendant are Defendants doing business in the State of New York, County of New York. 12. In the Spring of 2011, Plaintiff, Pierce, was accepted and entered into the Fordham University Masters of Social Work Graduate of Social Services Program [MSW] as a graduate school candidate. 13. At all times in residency, Plaintiff Pierce maintained a median grade point average (GPA) of 3.3. Plaintiff has one year and one semester remaining to completion of her studies and certify for the New York State LMSW licensing examination requirement. 14. In the Spring of 2012, Plaintiff, Pierce was compelled to take a medical leave of absence due to medical condition, not related to the re-entry process called into question here. 15. In the Fall of 2012, Plaintiff, Pierce, re-entered the MSW program without incident and without question from the Defendant, Fordham University. However, Plaintiff, Pierce did have an issue with her School loans and the financial aid office at Defendant, Fordham, Rose Hill (Bronx) Campus. Loan officer, Jim Cirillo, from Fordham University s financial aid office demanded that Plaintiff, Pierce, turn over her medical records in order to apply for additional funding to meet expenses incurred by her first medical leave of absence. 16. Apparently, Plaintiff, Pierce, requested additional loans to assist with her medical expenses, and Plaintiff, Pierce, alleges that she was compelled to turn over her private medical information in order to secure additional financial aid. Plaintiff, Pierce, clearly communicated to the Fordham financial aid office that she felt it was a violation of her civil rights under the ADAA at that time. 17. As a result of the request for HIPPA protected medical information prior to securing additional financial aid due to medical issues, Plaintiff, Pierce, drafted a formal pro se Complaint to the U. S. Department of Justice, Civil Rights Division, in Washington, D.C. See

4 18. Consequently, from February 21, 2013 to March 13, 2013, Plaintiff, Pierce suffered complications that necessitated a psychiatric hospitalization. 19. On March 13, 2013, Plaintiff, Pierce, was compelled to take a second medical leave of absence from her work as a MSW candidate. 20. During April 2013, Plaintiff, Pierce, has repeatedly and continuously attempted to secure re-entry into the Fordham MSW program to complete her studies., but to no avail. Plaintiff, Pierce, alleges that the Fordham administration retaliated against her for the first complaint to OCR as well as her interaction and verbal communications with the Fordham financial aid office as a result of her first medical leave of absence and the events that followed from that re-entry and subsequent request for additional financial aid due to medical and school financial obligations. It is the second re-entry process that is being called into question for purposes of this lawsuit. 21. The original OCR complaint was transferred to the OCR New York Enforcement Office, Defendant named here, and it was not until June 2013 when that office contacted Plaintiff, Pierce. From the onset, OCR dismissed this what it calls Allegation #2. But OCR stated that Allegations 1 and 3 where viable for investigation purposes. In its letter OCR states that its goal is the prompt and appropriate resolution of the allegations contained in a complaint. To date, Plaintiff, Pierce, almost two (2) years later has not received a determination from OCR. This course of conduct has caused her irreparable harm both financially and emotionally. See Exhibit One - letter dated July 11, AS TO THE FIRST CAUSE OF ACTION AGAINST DEFENDANT, FORDHAM UNIVERSITY UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE ADAA, AS AMENDED 22. Plaintiff, Pierce, alleges that Defendant, Fordham, violated her civil rights and her right to privacy on the basis of discrimination against the mentally ill and/or the mentally disabled a viable disability pursuant to the ADAA, Title II, Title III, and Section 504 of the Rehabilitation Act of 1973 (Sec. 504), as amended 29 U.S.C. 794, and its implementing regulation at 34 C. F. R., Part 104, which prohibits discrimination on the basis of disabilities. See also 34 C.F.R ; 34.F. R (e); 42 U.S. C. 2000d et. seq. ; 42 U.S. C ; 42 U.S. C

5 23. Dean Susan Egan and Dean Keith Eldredge, Fordham Dean of Students, and other interested parties and employees of Fordham University involved in the Fordham MSW program re-entry process denied Pierce s admission on the premise that she refused to provide her entire medical record in order to re-enter the school and continue her studies. Moreover, even if Plaintiff, Pierce, where to comply with this unreasonable, overbroad, overreaching, and discriminatory request, she would still be at risk of being rejected for re-entry. Plaintiff, Pierce alleges that this was not only in retaliation from the first re-entry from her medical leave but also stemmed form discriminatory practices due to her psychiatric hospitalization in order to deter her from re-entering this program. Plaintiff, Pierce, alleges that the information requested by Fordham University was overbroad and encroached upon her civil rights amounting to retaliation and discriminatory practices violating the ADAA, as Amended and Section 504 of the Rehabilitation Act of Exhibit Two, Community Provider Form (March 2013), and Releases of Information (March 2013). According to the Fordham Graduate School of Social Work Student Handbook , a graduate candidate has five (5) years to complete the degree program including any medical leave or educational disruption. Additionally, the re-entry process states: [a student] may be required to present documentation verifying readiness to return to the MSW program. See pg. 27, Student Handbook [emphasis added] 24. Plaintiff, Pierce, alleges that Fordham University did not provide an adequate disability complaint process and provided an atmosphere of stigma and discrimination treating her differently than others similarly situated in retaliation to her first medical leave and request for additional financial aid. Additionally, Plaintiff, Pierce, alleges that Fordham University violated not only her civil rights but her privacy rights by overreaching and demanding that she provide her entire medical and psychiatric record for review prior to re-entry. In sum, Fordham University requested unlimited access on a continuing basis to Plaintiff, Pierce s medical and psychiatric records in order to possibly permit her to re-enter its program. It should be noted that even if Plaintiff, Pierce did provide this unlimited access to her private medical and psychiatric records, she could still be denied re-entry into the MSW program. Furthermore, Plaintiff, Pierce alleges that Fordham University s request for information went well beyond assessing if she posed a threat to herself or others if she was permitted to re-enter the program as there was no evidence or corroboration to these facts in which Fordham University would be prompted to do so. Plaintiff, Pierce, did acquiesce and agreed to provide current psychiatric records and a letter from her treatment providers that she was ready, willing, and able to re-enter the Fordham University MSW program for the Fall of

6 25. Plaintiff, Pierce, alleges that Fordham University requested far too much information in a discriminatory tone and manner in order to retaliate against her and deter her from re-entering the MSW program because of her psychiatric hospitalization and her allegations against the Fordham administration related to her first medical leave of absence causing her emotional distress, monetary losses in both financial aid obligations and an inability to complete her education in any graduate program, and an inability to secure adequate employment in her field of study social work. Moreover, Plaintiff, Pierce is now irreparably harmed as a direct result of Fordham University s administrative stance. AS TO THE SECOND CAUSE OF ACTION AGAINST OCR NEW YORK ENFORCEMENT OFFICE UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE ADAA, AS AMENDED 26. On June 13, 2013, the New York OCR, contacted Pierce to investigate her claim. In a conference call with counsel for OCR, Plaintiff, and Plaintiff s counsel present, Plaintiff reiterated her initial claims against Fordham and added the additional claims called into question here regarding the Plaintiff s second re-entry process or lack thereof. 27. On July 11, 2013, OCR found that Plaintiff, Pierce, had viable ADAA claims against Defendant, Fordham, relating to the second re-entry process and the amount of information required by Fordham for Plaintiff, Pierce, to re-enter the school, in which she alleges is discriminatory in nature on the grounds that (a) Fordham did not require this information for her first re-entry; (b) Fordham did not require this information regarding others similarly situated; (c) because it was a psychiatric leave as opposed to a medical leave and because Plaintiff, Pierce, already had an issue previously with the financial aid office for her first medical leave, that she was retaliated against alleging the issues called into question during her second medical leave due to a psychiatric hospitalization, and as a result OCR commenced its initial investigation. See Exhibit One - letter dated July 11, On August 6, 2013, the New York OCR, accepted and scheduled pursuant to its Early Complaint Resolution Program (ECR) a mediation between the parties at its New York Enforcement Office. Plaintiff, Pierce, attended with counsel of record, and Defendant Fordham, attended with legal representation as well. Consequently, for all parties involved, this mediation session was unsuccessful, and OCR was compelled to move forward with its investigation. 6

7 29. OCR stated that it should have a determination as an earmarked internal deadline in December To date, the Plaintiff, Pierce, has not received a determination for this investigation and this case. It is the second claim called into question into this complaint alleging OCR to be negligent, careless, derelict in its duties to the community-at-large, as well as this particular Plaintiff. This course of conduct is outrageous and shocks the conscience of the public the very individuals this entity is sworn to protect. 30. OCR is authorized to investigate complaints of discrimination, and it is authorized to conduct reviews of federally funded institutions to assess their compliance with civil rights laws. Moreover, it is OCR that is charged with enforcing the ADAA, as Amended, and Section 504 of the Rehabilitation Act of 1973, and in this case, it has failed to do so. See 34 CFR, Part 104 (December 13, 2000). 31. Subsequent to repeated correspondences both via transmissions and letter correspondences, Defendant, OCR, has to date refused to complete its investigation and/or share the results of that investigation and determination with Plaintiff, Pierce, as promised. In fact, Defendant, OCR, refuses to communicate or even respond to Plaintiff, Pierce and/or her attorney of record. 32. Between March 2013 and September 2013, there were several s and colloquies regarding Pierce s reentry with both Defendants, Fordham University, and OCR. 33. On February 17, 2015, a final attempt to resolve this issue with OCR amicably was made via Plaintiff, Pierce s attorney, by letter correspondence to Rachel Pomerantz, Esq., Acting Regional Director, U.S. Department of Education, Office for Civil Rights, New York Enforcement Office, 32 Old Slip, 26th Floor, New York, New York To date, OCR has failed to even afford Plaintiff, Pierce, the courtesy of a response as she has in good faith put her life on hold waiting for OCR response and decision. Therefore, Plaintiff, Pierce is left with no choice but to join OCR into this law suit, which flies in the face of its mission and the very persons it is assigned to protect. The course of conduct exhibited by OCR is indeed outrageous and shocks the conscience. 34. On March 23, 2015, in correspondence to Congressman Sean Patrick Maloney from Acting Assistant Attorney General, Vanita Gupta, United States Department of Justice Civil Rights Division, he contacted Defendant, Rachel Pomerantz, Acting Director of the New York OCR Enforcement Office, where this office stated to him that the investigation was still ongoing. Ms. Pierce and her attorney have not been notified of such and/or any and all correspondence or attempts to consult this office have gone unanswered. AAG. Gupta states in her letter that Ms. Pierce should contact the New York 7

8 Enforcement office, which her and her attorney have attempted on several occasions. See Exhibit Three: Letter from Attorney Risoli to OCR NY Enforcement Office dated February 17, 2015, and Letter from AAG Gupta dated March 23, Subsequent to several inquiries by her attorney and by Pierce herself, OCR has not provided a determination in the discrimination claim. And, it has refused to engage or respond to several and letter correspondence requesting it to do so. The OCR on several occasions promised a determination of this investigation, and it breached this promise with Plaintiff, Pierce, who, to be sure, detrimentally relied on these claims primarily that OCR would provide a good faith investigation and timely response and/or determination. 36. To date, Plaintiff, Pierce s damages are to include a reimbursement of her tuition at Fordham University since 2011 through the present time, her loss of profits as she is not able to complete her graduate studies with a black mark on her educational and professional records, and as a result, she cannot seek alternative education for the same purpose; she cannot find adequate employment in her field of study because she was denied re-entry and has not completed the program required to sit for the New York State examination for certification as a social worker; that she was denied reentry due to a psychiatric leave of absence and retaliation relating to her first medical leave of absence. 37. Accordingly, Plaintiff, Pierce, seeks as damages and unspecified amount of costs and disbursements, reasonable legal fees as well as damages for the extreme emotional and psychological distress caused by all of the Defendants actions and questionable course of conduct based on her disability 38. As a result of both entities extreme and outrageous conduct against this particular, Plaintiff, she is seeking compensatory and punitive damages of $5,000,000 as well as attorney s fees. Dated: Eastchester, New York June 12, 2015 /S/ Law offices of Andrew Risoli Andrea Risoli, Of Counsel 484 White Plains Road Eastchester, New York PH; (917) FAX: (914) [email protected] 8

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