Oquendo-Lopez v. Cheshire Board of Education, Hinckley

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ROSALIS OQUENDO-LOPEZ

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v.

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THE BOARD OF EDUCATION OF THE TOWN OF CHESHIRE and individually, RUSSELL M. HINCKLEY

:

1.

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A mother brings suit to remedy injuries to her son from discrimination, retaliation and battery.

PARTIES

2.

The mother and her son reside in Cheshire, Connecticut, where at all times relevant to this complaint he attended Third Grade at the Doolittle Elementary School (‘Doolittle’ or the ‘school’).

3. Defendant Board of Education (‘Board’) operates and maintains Doolittle in compliance with Connecticut General Statutes § 10-240 et seq.

4. At all times relevant to this complaint the Board employed defendant Russell M. Hinckley (‘Hinckley’) as Principal of Doolittle.

5. Section 504 of the Rehabilitation Act of 1973 (‘Section 504’) provides that “[n]o otherwise qualified individual with a disability in the United States… shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. §§ 794(a).

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6. The Board receives federal financial assistance and operates Doolittle as a “program or activity.” 29 U.S.C. § 794(b)(1)(A).

7. Since at all times relevant to this complaint the Board provided the plaintiff’s son with accommodations pursuant to a “Section 504 Accommodations Plan,” he qualifies as an “individual with a disability.” 29 U.S.C. § 705(20)(B).

JURISDICTION AND VENUE 8. This court has jurisdiction over the subject matter under 28 U.S.C. § 1331 and 29 U.S.C. §§ 794 and 794a. Venue is proper in the District of Connecticut under 28 U.S.C. § 1391(b) because the claims alleged herein arose in this District.

FACTS 9. On March 9, 2017 the mother took part in a meeting at the school to plan her son’s Section 504 accommodations for the period March 9, 2017 to March 9, 2018 (the ‘plan’).

10. Hinckley also took part. He had served as principal at Doolittle since the son began attending First Grade in 2014-15. He had attended each of the son’s annual Section 504 meetings.

11. At this meeting the son’s Regular Education teacher at the time, Janet Edwards (‘Edwards), reported on ‘behavioral concerns’. The son’s concerning behaviors “usually took place during recess and other unstructured times,” she reported. When the son thought other children were being mean, rough or aggressive, Edwards said he retaliated with tickling or kicking. Edwards gave the son coupons if he walked away from such situations without retaliating.

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12. In the meeting the mother shared her concern that rough play made her son think others were being mean. She said he felt he had no friends and asked about ways to support him when he was anxious or upset in class.

13. Also taking part in the meeting were Tara Zaretsky (‘Zaretsky’) and Erica Vaz (‘Vaz’).

Zaretsky and Vaz were respectively a Clinician and a Mental Health Counselor sent by Wellmore Behavioral Health. Wellmore is a nonprofit that offers mental health services to families in forty-three towns in western Connecticut. It follows the “ICAAPS” model of services. Its workers had provided such services to the son since he was 4.

14. In the meeting Zaretsky and Vaz noted that the son’s anxiety caused him to perseverate.

They stressed the importance of “taking his mental health needs into consideration when giving consequences for his behavior.”

15. The school’s psychologist Christa Saraceni (‘Saraceni’) reported on her work with the son on “anger management and coping strategies.” She stated that he “didn’t realize when others were frustrated with him.”

16. The participants determined that the son had an Attention Deficit Hyperactivity Disorder that impaired the major life activities of concentrating and of controlling impulsive behaviors. They further determined that this disorder substantially limited his ability to attend to tasks and caused him to exhibit impulsiveness, especially in unstructured settings.

17. The participants provided in the final plan for the following “Accommodations and Supports”: counseling; consistency in classroom routines, delivery of instruction and application of behavioral interventions; strategic placement among peers in the classroom; close proximity to the teacher when on the rug; freedom to sit apart when

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others were seated close together; monitoring for signs of anxiety and frustration; permission to take a break as needed to re-focus, calm his behavior, see a counselor or talk to a teacher; and positive reinforcement for appropriate behavior.

18. On April 17 during lunch the son believed that another student was teasing him and asked an aide for help. The aide told him to return to his seat and speak to his teacher about the other child after lunch. A few minutes later the son again asked an aide for help with the other student’s teasing. The aide again told to return to his seat. At that point he bit the other student on the arm. One of the aides sent the son to Hinckley’s office.

19. On the way into Hinckley’s room the son knocked over a chair. He went to a corner of the room and sat and cried. Hinckley told him to pick up the chair.

20. When son refused, Hinckley took hold of his arm, led him to the chair and told him again to pick it up.

21. The son stayed in Hinckley’s office. At 2:15, the end of the school day, Hinckley called the mother. He told her only that her son had bit another child.

22. Hinckley told the mother he would notify Saraceni, Zaretsky and Vaz of the incident.

Upon information and belief, he never did.

23. At 2:45 the mother picked up her son at school. He was crying uncontrollably. She noticed that his new shirt was torn and that he had bruise marks on his arm. When the two returned home, she photographed the shirt and the marks.

24. When the son’s stepfather came home from work that day, the mother and son told him what had happened at school and showed him the photographs. The stepfather asked the son why he did not ask Hinckley to let go of his arm. The son replied that he was afraid Hinckley would hurt him more. He told his stepfather that no one else had touched his

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arm that day. Several times during their conversation he burst into tears at the sight of the torn shirt, a gift from his parents the day before.

25. The next day, April 18, the mother and stepfather dropped the son at school and met Hinckley in his office.

26. At first Hinckley told them only about the incident in the lunchroom.

27. When the parents asked what happened afterwards in Hinckley’s office, a noticeably more nervous Hinckley told them only that their son came to his office upset and spent the rest of the day there.

28. When the parents asked at what point Hinckley put his hand on their son’s arm and ripped his shirt, the Principal said, “I may have put my hand on his shoulder.”

29. When the stepfather said the bruise marks and torn shirt were consistent with someone that had been aggressively grabbed and pulled, Hinckley said he “may have grabbed” the son.

30. When the stepfather asked why he had grabbed the son, Hinckley said the son had been “throwing things around” in the office.

31. The stepfather then recounted the son’s version of events in the office. Hinckley nodded his head in agreement and never objected. When the stepfather finished, Hinckley admitted he had grabbed the son.

32. The mother told Hinckley she couldn’t continue to trust him if he was going to hurt her son. In a soft tone of voice Hinckley said he “did not mean to hurt” him. The mother walked out. The stepfather asked Hinckley to document the incident, which he promised to do.

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33. The next day, April 19, after another student asked the son to stop playing with him, Edwards said to the son, in front of his classmates, “This is why you have no friends.”

34. This comment triggered an emotional reaction in the son. He hit another student.

35. The next day, April 20, Zaretsky and Vaz spoke to Edwards about her comment and about ways to avoid triggering the son’s aggression.

36. Edwards acknowledged that her comment had deeply hurt the son.

37. Edwards told Zaretsky and Vaz she didn’t want to have to walk on eggshells when dealing with the son.

38. Zaretsky and Vaz then met with Hinckley and explained to him the impact Edward’s comment had on the son.

39. On April 24 Hinckley sent a letter to the mother and stepfather about the incidents in the lunchroom and in his office on April 17. [EXHIBIT A]. He admitted putting his hand on the son’s “arm/shoulder to prevent him from throwing the chair.”

40. On May 10 the mother, stepfather and Zaretsky met with the Board’s Assistant Superintendent, Shawn Parkhurst (‘Parkhurst’). They expressed their concern that Doolittle’s administrators and teachers were not following the son’s plan. They told Parkhurst about Edwards’ comment and about their conversation with Hinckley. Zaretsky told Parkhurst she believed Hinckley and Doolittle’s teachers were ignoring the son’s mental health needs.

41. Parkhurst told them he had already spoken to Hinckley about the incident in the Principal’s office. He added that he would relay the parents’ and Zaretsky’s concerns to Hinckley and would have him correct his letter.

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42. The next day Hinckley drafted a new letter to the mother. He sent this draft to Parkhurst for his “suggestions.”

43. Parkhurst wrote back, “State what the first letter stated and then if that was an error state that – this is what they want to hear [sic].”

44. Hinckley sent the finished second letter to the mother and stepfather on May 11.

[EXHIBIT B]. In it he stated he had received “PMT (physical/psychological management) training to handle situations when students are being unsafe.” When the son came into his office on April 17, wrote Hinckley, the Principal “escorted him using a ‘basic guide along’ to move him to a safe location and to prevent him from knocking over other chairs or throwing them.”

45. On May 25 in class that morning Edwards instructed the son and his classmates to join her on the carpet. The son protested that first he wanted to finish his work. Edwards demanded that he stop immediately. Other students called to the son to join them. He did not. Edwards then took the son’s paper and ripped it up. She said he could now join them on the carpet. The son began to cry. He told Edwards he did not have to listen to her. She told him to get out.

46. The son went to Saraceni’s office, where she gave him positive reinforcement for having come to her.

47. On June 1 Zaretsky and Vaz came to Doolittle to observe the son. After watching him at recess, they stood nearby as he lined up with his classmates to come in from the playground for lunch. The son nudged the girl next to him after she made a joke.

48. Mary Lee Novia (‘Novia’), an aide, approached the son and told him he was “in trouble.”

49. The son began to cry and moved away. Zaretsky and Vaz attempted to talk with him.

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50. Novia asked Zaretsky and Vaz why they were “coddling” the son. She said the son was “just a bad kid.” She said, “This is what he does every time --- he manipulates.”

FIRST CLAIM FOR RELIEF DISCRIMINATION 51. The plaintiff re-alleges paragraphs 1 through 50.

52. As described in the paragraphs above, the Board’s conduct constitutes discrimination in violation of Section 504 in that the Board’s deliberate indifference excluded the son from participation in, denied him the benefits of and subjected him to discrimination under, a program or activity of the defendant solely on the basis of his disability. 29 U.S.C. § 794.

53. The son was injured by this violation, and, as such, the plaintiff is entitled to relief from the injuries caused by this defendant’s unlawful conduct. 29 U.S.C. § 794 (a).

SECOND CLAIM FOR RELIEF RETALIATION 54. The plaintiff re-alleges paragraphs 1 through 50.

55. As described in the paragraphs above, the Board’s conduct constitutes retaliation in violation of Section 504 in that it intimidated, retaliated, threatened, coerced and otherwise discriminated against the son because he participated in activity related to privileges secured by Section 504 and the regulations thereto. 29 C.F.R. § 33.13, 29 U.S.C. § 794.

56. The son was injured by this violation, and, as such, the plaintiff is entitled to relief from the injuries caused by this defendant’s unlawful conduct. 29 U.S.C. § 794 (a).

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THIRD CLAIM FOR RELIEF BATTERY 57. The plaintiff re-alleges paragraphs 1 through 50.

58. Hinckley wantonly and intentionally contacted the son, and the contact directly resulted in harm.

59. Hinckley is liable to the mother for that harm’s damage.

PRAYER FOR RELIEF WHEREFORE, the plaintiff prays that the Court enters a judgment that: Declares that the acts of the defendants, as set forth above, violated state and federal law; Awards money damages to the plaintiff to compensate her son for the discrimination and pain and suffering he underwent; Awards costs and a reasonable attorney’s fee in accord with 29 U.S.C. § 794(a); and Grants such further relief as the Court deems just.

Respectfully submitted November 17, 2017 THE PLAINTIFF By

___ct29257________ Gregory Smith 19 Highview Avenue Norwalk CT 06851 (413) 822-3040 law@gnsmith.com

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EXHIBIT A

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EXHIBIT B