Pro se plaintiff Ileen Cain brings this action against Atelier Esthetique Institute of Esthetics, Inc. (“Atelier”), alleging defamation and discrimination under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (the “NYCHRL”). The defendant has moved to amend its answer to assert additional affirmative defenses and for summary judgment on each of the plaintiffs claims. For the reasons that follow, the motion is granted in part.
Background
In November 2012, Ms. Cain applied for admission to Atelier’s “600-Hour Esthetics program leading to licensure as an Esthe-tician in New York State.” (Def. 56.1, ¶ 7; Letter of Kyra Svetlovsky dated Nov. 9, 2012, attached as Exh. K to Declaration of Nicole Feder dated Jan. 29, 2016 (“Feder Deel.”)). The plaintiff indicated in her application that she was receiving Social Security Disability (“SSD”) benefits, though she did not disclose the nature of her disability.
Ms. Cain testified that, after her first day at Atelier, she had to miss a day of classes becáuse of an inspection taking place at her apartment. (Cain Dep. at 185,
A day or so later, Ms. Cain’s instructor pulled her out of class and informed her that Mr. Rochester wanted to speak with her. (Cain Dep. at 179). The plaintiff met with Mr. Rochester and Ann Marie Pan-dullo, a financial aid officer at Atelier, in the financial aid office. (Cain Dep. at 179; Response to Plaintiff s' Interrogatories/Deposition via Written Questions to Ann Marie Pandullo dated Dec. 7, 2015 (“Pandullo Interrog.”), attached as Exh. G to Feder Deck, ¶ 6). Mr. Rochester told Ms. Cain that he had contacted Mark Weinstein, the director of the Brooklyn ACCES-VR office, that she was being terminated from Atelier, and that she should contact AC-CES-VR. (Cain Dep. at 180-81). When the plaintiff asked why Atelier was terminating her, Mr. Rochester again stated that she should contact ACCES-VR, and stated that she was exhibiting “signs of [ ] delusion or hallucination.” (Cain Dep. at 181, 227).
According to Mr. Weinstein, Mr. Rochester called him on December 14, 2012, the day Ms. Cain was terminated. (Chronological Case History/Important Events Case Note dated Dec. 14, 2012 (“12/14/12 Case Note”), attached as Exh. 0 to Cain. Aff.). Mr. Rochester “advis[ed] that [Ms.] Cain was hearing voices and acting paranoid.” (12/14/12 Case Note). He further stated that Ms. Cain had mentioned ACCES-VR and that he believed ACCES-VR had “sent” her to Atelier. (12/14/12 Case Note), Based on his belief that Ms. Cain was “showing clear signs of not being able to get through the program,” Mr. Rochester was reluctant to begin charging her tuition and planned to “terminate her as gently as he could.” (12/14/12 Case Note).
The defendant states that, after Ms. Cain began attending classes, one of her instructors, Christine Anderson, complained to Mr. Rochester about the plaintiffs behavior. (Def. 56.1, ¶¶13-16).
Before dismissing Ms. Cain on December 14, Mr. Rochester had conversations with her on December 12 and 13 regarding her allegations that she was being harassed by other students.' (Rochester In-terrog., ¶ 3). On both occasions, the plaintiff asked Mr. Rochester to contact the police but refused to identify her harassers. (Rochester Interrog., ¶.3). Mr. Rochester sat in on one of the plaintiffs classes but “did not observe [her] being bullied or bothered- by the other students.” (Rochester Interrog., ¶ 3). However, he did observe her “angrily talking to the walls in class or in the hallway when no one was around.” (Rochester Interrog., ¶ 3). Moreover, “[s]everal [unidentified] students came to [him] to complain about Ms. Cain’s behavior and threatening, aggressive statements.” (Rochester Interrog., ¶ 15). During their second conversation, Mr. Rochester “suggested that [Ms. Cain] might benefit from counseling”; Ms. Cain responded that she did not need counseling and stated that she “knew what to do with them” and “knew how to handle people like that,” referring, presumably, to the students about whom she was complaining. (Rochester Interrog., ¶ 3).
Mr. Rochester acknowledges calling Mr. Weinstein on December 14 in order to “refer Ms. Cain back to ACCES-VR for services because Ms. Cain exhibited threatening, intimidating[,] and aggressive behavior.” (Rochester Interrog., ¶ 13). He further states that Mr. Weinstein informed him that “Ms. Cain had a history of limited success with education institutions due to personal issues” and that he does not remember “whether [he] stated to Mr. Wein-stein that Ms. Cain was ‘hallucinating and delusional.’ ” (Rochester Interrog., ¶ 13). Regarding his conversation with Ms. Cain on December 14, Mr. Rochester asserts that he spoke with her about “her behavior in class” and “explained that she was being disruptive in class and that it was having a negative impact on the education of the other students.” Ms. .Cain “yelled” that “they” had “gotten to. [him]” and suggested that she was being punished for complaining about bullying. (Rochester Inter-rog., ¶3). She then repeated “in a very disturbing tone of voice” the statement that she knew how to “take care of’ and “deal with” the bullies and left Mr. Rochester’s office. (Rochester Interrog., ¶ 3). Ms. Pandullo, who was present when Mr.
According to Mr. Rochester, he terminated the plaintiff because (1) she refused to identify the students harassing her; (2) she made statements about knowing how to “deal with” and “take care of people like that” in a threatening and intimidating manner, causing him concern for the safety of Atelier’s students and staff; (3) she had an “aggressive and frightening” demeanor when speaking with him; (4) other students complained about her speaking “angrily or in [] an agitated manner” to herself or to the walls; and (5) her instructors “spoke with [him] about Ms. Cain’s behavior.” (Rochester Interrog., ¶ 10).
Following her discharge, the plaintiff filed a complaint with the U.S. Department of Education’s Office for Civil Rights (“OCR”). (Def. 56.1, ¶ 31; Cain Dep. at 190; Letter of Timothy C. J. Blanchard dated June 14, 2013 (“Blanchard Letter”), attached as Exh. M. to Feder Decl., at 1). Ms. Cain alleged that Atelier discriminated against her on the basis of her disability by dismissing her on December 14 after she disclosed having previously received services from ACCES-VR. (Blanchard Letter at 1). The complaint also described the conversation between Mr. Rochester and Mr. Weinstein and Mr. Rochester’s remarks about the plaintiff hallucinating and being delusional. (Blanchard Letter at 2). After OCR “reviewed documentation [Ms. Cain] and [Atelier] submitted” and interviewed Ms. Cain, Atelier entered into a voluntary resolution agreement with OCR, thereby resolving Ms. Cain’s complaint. (Blanchard Letter at 1, 3). The agreement provided that Atelier would (1) offer to have the plaintiff reenroll or, if the plaintiff declined that offer or failed to act, (2) refund to the plaintiff “all tuition and fees,” and (3) “provide training” to its administrators regarding “the requirements of [the Rehabilitation Act].” (Resolution Agreement, attached as part of Exh. F to Cain Aff.). Atelier subsequently wrote Ms. Cain a check for $1,286, which she cashed. (Check dated Aug. 1, 2013, attached as Exh. N to Feder Deck; Cain Dep. at 290-91). A memo on the face of the check read, “In full satisfaction of all claims by L, Cain against Atelier,” language that the plaintiff acknowledges having seen and understood. (Check; Cain Dep. at 292-93). By September 30, 2013, OCR determined that Atelier had complied with all of the resolution agreement’s terms. (Letter of Timothy C. J. Blanchard dated Sept. 30, 2013, attached as part of Exh. F. to Cain Aff., at 1-2).
After filing her complaint with OCR, Ms. Cain reached out to the Center for
Procedural History
The plaintiff filed this action on November 4, 2013. After the Court dismissed sua sponte the plaintiffs claims against the individual defendants (Order dated Nov. 26, 2013, at 2), Atelier moved to dismiss the remaining claims (Notice of Motion dated April 11, 2014). On June 26, 2014, I recommended granting the defendant’s motion without prejudice to the plaintiff filing an amended complaint that named the appropriate defendant and “identified] the disability that she alleges [the defendant] regarded her as having.” (Report and Recommendation dated June 26, 2014 (“6/26/14 R&R”), at 14). Before the Honorable George B. Daniels, U.S.D.J., could issue a decision on the Report and Recommendation, Ms. Cain filed an amended complaint on July 8, 2014.
The defendant again moved to dismiss the plaintiffs claims pursuant to Rule 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56. (Notice of Motion dated July 29, 2014). With regard to this second motion, I recommended that Judge Daniels (1) dismiss the plaintiffs claims under the Americans with Disabilities Act (the “ADA”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., and the New York Civil Rights Law, N.Y. Civ. Rights Law §§ 40-c, 40-d; (2) convert the defendant’s motion to dismiss to a motion for summary judgment for the plaintiffs remaining claims; (3) grant summary judgment for the defendant as to plaintiffs claims of aiding and abetting and retaliation under the NYCHRL; and (4) deny the defendant’s motion for summary judgment as to the plaintiffs claims for defamation and. discrimination under the Rehabilitation Act and the NYCHRL. (Report and Recommendation dated Oct. 29, 2014 (“10/29/14 R&R”), at 34). Judge Daniels accepted each of these recommendations. Cain v. Atelier Esthetique Institute of Esthetics, Inc., No. 13 Civ. 7834,
A. Rule 56
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted where “there is no genuine dispute as to any material fact and the movant, is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Johnson v. Killian,
If the movant meets this initial burden, the opposing party then must come forward with “specific facts showing that there is a genuine issue for trial.” Id. at 324,
On a motion for summary judgment, a pro se litigant’s submissions should be liberally construed “to raise the strongest arguments that they suggest.” Buffaloe v. Fein, No. 12 Civ. 9469,
B. Local Civil Rule 56.1
Local Civil Rule 56.1(a) requires a party moving for summary judgment to annex to its motion a “separate, short and concise statement, in numbered paragraphs, of the material facts as to which [it] contends there is no genuine issue to be tried.” In
The defendant here gave the plaintiff notice of her obligations concerning summary judgment. (Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment dated Jan. 29, 2016). The plaintiff, however, has not submitted a responsive Local Rule 56.1 statement. Nevertheless, the Court may not rely solely on the statement of undisputed facts contained in the moving party’s Local Rule 56.1 statement, but must be satisfied that the citation to evidence in the record supports the moving party’s assertions. Vermont Teddy Bear Co. v. 1-800 Beargram Co.,
Because Ms. Cain is proceeding pro se, because summary judgment may not be granted unless a court is satisfied that there is no issue of material fact in dispute, and because the factual record can be reviewed to determine whether there actually are any material factual disputes, I decline to deem the defendants’ Local Hule 56.1 statement admitted. First, “[i]t is wéll-established that ‘when [a] plaintiff proceeds pro se ... a court is obliged to construe [her] pleadings liberally, particularly when they allege civil rights violations.’” Hemphill v. New York,
Discussion
The defendant advances several arguments in support of its motion for summary judgment. First, the defendant moves to amend its answer to interpose
A. Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure governs motions to amend and provides that leave to amend should be freely granted “when justice so requires.” Agerbrink v. Model Service LLC,
Atelier’s proposed amendment is futile because it has failed to establish the elements of its accord and satisfaction defense.
“As a general rule, acceptance of a check in full settlement of a disputed un-liquidated claim operates as an accord and satisfaction discharging the claim.” Merrill Lynch Realty/Carll Burr, Inc. v. Skinner,
In the present case, the plaintiff was the third party beneficiary of the agreement between the defendant and OCR.
B. Rehabilitation Act
The Rehabilitation Act provides that “[n]o otherwise qualified individual
A “qualified individual with a disability” is defined as an individual with a disability who “with or without reasonable modifications ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by” the covered entity. 42 U.S.C. § 12131(2); see also McElwee v. County of Orange,
An individual is regarded as having a disability where she establishes that “she has been subjected to an action prohibited under [the statute] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). A “mental impairment” under the relevant implementing regulations means “[a]ny mental or psychological disorder, such as an intellectual disability ..., organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2).
The defendant contends that the plaintiff cannot make out a prima facie case of discrimination under the Rehabilitation Act. In support of its contention, the defendant asserts (1) that plaintiff cannot “demonstrate that Atelier regarded [her] as disabled” and (2) that, even if the defendant did regard her as disabled, “there is no evidence to support the claim that she was discriminated [against] based upon the perceived disability.” (Def. Memo, at 18-21). The defendant further argues that it is entitled to summary judgment because the evidence establishes that it terminated the plaintiff for a legitimate, non-discriminatory reason. (Def. Memo, at 21-23).
As I explained in the June 26 Report and Recommendation, the ADA Amendments Act of 2008 (the “ADAAA”) “reinstated the reasoning of the Supreme Court in School Board of Nassau County v. Arline,
Having already found that suffering from hallucinations constitutes a “mental impairment” for purposes of being “regarded as” having a disability (10/29/14 R&R at 18—19 & n. 1), I conclude that there is sufficient evidence to establish that the defendant regarded the plaintiff as disabled. The regulation defining “mental impairment” provides a non-exhaustive list referring to “[a]ny mental or psychological disorder, such as an intellectual disability ,, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2); see also Lee v. AT & T Mobility Services LLC, No. 5:11-CV-294,
The cases the defendant cites are distinguishable. In Risco v. McHugh,
There is also sufficient evidence to conclude that the plaintiff was terminated from Atelier because of her perceived disability. In arguing that “[i]t defies all logic that Atelier would have discharged [the plaintiff] solely on the basis of her being an ACCES[-VR] consumer,” the defendant misconstrues the plaintiffs claim. (Def. Memo, at 20-21); The plaintiffs case is premised on the theory that the defendant terminated her because it (wrongly) regarded her as.suffering from hallucinations. To be sure, the defendant’s knowl
The defendant contends that, even if the plaintiff has made out a prima facie case of disability discrimination, it is nevertheless entitled to summary judgment because the evidence establishes that it dismissed Ms. Cain for a legitimate, nondiscriminatory reason. Courts apply the burden-shifting analysis established in McDonnell Douglas Corp. v. Green,
Ms. Cain was dismissed, the defendant asserts, because she “made intimidating and threatening statements on more than one oceasion[,] including references to the Sandy Hook massacre, she raised her voice at Mr. Rochester, and she refused to sit and could not be calmed when he attempted to discuss her conduct with her.” (Def. Memo, at 21).
In support of its proffered justification for dismissing the plaintiff, the defendant cites the plaintiffs behavior as reported in the interrogatory responses of Mr. Rochester and Ms. Anderson. (Def. 56.1, ¶¶ 14-16, 20, 22, 24). However, as indicated previously, Ms. Cain denies having engaged in the conduct Mr. Rochester and Ms. Anderson describe and also denies that Mr. Rochester ever raised concerns with her about her behavior. (Cain 4/21/14 Aff. at 5-6; Cain Dep. at 178-83).
Moreover, the evidence also reveals inconsistencies in the defendant’s version of the events leading up to the plaintiffs dismissal. Ms. Pandullo, the only other person present when Mr. Rochester dismissed Ms. Cain, indicates (1) that Mr, Rochester did not explain to Ms. Cain why she was being terminated and (2) that Ms. Cain’s only response was to “repeatedly ask[] Mr. Rochester why she was being terminated.” (Pandullo Interrog., ¶¶ 6, 10). However, the defendant’s response to the plaintiffs complaint with OCR states that during this conversation, when Mr. Rochester referred the plaintiff back to AC-CES-VR, she “became upset,” “got highly agitated[,] and yelled that [she] ‘was not the problem.’ ” (Letter dated Feb. 20, 2013 (“Def. 2/20/13 Letter”), attached as part of Exh. AA to Cain Aff., at 4-5). Furthermore, while the defendant’s letter suggests that Mr. Rochester decided to dismiss Ms. Cain after she refused to accept services from ACCES-VR, Mr. Weinstein’s case note suggests that Mr. Rochester had already decided to terminate Ms. Cain before he “attempted to refer Ms. Cain back to [ACCES-VR].” (Def. 2/20/13 Letter at 5; 12/14/12 Case Note). The fact that neither Mr. Weinstein’s case note nor Ms. Wolffs letter mentions threatening or aggressive behavior suggests that Mr. Rochester did not raise that issue with them and, therefore, that his decision was not in fact motivated by such behavior. As for the plaintiffs alleged statement about the Sandy Hook shooting, Mr. Rochester—the person responsible for dismissing the plaintiff— does not mention it in describing the reasons for his decision (Rochester Interrog., ¶ 10), and the defendant did not reference
Evidence that the plaintiff has a “history of aggressive tendencies and confrontational behavior” does not conclusively establish that the defendant had a nondiscriminatory reason for dismissing her. (Def. Memo, at 22). Thus, even if this evidence were admissible to show that Ms. Cain engaged in inappropriate behavior while she was a student at Atelier,
A reasonable jury crediting the plaintiffs evidence could conclude that the defendant dismissed her due to her perceived disability; as such, summary judgment is inappropriate. See Brown v. Board of Edu
C. NYCHRL
Under the NYCHRL, it is an “unlawful discriminatory practice” for
any place or provider of public accommodation, because of the actual or perceived ... disability ... of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof ,...
N.Y.C. Admin. Code § 8-107(4)(a). The NYCHRL defines “provider of public accommodation” to mean “providers ... of goods, services; facilities, accommodations, advantages or privileges of any kind,” and defines “disability” as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.” N.Y.C. Admin. Code § 8-102(9), (16)(a). It does not require a showing that a disability, perceived or actual, substantially limits a major life activity. Reilly v. Revlon, Inc.,
Under the NYCHRL, entities such as Atelier are prohibited from' denying “accommodations, advantages, facilities or privileges” to an individual because of that individual’s perceived disability. N.Y.C. Admin. Code § 8-107(4)(a). Contrary to the defendant’s contention, “courts must analyze NYCHRL claims separately and independently from any federal ... claims.” Mihalik v. Credit Agricole Cheuvreux North America, Inc.,
In light of the similarities between the relevant provisions of the Rehabilitation Act and the;NYCHRL, the denial of the defendant’s motion for summary judgment on the Rehabilitation Act claim, and the NYCHRL’s goal of “meld[ing] the broadest vision of social justice with the strongest law enforcement deterrent,” Williams v. New York City Housing Authority,
D. Defámation
“Under New York law, defamation is defined as ‘the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC,
A statement constitutes slander per se (and therefore requires no proof of special damages) if it: (1) charges the plaintiff with a serious crime; (2) tends to injure the plaintiff in her trade, business, or profession; (3) accuses the plaintiff of having a loathsome disease; or (4) imputes unchastity to a woman. Sleepy’s LLC v. Select Comfort Wholesale Corp.,
The defendant argues that the plaintiffs defamation claims fail because the statements do not constitute defamation per se and there is no evidence that the plaintiff suffered special damages. The statements at issue, published to Mr. Weinstein and Ms. Wolff respectively, are (1) that “[the plaintiff] was hearing voices
The plaintiff appears to argue that Mr. Rochester’s statements fall into the exception for statements that tend to injure another in his or her trade, business, or profession. (Pl. Memo. at 23-25). The defendant on the other hand asserts that the plaintiffs claim must fail because there is no evidence that “[a]t the time the [s]tatement[s] [were] made, plaintiff had [a] trade, occupation or business.” (Def. Memo. at 13).
To establish slander per se under this category, the plaintiff must prove that she carried on the trade, business, or profession at the time the statement was made and that the statement referenced her character or conduct in that profession.
The doctrine of presumed damages in defamation actions stems from “the experience and judgment of history that ‘proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact?'” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
Based on the evidence presented, the statements at issue do not constitute slander per se and the plaintiff has not estab
Conclusion
For. the foregoing reasons, the defendant’s motion to amend the answer is denied and its motion for summary judgment (Docket No. 93) is granted in part and denied in part. Specifically, summary judgment is granted in favor of the defendant as to the plaintiffs defamation claims and denied ás to the plaintiffs discrimination claims under the Rehabilitation Act and the NYCHRL.
SO ORDERED.
Notes
. The plaintiff has not filed a responsive statement of undisputed facts as required under Local Civil Rule 56.1(b); however, as will be discussed below, a court “may in its discretion opt to 'conduct an assiduous review of the record’ even where one of the parties has failed to file such a statement.” Holtz v. Rockefeller & Co.,
. The plaintiff asserts that she informed Ronald Cary Rochester, Atelier's former School Director, that "she was receiving SSD due to the murder of her son.” (Plaintiff[’s] Opposition to Defendant’s] Motion For Summary Judgment ("Pi. Memo.”) at 16). During her deposition, Ms. Cain described a conversation with Mr, Rochester in which she “described in detail the situation that [she] was going through,” told him "all about [her] son’s murder [and] how [she] was diagnosed with PTSD,” and "inform[ed] him [] that [she was] a victim of cyber-stalking.” (Deposition of Ileen Cain (“Cain Dep.”), attached as Exh. D to Feder Deck, at 150-52, 275). Ms. Cain further stated that she "made [Mr. Rochester] aware” that she was receiving services from the New York State Education Department's Adult Career and Continuing Education Services-Vocational Rehabilitation ("ACCES-VR”) program (formerly known as Vocational and Educational Services for Individuals with Disabilities or "VESID”). (Cain Dep. at 151-52; Affidavit of Ruby Jackman dated Jan. 7, 2016, ¶¶ 1, 3). Mr. Rochester denies discussing with Ms. Cain her SSD benefits or her disability. (Response to Plaintiff’s Interrogatories/Deposition via Written Questions to Ronald Cary Rochester dated Dec. 16, 2015 (“Rochester Interrog.”), attached as Exh. E to Feder Deck, ¶ 4).
An administrative law judge for the Social Security Administration determined that the plaintiff was entitled to SSD benefits, finding ■ that she suffered from "schizoaffective disorder,” "post[-]traumatic stress disorder (PTSD),” and “paranoid personality disorder,” (Social Security Administration Office of Disability Adjudication and Review Decision, attached as part of Exh. W to Affirmation of Ileen Cain dated March 8, 2016 ("Cain Aff.”), at 1, 5-6). The plaintiff, however, testified that her disability is limited to PTSD and that there is nothing that she is presently "unable or incapable of doing” due to her PTSD. (Cain Dep. at 30-31).
. Ms, Cain’s testimony regarding whether Mr. Rochester mentioned delusions or hallucinations when he terminated her was ambiguous, At one point, she testified that Mr. Rochester said "[Y]ou [are] already showing signs of like delusion or hallucination.” (Cain Dep. at 227). Later she suggested that he either (1) said ''delusion” or "hallucination" under his breath or (2) stopped himself before he vocalized these words. (Cain Dep. at 227-29).
. The only other instructor Ms. Cain had during her time at Atelier, Michele Racioppi, indicated that she does not remember Ms. Cain being in her class or anything about the events in question. (Def. 56.1, ¶ 13; Response to Plaintiff’s Interrogatories/Deposition via
. Neither Mr. Rochester nor Ms. Pandullo mentioned Ms. Cain’s alleged statements about the Sandy Hook shooting in their interrogatory responses.
. Ms. Cain denies engaging in the behavior that the defendant claims led to her termination. (Affirmation of Ileen Cain dated April 21, 2014 ("Cain 4/21/14 Aff.”), at 5-6). Specifically, she denies disrupting class or confront-mg classmates, speaking to herself, stating that she knows how to take care of people who bully her, and acting aggressively or threateningly. (Cain 4/21/14 Aff. at 6). Moreover, Ms. Cain denies that Mr. Rochester, prior to her termination, spoke to her regarding concerns with her behavior. (Cain 4/21/14 Aff. at 5-6).
. Mr. Rochester acknowledges that he received a call, made on the plaintiff's behalf, from an advocacy organization, though he does not remember the caller's name. (Rochester Interrog., ¶ 19). During the call, Mr. Rochester says he discussed "Ms. Cain’s behavior,” including her being aggressive and threatening toward other students, her outbursts in class, and her talking to herself; he “may have also said that both teachers and students complained about Ms. Cain’s behavior.” (Rochester Interrog., ¶ 19).
. In fact, “[w]here an amended claim would fail on a summary judgment motion, the court has discretion to treat the opposition to the amendment as a motion for summary judgment and to consider matters outside the pleadings in resolving the motion.” Schare v. Six Flags Theme Parks, No. 96 Civ. 9377,
. The defendant also moves to amend its answer to plead the defense of truth as to the plaintiff's defamation claims. As explained below, the defendant’s motion for summary judgment on the defamation claims is granted, rendering this proposed amendment moot.
. OCR’s investigations of civil rights complaints, including alleged violations of the Rehabilitation Act, are governed by 34 C.F.R. §§ 100.6-100.10. See 34 C.F.R. § 104.61 (applying §§ 100.6-100.10 to Rehabilitation Act investigations). These procedures provide that ''[a]ny person who believes himself or any specific class of individuals to be subjected to discrimination” may file a complaint with OCR. 34 C.F.R. § 100.7(b). If OCR finds "a possible failure to comply” with the statutes it enforces, it "will make a prompt investigation” to determine "whether the recipient [of federal funds] has failed to comply.” 34 C.F.R. 100.7(c). Where OCR finds that the recipient has failed to comply with the relevant statutes, it will either resolve the matter "by informal means whenever possible” or seek compliance by "the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law.” 34 C.F.R. 100.7(d)(1), 100.8(a). These procedures are designed to effectuate federal anti-discrimination laws by ensuring compliance among recipients of federal funds, rather than to vindicate an individual complainant’s rights. 34 C.F.R. §§ 100.1, 104.1 (describing purpose of relevant regulations); see also Ryan v. Shawnee Mission Unified School District No. 512,
OCR’s Case Processing Manual (the "CPM”) describes a procedure for resolving a complaint during the pendency of an investigation. U.S. Department of Education, Office for Civil Rights, Case Processing Manual § 302 (2015), http://www2.ed.gov/about/ offices/list/ocr/docs/ocrcpm.pdf. That procedure is triggered only when "the recipient' expresses an interest in resolving the allegations”; the complainant plays no role and only receives notice "of the recipient's interest in resolution.” Id. Indeed, the CPM characterizes the process as a negotiation only between OCR and the recipient. Id. At her deposition, Ms. Cain stated that she believed OCR was still investigating her complaint when she received notice that OCR and Atelier had entered into a resolution agreement. (Cain Dep. at 288-90). In sum, there is no indication that Ms. Cain participated in the resolution of her OCR complaint or negotiated to release any claims against Atelier. Cf. Shirey ex rel. Kyger v. City of Alexandria School Board,
. I also note that De La Rosa applied the Rehabilitation Act as it existed prior to the ADAAA. Id.
. One could plausibly argue that Mr. Rochester’s statements to Mr. Weinstein and Ms. Wolff constitute direct evidence of discrimination. See Redd v. New York State Division of Parole,
. The defendant briefly (and rather vaguely) argues that the plaintiff was dismissed because she "was incapable of being a student at Atelier.” (Def. Memo, at 22). While judicial deference is owed to the defendant’s judgment as to whether the plaintiff's alleged behavior rendered her unqualified for participation in its program, Roggenbach,
. Rule 404 of the Federal Rules of Evidence provides that “[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Fed. R. Evid. 404(a)(1); see also Fed. R. Evid. 404 advisory committee’s note to 2006 amendment ("The Rule has been amended to clarify that in a civil case evidence of a person’s character is never admissible to prove that the person acted in conformity with the character trait.”). Thus, evidence of an individual’s prior acts is inadmissible to establish a propensity for that behavior in order to prove that she engaged in that same behavior on a specific occasion. Hynes v. Coughlin,
However, whether evidence of a psychiatric condition constitutes evidence "of a person's character” is "[a] more difficult question.” 22B Kenneth W. Graham, Jr., Federal Practice & Procedure Evidence § 5233 (1st ed. 2015) (concluding that "at least some mental traits are to be defined as ‘character’ .under Rule 404”); compare United States v. Staggs,
. The cases the defendant cites—Fronczak v. New York State Department of Correctional Services,
. Although the plaintiff characterizes her claim as one for libel, it is properly characterized as slander, as the alleged statement was published orally. Albert,
. The plaintiff does not appear to argue (and in any case has offered no evidence to show) that she suffered special damages. Accordingly, her claim can only survive summary judgment if the alleged statements constitute slander per se. Lincoln First Bank of Rochester v. Siegel,
. As I noted in my October 29 Report and Recommendation, in Stern v. Cosby,