Complaint- Eastern District of New York

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

 

[ENTER NAME],

                                  Plaintiff

    vs.  

SUCCESS ACADEMY BERGEN BEACH,

                                Defendant

 Case No. ______________Honorable: _____________

 

COMPLAINT

  1. COMES NOW Plaintiff [ENTER NAME], with this complaint against the Defendant SUCCESS ACADEMY BERGEN BEACH, as follows: 

PARTIES

  1. Complainant, [ENTER NAME], an individual of address [ENTER ADDRESS], sues on behalf of his/her daughter [Xhosi’s full names], a child of eleven-years-old.  
  2. Defendant, SUCCESS ACADEMY BERGEN BEACH is a Private school located in Brooklyn, New York of address 1420 East 68th Street, Floor 3, Brooklyn, NY 11234. (hereinafter, “the school”). 

 

JURISDICITON AND VENUE

  1. This court has federal question jurisdiction pursuant to 28 U.S.C § 1331 since it involves the violations of federal law. Plaintiff brings the suit under Title VI of the Civil Rights Act of 1964 et seq. 
  2. Venue is proper in this district under 28 U.S.C. § 1391 as Plaintiff and/or Defendant is subject to personal jurisdiction in this state. Plaintiff and/or Defendant lives within the jurisdiction of this Court. Besides, a substantial part of the acts and omissions forming the basis of these claims occurred in the Eastern District of New York and arose from the actions or inactions of the Defendants. 

FACTS

  1. In the Spring of 2015, the Complainant’s daughter, Xochi (11 years old) was waitlisted for the Success Academy Bergen Beach.
  2. Xochi suffers from a special need. [ENTER XOCHI’S DISABILITY].
  3. On or about August 2015, Xochi, was enrolled in the school for the start of the semester.
  4. In a short while, after Xochi’s admission, the Complainant began getting calls from Ms. Wagner, an officer at the school, concerning Xochi’s Individualized Education Program (IEP). According to Ms. Wagner, the school only offered speech therapy and not Occupational Therapy (OT) or Physical Therapy (PT). Ms. Wagner also stated that the school did not have paraprofessionals.  
  5. Xochi’s IEP required her to have a paraprofessional. Besides, the Block Institute, where Xochi graduated from, also recommended that she have a paraprofessional. 
  6. Since the school did not provide a paraprofessional, Xochi experienced much difficulty in learning. Notably, she had trouble in focusing. The school kept calling the Complainant about the issue, instead of hiring the services of a paraprofessional. About a month later, the school hired a paraprofessional, who was with Xochi until she was in second grade. 
  7. Immediately Xochi was accorded the services of a paraprofessional, she began exhibiting academic growth. Notably, Mr. Silva kept asking whether Xochi should proceed to join first grade. 
  8. Accordingly, in the beginning of 2016, Xochi joined first grade after a school break. Complainant emailed Mr. Silva to provide Xochi with learning materials to prepare for first grade when the school opened. However, despite promises that Xochi would be helped with the work, she was left to struggle with it herself, and was only helped by her crisis paraprofessional.  
  9. On or about August 2016, Xochi experienced struggles with writing and Mathematics. At this time, she was in second grade. There was constant communication about her advancement into third grade, considering her difficulties in the said areas. Accordingly, when Mr. Bonnell, Xochi’s teacher, tried to help, he was threatened. Ms. Roman, Xochi’s paraprofessional, was also threatened for sharing Xochi’s information. She was later laid off. 
  10. On or about August 2017, Clara MacNeil called Complainant about the NEST program, which Clara alleged would be helpful to Xochi. 
  11. It is worth noting that in her third grade, Xochi had six different Paraproffesionals. The first took a new job but was told by Clara MacNeil to list any and all negatives for Xochi. The next four were fired by Clara MacNeil for sharing information about Xochi. Also at this time, Complainant requested a copy of the school’s record of Xochi’s June 2017 IEP. Complainant was surprised to find that the record had been updated by Mr. Bonnell, and that without the Complainant’s knowledge Xoxhi had been given a diagnosis, without being evaluated.
  12. On or about November 30, 2017, an incidence happened in the school, when Xochi was picked up with injuries on her knees and face. The report that was given by the school was different from Xochi’s account of what happened. According to the school’s account, Xochi had bumped into another child and fell on her bottom. However, Xhochi told Complainant that another student kept pushing her down, thus inflicting the injuries. Complainant later got an email from the school’s principal, in response to Complainant’s request for a clarification of what happened that day. 
  13. On or about February 5, 2018, Complainant witnessed another incidence that surprised her. On the said date, Complainant found Xochi and other students sitting on the cold wet ground. The students informed Complainant that their teacher, Mr. Chenault, was punishing them for not finishing their work. Notably, the school’s principal refused to provide any response to Complainant’s email requesting for an explanation of the incidence.  
  14. On or about May of 2018, the school’s principal Loftus blocked Complainant from re-enrolling Xochi until Complainant came in to sign a paper saying that Complainant would not opt Xochi out of the fourth grade standardized test. However, the principal kept sending emails everyday making it seem as if Complainant was not attempting to re-enroll Xochi.
  15. Consequently, several meetings were held to discuss why Xochi should be removed from the school. In one such meeting, Xochi’s therapy teacher stated that Xochi she no longer knew what to do to help Xochi. Besides, Ms. Passefiume, Xochi’s classteacher, stated that Xochi had no friends.  
  16. For that entire school year, Clara MacNeil kept calling Claimant for meetings, and therefore, the Nest program was always pushed. Besides, she committed some her actions, which provoked Complainant.  For instance, she came to Xochi’s IEP meeting and questioned if Complainant was trying to record the meeting. Notably, she aggressively attempted to acquire Xochi’s mother’s phone. Further, in the last meeting on or about June 2018, Clara informed Xochi’s mother that if Xochi remained in the school, Xochi would not proceed to another grade, and that if she was transferred to another school, she would join fourth grade. 
  17.  Interestingly, Complainant found out later that test scores for reading in kindergarten are not counted but they are counted in the first grade. Therefore, the school skipped Xochi’s midyear so she could take reading test as a first grader to increase the schools scoring.
  18. This Honorable Court should take judicial notice of the fact that the Defendant school has previously been ordered to pay over $2.4 Million in a Disability Discrimination Case Brought by Families of Five Former Students. See https://www.jdsupra.com/legalnews/success-academy-charter-school-network-3311378/ 

CLAIMS FOR RELIEF

COUNT 1

DISCRIMINATION AND HARASSMENT 

(Title VI of the Civil Rights Act of 1964)

  1. The conduct made against the Complainant by the Defendant, as set forth above, constitutes discrimination based on Xochi’s disability.  
  2. This claim is brought pursuant to 42 U.S. Code § 1981(c), and 1983, et seq. 

COUNT 2

ACTION FOR NEGLECT TO PREVENT 

(Title VI of the Civil Rights Act of 1964)

  1. The conduct of the Defendant, as set forth above, constitutes neglect to prevent disability discrimination in the school.  
  2. The school is an elite private school that should have had protections to protect the Plaintiff’s daughter from such discrimination. 
  3. This claim is brought pursuant to 42 U.S. Code § 1986.

COUNT 3

DISCRIMINATION AND HARASSMENT

(New York Education Law §12)

  1. The conduct of the Defendant, as set forth above, constitutes discrimination based on Xochi’s disability.  
  2. This claim is brought pursuant to New York Education Law §12(1).

COUNT 4

POLICIES AND GUIDELINES

(New York Education Law §13)

  1. The conduct of the Defendants, as set forth above, constitutes a violation of the requirements under the aforementioned law. 
  2. The school failed to enact and follow up on policies meant to curb and prevent disability discrimination.   
  3. This claim is brought pursuant to New York Education Law §13(1). 

 

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff entitled to damages from the Defendants, and he hereby prays that judgment be entered in his favor and against the Defendants as follows:

Complainant seeks the following remedies:

  1. That the Court orders damages for the subjection of the Complainant’s daughter to such discrimination.
  2. That the Court orders the Defendant to effect a working policy and/or mechanism to prevent disability discrimination, and to protect disabled students in the school. 
  3. That the Court issues any other order that this institution deems just. 

 

Respectfully submitted:

 

 

Dated: __________

 

CERTIFICATE OF MAILING

I, [ENTER NAME], certified on this ______day of ________ 2021, I deposited a true copy of the above to the Defendant by placing the documents with prepaid postage in the United States mailbox address.

 

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