T.W.E.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

T.W.E., an infant by his mother and natural guardian

Melissa Ellingworth; and MELISSA ELLINGWORTH,

individually,

Plaintiffs,

v. 5:25-CV-1243

(GTS/MJK)

JORDAN ELBRIDGE CENTRAL SCHOOL

DISTRICT; and THE BOARD OF EDUCATION FOR

THE JORDAN ELDBRIDGE CENTRAL SCHOOL

DISTRICT,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

TULLY RINCKEY PLLC SEAN E. GLEASON, ESQ.

Counsel for Plaintiffs

400 Linden Oaks, Suite 110

Rochester, NY 14625

1203 Troy-Schenectady Road, Suite 101 MATTHEW PAUL RICCI, ESQ.

Latham, NY 12110

BOND, SCHOENECK & KING, PLLC JEREMY M. SHER, ESQ.

Counsel for Defendants TRAVIS TALERICO, ESQ.

350 Linden Oaks, Third Floor

Rochester, NY 14625

One Lincoln Center KATHERINE RITTS SCHAFER, ESQ.

Syracuse, NY 13202

GLENN T. SUDDABY, United States District Judge

DECISION and ORDER

Currently before the Court, in this action filed by T.W.E. and his mother and natural

guardian Melissa Ellingworth (“Plaintiffs”) against the Jordan Elbridge Central School District

(“District”) and the Board of Education for the Jordan Elbridge Central School District (“School

Board”) (collectively “Defendants”), is Defendants’ motion to partially dismiss Plaintiffs’

Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 5.) For the

reasons set forth below, Defendants’ motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiffs’ Complaint

Generally, in their Complaint, Plaintiffs assert seven causes of action: (1) a claim of

discrimination, or deliberate indifference to discrimination, pursuant to Title VI of the Civil

Rights Act of 1964 based on T.W.E.’s race; (2) a claim of a violation, or deliberate indifference

to a violation, of T.W.E.’s right to equal protection based on his race pursuant to 42 U.S.C §

1983 and the Equal Protection clause of the United States Constitution; (3) a claim of

discrimination pursuant to the New York State Human Rights Law (“NYSHRL”) found at N.Y.

Exec. L. § 296(4); (4) a claim of negligent supervision pursuant to New York law; (5) a claim of

negligent infliction of emotional distress (“NIED”) pursuant to New York law; (6) a claim of

intentional infliction of emotional distress (“IIED”) pursuant to New York law; and (7) a claim

that Defendants failed to comply with their statutory and ministerial obligations pursuant to the

Dignity for All Students Act (“DASA”). (Dkt. No. 2.)

B. Parties’ Briefing on Defendants’ Partial Motion to Dismiss

1. Defendants’ Memorandum of Law

Generally, in their motion to dismiss, Defendants make five arguments. (Dkt. No. 5,

Attach. 1.) First, Defendants argue that Plaintiffs have failed to state a claim under either Title

VI or the NYSHRL because they have asserted these claims under a theory of deliberate

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indifference but have failed to allege any actual knowledge of the relevant student conduct by an

official who had the authority to implement corrective measures, and they have failed to allege

facts plausibly suggesting deliberate indifference given that (a) Plaintiff admits that two of the

perpetrators of the harassment received in-school suspensions and a plan was drafted to

determine how to respond to T.W.E.’s anxiety and (b) there are no allegations that Defendants

were ever made aware of further harassment in 2024 after those measures were taken. (Id. at 8-

12.)

Second, Defendants argue that Plaintiffs have failed to state a claim pursuant to Section

1983 because they have not alleged facts plausibly suggesting any relevant custom, policy, or

practice of inadequate training or supervision of the School District’s employees, relying instead

on conclusory allegations. (Id. at 12-14.)

Third, Defendants argue that Plaintiffs have failed to state a claim for NIED because that

claim is duplicative of the claim for negligent supervision in that both claims are based on the

same set of facts and seek the same damages. (Id. at 14-15.)

Fourth, Defendants argue that Plaintiffs have failed to state a claim for IIED because the

Complaint does not allege that Defendants intentionally harmed T.W.E., merely that they failed

to intervene to stop the conduct of other students. (Id. at 15-16.)

Fifth, Defendants argue that Plaintiffs have failed to state a claim under DASA because

that statute does not confer a private right of action. (Id. at 16.)

2. Plaintiffs’ Opposition Memorandum of Law

Generally, in their opposition to Defendants’ motion, Plaintiffs make six arguments.

(Dkt. No. 9.) First, Plaintiffs argue that they have sufficiently alleged deliberate indifference to

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plead their claims pursuant to Title VI and the NYSHRL because the Complaint clearly alleges

repeated instances in which discriminatory conduct was reported to Defendants (which reports

Defendants found to be substantiated), yet Defendants failed to provide T.W.E. with protection.

(Id. at 7-9.)

Second, Plaintiffs argue that they have sufficiently stated a claim for municipal liability

pursuant to Section 1983 because they have alleged widespread, repeated failures by Defendants

to discipline offending students, protect T.W.E., and follow their statutory duty, as well as

relevant policies and training/supervision inadequacies. (Id. at 9-11.)

Third, Plaintiffs argue that they have stated a plausible claim for NIED because (a) such

claim is based on a factual basis distinct from the factual basis of their negligent supervision

claim and therefore is not duplicative of that other claim, and (b) they have alleged facts showing

emotional distress caused by Defendants’ failure to intervene to stop racially harassing conduct

towards T.W.E. (Id. at 11-12.)

Fourth, Plaintiffs argue that they have stated a plausible claim for IIED because they have

alleged facts plausibly suggesting a persistent campaign of racial harassment and abuse that was

enabled by Defendants’ indifference and that reasonably qualifies as extreme and outrageous

conduct. (Id. at 12-13.)

Fifth, Plaintiffs concede that DASA “does not create a standalone private cause of

action,” but argue that the statute nevertheless “has significant legal relevance to this action”

because failure to follow the obligations and protocols required by DASA is “highly probative of

deliberate indifference” and negligence. (Id. at 13-15.)

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Sixth, Plaintiffs argue that, should the Court find any part of the Complaint to be

deficient, they should be granted leave to amend the Complaint to correct those pleading defects.

(Id. at 15-16.)

3. Defendants’ Reply Memorandum of Law

Generally, in their reply, Defendants make seven arguments. (Dkt. No. 10.) First,

Defendants argue that Plaintiffs cannot rely upon facts not pled in the Complaint, and the Court

should therefore disregard any such previously unpled facts present in their Opposition

Memorandum of Law when deciding this motion. (Id. at 4.)

Second, Defendants argue that Plaintiffs have failed to meaningfully oppose Defendants’

argument that they have failed to state a claim pursuant to either Title VI or the NYSHRL, and

that those claims are not supported by sufficient plausible allegations because (a) Plaintiffs failed

to plead facts identifying any individual who had both knowledge of the alleged harassment and

the authority to institute corrective measures, (b) Plaintiffs’ own factual allegations contradict

their assertion that Defendants failed to act or investigate the reports of harassment, and (c)

Plaintiffs have failed to plead any allegations plausibly suggesting that Defendants knew that the

remedial actions they did take were insufficient to stop the harassment, specifically given that

they do not allege that they reported further instances of harassment in 2024. (Id. at 5-6.)

Third, Defendants argue that most of Plaintiffs’ arguments related to a failure to train or

supervise or a custom of failing to enforce protections are not alleged in the Complaint, and the

only relevant allegations that are in the Complaint are too conclusory to sustain their municipal

liability claim. (Id. at 6.)

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Fourth, Defendants argue that Plaintiffs have failed to state a claim for NIED because,

contrary to their argument, that claim is based on the same facts and damages as other negligence

claims. (Id. at 6-7.)

Fifth, Defendants argue that Plaintiffs have failed to state a claim for IIED as well

because (a) IIED claims may not be asserted against government entities, and (b) the facts

alleged in the Complaint do not rise to the level of extreme and outrageous conduct even in light

of the case Plaintiffs cite in support. (Id. at 7-8.)

Sixth, Defendants argue that Plaintiffs’ argument that DASA establishes standards related

to the duty a school owes to students or what conduct would constitute deliberate indifference

related to the claims here is not supported by any authority. (Id. at 8-9.)

Seventh, Defendants argue that Plaintiffs’ request to amend is improper because they

have not complied with the requirements of this Court’s Local Rule 15.1 and have not

demonstrated that they can cure the defects in the Complaint. (Id. at 9.)

II. GOVERNING LEGAL STANDARD

It has long been understood that a dismissal for failure to state a claim upon which relief

can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:

(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a

challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp.2d 204,

211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo

review).

Because such dismissals are often based on the first ground, some elaboration regarding

that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a

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pleading contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between

permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement

to relief is often at the heart of misunderstandings that occur regarding the pleading standard

established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the “short and plain”

pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.

Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has

held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.

P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at

212 n.17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of

“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision

on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases);

Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing

Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”

notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d

ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding

that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.

2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949-52 (2009).

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Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an

appellate decision holding that a complaint had stated an actionable antitrust claim under 15

U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court

“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),

that “a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an

actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an

actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a

pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the

pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the

“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a

plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.

As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for

relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks

and citations omitted). However, while the plausibility standard “asks for more than a sheer

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possibility that a defendant has acted unlawfully,” id., it “does not impose a probability

requirement.” Twombly, 550 U.S. at 556.

Because of this requirement of factual allegations plausibly suggesting an entitlement to

relief, “the tenet that a court must accept as true all of the allegations contained in the complaint

is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”

will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

Finally, a few words are appropriate regarding what documents are considered when a

dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal

pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the

four corners of the complaint may be considered without triggering the standard governing a

motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,

(2) documents incorporated by reference in the complaint (and provided by the parties), (3)

documents that, although not incorporated by reference, are “integral” to the complaint, or (4)

any matter of which the court can take judicial notice for the factual background of the case.1

1 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a

pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573,

2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to

dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.

R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the

complaint or answer, [2] documents incorporated by reference in the complaint (and provided by

the parties), [3] documents that, although not incorporated by reference, are “integral” to the

complaint, or [4] any matter of which the court can take judicial notice for the factual

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III. ANALYSIS

A. Whether Plaintiffs Have Stated a Claim for Municipal Liability Under 1983

After careful consideration, the Court answers the above-stated question in the negative

for the reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1 and 3 of this

Decision and Order. To those reasons, the Court adds the following analysis.

In this case, Plaintiffs have sued both the Jordan Elbridge Central School District and that

District’s Board of Education. Because both entities are considered to be municipalities for the

purposes of a Section 1983 claim, Plaintiffs are required to meet the special conditions inherent

in asserting such a claim against a municipality. See Doe v. Patrick, 437 F. Supp. 3d 160, 172

n.11 (N.D.N.Y. 2020) (Kahn, J.) (“School districts and boards of education are considered

municipal entities.”).

background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)

(explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may

consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and

documents incorporated by reference in the complaint. . . . Where a document is not

incorporated by reference, the court may nevertheless consider it where the complaint relies

heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .

However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no

dispute exists regarding the authenticity or accuracy of the document. It must also be clear that

there exist no material disputed issues of fact regarding the relevance of the document.”)

[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,

152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as

an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation

marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72

(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or

incorporate by reference a [document] upon which it solely relies and which is integral to the

complaint,” the court may nevertheless take the document into consideration in deciding [a]

defendant's motion to dismiss, without converting the proceeding to one for summary

judgment.”) (internal quotation marks and citation omitted).

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The elements of a municipal liability claim under Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658 (1978), are “(1) a municipal policy or custom that (2) causes the plaintiff to

be subjected to (3) the deprivation of a constitutional right.’” Chislett v. New York City Dep’t of

Educ., 157 F.4th 172, 184 (2d Cir. 2025) (quoting Agosto v. New York City Dep’t of Educ., 982

F.3d 86, 97 [2d Cir. 2020]). “A municipality cannot be held liable on a theory of respondeat

superior; the plaintiff must establish that the municipality’s policy or custom itself was a

‘moving force of the constitutional violation.’” Chislett, 157 F.4th at 184 (quoting Monell v.

New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 [1978]) (emphasis in original).

“‘To show a policy, custom, or practice [justifying municipal liability], the plaintiff need not

identify an express rule or regulation.’” Chislett, 157 F.4th at 184 (quoting Patterson v. Cnty. of

Oneida, 375 F.3d 206, 226 [2d Cir. 2004]) (alteration in original). “It suffices to establish that

discriminatory practices were ‘persistent and widespread’ so as ‘to constitute a custom or usage

with the force of law’ and that a discriminatory practice of subordinates was ‘so manifest as to

imply the constructive acquiescence of senior policymaking officials.’” Chislett, 157 F.4th at

184 (quoting Surlucco v. New York City Police Dep’t, 971 F.2d 864, 870-71 [2d Cir. 1992]).

Here, in support of their municipal liability claim, Plaintiffs allege only that (a)

Defendants, acting under the color of state law, had actual knowledge of ongoing racial

harassment but failed to take appropriate action, and (b) they “have demonstrated customs,

policies, or practices of failing to train staff and protect students from discrimination.” (Dkt. No.

2, at ¶¶ 29-34.) These conclusory statements, unsupported by factual elaboration, are insufficient

to plausibly suggest a policy or custom of the District or the School Board that led to the alleged

harm.

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Plaintiffs do not allege facts plausibly suggesting the existence of any formal policy

related to failing to address claims of racial harassment against students. Moreover, nothing in

Plaintiffs’ Complaint plausibly suggests a persistent or widespread practice of failing to address

claims of student racial discrimination, much less one that implies any constructive acquiescence

by policymaking officials for the District or School Board. Notably, although Plaintiffs name a

number of relevant individuals in the Complaint who received complaints about the harassment

or themselves witnessed the harassment, they do not identify what role any of those individuals

held in their employment or office with the District and/or School Board. For instance, most

notably, Plaintiffs allege that Plaintiff Ellingworth reported her harassment concerns to John

Schaeffer and Lynette Delfavero and that they failed to take appropriate action, but it is not clear

what role or office they held within the District and/or School Board. Plaintiffs also allege two

incidents in January and April 2024 when staff members Mr. Cooper and Renee Armpriester

allegedly witnessed racially discriminatory comments in classes; but it is again unclear what role

or office either of those individuals held, and, to the extent that the fact these incidents occurred

in class would lead to the reasonable conclusion that they are teachers, there are no allegations to

suggest that either of them, as teachers, had the ability to exercise any authority on behalf of the

District or the School Board. There are also no allegations to suggest that any policymakers for

Defendants were ever made aware of any of the alleged incidents that occurred in 2024.

Further, Plaintiffs’ allegations regarding a handful of incidents––which were all reported

or occurred within the span of approximately a month in 2023 and, in one instance, resulted in

the perpetrating students being disciplined with in-school suspension, while later incidents in

January, April, and May of 2024 are not alleged to have been reported to school administrators

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or seemingly any individual with policymaking authority––do not suggest a persistent and

widespread practice of ignoring discrimination and harassment that could constitute a de facto

policy.

Lastly, to the extent Plaintiffs vaguely assert a failure to train subordinate staff like

teachers (or even administrative staff like principals or vice principals) on how to properly

address instances of student racial discrimination and harassment, they include no factual

allegations regarding what training was (or was not) provided in that respect or how such

training itself was deficient.

For all of the above reasons, Plaintiffs’ Section 1983 claim must be dismissed.

B. Whether Plaintiffs Have Stated a Discrimination Claim Pursuant to Either

Title VI or the NYSHRL

After careful consideration, the Court answers the above-stated question in the negative

for the reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1 and 3 of this

Decision and Order. To those reasons, the Court adds the following analysis.

“Title VI prohibits a recipient of federal funds [including public educational institutions]

from discriminating on the basis of race, color, or national origin.” Zeno v. Pine Plains Cent.

Sch. Dist., 702 F.3d 665, 664 (2d Cir. 2012).2 “[I]n the educational setting, a school district is

liable for intentional discrimination when it has been ‘deliberately indifferent’ to teacher or peer

harassment of a student.” Zeno, 702 F.3d at 665 (citing Davis ex rel. LaShonda D. v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 643 [1999]). The standard for deliberate indifference in this

2 “In the Second Circuit, a claim under the NYSHRL is evaluated under the same standard

as an analogous claim under a federal antidiscrimination law,” which includes Title VI. Minto v.

Molloy Univ., 715 F. Supp. 3d 422, 431 (E.D.N.Y. 2024).

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context is “a narrow one,” under which “[l]iability only arises if a plaintiff establishes: (1)

substantial control, (2) severe and discriminatory harassment, (3) actual knowledge, and (4)

deliberate indifference.” Zeno, 702 F.3d at 665 (citing Davis, 526 U.S. at 643-50).

A school district can be said to exercise “substantial control over the circumstances of the

harassment when it occurs ‘during school hours and on school grounds.’” Zeno, 702 F.3d at 665

(citing Davis, 526 U.S. at 646). In order for harassment under such circumstances to be

actionable, it “must be ‘severe, pervasive, and objectively offensive’ and discriminatory in

effect,” meaning that it “‘restrict[s] an individual in any way in the enjoyment of any advantage

or privilege enjoyed by others receiving any service, financial aid or benefit,’” which includes

“am academic environment free from racial hostility.” Zeno, 702 F.3d at 665-66 (citing Davis,

526 U.S. at 650-51; Hayut v. State Univ. of New York, 352 F.3d 733, 750 [2d Cir. 2003]; 34

C.F.R. § 100.3[b][1][iv]). Further, the defendant school district must have actual knowledge of

the harassment; “[c]onstructive knowledge is not enough.” Zeno, 702 F.3d at 665-66 (citing

Davis, 526 U.S. at 641-43). Lastly, in terms of deliberate indifference, such finding “depends on

the adequacy of a school district’s response to the harassment”: “[a] failure to respond, . . . a

response that ‘only follows after a lengthy and unjustified delay,’ . . . and a response that

‘amount[s] to deliberate indifference to discrimination,’ . . . have all been found inadequate.”

Zeno, 702 F.3d at 666 (internal citations omitted). In assessing whether the district’s actions

were deliberately indifferent, a court considers whether those actions “were ‘clearly

unreasonable in light of the known circumstances.’” Zeno, 702 F.3d at 666 (citing Davis, 526

U.S. at 648).

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Defendants’ arguments regarding this claim address both whether they had actual

knowledge of the alleged conduct and whether they acted on any such knowledge with deliberate

indifference. The Court agrees that Plaintiffs’ Complaint fails to sufficiently allege actual

knowledge of the existence of a degree of harassment that would meet the required level of

severity. As previously discussed related to their municipal liability claim, Plaintiffs have

generally not alleged what role or office individuals identified in the Complaint held at the

relevant time, an omission that makes it nearly impossible for the Court to assess whether a

sufficiently high-ranking official had actual knowledge of the alleged harassment. Specifically,

the Complaint alleges that Plaintiff Ellingworth reported the various February incidents to Mr.

Schaeffer and Ms. Delfavero, but there is no indication what position either of those individuals

held. Similarly, in their allegations related to an incident in March 2023 (the result of which was

in-school suspension for the perpetrators), Plaintiffs offer no indication of what role or office any

of the individuals alleged to have knowledge held. As to the alleged incidents in January and

April 2024, again, the relevant allegations appear to suggest that the staff members who were

aware of those incidents were teachers, not high-ranking officials for the District or members of

the School Board, and thus their knowledge cannot reasonably be imputed to Defendants.

The only allegations that could suggest any knowledge by the District or the School

Board involves Plaintiffs’ allegations that (a) “during a school board meeting, Mr. Froio

admitted that the offenders had not been disciplined” for certain incidents reported by Plaintiff

Ellingworth in February 2023, (b) at the same meeting, “board member William Yard

acknowledged that the school had failed to respond appropriately to the abuse T.W.E. had been

enduring,” and (c) approximately two weeks after that School Board meeting and two days after

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another incident in March 2023, “the District drafted a plan outlining how staff should respond to

T.W.E.’s anxiety, but the plan failed to address how the school would protect him from further

racial abuse.” (Dkt. No. 2, at ¶¶ 14, 17.) Because these allegations provide at least some

plausible suggestion that the District and members of the School Board had knowledge of those

incidents Plaintiff Ellingworth reported in February 2023, the question becomes whether

Defendants’ response to that knowledge constituted deliberate indifference.

Before conducting that analysis, the Court notes that the only occurrences of harassment

that Plaintiffs have even arguably sufficiently alleged actual knowledge of on the part of

Defendants are those that Plaintiff Ellingworth reported to Mr. Schaeffer and Ms. Delfavero in

February 2023, and the one alleged incident in March 2023. Nothing in the allegations related to

the incidents in 2024 suggest, let alone plausibly, that the District or the School Board was made

aware of any of those incidents, or indeed that they were made aware that the harassment

continued at all after their intervention in March 2023. As a result, the Court will only consider

the 2023 incidents when assessing the pattern of harassment for the purposes of determining

whether Plaintiffs have plausibly suggested that Defendants were deliberately indifferent under

the circumstances.

While it is true that Plaintiffs allege that Defendants essentially did nothing in response to

the incidents reported in February, they do acknowledge that the perpetrators of the March

incident were disciplined with in-school suspension, and that, soon after, the District drafted a

plan “outlining how staff should respond to T.W.E.’s anxiety.” (Dkt. No. 2, at ¶¶ 16-17.)

Although Plaintiffs allege that this response was inadequate, their Complaint does not support

that assertion. Notably, after this plan was drafted (and presumably put into effect) on March 29,

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2023, the next alleged incident of harassment was not until January 2024. (Id. at ¶¶ 17-18.)

Moreover, again, no allegations support an inference that Defendants were ever made actually

aware of any of the incidents that occurred in 2024. Because Defendants had no apparent reason

to believe that their intervention had not been effective to stop the harassment, there was no

deliberate indifference in their failure to take any further action after March 2023. See Zeno, 702

F.3d at 670 (noting that “a delay before implementing further remedial action” can be

problematic “once a school is aware of its ineffective response”) (emphasis added).

As to the 2023 harassment, Plaintiffs allege that, on February 9, 2023, Plaintiff

Ellingworth met with Mr. Schaeffer and Ms. Delfavero and reported the following conduct

against T.W.E.:

Students at the school had mocked Plaintiff’s race by saying things

like “if I’m wearing black I am black,” referring to T.W.E. as “the

brown kid,” making offensive guttural noises they told him were

his “native talk,” suggesting he bleach his skin, calling him the

[sic] “the n-word”, stealing his chocolate milk “because he’s

Black,” and saying they were asserting “white power.”

(Dkt. No. 2, at ¶ 9.) It is not clear when precisely this conduct took place, only when it was

reported. On February 13, 2023, Plaintiff Ellingworth emailed Mr. Schaeffer about “a student

unknown to T.W.E. calling him ‘the n-word’ in the hallway.” (Id. at ¶ 11.) On February 14,

2023, she informed Mr. Schaeffer that another Black student was experiencing “similar racial

harassment” as T.W.E. (Id. at ¶ 12.) On March 27, 2023, students C.G. and P.R. called T.W.E.

“the n-word.” (Id. at ¶ 16.)

The response to these complaints of harassment consisted of (a) Mr. Schaeffer telling

Plaintiff Ellingworth on February 17, 2023, that her DASA complaints related to the incidents

were all “founded,” but that, in Plaintiffs’ words, “no meaningful action was going to be taken

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on the complaints,” during which conversation he called the students engaging in this conduct

“‘knuckleheads’” and suggested that T.W.E. “simply move lunch tables and avoid the

perpetrators,” (b) School Board member William Yard acknowledging on March 15, 2023, that

the school had failed to respond appropriately to the complaints of conduct against T.W.E., (c)

following the incident on March 27, 2023, C.G. and P.R. being disciplined with in-school

suspension, and (d) on March 29, 2023, the District drafting “a plan outlining how staff should

respond to T.W.E.’s anxiety” over the incidents. (Dkt. No. 2, at ¶¶ 13, 14, 16, 17.)

The allegations in the Complaint simply do not plausibly suggest that Defendants’

response to the circumstances presented was clearly unreasonable. First, there is again the

problem of Plaintiffs’ failure to allege what position or office was held by Mr. Schaeffer, which

renders the Court incapable of assessing whether he was a sufficiently high-ranking official who

could take meaningful action on behalf of Defendants. Second, assuming Mr. Schaeffer is not a

District official or a School Board member, the allegations in the Complaint include no

allegations to suggest that anyone from the District or the School Board was aware of Mr.

Schaeffer’s choice to not impose discipline until potentially March 15, 2023, and they could not

reasonably remedy sooner what they were not aware of. Third, the fact that School Board

member Mr. Yard may have expressed that the school had failed to respond appropriately does

not plausibly suggest that Defendants’ failure to belatedly take action regarding those earlier

complaints was clearly unreasonable, given that they had occurred approximately a month prior

and there had been no new apparent incidents of harassment in the interim time period. Fourth,

although no action was taken on those earlier complaints even after March 15, 2023, the

Complaint does acknowledge that, when another incident occurred on March 27, 2023, the

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perpetrating students were in that case disciplined with in-school suspension in short order and

only a few days later the District drafted a plan to instruct staff on how to respond to T.W.E.’s

anxiety surrounding the incident(s). Considering the totality of the circumstance presented by

the allegations in the Complaint, those factual allegations do not suggest that Defendants’

response was clearly unreasonable, particularly in light of the Second Circuit’s instruction that

“when weighing the adequacy of a response, a court must accord sufficient deference to the

decisions of school disciplinarians.” Zeno, 702 F.3d at 666 (citing Davis, 526 U.S. at 648).

For the above reasons, Plaintiffs’ discrimination claims must be dismissed.

C. Whether Plaintiffs Have Plausibly Stated Claims Pursuant to State Law

Although the Court has found that Plaintiffs’ federal claims must be dismissed for failure

to state a claim under either Title VI or Section 1983, the Court will consider Defendants’

arguments regarding Plaintiffs’ state law claims in this Decision and Order because it finds that

permitting Plaintiffs leave to file a motion to amend would not be inherently futile (in that it may

yet be possible for them to allege additional facts that could remedy the identified defects as to

one or both of those claims), and thus addressing the state law claims on the current motion

serves the interests of judicial efficiency. The Court notes that, as an initial matter, Defendants

have not moved to dismiss Plaintiffs’ claim for negligent supervision and the Court will therefore

not address that claim.

1. IIED

“In New York, ‘a claim for intentional infliction of emotional distress requires a showing

of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial

probability of causing, severe emotional distress; (3) a causal connection between the conduct

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and the injury; and (4) severe emotional distress.’” Wagner v. Copenhagen Cent. Sch. Dist., 25-

CV-0659, 2026 WL 60750, at *13 (N.D.N.Y. Jan. 8, 2026) (Sannes, C.J.) (quoting Stuto v.

Fleishman, 164 F.3d 820, 827 [2d Cir. 1999]). “Conduct must be ‘so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized society.’” Wagner, 2026 WL 60750, at *13

(quoting Stuto, 164 F.3d at 827). This is a “rigorous” standard and one that is “difficult to

satisfy,” and also one that is a matter of law for a court to decide. Wagner, 2026 WL 60750, at

*13 (quoting Baez v. JetBlue Airways, 745 F. Supp. 2d 214, 223 [E.D.N.Y. 2010]). Conduct that

consists of “mere insults, indignities, and annoyances,” or “[i]nsults, bullying, and general

harassment” generally does not suffice. Kamdem-Ouaffo v. Balchem Corp., 17-CV-2810, 2018

WL 4386092, at *15 (S.D.N.Y. Sept. 18, 2018) (citing Liebowitz v. Bank Leumi Trust Co. of

New York, 152 A.D.2d 169, 182 [N.Y. App. Div. 2d Dept. 1989]; Gorman v. Covidien, LLC, 146

F. Supp. 3d 509, 535 [S.D.N.Y. 2015]); see Daniels v. Alvarado, 03-CV-5832, 2004 WL

502561, at *6 (E.D.N.Y. Mar. 12, 2004) (“Racial slurs on their own do not constitute conduct so

‘extreme and outrageous’ in nature as to sustain a claim for intentional infliction of emotional

distress.”); Riscili v. Gibson Guitar Corp., 06-CV-7596, 2007 WL 2005555, at *4 (S.D.N.Y. July

10, 2007) (“Generally, insults and slurs do not satisfy this strict standard.”) (collecting cases).

It is well established that public policy bars claims for IIED against government entities,

which, as was discussed above related to the Section 1983 claim, a school district and its school

board are considered to be. See Blanco v. Success Academy Charter Schs., Inc., 722 F. Supp. 3d

187, 217 (S.D.N.Y. 2024) (finding IIED claims barred against a charter management

organization and a public charter school); Crvelin v. Bd. of Educ. of City Sch. Dist. of City of

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Niagara Falls, 144 A.D.3d 1649, 1650 (N.Y. App. Div. 4th Dept. 2016) (finding motion to

dismiss IIED claim was properly granted as against school district and school board members in

part because “public policy bars claims sounding in [IIED] against a governmental entity”);

accord Boyle v. Caledonia-Mumford Cent. Sch., 140 A.D.3d 1619, 1620-21 (N.Y. App. Div. 4th

Dept. 2016). As a result, Plaintiffs’ IIED claims cannot be brought against Defendants.

Even when the merits of Plaintiffs’ claim are considered, the alleged harassment

consisted of students making comments about T.W.E.’s race, making offensive noises or

gestures meant to reference his race in a disparaging manner, suggesting that he bleach his skin,

stealing his milk because of his race, glaring at him, and on a few occasions calling him an

offensive racial slur. (Dkt. No. 2, at ¶¶ 9, 11, 16, 18-20.) While this conduct certainly has no

place in an educational (or indeed any) setting, it does not rise to the level required by the law to

be considered “extreme and outrageous” for the purposes of an IIED claim. See Greene v.

Trustees of Columbia Univ., 234 F. Supp. 2d 368, 382-83 (S.D.N.Y. 2002) (finding that frequent

and repeated conduct and remarks over the course of more than a year implicating racial

stereotypes and which a reasonable person could find offensive were insufficient to meet the

“extreme and outrageous” standard).

Moreover, the question is not merely whether that conduct was itself extreme and

outrageous, but rather whether Defendants’ failure to act in a different manner to stop that

conduct was extreme and outrageous, given that Plaintiffs’ theory of liability is not that

Defendants directly engaged in the harassing and offensive conduct, but instead failed to remedy

and stop that conduct by others. See Benacquista v. Spratt, 217 F. Supp. 3d 588, 606 (N.D.N.Y.

2016) (Hurd, J.) (finding IIED claim not properly pleaded where the plaintiff failed to allege that

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the school district or school board’s failure to investigate complaints about a teacher’s conduct

was itself sufficient to render those defendants liable). The allegations in the Complaint do not

suggest that Defendants engaged in any concerted, systematic, deliberate and malicious

campaign of, as relevant to this action, ignoring this conduct against T.W.E. Blanco, 722 F.

Supp. 3d at 217. As was discussed above, there is no indication that Defendants were aware of

any conduct outside of that which was reported to them in February and March 2023, and

Plaintiffs themselves allege that the relevant students were disciplined with in-school suspension

as to the March 2023 incident in which they called T.W.E. a racial slur, after which there were

no more apparent incidents until January 2024 (and, again, there is no allegation to suggest

Defendants were made aware of the alleged incidents in 2024). See Turley v. ISG Lackawanna,

Inc., 774 F.3d 140, 161 (2d Cir. 2014) (noting that “[e]ven a sluggish or incompetent response to

two, three, or four complaints might not rise to clear the high bar set for this tort in this State”).3

Additionally, as Defendants argue, apart from a conclusory assertion, Plaintiffs have not

alleged facts plausibly suggesting that Defendants’ actions were taken with the intent to cause

T.W.E. severe emotional distress or with sufficiently reckless disregard to a substantial

probability of such harm. This is also fatal to their IIED claim.

For the above reasons, Plaintiffs’ IIED claim must be dismissed.

2. NIED

3 Although Defendants do not explicitly argue for dismissal of this claim based on the

nature of the conduct in their initial memorandum of law, Plaintiffs notably do respond with

arguments as to why the alleged conduct meets the requirement of “extreme and outrageous,”

and Defendants respond to those arguments in their reply memorandum of law. (Dkt. No. 9, at

12-13; Dkt. No. 10, at 7-8.) As a result, the Court finds that sufficient notice and opportunity to

be heard have been afforded for the Court to consider the pleading sufficiency of this claim.

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Defendants’ sole argument for dismissal of Plaintiffs’ NIED claim is that, because it is

based on the same set of facts and seeks the same damages related to the breach of the same duty

as their claim for negligent supervision, it should be dismissed as duplicative of that other

negligence claim. (Dkt. No. 5, Attach. 1, at 14-15.) “A NIED claim cannot be asserted if it is

‘essentially duplicative of tort or contract causes of action.’” Doe v. Uber Techs., Inc., 551 F.

Supp. 3d 341, 364 (S.D.N.Y. 2021). Such a cause of action should be dismissed where “the

allegations supporting the NIED claim track the allegations supporting” other negligence-based

claims, such as where they are based on the same conduct or the same breach of duty that is the

premise for those other claims. Doe, 551 F. Supp. 3d at 365-65 (collecting cases); see AA by BB

v. Hammondsport Cent. Sch. Dist., 527 F. Supp. 3d 501, 510 (W.D.N.Y. 2021) (dismissing

NIED claim as duplicative of negligent supervision claim where “[t]he conduct that forms the

bases for plaintiff’s NIED claim is precisely the same conduct that underlies her claims of

negligent supervision, and her allegations of a breach of duty, causation and resulting harm are

identical for both”).

Although Plaintiffs attempt to differentiate these two claims, a comparison of the

allegations related to those claims shows that they are premised on the same conduct and harm.

(Compare Dkt. No. 2, at ¶¶ 43-44 [alleging as to negligent supervision claim that Defendants

breached their duty to T.W.E. by “failing to prevent or address the racial discrimination and

harassment T.W.E. endured,” as a result of which “T.W.E. suffered psychological harm and was

forced to leave school”] with Dkt. No. 2, at ¶¶ 46-47 [alleging as to NIED claim that

“Defendants’ failure to act in the face of consistent and long-term racially hostile conduct created

a risk of emotional harm to T.W.E. that was foreseeable and avoidable,” and that “T.W.E.

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experienced severe emotional distress, anxiety, and depression as a direct result of this

negligence”]). These two claims use different phrasings, but both at their core allege that

Defendants’ failure to take appropriate action to prevent or stop the alleged harassment of

T.W.E. by other students was the cause of T.W.E.’s psychological and/or emotional injuries.

For these reasons, Plaintiffs’s NIED claim must be dismissed.

3. DASA

Defendants argue––and Plaintiffs concede––that DASA does not provide a private right

of action. (Dkt. No. 9, at 14-15.) Whether the standards and responsibilities imposed on school

districts by DASA may or may not be relevant to determining whether a defendant acted with

deliberate indifference as relevant to other claims does not change that fact (nor must the Court

decide that issue on this motion), and so Plaintiffs’ asserted claim pursuant to DASA must be

dismissed as a matter of law. See Terrill v. Windham-Ashland-Jewett Cent. Sch. Dist., 176 F.

Supp. 3d 101, 108-09 (N.D.N.Y. 2016) (Suddaby, C.J.) (finding no express or implied private

right of action exists under DASA); accord AA by BB, 527 F. Supp. 3d at 513 (W.D.N.Y. 2021);

C.T. v. Valley Stream Union Free Sch. Dist., 201 F. Supp. 307, 326-27 (E.D.N.Y. 2016); Motta

ex rel. Motta v. Eldred Cent. Sch. Dist., 141 A.D.3d 819, 820 (N.Y. App. Div. 3rd Dept. 2016).

D. Whether Plaintiffs Should Be Granted Leave to Amend Their Complaint

Here, Plaintiffs specifically request leave to amend their Complaint if the Court should

find any deficiencies in their pleading of their claims. (Dkt. No. 9, at 15-16.) While the Court

agrees with Plaintiffs that it does not appear that permitting leave to amend as to some of their

claims would be inherently futile (in that they may be able to plead additional facts to remedy

some of the identified deficiencies), rather than granting leave to amend as requested, it will

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instead permit Plaintiffs to file a proper motion seeking leave to amend that complies with the

requirements of this Court’s Local Rule 15.1(a). Plaintiffs notably have not attached an unsigned

copy of their proposed amended pleading as required by that rule, and they have provided no

indication as to what amendments they would make if given leave to amend. Under these

circumstances, they are required to file a separate motion for leave to amend.

ACCORDINGLY, it is

ORDERED that Defendants’ partial motion to dismiss (Dkt. No. 5) is GRANTED; and

it is further

ORDERED that the following claims are DISMISSED with prejudice:

(1) Plaintiffs’ IED claim; and

(2) Plaintiffs’ claim pursuant to DASA; and it is further

ORDERED that the following claims are DISMISSED without prejudice to

amendment in this action upon a successful motion to amend under N.D.N.Y. L.R. 15.1 filed

within THIRTY (30) DAYS of the entry of this Decision and Order, and with prejudice upon

the failure to file such a successful motion to amend:

(1) Plaintiffs’ Section 1983 claim;

(2) Plaintiffs’ discrimination claims pursuant to both Title VI and the NYSHRL;

and

(3) Plaintiffs’ NIED claim.

Dated: May 1, 2026

Syracuse, New York

US. Distt Judge

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