Jusino

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RAMON K. JUSINO and ANN M. JUSINO,

Plaintiffs,

v. MEMORANDUM AND ORDER

NEW YORK CITY DEPARTMENT OF 22-cv-00853-LDH-ST

EDUCATION,

Defendant.

LASHANN DEARCY HALL, United States District Judge:

Ramon K. Jusino and Ann M. Jusino (together, “Plaintiffs”), proceeding pro se, bring the

instant action against the Department of Education of the City of New York (“Defendant” or the

“DOE”), pursuant to the Americans with Disabilities Act of 1990 (the “ADA”), the

Rehabilitation Act of 1973 (the “Rehabilitation Act”), the New York State Human Rights Law

(the “NYSHRL”), and the New York City Human Rights Law (the “NYCHRL”). Specifically,

Plaintiffs assert claims for disability discrimination and retaliation. Defendant moves, pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings.

BACKGROUND1

Plaintiffs are the parents of W.J., a “non-speaking autistic” individual who is over the age

of eighteen. (Compl. ¶¶ 3, 16, ECF No. 1.) W.J. was enrolled as a student within the DOE’s

educational program for children with disabilities from as early as February 2012 and entitled to

continued enrollment up until June 30, 2025. (Id. ¶¶ 3, 8; see id. ¶ 9.)

1 The following facts taken from the complaint are assumed to be true for the purpose of the instant motion, unless

otherwise noted.

On or about July 1, 2015, Plaintiffs implemented a pedagogical method with W.J. known

as the Rapid Prompting Method (the “RPM”), which was designed to assist individuals with non-

speaking autism to better express themselves. (Id. ¶ 24; see id. ¶¶ 25, 29-30.) Under the RPM,

teachers provide students with a selection of “written word choices,” and students verbalize,

write, or spell their response. (Id. ¶ 28.) Instruction under the RPM occurs at a regulated pace

coinciding with the student’s development and demonstration of “pragmatic cognitive and motor

skills.” (Id. ¶¶ 31-32; see id. ¶¶ 33-34.)

Between July 1, 2015 and November 5, 2017, Plaintiffs engaged in informal

conversations with the DOE staff at W.J.’s school regarding the reevaluation of W.J. by the

RPM. (Id. ¶ 35.) According to the Complaint, the DOE was “unresponsive” to Plaintiffs’

request. (Id. ¶ 36.) However, Defendant subsequently agreed to reevaluate W.J. using the RPM

at an appointment scheduled for November 6, 2017. (Id. ¶ 37.) On November 6, 2017, the DOE

conducted a “[p]sychological [u]pdate” using the RPM instruction. (Id. ¶ 38.) In a report dated

November 16, 2017, Cornelius Hodges, the school psychologist, concluded that W.J. had “much

higher . . . cognitive function” than that previously assessed by the DOE and demonstrated an

ability to “define words at a superior/very superior level” by using a letterboard. (Id. ¶ 38, 47;

see id. ¶ 39.) Plaintiffs allege that, despite Mr. Hodges’s findings, the DOE refused to

incorporate the RPM into W.J.’s educational curriculum, as requested by Plaintiffs. (Id. ¶ 42.)

Plaintiffs filed a due process complaint2 on February 28, 2018, requesting, among other things,

“a complete reassessment and reevaluation of W.J.’s intelligence, aptitude and achievement

2 According to the Complaint, a “due process complaint” raises issues “related to the identification, evaluation, or

educational placement of . . . special needs child[ren]. . . [and] typically [includes] a request for an [i]mpartial

[h]earing.” (Id. n.10.)

levels using his letter board and a qualified teacher trained in [the] RPM.” (Id. ¶ 43 (alterations

accepted).)

Thereafter, on May 10, 2018, an impartial hearing commenced before Impartial Hearing

Officer (“IHO”) John Farago. (Id. ¶ 44.) During this hearing, Mr. Hodges testified on his

findings as to W.J., which were included in Mr. Hodges’s report dated November 16, 2017. (Id.

¶¶ 46-47.) At some point during the hearing, IHO Farago ordered an “[i]ndependent [e]ducation

[e]valuation” of W.J., to investigate whether services under the RPM would assist W.J. in his

learning. (Id. ¶ 48.) The hearing was then adjourned until the competition of the evaluation.

(Id.) The independent education evaluation, as well as the accompanying report, was completed

as early as June 2018, but no later than July 2018. (Id. ¶ 49; see id. ¶ 50.) The report concluded

that when W.J. was permitted to communicate using a letter board, and with support from a

therapist trained in the RPM, his ability to express responses “vastly and demonstrably

improved.” (See id. ¶ 50.) On October 4, 2018, the impartial hearing before IHO Farago

reconvened. (Id. ¶ 51.) During the hearing, Plaintiffs submitted into evidence the June or July

2018 report. (Id.) On October 16, 2018, IHO Farago found that “[W.J.’s] performance is

radically different than it is without [the] RPM” and ordered the DOE to: (1) implement the

RPM “through a trained provider” into W.J.’s individualized education program (“IEP”), which

is a “legal document . . . that is developed for each public school child in the [United States]

who [requires] special education”; (2) consider all recommendations as to in-school and out-of-

school services for W.J., which were detailed in the November 16, 2017 and June or July 2018

reports; and (3) reimburse Plaintiffs for the documented costs associated with the RPM services

provided to W.J. during the 2015-16, 2016-17, 2017-18, and 2018-19 school years. (Id. ¶ 52.)

The DOE did not appeal IHO Farago’s October 16, 2018 decision. (Id. ¶ 53.)

On March 29, 2019, the DOE incorporated the RPM services through a trained provider

into W.J.’s IEP. (Id. ¶ 54.) Plaintiffs allege that, according to W.J.’s IEP from the same date,

W.J. demonstrated “an ability to communicate and express age-appropriate intelligence using

[the] RPM.” (Id. ¶ 55.) Also included in the March 29, 2019 IEP was a testing accommodation,

which permitted W.J.’s “use of approved assistive technology devices,” like his letterboard or a

provider trained in the RPM, “to allow for communication.” (Id. ¶¶ 57-58, 60.) On July 6, 2019,

Plaintiffs filed a due process complaint “challenging certain aspects of [the DOE’s] March 29,

2019 IEP.” (Id. ¶ 61.)

On November 20, 2019, an impartial hearing commenced before IHO Edgar De Leon.

(Id. ¶ 62.) At the hearing, the DOE was represented by Jeanette Montolio, a school psychologist.

(Id. ¶ 63.) At the outset of the hearing, Ms. Montolio stated that W.J. “was provided with a free

and appropriate education.” (Id. ¶ 64.) Moreover, Marin Feuer, the head of W.J.’s IEP team and

another school psychologist, testified at trial that W.J. received treatment under the RPM “for six

hours a day in school.” (Id. ¶¶ 65-66.) According to the Complaint, this testimony was false.

(Id. ¶ 66.) On April 3, 2020, pending IHO De Leon’s determination as to Plaintiff’s due process

complaint, and without Plaintiffs’ “knowledge, consent, or input,” W.J.’s then-teacher, Lisa

Herbst, altered W.J.’s IEP to exclude services under the RPM and testing accommodations. (Id.

¶¶ 77-78, 80.) On May 24, 2020, IHO De Leon found that the DOE had utilized the RPM

instruction with W.J. and, therefore, had provided W.J. with appropriate education during the

2019-2020 school year. (Id. ¶ 69.) Plaintiffs appealed certain parts of IHO De Leon’s decision

to the New York State Office of Review. (Id. ¶ 71.) On August 6, 2020, “SRO” Justyn P. Bates

issued a decision on appeal directing the DOE to continue utilization of the RPM instruction in

W.J.’s “core instructional classes . . . on a going-forward basis.” (Id. ¶¶ 72-73.) Plaintiffs allege

that SRO Bates’s decision, as well as IHO De Leon’s decision, was based on the testimony

provided by Ms. Feuer at the impartial hearing before IHO De Leon. (Id. ¶ 74.)

On August 12, 2020, Plaintiffs inquired, via email, as to W.J.’s performance under the

RPM. (Id. ¶ 81.) According to the complaint, Ms. Herbst “essentially admitted” that the RPM

was not being utilized with W.J. as a result of the April 3, 2020 IEP. (Id.) Plaintiffs had not

previously been apprised of the April 3, 2020 IEP. (Id. ¶ 82.) At a subsequent meeting between

Plaintiffs and W.J.’s IEP team, Plaintiffs raised Ms. Herbst’s omission of the RPM instruction in

the April 3, 2020 IEP. (Id. ¶¶ 93-94, 96, 99.) In response, Ms. Herbst apologized and restored

the services under the RPM to W.J.’s most recent IEP. (Id. ¶ 96.) However, according to

Plaintiffs, the RPM instruction was not included onto that IEP. (Id. ¶¶ 97, 100.) On August 14,

2020, Plaintiffs filed a due process complaint “alleging, inter alia, that the April 3, 2020 IEP was

illicit and that [the DOE] was not utilizing the mandated RPM [instruction] with W.J.” (Id. ¶

83.)

On February 25, 2021, an impartial hearing commenced before IHO Mindy Wolman.

(Id. ¶ 84.) At the hearing, Ms. Montolio, again representing the DOE, stated that W.J. was

“afforded a free and appropriated public education for the [2019-2020 and 2020-2021] school

year[s].” (Id. ¶ 85.) Moreover, during the hearing, IHO Wolman set April 15, 2021 as the date

on which the DOE would present its first witness. (See id. ¶ 87.) On April 15, 2021, the DOE

failed to present any witness and, according to the Complaint, “conceded that [the DOE] had

never meaningfully utilized the RPM [instruction] with W.J.” (Id. ¶¶ 89-90.) On August 31,

2021, IHO Wolman issued her decision, in which she found that:

The DOE had the burden of proving that the RPM services were provided. []It

failed to meet its burden of proof on that issue. []Moreover, based on [Plaintiffs’]

testimony and upon the documentary evidence submitted by [Plaintiffs], it is clear

that the DOE did not, in fact, utilize the RPM [instruction] in any (let alone at all)

of [W.J.’s] classes.

(Id. ¶ 91.) Moreover, IHO Wolman directed the DOE to reimburse Plaintiffs for the documented

costs of providing W.J. with services under the RPM during the 2019-2020 school year, as well

as “during pendency of th[e] proceeding and any appeals thereof.” (Id.) The DOE did not

appeal IHO Wolman’s findings. (Id. ¶ 93.) According to the complaint, the DOE, per the

direction of IHO Farago and IHO Wolman, paid reimbursements to Plaintiffs for the expenses

incurred by Plaintiffs in the use of the RPM instruction in home-based academic lessons. (Id.

¶ 13.) Plaintiffs further allege that they have exhausted all available administrative remedies.

(Id. ¶¶ 10-11.)

STANDARD OF REVIEW

A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure

12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). See Bank

of New York v. First Millennium, 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman,

18 F.3d 147, 150 (2d Cir. 1994)) (“The same standard applicable to Fed. R. Civ. P. 12(b)(6)

motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the pleadings.”). As

such, to survive a motion for judgment on the pleadings, a “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “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.” Id. (citing Twombly, 550 U.S.

at 556, 127 S. Ct. 1955). As with a motion to dismiss under Rule 12(b)(6), a motion for judgment

on the pleadings pursuant to Rule 12(c) “must be decided solely on the pleadings before the

court, in addition to any materials implicitly or explicitly incorporated by reference into those

pleadings.” U.S. v. Certain Real Property and Premises Known as 44 Autumn Ave., Brooklyn,

N.Y., 156 F.R.D. 26, 30 (E.D.N.Y. 1994). Furthermore, when a plaintiff proceeds pro se, the

court will read her submissions liberally and “interpret them to raise the strongest arguments that

they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

DISCUSSION

I. Discrimination

A. Statutory Standing

1. Zone of Interest

It is well settled that a plaintiff asserting a claim in federal court must establish that the

statute under which he or she is suing “grants [him or her] the cause of action that [he or she]

asserts.” Jeannot v. New York State, 762 F. Supp. 3d 217, 236 (E.D.N.Y. 2025), appeal

withdrawn sub nom. Jeannot v. McDonald, No. 25-314, 2025 WL 2320485 (2d Cir. July 14,

2025) (quoting Bank of Am. Corp. v. City of Miami, 581 U.S. at 189, 196-97 (2017)). Stated

differently, plaintiffs must satisfy “statutory standing.”3 Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 128 n.4. To determine whether a plaintiff has established

statutory standing, courts presume that a statute “provides a cause of action only to plaintiffs

whose interests fall within the zone of interests protected by the law invoked.” Bank of Am.

Corp., 581 U.S. at 197 (quoting Lexmark, 572 U.S. at 129 (internal quotation marks omitted)).

3 For the purposes of this memorandum, the Court utilizes the term “statutory standing” as shorthand for the

requirement that a plaintiff bringing a federal statutory claim have a cause of action under that statute. Of note,

however, in Lexmark, the Supreme Court explained that, while such an inquiry has been referred to as “‘statutory

standing’ and treated . . . as effectively jurisdictional[,] . . . [this label], too, is misleading, since ‘the absence of a

valid (as opposed to arguable) cause of action does not implicate subject matter jurisdiction, i.e., the court’s statutory

or constitutional power to adjudicate the case.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.

118, 128 n.4 (2014).

As such, for a plaintiff to possess statutory standing, his or her interest must, inter alia, be

“among the sorts of interests that [the statutes] are designed to protect.” Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 886 (1990) (emphasis in original). This “limitation on the cause of action

for judicial review . . . applies to all statutorily created causes of action . . . and is never negated.”

Lexmark, 572 U.S. at 129. That said, a court’s “analysis of certain statutes [might] show that

[the statutes] protect a more-than-usually expansive range of interests.” Id. (internal quotation

marks omitted) (alterations accepted). “Whether a plaintiff comes within the zone of interests is

an issue that requires [courts] to determine, using traditional tools of statutory interpretation,

whether a legislatively conferred cause of action encompasses a particular plaintiff's claim.” Id.

at 127.

The DOE contends that the ADA and the Rehabilitation Act were enacted to protect only

those individuals with disabilities. (Def.’s Mem. L. Supp. Mot. Dismiss (“Def.’s Mem.”) at 14,

ECF No. 45.) And, as the DOE’s argument goes, because Plaintiffs are not, themselves,

disabled, Plaintiffs are outside of the “zone of interest” of each statute. (See id. at 13-14.) The

Court disagrees.

“The ADA was enacted to ‘provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities.’” Henrietta D. v. Bloomberg,

331 F.3d 261, 272 (2d Cir. 2003) (quoting 42 U.S.C. § 12101(b)(1)). Similarly, the

Rehabilitation Act was enacted for the “purpose of . . . prohibit[ing] discrimination on the basis

of [disability] . . . ” Stephanidis v. Yale University, 652 F.Supp. 110, 113 (D. Conn. 1986), aff'd,

814 F.2d 654 (2d Cir. 1987). To that end, “[b]oth Title II of the ADA and . . . the Rehabilitation

Act protect the rights of disabled individuals to participate in state-administered or funded

services.” Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016). Under Title II of the ADA:

[s]ubject to the provisions of th[e] subchapter, no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.

42 U.S.C. § 12132. Moreover, the Rehabilitation Act provides that:

[n]o otherwise qualified individual with a disability in the United States, as defined in

section 705(20) of this title, shall, solely by reason of her or his disability, be . . .

subjected to discrimination under any program or activity receiving Federal financial

assistance or under any program or activity conducted by any Executive agency or by the

United States Postal Service.

29 U.S.C. § 794(a).

Under Title II’s enforcement provision, relief is extended to “any person alleging

discrimination on the basis of disability.” 42 U.S.C. § 12133 (emphasis added). The

Rehabilitation Act similarly extends its remedies to “any person aggrieved” by the discrimination

of a person on the basis of his or her disability. 29 U.S.C. § 794a(a)(2). By the plain meaning of

each provision, a plaintiff need not be an individual with a disability to be entitled to relief under

the ADA or the Rehabilitation Act: the enforcement provision of each statute, instead, clearly

states that relief is afforded to “any person” injured by a covered entity’s disability

discrimination, including against another individual with whom they are associated. Indeed, the

Second Circuit has long made clear that “the use of such broad language in the enforcement

provisions of [Title II of the ADA and the Rehabilitation Act] evinces a congressional intent to

define [statutory] standing to [assert] a [cause of] action under [the statutes] as broadly as is

permitted by Article III of the Constitution.” Innovative Health Sys., Inc. v. City of White Plains,

117 F.3d 37, 47 (2d Cir. 1997) (citation and internal quotations omitted), recognized as

superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 (2d Cir. 2001). As

such, contrary to the DOE’s contention, both qualified individuals with a disability and

individuals who, despite not having a disability, allege discrimination based on their “association

with [such] persons” may assert a claim under either statute.4 See id. (finding that plaintiff-

rehabilitation-center had “standing [to sue] under both Title II of the ADA and the Rehabilitation

Act” based on the discrimination experienced by five of its disabled clients); see also Loeffler v.

Staten Island Univ. Hosp., 582 F.3d 268, 280-82 (2d Cir. 2009) (Wesley, J., concurring and

delivering the opinion of the Court) (finding that the “standing [or enforcement] provisions of the

[Rehabilitation Act]” are interpreted “as broadly as possible under the Constitution,” to confer

statutory standing on those who have suffered “injuries due to their association with disabled

person,” including on “non-professional family members”). To put it differently, a plaintiff who

alleges discrimination based on their association with a disabled individual “fall[s] within the

zone of interests protected by [Title II of the ADA and the Rehabilitation Act]” and may,

therefore, assert a cause of action under each statute. Bank of Am. Corp., 581 U.S. at 197

(citation and quotations omitted).5

4 The DOE maintains that, by holding that “associational claims” implicate, inter alia, a “zone of interest” inquiry

rather than prudential standing, the Lexmark Court “reframed its view of ‘prudential standing’” and adopted a novel

inquiry for assessing associational claims. (See Def.’s Mem. at 13-14.) Consequently, as the DOE contends, “any

argument that Plaintiffs here may bring a claim of associational discrimination . . . ‘is [thus] no longer available.’”

(Id. at 14.) Defendants are mistaken. In Lexmark, the Supreme Court articulated that, “although [the Supreme

Court] admittedly ha[d] placed [the zone-of-interest] test under the ‘prudential’ rubric in the past, . . . prudential

standing is a misnomer as applied to the zone-of-interest analysis.” Id. at 127 (internal quotation marks and citation

omitted). Stated differently, the Supreme Court found that, prior to Lexmark, it had included the zone-of-interest

test, which inquires “whether a legislatively conferred cause of action encompasses a particular plaintiff's claim,” as

a part of prudential standing. Id. The Supreme Court, however, did not, as the DOE suggests, replace the inquiry

under which claims, including associational claims, need now be assessed. Indeed, the Lexmark Court made plain

that the requirement to undergo a zone-of-interest analysis for statutory claims was longstanding, albeit

misconstrued as a component of prudential standing. See id. at 126 (explaining that, historically, prudential standing

“encompass[ed] . . . the requirement that a plaintiff's complaint fall within the zone of interests protected by the law

invoked”). In any event, the DOE fails to advance a single argument outlining why Plaintiffs, as non-disabled

individuals, do not fall within the zone of interest of either the ADA or the Rehabilitation Act.

5 Further, as the DOE acknowledges, Title II’s legislative history confirms that Congress intended to confer statutory

standing on a broader class of individuals than just “individuals with a disability.” (See Def.’s Mem. at 12.) 42

U.S.C. § 12132. Specifically, when setting forth the “forms of discrimination prohibited by [Title II],” the House

Committee on Education and Labor noted that Title II’s prohibitions are “identical to those set out in the applicable

provisions of [Title III].” H.R. Rep. No. 101-485(II), at 367 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367.

Emphasizing its intent, the House Committee on Education and Labor directed that “the construction of

‘discrimination’ set forth in [42 U.S.C. § 12182(b) of Title III, which explicitly prohibits discrimination on the basis

of association,] should be incorporated in the regulations implementing [Title II].” Id. Moreover, the House

Committee on the Judiciary report explained that “Title II [of the ADA] should be read to incorporate provisions of

Here, Plaintiffs, the parents of an autistic student within the DOE’s educational program

for children with disabilities, assert claims for discrimination under Title II of the ADA and the

Rehabilitation Act based on the DOE’s failure to provide their child with services under the

RPM. (Compl. ¶¶ 1-3, 16, 21; see id. ¶¶ 92, 96-97, 99-100.) It is without question that, as the

parents of W.J., Plaintiffs are associated with him. Indeed, the Supreme Court said as much in

Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 529 (2007): “[A] parent

of a child with a disability has a particular and personal interest in [preventing discrimination

against the child].” 550 U.S. 516, 529 (2007); A.M. ex rel. J.M. v. NYC Dep’t of Educ., 840 F.

Supp. 2d 660, 675 (E.D.N.Y. 2012) (discussing statutory standing for parents of disabled

children pursuing claims under the ADA and the Rehabilitation Act; and applying the Supreme

Court’s reasoning in Winkelman to claims brought pursuant to the ADA and the Rehabilitation

Act), aff’d sub nom. Moody ex rel. J.M. v. NYC Dep’t of Educ., 513 F. App’x 95 (2d Cir. 2013).

And, as such, “it is beyond dispute that the relationship between a parent and child is sufficient”

to support statutory standing under the ADA and the Rehabilitation Act. A.M. ex rel. J.M., 840

F. Supp. 2d at 675 (quoting Winkelman, 550 U.S. at 535).

Undeterred, the DOE also argues that the ADA and the Rehabilitation Act do not, in

“clear[] and unambiguous[]” terms, “provide rights to non-disabled parents . . . to bring claims,

in their own right, for harms suffered by their children.” (Def.’s Mem. at 14-15.) As support for

this contention, the DOE cites Medina v. Planned Parenthood S. Atl., 606 U.S. 357 (2025). (Id.)

The DOE’s argument, as well as its reliance on Medina, is unavailing. In Medina, the question

[Title III,] . . . such as [42 U.S.C. § 12112(b)(4)],” which explicitly prohibits discrimination on the basis of

association. H.R. REP. 101-485(III), at 474 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 474. Thus, as the

legislative history reveals Title II’s protections should be read consistent with Title III’s protections. Stated

differently, Title II of the ADA provides a cause of action for plaintiffs alleging discrimination on the basis of

association with a disabled individual.

presented to the Supreme Court was whether Medicaid confers an individually enforceable right

to a Medicaid beneficiary, such that a beneficiary could sue state officials for noncompliance

with a Medicaid condition. Medina, 606 U.S. at 362, 367-68 (2025). Stated differently, the

Medina Court addressed the question of when, as a general matter, a statute supports a private

right of action. See id. The Supreme Court concluded that “a statute secures an [individually]

enforceable right . . . [when] the law in question ‘clear[ly] and unambiguous[ly]’ uses ‘rights-

creating terms[,]’” and that, even then, “the statute must display ‘“an unmistakable focus”’ on

individuals like the plaintiff.” Medina, 606 U.S. at 369 (second and third alterations in original)

(quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002)). Such is the case here. It is well

settled that both Title II of the ADA and the Rehabilitation Act provide a private right of action.

U.S. v. Georgia, 546 U.S. 151, 154 (2006) (“Title II authorizes suits by private citizens for

money damages against public entities that violate § 12132.”); Mrs. C. v. Wheaton, 916 F.2d 69,

74 (2d Cir. 1990) (“It is settled in this circuit that the Rehabilitation Act implicitly creates a

private right of action directly against the recipients of federal funds.” (first citing Doe v. New

York University, 666 F.2d 761, 774 (2d Cir. 1981); then citing Kampmeier v. Nyquist, 553 F.2d

296, 299 (2d Cir. 1977))). And, as discussed, supra, non-disabled parents asserting claims for

harms against their disabled child are, without a doubt, the types of plaintiffs contemplated by

each statute. It is, therefore, plain that the ADA and the Rehabilitation Act provide enforceable

rights to Plaintiffs.

Plaintiffs are within the zone of interest of Title II of the ADA and the Rehabilitation Act.

This conclusion does not end the Court’s inquiry, however.

B. Constitutional Standing

Notwithstanding any statutory standing analysis, to sustain a suit in federal court, a

plaintiff must also prove that he or she has constitutional standing. See E.M. v. New York City

Dep’t of Educ., 758 F.3d 442, 449 (2d Cir. 2014) (“[P]arties seeking to bring suit in federal court

must establish standing under Article III to assert their claims.”). It is well settled that “Article

III, Section 2 of the [United States] Constitution limits the subject-matter jurisdiction of the

federal courts to ‘Cases’ and ‘Controversies.’” U.S. Const. art. III § 2, cl. 1; see Lujan v.

Defenders of Wildlife, 504 U.S. 555, 559 (1992); SM Kids, LLC v. Google LLC, 963 F.3d 206,

211 (2d Cir. 2020) (citing Dhinsa v. Krueger, 917 F.3d 70, 77 (2d Cir. 2019). The constitutional

standing doctrine is borne out of Article III as a means of “‘ensur[ing] that federal courts do not

exceed their authority as it has been traditionally understood.’” SM Kids, 963 F.3d 206, 211

(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). To prove constitutional standing, “a

plaintiff must adequately establish: [](1) an injury in fact (i.e., a ‘concrete and particularized’

invasion of a ‘legally protected interest’); (2) causation (i.e., a ‘“fairly ... trace[able]”’ connection

between the alleged injury in fact and the alleged conduct of the defendant); and (3)

redressability (i.e., it is ‘“likely”’ and not ‘merely “speculative”’ that the plaintiff's injury will be

remedied by the relief plaintiff seeks in bringing suit).” Sprint Commc'ns Co., L.P. v. APCC

Servs., Inc., 554 U.S. 269, 273-74 (2008) (quoting Defenders of Wildlife, 504 U.S. at 560-61).

Notably, a plaintiff “must have . . . a personal stake in the outcome of the controversy” to have

constitutional standing. Salazar v. Buono, 559 U.S. 700, 711 (2010) (quoting Horne v. Flores,

557 U.S. 433, 445 (2009)). In other words, a plaintiff “generally must assert his [or her] own

legal rights and interests[] and cannot rest his [or her] claim to relief on the legal rights or

interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). As such, plaintiffs possess

“[constitutional] standing [only] to seek redress for injuries done to [them], but may not seek

redress for injuries done to others.” Burton v. City of New York, No. 97 CV 0202, 1997 WL

793105, at *2 (E.D.N.Y. Nov. 28, 1997) (internal quotation marks omitted) (quoting Moose

Lodge No. 197 v. Irvis, 407 U.S. 163, 166 (1972)).

The DOE contends that, because Plaintiffs “failed to allege the existence of an

independent injury . . . unique to them,” Plaintiffs lack Article III standing to bring claims for

discrimination under the ADA and the Rehabilitation Act. (Def.’s Mem. at 15.) The Court

agrees.

Here, Plaintiffs allege that, despite numerous orders by impartial hearing officers

directing the DOE to implement or continue implementing the RPM instruction into W.J.’s IEP,

as a means of accommodating W.J.’s non-verbal autism, the DOE consistently failed to do so.

(See Compl. ¶¶ 3, 25-27, 52, 72-73, 91-92, 96-97, 99-100, 104.) Stated differently, Plaintiffs

allege that, by failing to integrate the RPM instruction in W.J.’s educational curriculum, the DOE

failed to accommodate W.J.’s disability. (Id. ¶¶ 25-27, 96-97, 99-100, 104.) Moreover,

Plaintiffs allege that they implemented at-home services under the RPM, for which they incurred

costs. (See id. ¶ 13.) Plaintiffs also allege that the DOE reimbursed them for the at-home

services. (Id. ¶¶ 13, 52.) Nevertheless, according to the Complaint, “[t]he reimbursements for

. . . Plaintiffs’ home-based lessons do not come anywhere near awarding just compensatory and

punitive damages for the irreparable harm caused by [the DOE’s] unlawful acts.” (Id. ¶ 14.)

Plaintiffs contend that, because the “implementation of any [disabled] child’s IEP is a

matter . . . between the [DOE] and the parent[s],” the DOE’s discriminatory conduct was

“primarily directed at [Plaintiffs].” (Pls.’ Mem. L. Opp’n Def.’s Mot. J. Plead. (“Pls.’ Mem.”) at

4-5, ECF No. 48.) As Plaintiffs argument goes, Plaintiffs, therefore, suffered the injury. (Id. at

5.) Not so. It is true that Plaintiffs engaged with the DOE regarding the implementation of

services under the RPM in W.J.’s IEP. (See Compl. ¶¶ 35, 81-82, 94-99.) However, at bottom,

Plaintiffs sought the RPM instruction for W.J. (See id.) And, as it logically follows, it is W.J.

whom the DOE purportedly discriminated against when it failed to accommodate his disability.

That is, W.J. is the individual who suffered injury from the alleged discrimination, not Plaintiffs.

That said, the Court could certainly foresee independent harm to Plaintiffs arising from the

DOE’s alleged discrimination of W.J., such as the costs incurred by Plaintiffs for the at-home

services. However, here, Plaintiffs expressly concede that the DOE “indeed paid the required

reimbursements to Plaintiffs from July 1, 2015 through August 31, 2021,” as ordered by IHOs

Farago and Wolman. (Id. ¶ 13.) Put differently, Plaintiffs concede any entitlement to

compensatory damages.6 Nor does Plaintiffs’ bid for punitive damages fare any better.

“[P]unitive damages may not be awarded . . . in suits brought under [Title II] of the ADA and . . .

the Rehabilitation Act.” Barnes v. Gorman, 536 U.S. 181, 189 (2002).

Beyond the costs incurred by Plaintiffs for the at-home use of the RPM instruction, for

which Plaintiffs concede they have received reimbursement, Plaintiffs fail to allege a single harm

that they suffered distinct from W.J. (See Compl.) Rather, as the DOE aptly notes, “the

Complaint is replete with [allegations of] harms and deprivations that [W.J.] endured.” (Def.’s

Mem. at 15.) Plaintiffs “failure to establish an injury and causation[,]” which is “separate and

distinct from[] a disabled person’s injury[,] . . . create[s] a constitutional standing issue, which,

6 In their Complaint, Plaintiffs seek compensatory damages in the amount of $150 million. (Compl.) Plaintiffs

misunderstand the purpose of compensatory damages. As made clear by the Second Circuit, “[c]ompensatory

damages, by their very nature, are awarded to make a plaintiff whole, and they are restricted in amount to the actual

losses sustained.” Middle E. Banking Co. v. State St. Bank Int’l, 821 F.2d 897, 902 (2d Cir. 1987) (emphasis added)

(citations omitted). As discussed, supra, Plaintiffs concede that the DOE reimbursed Plaintiffs for the at-home

lessons provided between July 1, 2015 through August 31, 2021. (Id. ¶ 13.) As such, Plaintiffs concede that they

have been made whole and have no claim as to compensatory damages.

as [the Second Circuit said in [Innovative, 117 F.3d 37 (2d Cir. 1997)], is conterminous with

statutory standing.” Loeffler, 582 F.3d at 281 (2d Cir. 2009) (Wesley, J., concurring and

delivering the opinion of the Court). Stated plainly, Plaintiffs lack constitutional standing.7

This case is readily distinguishable from Loeffler v. Staten Island University Hospital,

582 F.3d 268 (2d Cir. 2009), which is instructive here. In Loeffler, a deaf father and his non-

disabled plaintiff-children made repeated requests for an American Sign Language (“ASL”)

interpreter leading up to, on the day of, and after the deaf individual’s surgery. Loeffler, 582

F.3d at 271-73. However, no ASL interpreter was provided. Id. Instead, the plaintiff-children

interpreted for their father, resulting in the plaintiff-children’s frequent removal from school and

depression. Id. at 273. Thereafter, the plaintiff-children initiated a lawsuit alleging claims

under, inter alia, the Rehabilitation Act. Id. At the outset, the Loeffler Court grappled with

whether plaintiff-children possessed statutory standing to assert associational discrimination

claims under the Rehabilitation. Id. at 277. Recognizing that the Act’s standing provision

should be “interpreted . . . as broadly as possible under the Constitution,” the Second Circuit

determined that that the plaintiff-children possessed statutory standing. Id. at 280. The Second

Circuit reasoned that, nevertheless, the broad scope of the statutory standing provision did not

obviate the need for plaintiff-children to demonstrate “an injury causally related to, but separate

and distinct from, [their] disabled [father’s] injury.” Id. In the face of this requirement, the

Second Circuit determined that plaintiff-children suffered a number of distinct injuries, including

forced sign language interpretation services for which they were not compensated, school

absences, and emotional trauma. Here, Plaintiffs allege no such distinct injury. (See Compl.)

7 In addition, to find that pro se Plaintiffs possessed constitutional standing to assert claims based solely on a harm

suffered by their child would effectively run afoul of the longstanding rule that “a non-attorney parent must be

represented by counsel in bringing an action on behalf of his or her child.” Cheung v. Youth Orchestra Found. of

Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990).

And, as discussed previously, because they were reimbursed for the cost of implementing the

RMP instruction at home, Plaintiffs concede the only injury that could reasonably be viewed as

analogous to those injuries in Loeffler.

Accordingly, Plaintiffs’ discrimination claims under the ADA and the Rehabilitation Act

are dismissed.

II. Retaliation

“The ADA makes it unlawful for a[ person] to ‘discriminate against any individual

because such individual has opposed any act or practice made unlawful by this chapter or

because such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.’” Treglia v. Town of Manlius, 313 F.3d

713, 719 (2d Cir. 2002) (quoting 42 U.S.C. § 12203(a)). That is, Title V of the ADA “prohibits,

inter alia, retaliation against any individual who has asserted rights under the ADA.” Sarno v.

Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). “The Rehabilitation

Act . . . contain[s] similar provisions against retaliation and [is] governed in this respect by the

same standards as the ADA.” Treglia, 313 F.3d at 719 (citations omitted); see, e.g., Rodriguez v.

City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (“Because . . . the Rehabilitation Act and the

ADA impose identical requirements, we consider these claims in tandem.”); Garcia v. S.U.N.Y.

Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001) (explaining that the Rehabilitation

Act and the ADA “offer essentially the same protections for people with disabilities”). Claims

for retaliation under the ADA and the Rehabilitation Act “are analyzed under the same burden-

shifting framework established for Title VII cases.” Treglia, 313 F.3d at 719. To state a claim

for retaliation under the ADA and the Rehabilitation Act, a plaintiff must sufficiently allege that

“(i) [he or she] was engaged in protected activity; (ii) the alleged retaliator knew that [he or she]

was involved in protected activity; (iii) an adverse decision or course of action was taken against

[him or her]; and (iv) a causal connection exists between the protected activity and the adverse

action.” Weixel v. Board of Educ. of the City of New York, 287 F.3d 138, 148 (2d Cir. 2002)

(citations omitted); see also Sacay v. Rsch. Found. of City Univ. of New York, 44 F. Supp. 2d

505, 508 (E.D.N.Y. 1999) (citing Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994)). Of

relevance here, “an adverse [decision] is ‘any action that could well dissuade a reasonable

[person] from making or supporting a charge of discrimination . . . . ’” Sharikov v. Philips Med.

Sys. MR, Inc., 103 F.4th 159, 170 (2d Cir. 2024) (internal quotation marks and citations omitted)

(quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)).

The DOE argues that, because Plaintiffs fail to allege any adverse action taken against

them, Plaintiffs’ claims for retaliation under the ADA and the Rehabilitation Act are ripe for

dismissal. (Def.’s Mem. at 18.) Notably, Plaintiffs fail to specifically respond to this argument,

thus conceding its validity. See Nunez v. Cuomo, No. 11-CV-3457, 2012 WL 3241260, at *19

(E.D.N.Y. Aug. 7, 2012) (“Plaintiffs appear to concede Defendants’ arguments, as they fail to

acknowledge or contest them”); Dolce v. Connetquot Cent. Sch. Dist., No. 24-CV-00622, 2025

WL 1070079, at *7 (E.D.N.Y. Apr. 9, 2025) (holding that, by “failing to respond to [an]

argument” in opposition to defendants’ motion to dismiss, plaintiffs “abandoned” their claim);

BYD Co. Ltd. v. VICE Media LLC, 531 F. Supp. 3d 810, 821 (S.D.N.Y. 2021) (“Plaintiffs’

failure to oppose Defendants’ specific argument in a motion to dismiss is deemed waiver of that

issue” (citation omitted)), aff’d, No. 21-1097, 2022 WL 598973 (2d Cir. Mar. 1, 2022). On this

ground, alone, dismissal of Plaintiffs’ retaliation claims, brought pursuant to the ADA and the

Rehabilitation Act, is warranted.8 In any event, the Court agrees with the DOE.

8 See Joseph, 740 F. App’x at 14 (citing Jackson, 766 F.3d at 197-98) (affirming the district court's dismissal of

claims as abandoned on a motion to dismiss because “[w]here a partial response to a motion is made—i.e.,

Here, Plaintiffs allege that, following an impartial proceeding before IHO Farago, which

resulted in an order directing the DOE to, inter alia, incorporate the RPM instruction into W.J.’s

IEP, the parties subsequently appeared before IHOs De Leon and Wolman at impartial hearings

initiated by Plaintiffs. (Compl. ¶¶ 52, 61-62, 83-84.) According to the Complaint, during these

subsequent proceedings, the DOE “mislead[], or attempt[ed] to mislead,” IHOs De Leon and

Wolman into “believing that the [RPM instruction] was . . . being offered to Plaintiffs [through]

false and misleading sworn testimony” that W.J. was “afforded a free and appropriated public

education” and received the RPM instruction “for six hours a day in school.” (Id. ¶¶ 6, 64-66,

85.) That is, in essence, Plaintiffs allege that, by participating in impartial proceedings and

advancing positions contrary to those deemed accurate by Plaintiffs, the DOE “unlawfully

retaliated” against Plaintiffs. (Id. ¶ 6.) It is axiomatic that merely participating or testifying in an

adversarial proceeding does not constitute an adverse action for the purposes of a retaliation

claim. And, notably, courts in this Circuit have found that false assertions fail to constitute an

adverse action without more—i.e., absent any consequence. See Sarno, 183 F.3d at 159 (2d Cir.

1999) (explaining that the ADA’s, and thus the Rehabilitation Act, too, and Title VII’s retaliation

provisions are substantially similar and, as a result, analyzing them under the same standard);

Powers v. Town of E. Hampton, No. 24-CV-02263, 2025 WL 1726263, at *7 (E.D.N.Y. June 20,

2025) (finding in the context of a Title VII claim that “false allegations, alone, may not constitute

referencing some claims or defenses but not others . . . in the case of a counseled party, a court may, when

appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been

abandoned.”); see also Adams, 752 F. Supp. 2d 420, 426 (S.D.N.Y. 2010) (dismissing plaintiffs’ race discrimination

and age discrimination claims as abandoned where “[Plaintiffs’ opposition] papers fail[ed] to address substantive

grounds raised by [d]efendants’ motions [to dismiss], thereby supporting a finding that the underlying claims have

been abandoned.”), aff'd sub nom. Ebewo, 460 F. App’x. 67 (2d Cir. 2012), cert. denied sub nom. Cruz, 568 U.S.

943 (2012); Gill v. Phoenix Energy Management, Inc., No. 15CV1102, 2016 WL 11825904, at *5 (deeming

retaliation claim abandoned, because “plaintiff neither dispute[d] [the d]efendant's arguments, nor defend[ed] th[e]

claim in anyway” and stating that “[w]here, as here, [the p]laintiff fails to address [the d]efendant's arguments in his

opposition, the [c]ourt deems [the p]laintiff's silence as a concession that [the p]laintiff is abandoning his claim.”).

an adverse employment action”); Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F. Supp.

3d 763, 784 (S.D.N.Y. 2019) (finding that, where the plaintiff not only alleged that the defendant

made false allegations, but also that such allegations “directly resulted in a change in the terms of

the conditions of her employment,” the plaintiff sufficiently alleged an adverse action—i.e., that

the defendant’s “conduct could . . . have dissuaded reasonable employees”); see also Van Dyke v.

Partners of Debevoise & Plimpton LLP, No. 12-cv-08354, 2013 WL 5375542, at *3 (S.D.N.Y.

Sept. 24, 2013) (finding in the context of a Title VII claim that “retaliatory and harassing

comments, malicious gossip, and leaking of sensitive information—do not constitute a materially

adverse employment action.”). In the instant matter, the complaint fails to include a single

allegation regarding any consequence resulting from the DOE’s alleged misrepresentations at the

hearings. Indeed, Plaintiffs concede that each impartial hearing resulted in an order directing the

DOE to implement or continue implementing the RPM instruction in W.J.’s IEP—that is, an

order granting Plaintiff’s desired relief. (See Compl. ¶¶ 52, 72-73, 91.) As such, the DOE’s

representations at the impartial proceeding do not constitute an adverse action.

In addition, Plaintiffs allege that the DOE failed to integrate the services under the RPM

into W.J.’s IEP, as requested by Plaintiffs. (See Compl. ¶¶ 112-13.) Plaintiffs further allege that,

as a result, “[the DOE] retaliated against [them].” (Id.) Courts in this Circuit have long found

that a defendant’s “failure to make an accommodation . . . simply gives rise to a failure to a

accommodate [discrimination] claim and ‘cannot be boostrapped into a viable disability

retaliation claim.’” E.g., Perez v. New York Presbyterian/Weill Cornell Med. Ctr., No. 23-CV-

6152, 2024 WL 1514216, at *9 (S.D.N.Y. Apr. 8, 2024) (quoting Robles v. Medisys Health

Network, Inc., No. 19-CV-6551, 2020 WL 3403191, at *11 (E.D.N.Y. June 19, 2020) (quoting

Missick v. City of N.Y., 707 F. Supp. 2d 336, 356 (E.D.N.Y. 2010))). As the DOE aptly argues,

Plaintiffs seek to bring a claim for retaliation based on conduct that “is indistinguishable from

Plaintiffs’ claims of discrimination”—i.e., the DOE’s alleged failure to accommodate W.J.

(Def.’s Mem. at 18.) In other words, Plaintiffs’ claims for retaliation are merely their

discrimination claims retooled. It is, thus, clear that the denial of Plaintiffs’ accommodation

request does not amount to an adverse action. See Perez, No. 23-CV-6152, 2024 WL 1514216,

at *9. Plaintiffs’ claims for retaliation under the ADA and the Rehabilitation Act are dismissed,

accordingly.9

CONCLUSION

For the foregoing reasons, Defendant’s motion for judgment on the pleadings is

GRANTED, and Plaintiffs’ Complaint is DISMISSED.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

March 31, 2026 LASHANN DEARCY HALL

United States District Judge

9 Having dismissed the federal claims in this action, the Court declines to exercise supplemental jurisdiction over

Plaintiff's state law claims. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“[A]

district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all claims over which it has

original jurisdiction.’” (quoting 28 U.S.C.A. § 1367(c)(3))).