# Jusino

> District Court, E.D. New York · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11357900

## Case

- **Full name:** Ramon K. Jusino and Ann M. Jusino v. New York City Department of Education
- **Court:** District Court, E.D. New York
- **Decided:** March 31, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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))).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11357900. Public record. Not legal advice.