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Bonham v. Bobersky

United States District Court, M.D. Pennsylvania

November 13, 2019

JAMES & APRIL BONHAM, individually and o/b/o J.B., their minor son, Plaintiffs,
SUSAN MARIE BOBERSKY, individually and in her official capacity, et al ., Defendants.


          A. Richard Caputo United States District Judge

         Presently before me are motions to dismiss filed by: (1) Jennifer Oiler (“Oiler”) (Doc. 17); and (2) Northwest Area School District (“NASD”), Northwest Area School District Governing Board of Education (the “Board”), James McGovern (“McGovern”), and Adam Sorber (“Sorber”) (collectively, where appropriate, “District Defendants”) (Doc. 16). Plaintiffs April Bonham (“Bonham”) and her husband James allege that their son J.B., a special needs student, was abused - verbally and physically - by his personal transportation aide Susan Marie Bobersky (“Bobersky”), an employee of NASD and transportation contractor Barchik Bus Services, LLC (“Barchik”). Plaintiffs also assert that J.B.'s abuse occurred even though Bonham had previously alerted NASD officials about issues related to the treatment of J.B. during his school transit. As a result, Plaintiffs claim violations of J.B.'s rights under federal and state law. Oiler and District Defendants have moved to dismiss the Complaint for failure to state a claim upon which relief can be granted. For the reasons that follow, the motions to dismiss will be granted in part and denied in part.

         I. Background

         The facts as alleged in the Complaint are as follows:

         J.B. is and was a student at NASD. (See Doc. 1, ¶ 1). Bobersky was employed by Barchik, as well as by NASD in several capacities, including as a transportation aide. (See id. at ¶ 4). Abraham Monroe (“Monroe”) was employed by Barchik as a driver. (See id. at ¶ 5). Barchik contracted with NASD to provide student transportation services. (See id. at ¶ 6). Oiler was employed by NASD as the Director of Special Education. (See id. at ¶ 7). Sorber was NASD's Director of Transportation. (See id. at ¶ 8). McGovern was NASD's Superintendent. (See id. at ¶ 9).

         In December 2015, NASD evaluated J.B. to determine if he was a special needs student. (See id. at ¶ 15). NASD and Oiler found that J.B. was a student with a disability requiring full autistic support with related services to meet his needs, including specialized transportation. (See id. at ¶ 16). J.B. has a primary diagnosis of Autism Spectrum Disorder and secondary diagnoses of Attention-Deficit Hyperactive Disorder, Oppositional Defiant Disorder, Intellectual Disability, and Speech and Language Delay. (See id. at ¶ 1). To accommodate J.B.'s needs, NASD provides specialized transportation between his home and school. (See id. at ¶ 17).

         On December 15, 2015, Bonham, J.B.'s mother, emailed Oiler regarding difficulties her son was having getting out of his specialized car harness. (See id. at ¶¶ 18-19). In particular, NASD's employees did not know how to insert and remove J.B. from his harness. (See id. at ¶ 19).

         The following month, on January 21, 2016, Bonham emailed Sorber with respect to an incident where an employee of Cragle Bus Service, another company that provided transportation for NASD, slapped J.B.'s face and smacked his hands for disruptive behavior during transit. (See id. at ¶ 20).

         Bonham again emailed Oiler on February 22, 2016 about issues related to J.B.'s transportation. (See id. at ¶ 21). Specifically, Bonham advised Oiler that the transportation provider did not know how to get J.B. in and out of his harness, nor did the provider understand how to redirect J.B.'s behaviors that were caused by his conditions. (See id.).

         The following year, J.B. attended the Graham Academy, and NASD provided both specialized transportation for J.B. and a personal transportation aide. (See id. at ¶ 22). Barchik was one of six (6) contracted transportation companies used by NASD for the 2016-2017 school year. (See id. at ¶ 23).

         In the 2016-2017 school year, Monroe was the driver of J.B.'s van. (See id. at ¶ 28). Bobersky, who also served as a substitute cafeteria worker and secretary with NASD, was J.B.'s personal care transportation aide. (See id. at ¶ 29). Shortly after Bobresky began in this role, Bonham observed an aggressive escalation of J.B.'s behaviors. (See id. at ¶ 30).

         On October 31, 2016, J.B. returned from school with bruising. (See id. at ¶ 31). J.B. was kept home from school the following day and taken to the pediatrician. (See id. at ¶¶ 32-33). Bonham asked the pediatrician if it was possible that new medication J.B. was prescribed could cause him to bruise easier, but the pediatrician advised that it would not have such an effect. (See id. at ¶ 33). Bonham thus contacted the Graham Academy, and after a review of J.B.'s day on the surveillance system, Bonham concluded that the bruising occurred while J.B. was being transported. (See id. at ¶ 34).

         Bonham telephoned Oiler on November 2, 2016 to express her suspicions regarding J.B.'s injuries, but that phone call was cut short. (See id. at ¶ 35). Oiler subsequently emailed Bonham and expressed her appreciation for being informed of those suspicions. (See id. at ¶ 36). Bonham also questioned Monroe about her suspicions of abuse, but he denied that any abusive conduct took place. (See id. at ¶¶ 37-38). Additionally, Bonham approached Bobersky with her concerns and provided suggestions to utilize to help calm J.B. down. (See id. at ¶ 39). Bobersky denied that any misconduct occurred. (See id. at ¶ 40).

         On November 16, 2016, after Bonham had reported the incident involving her son, the Board entertained a motion to appoint Bobersky as a part-time personal care transportation aide effective the following day and continuing yearly under the terms of a Memorandum of Understanding between NASD and the Northwest Area Educational Support Personnel Association. (See id. at ¶ 41). That motion was unanimously approved by the Board. (See id. at ¶ 42).

         Bobersky subsequently resigned from her role as transportation aide effective January 27, 2017, but she nevertheless remained in her role as J.B.'s personal care transportation aide. (See id. at ¶¶ 44-46).

         During this time, Bonham observed an increase in J.B.'s aggressive behaviors. (See id. at ¶ 48). In the spring of 2017, S.C., a 12 year old that rode in the same van as J.B., began to come home crying. (See id. at ¶ 50). S.C. told his mother that Bobersky was rough with J.B., including, inter alia, pulling his hair, slapping him across the face, grabbing his face, and sitting on him. (See id. at ¶¶ 51-52). S.C. approached Monroe with his concerns, but he was told to mind his own business and let Bobersky do her job. (See id. at ¶ 53). In response, S.C.'s mother had him take an iPad on the van to record Bobersky the next time she was rough with J.B. (See id. at ¶ 55).

         On April 27, 2017, Bonham received a call from S.C.'s mother informing her that S.C. had captured video of Bobersky's treatment of J.B. (See id. at ¶ 56). The video shows Bobersky screaming in J.B.'s face, smacking him, and taking him by his hair and ripping his head and neck over the top of his car seat harness. (See id. at ¶¶ 58-59). The video also depicts Monroe stoically driving the van while these events occurred. (See id. at ¶ 60).

         Bonham immediately reported the incident, and Bonham kept J.B. from having contact with Monroe and Bobersky. (See id. at ¶¶ 61-62). NASD, however, continued to allow Bobersky and Monroe to transport other special needs students. (See id. at ¶¶ 64-65). Bobersky and Monroe on one occasion questioned S.C. regarding his motivation to videotape their actions. (See id. at ¶¶ 64-68).

         On May 17, 2017, NASD entered into a new six (6) year contract with Barchik to provide transportation for NASD's special needs students. (See id. at ¶ 69).

         Criminal charges for simple assault, endangering the welfare of a child, and harassment were subsequently filed against Bobersky. (See id. at ¶ 143). Bobersky was permitted to enter into the Accelerated Rehabilitation Program, but to do so she was required to admit to the charges filed against her. (See id. at ¶¶ 143-145). Oiler was also criminally investigated for failure to report suspected child abuse. (See id. at ¶ 166).

         Based on the foregoing, Plaintiffs commenced this action against Bobersky, NASD, the Board, Monroe, Barchik, Anthony Grieco, Oiler, McGovern, and Sorber on April 26, 2019. (See Doc. 1, generally). In the Complaint, Plaintiffs assert claims for: (1) failure to train against NASD, Oiler, McGovern, Sorber, the Board, and Barchik; (2) state created danger under the Fourteenth Amendment against all Defendants; (3) violation of Section 504 of the Rehabilitation Act against all Defendants; (4) violation of 29 U.S.C. § 794 against NASD, Oiler, McGovern, and Sorber in their official capacities, the Board, and Barchik (Count IV(a)); (5) violation of the Americans with Disabilities Act against NASD, Oiler, McGovern, and Sorber in their individual and official capacities, the Board, and Barchik (Count IV(b));[1] (6) assault and battery against Bobersky, NASD, and Barchik; (7) intentional infliction of emotional distress against NASD, Bobersky, and Barchik; (8) negligence against NASD, Barchik, Bobersky, and Monroe; (9) willful misconduct against NASD, Barchik, and Bobersky; (10) breach of fiduciary duty against Bobersky, Monroe, and Barchik; (11) willful misconduct against NASD and Oiler in her individual and official capacity; and (12) willful misconduct against Barchik and Monroe. (See id.).

         District Defendants and Oiler separately moved to dismiss the Complaint. (See Doc. 16, generally; Doc. 17, generally). Those motions have now been fully briefed, so they are ripe for disposition.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading' standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (quoting Fed.R.Civ.P. 8(a)(2)).

         When resolving a Rule 12(b)(6) motion, “a court must consider no more than whether the complaint establishes ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements' of the cause of action.” Trzaska v. L'Oreal USA, Inc., 865 F.3d 155, 162 (3d Cir. 2017) (quoting Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency of a complaint, a court must take three steps: (1) identify the elements of the claim; (2) identify conclusions that are not entitled to the assumption of truth; and (3) assume the veracity of the well-pleaded factual allegations and determine whether they plausibly give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ...

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