United States District Court, M.D. Pennsylvania
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.
Richard Caputo United States District Judge
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.
facts as alleged in the Complaint are as follows:
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).
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).
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).
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
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.).
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).
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).
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).
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).
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).
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).
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).
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).
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
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).
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 ¶
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)); (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.).
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.
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)).
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 ...