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Tesar v. Union R-Xi School District

United States District Court, E.D. Missouri, Eastern Division

February 9, 2017

ERIN TESAR. Plaintiff,
UNION R-XI SCHOOL DISTRICT, et al., Defendants.



         This matter is before the Court on Defendants Gary Vogel. And Jennifer Davis' Motion to Dismiss Count III of Plaintiff's Amended Complaint, [Doc. No. 50] and Defendant Trakas' Motion to Dismiss Plaintiff's First Amended Complaint, [Doc. No. 44]. Plaintiff opposes the motions. On January 26, 2017, the Court heard oral arguments on the motions. For the reasons set forth below, the Motions are granted.

         Facts and Background

         Plaintiff filed her First Amended Complaint on April 25, 2016. Plaintiff alleges violations of the Rehabilitation Act (Count I), of Titles II and V of the Americans with Disabilities Act, (Count II), an invasion of privacy claim under Missouri State Law against Defendants Davis, Vogel and Trakas in their official capacity, (Count III).

         Defendants move to dismiss Count III arguing that Plaintiff has failed to sufficiently state a cause of action for common law invasion of privacy.

         Plaintiff alleges the following with respect to her invasion of privacy claim:

In October of 2012, Plaintiff became the case manager for JT, a student at Clark-Vitt with a generalized anxiety disorder, ADHD and a learning disability in the areas of reading comprehension, reading fluency, math calculation, math reasoning and written expression. The foregoing are disabilities or handicaps as those terms are defined by the Rehabilitation Act and the ADA, as well as the Individuals with Disabilities Education Act, 20 U.S.C. §1401 et seq. JT's disabilities substantially interfered with major life activities, including attending school and learning.
On April 1, 2014, Erica Talley, the mother of JT, filed a due process complaint with the Missouri Department of Elementary and Secondary Education regarding the amount of time that JT would be outside of the regular classroom education. Because the District refused to provide CWC [Class Within Class] and inclusion services, all of the special education services the District proposed for JT were outside of the general education setting. Specifically, at an IEP meeting in March 2013, the District proposed to modify his IEP from spending only 33% of his education minutes outline the general education setting to 48%.
As JT's case manager, Plaintiff was in attendance at this IEP meeting along with Defendant Davis and Defendant Vogel. When questioned why JT could not receive some amount of instruction within the classroom using supplemental aides such as CWC or inclusion services, Dr. Davis replied, “We don't offer that.” Mrs. Talley objected to the District's blanket refusal to provided CWC services and refusal to provide special education services to JT in his least restrictive environment. After the meeting, Plaintiff informed Mrs. Talley that the District would not offer CWC and inclusion services to students at Clark-Vitt for financial reasons as had been previously explained to her by Defendant's Vogel and Davis.
After filing her due process complaint, Mrs. Talley submitted her pre-hearing conference statement, pursuant to Regulation V(6) Missouri State Plan for Special Education Implementing Part B of the IDEA, to the Administrative Hearing Commission and to Defendants on April 11, 2013. In her pre-hearing conference statement, Mrs. Talley listed Plaintiff as a witness she intended to call during the due process hearing set for June 24, 2013. Specifically, Mrs. Talley indicated Plaintiff would testify:
…that a person of support within the classroom would allow [JT] to progress successfully…that Jennifer Davis stated on 3/20/13 that the school district does not offer CWC at his grade level and will testify to the lack of continuum services between the general education setting and pull out instruction and that on 3/22/13 Gary Vogel…stated that a CWC was not an option for [JT] due to services already being provided via pull out instruction against his current IEP… On April 19, 2013 Defendants submitted their amended pre-hearing conference statement to Mrs. Talley and to the Administrative Hearing Commission. Defendants also identified Plaintiff as a witness who would be called for the District at the due process hearing. Defendants indicated Plaintiff would testify:
…regarding the District's regular and special education process and procedures, educational programming, communications regarding the student's programming, meetings of the student's IEP Team, educational records and data, observations regarding the student's progress and performance in special education provided by Ms. Tesar, the Case Management procedures for the student, the student's needs, and the proposed educational placement.
Defendants also identified the documents they intended to offer at the due process hearing in the Pre-Hearing Conference Statement; however, none of the documents identified had anything to do with Plaintiff or the contents of her personnel file.
After the Pre-Hearing Statements were filed, Plaintiff discussed Mrs. Talley's identification of her as witness as well as Mrs. Talley's description of Plaintiff's anticipated testimony with Defendant Davis, Defendant Vogel, Defendant Trakas and other agents for the District at various times. During these discussions, Defendants asked Plaintiff to testify that JT did not need CWC and inclusion services and that he would be better served in a special education setting. Plaintiff informed Defendants she did not agree with such an assessment and she believed JT's least restrictive environment for the special education minutes in question was the general education classroom with either CWC or inclusion instruction. Plaintiff informed Defendants she would not lie for the District in the course of her testimony.
On or about June 18, 2013, Defendants and Mrs. Talley exchanged their final witness list and copies of the exhibits they intended to use at the due process hearing. Defendant Trakas sent the witness list and exhibits to Mrs. Talley via facsimile, e-mail and certified mail. Defendants removed Plaintiff from the District's witness list; however portions of Plaintiff's confidential personnel file were sent to Mrs. Talley as proposed “exhibits” for the District.
The portions of the file sent to Mrs. Talley included the incident report from November 12, 2012 and the recent negative evaluations and negative reports of “Educator Effectiveness” performed on Plaintiff. These confidential personnel documents were sent to Mrs. Talley without the consent by Plaintiff and Plaintiff never waived her right to privacy with regard to her employment records.
Upon receiving the exhibits, Mrs. Talley immediately notified Plaintiff as well as Union R-IX Board of Education members Karen Tucker and Virgil Weideman of the District's improper disclosure of Plaintiff's personnel records and of what Mrs. Talley believed to be the District's attempt to intimidate Plaintiff from testifying on JT's behalf.
Plaintiff was humiliated to learn that her confidential records, which included what she believed to be a false report of discrimination, had become public without her consent or knowledge. Plaintiff was further concerned that Defendants' disclosure would damage her reputation within the community and cause potential ...

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