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Derrick F. v. Red Lion Area School Dist.

March 7, 2007

DERRICK F., A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, ET AL., PLAINTIFFS,
v.
RED LION AREA SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

This case arises out of a dispute over whether Defendant, the Red Lion Area School District (hereinafter "the School District") complied with various statutes and administrative orders regarding the School District's provision of special education services for Plaintiff, Derrick F.,*fn1 who is deaf-blind. Plaintiffs move for civil contempt, arguing that Defendant has failed to provide ten days of training as required by the court's September 1, 2006 preliminary injunction order. (See Doc. 39) Defendant maintains that it has fully complied with the court's order.

The question before the court is whether Plaintiffs have established by clear and convincing evidence that Defendant disobeyed the court's September 1, 2006 order. The court finds that Defendant needs to provide one additional day of the training to satisfy the ten-day training requirement. However, the court also finds that Plaintiffs fail to establish by clear and convincing evidence that Defendant did not attempt to comply with the training requirement in a reasonable manner.

Accordingly, neither a finding of contempt nor corresponding sanctions are justified at this time. The court will deny Plaintiffs' motion for civil contempt and afford Defendant an opportunity to provide the last remaining day of the ten-day training.

I. Background

A detailed factual background is provided in the court's September 1, 2006 preliminary injunction order (hereinafter "preliminary injunction order") (Doc. 25). The facts relevant to the instant motion are as follows.

On September 1, 2006, the court granted in part Plaintiffs' motion for a preliminary injunction, and ordered the School District to provide "an experienced and qualified trainer to provide additional training to [Derrick's intervenor*fn2 ]," including a five-day training*fn3 and a "ten-day training in the school setting with Derrick, as specified in the March 31, 2006 IEP." (Doc. 25.) The relevant IEP language calls for an [i]nitial 5-day training session before the intervenor starts, followed by 10-day training while the intervenor starts working with Derrick. Then periodic training sessions over the first 6 months of [Derrick's] program (at least 3 one-hour training sessions). Additional training as needed and determined by the trainer. (Pls.' Br. in Supp. Mot. for Prelim. Inj., Doc. 3, Ex. C, at 47.)

Subsequent to the court's preliminary injunction order, the parties' counsel engaged in numerous rounds of correspondence via regular mail and e-mail. What follows is a summary of the substance of those communications.

On September 6, 2006, Plaintiffs' counsel, Mr. McCoy, sent a letter to Defendant's counsel, Mr. Russell, inquiring about Defendant's plan to comply with the preliminary injunction order. (Doc. 40, Ex. A.) Mr. Russell replied via letter dated September 7, 2006, proposing: 1) two individuals (Ms. Penny Telleck and Ms. Jackie Brennan) to conduct the five- and ten-day training sessions for Derrick's intervenor; 2) dates for the training to occur, starting on September 13, 2006 and ending on October 2, 2006; and 3) indicating that on September 20, 2006, the School District would begin to implement a transition plan developed on July 20, 2006 (hereinafter "July transition plan"). (Id. Ex. B.)

In a letter dated September 12, 2006, Mr. McCoy deemed the proposed use of two intervenor trainers to be unacceptable, questioned the qualifications of Ms. Telleck and Ms. Brennan, and disputed Plaintiffs' agreement to the July transition plan. (Id. Ex. C.) On September 14, 2006, Mr. Russell replied via letter, stating that Ms. Telleck would be the only intervenor trainer*fn4 and that the School District had not known that Plaintiffs disputed the July transition plan. (Id. Ex. D.) That letter proposed a revised training schedule where the five-day training would occur the week of September 18, 2006, and the ten-day training would occur for two days a week for the five weeks thereafter. (Id.) Mr. Russell also provided Ms. Telleck's Bio, which included descriptions of Ms. Telleck's education and experience with dual sensory loss children, and her background in teaching and training within programs for deafblind students. (Id.)

On September 15, 2006, Mr. McCoy sent Mr. Russell a letter that posed additional questions regarding Ms. Telleck's qualifications and requested a meeting with her on, or the week of, September 18, 2006, for the purpose of assessing her qualifications. (Id. Ex. E.) Mr. Russell replied via letter dated September 21, 2006, and provided direct responses to all of the questions posed in Mr. McCoy's September 15, 2006 letter. (Id. Ex. F.) Mr. Russell reiterated the School District's concern regarding the apparent dispute over the July transition plan and indicated that the School District was working on an updated plan. (Id.) Mr. Russell's letter also indicated that Ms. Telleck had met with Derrick's parents. (Id.)

In a letter dated September 22, 2006, Mr. McCoy continued to raise concerns regarding Ms. Telleck's qualifications and requested a deposition so that Plaintiffs could assess them. (Id. Ex. G.) The letter also referenced a proposed revised transition plan (hereinafter "September transition plan") that the School District had provided to Plaintiffs, but deemed it unacceptable, claiming it was essentially identical to the July transition plan. (Id.) Mr. McCoy then advised Mr. Russell that Derrick would not attend school until Plaintiffs were satisfied with Ms. Telleck's qualifications and with the transition plan. (Id.)

Ms. Telleck's deposition was scheduled for September 28, 2006 (id. Ex. H), but on September 26, 2006, Mr. Russell notified Mr. McCoy via e-mail that Ms. Telleck was ill and needed to reschedule (id. Ex. I). Later that day, Mr. McCoy replied via e-mail that the School District did not need to send a bus to Derrick's house each day because Derrick would not be attending school until Plaintiffs had the opportunity to depose Ms. Telleck. (Doc. 42 Ex. F.) Plaintiffs deposed Ms. Telleck on October 6, 2006, and subsequently agreed that she was qualified to serve as Derrick's intervenor trainer. (See Doc. 40, Exs. J, K.)

On October 11, 2006, Mr. McCoy sent Mr. Russell an e-mail proposing that Derrick's first day of school be a regular day rather than a transition day, and seeking confirmation that Ms. Telleck would provide ten consecutive days of training. (Id. Ex. M.) Mr. McCoy conditioned Derrick's attendance on the School District's compliance with those proposals. (Id.) On October 13, 2006, Mr. Russell responded via e-mail, questioning whether the ten days of training had to be consecutive, expressing concerns about proceeding outside of a transition plan, and agreeing to provide Ms. Telleck's schedule later in the day. (Id. Ex. N.) On October 16, 2006, Mr. McCoy replied via e-mail, conceding that consecutive days were not mandatory, but continuing to express concern that a schedule of training days proposed in a Friday e-mail from Ms. Say, another of Defendant's counsel, was too spread out.*fn5 (Id.) Mr. McCoy proposed a schedule in which an initial meeting would occur on October 23, 2006, and training would start on October 25, 26, and 27, 2006, then include two or three days of training per week in the weeks that followed until the ten days were completed. (Id.)

On October 19, 2006, Mr. Russell replied to Mr. McCoy via e-mail, confirming that Ms. Telleck would be available to train on October 25 and 26, 2006, and indicating that he would get back to Mr. McCoy about October 27, 2006. On October 24, 2006, Mr. McCoy followed up with Mr. Russell via e-mail, inquiring about Ms. Telleck's availability on October 27, 2006, confirming that Derrick would attend the training on October 25 and 26, 2006, and requesting a final schedule for the remainder of the ten days of ...


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