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Vicky M. v. Northeastern Educational Intermediate Unit

September 16, 2009


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are four motions for summary judgment: a motion for summary judgment on all relevant counts by Defendant Susan Wzorek (Doc. 123); a motion for partial summary judgment collectively by Plaintiffs on Count II and Count XI (Doc. 127); a motion for summary judgment on all relevant counts by Defendants Northeastern Education Intermediate Unit, Fred Rosetti, and Clarance Lamanna (Doc. 130); and a motion for summary judgment on all relevant counts by Defendants Abington Heights School District, David Arnold, William McNulty, and Mariellen Sluko (Doc. 133). For the reasons stated below, the motions for summary judgment will be granted in part and denied in part, as described in the attached order.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction"). This is a removal action for which federal jurisdiction is predicated upon the counts of Plaintiffs' Complaint that allege violations of the United States Constitution and federal law including the Individuals with Disabilities Education Act, codified at 20 U.S.C. § 1400, et seq. The Court exercises supplemental jurisdiction over Plaintiffs' state-law tort claims pursuant to 28 U.S.C. § 1367.


I. Factual Background

Northeastern Educational Intermediate Unit ("NEIU") is an educational resource agency that acts as a liaison between the Pennsylvania Department of Education and a number of school districts and also provides education services. (Doc. 130, Ex. 2, ¶ 1). Dr. Fred Rosetti ("Rosetti") was the Executive Director of NEIU during the relevant times to this litigation. (Id. ¶ 7.) Dr. Clarence Lamanna ("Lamanna") was the Director of Special Education at NEIU at all relevant times. (Id. ¶ 9.) Collectively, NEIU, Rosetti, and Lamanna are the NEIU Defendants. Susan Wzorek ("Wzorek") was a teacher employed by NEIU during all relevant times. (Id. ¶ 1.) Jill Celli ("Celli") and Robin Medeiros ("Medeiros") were teacher's aides employed by NEIU during all relevant times. (Id. ¶ 16.)

The Abington Heights School District ("AHSD") is a school district duly organized and existing under the laws of the Commonwealth of Pennsylvania. (Doc. 134, ¶ 1.) David Arnold, Ed.D. ("Arnold") was the Superintendent of AHSD from July 1, 2002 until June 30, 2004. (Id. ¶ 4.) William McNulty ("McNulty") was the Director of Special Education for AHSD from 2001 until 2005. (Id. ¶ 9.) Mariellen Sluko ("Sluko") was the Principal of Clarks Summit Elementary School during the 2002-2003 school year. (Id. ¶ 7.) Collectively, AHSD, Arnold, McNulty, and Sluko are the AHSD Defendants.

During the 2001-2002 and 2002-2003 school years Wzorek was a teacher in an autistic support class at Clarks Summit Elementary School. (Doc. 125, ¶ 1.) AHSD contracted with NEIU to provide services during the same time frame, including the placement of students in Wzorek's classroom. (Id. ¶ 20.) Plaintiffs are the parents of students allegedly abused in Wzorek's classroom during the 2001-2002 and 2002-2003 school years. (Doc. 91.)

There is at least some evidence on the record to support the following facts: Wzorek was certified to teach special education for students K-12. (Doc. 155, pg. 101.) This qualified her to teach all special education students except those with visual, hearing, or speech impediment disabilities. (Id. at 151.) Wzorek asserts that while some training with regard to disciplining autistic children was offered, she failed to complete any courses. (Doc. 157, pg. 146.) While Wzorek did show up for one class, the instructor failed to arrive and Wzorek never returned. (Id.) She also took a course on classroom setup (Id. at 147) and a course on language programs for autistic students. (Id. at 148.) Wzorek failed to complete the entire twelve (12) hour safe crisis management program offered. (Doc. 155, pg. 80.)

During the school years NEIU supervisors Nasser (Doc. 157, pg. 137) and Weir (Doc. 176) would visit the classroom. Teacher evaluations were performed for Wzorek during both school years. (Doc. 155, pgs. 10-17.) The evaluations took into account feedback from only Wzorek and Lamanna, with Lamanna having never been in the classroom. (Doc. 158, pg. 95.); (Doc. 176). Visits to the classroom by supervisors were described to range between "quite [frequent]" (Doc. 157, pg. 14-23), to maybe once a month (Doc. 159, pg. 59.) The door to the public school, Clarks Summit Elementary, was described as open at times, closed at others. (Doc. 158, pg. 99.)

Wzorek's classrom was described as "chaos" through the first month, where there were children with severe behavioral problems, ages five (5) to eleven (11), all in one classroom. (Doc. 156, pg. 20.) Wzorek was also described as "really aggressive" during the second year (2002-2003), particularly after Christmastime. (Id. at 21-25.) The allegations of abuse include: the use of bungee cords for restraint and discipline (Id. at 16); the use of duct tape on students as restraints (Doc. 159, pg. 48); leaving students restrained in a chair and on the floor for several minutes after the students had overturned the chair (Doc. 156, pg. 21); using Rifton chairs for punishment or restraint (Doc. 159, pg. 51); grabbing students by the ear or pinching noses causing bruising (Doc. 156, pg. 23); grabbing students by the back of the neck (Id. at 26); dragging students by the hair and arms (Id. at 119); backhanding a student causing a bloody lip (Id. at 27); screaming into the faces of students (Doc. 158, pg. 60, 63); squeezing students' hands as a punishment (Doc. 156, pg. 54); crushing a student's fingers (Doc. 159, pg. 105); stepping on students' insteps for intimidation (Doc. 159, pg. 91); squeezing students' faces (Doc. 156, pg. 57); striking a student in the head with a tissue box (Doc. 158, pg. 62); depriving a non-verbal student of a picture communication system, preventing him from being able to communicate needs such as the bathroom (Doc. 159, pg. 76); forcing a student to ride home for over an hour on the bus soaked in urine (Doc. 172); and withholding food from a student as a punishment (Doc.159, pg. 104.)

All parties agree the trigger for the removal of Wzorek from the classroom came after Celli and Medeiros reported the alleged abuse to Lamanna on July 28, 2003. (Doc. 130, Ex. 2, ¶ 21.) There is some evidence that there were several prior warnings provided to NEIU, Rosetti, and Lamanna about abuse in Wzorek's classroom. (Doc. 171) (Thomas R. attempted to contact NEIU "long before" the aides complained); (Doc. 157, pg. 99) (injury after student backhanded reported); (Doc. 173) (Rosetti contacted by Eva L. during 2001-2002 school year after observing a student being forced into a Rifton chair); (Doc. 172) (contacted after a student was forced to ride home for over an hour in urine soaked clothing); (Doc. 174) (Rosetti contacted by Gloria G. after being told her child could not take a medication during the week).

NEIU had policies detailing requirements for reporting student abuse, but none specifically for the abuse of disabled students. (Doc. 155, pg. 98.) Instead, they expected anything unusual to be reported by the NEIU employees or the non-NEIU personnel in the classrooms. (Id.) Celli and Medeiros stated that they waited so long to report the conduct because they were told that no one would believe them over a teacher. (Doc. 159, pg. 108.) Allegedly, there was a "code of silence" which discouraged reports against teachers. (Doc. 177, Ex. 2.) Medeiros had previously reported another teacher, but "nothing was ever done." (Doc. 158, pg. 57.) Wzorek also told Celli and Medeiros that no one would believe them. (Doc. 159, pgs. 73-74.) NEIU teachers allegedly congratulated a teacher "on keeping her mouth shut" when giving a deposition about these allegations. (Doc. 158, pg. 73.) Detective Kolcharno, an officer investigating Wzorek for criminal charges stemming from the abuse commented:

[W]e've done internal affairs investigations for police departments, and people talk about the blue wall, that cops don't testify against each other. I have never - never done an investigation where people covered for each other and people didn't want to get involved like this case. It was just unbelievable. I thought cops were bad, before I investigated a teacher.

(Doc. 170, pg. 44.) Before meeting with Celli and Medeiros to discuss the allegations, Rosetti allegedly stated " don't worry about it, Sue (Wzorek), they're coming in here today to shoot their loads and then it's going to be over so don't worry about it." (Doc. 177, Ex. 1.) NEIU conducted an internal investigation, but may have missed interviewing several important witnesses. (Doc. 163, pgs. 130-31.) NEIU never reported the abuse allegations to the authorities. (Doc. 163, pg. 27.)

The officials of AHSD were never informed by Celli or Medeiros of the allegations, and only heard about them after the July 28, 2003 report to Lamanna. (Doc. 165, pg. 22.) After reporting the allegations, AHSD teachers refused to allow Celli or Medeiros into their classrooms. (Doc. 164, pg. 122.) Because the behavior of the AHSD teachers towards the aides became disruptive, AHSD requested that the special education class be moved entirely out of Clarks Summit Elementary. (Id. at 130.)

II. Procedural Background

On September 26, 2006, Defendants filed a notice of removal from the Court of Common Pleas of Lackawanna County, Pennsylvania to this Court, based on Plaintiffs' inclusion of federal causes of action in their Complaint. (Doc. 1.) For the purposes of discovery and pre-trial matters, the action of all parents and minor-plaintiffs were consolidated on June 6, 2008. (Doc. 100.) Plaintiffs' moved to amend their Complaint on December 14, 2007, and after Court approval filed their Second Amended Complaint on February 1, 2008. (Doc. 79); (Doc. 91.) All parties filed their respective motions for summary judgment or partial summary judgment on April 15, 2009. (Doc. 123) (Defendant Wzorek); (Doc. 127) (Plaintiffs); (Doc. 130) (NEIU defendants); (Doc. 133) (AHSD defendants.) These motions have been fully briefed and argued orally; they are now ripe for disposition.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.


Plaintiffs' Amended Complaint contains eleven (11) counts. Count I alleges violations of the Fourteenth Amendment, including violations of the Due Process Clause and the Equal Protection Clause. Count II alleges direct violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"). Count III alleges assault and battery against Defendant Wzorek. Count IV alleges intentional infliction of emotional distress against Defendant Wzorek. Count V alleges Defendant Wzorek breached her fiduciary duty to the Minor-Plaintiffs. In Count VI, Plaintiffs request punitive damages from Defendant Wzorek. Count VII contains a second claim of intentional infliction of emotional distress, this time against Defendants Lamanna, Rosetti, Sluko, McNulty, and Arnold. Count VIII contains a second claim of breach of fiduciary duty, here against Defendants Lamanna, Rosetti,Sluko, McNulty, and Arnold. Count IX includes a negligence claim against Defendants Lamanna, Rosetti, Sluko, McNulty, and Arnold. Count X includes a punitive damages claim against Defendants Lamanna, Rosetti, Sluko, McNulty, and Arnold. Count XI contains an allegation regarding a violation of Section 504 of the Rehabilitation Act against Defendants NEIU and AHSD.*fn1 Each of the separate motions for summary judgment will be discussed collectively per count.

I. Count I - Substantive Due Process and Equal Protection Claims

Plaintiffs' claims at Count I allege violations of substantive due process and equal protection against all defendants. Each of the Defendants' motions ask for summary judgment against these claims.

A. Substantive Due Process

Plaintiffs' substantive due process claims are based upon the allegations that the Defendants failed to respect the Minor-Plaintiffs substantive due process right to bodily integrity.*fn2 The substantive component of the Due Process Clause "protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them." Gottlieb v. Laurel Highlands Sch. Dst., 272 F.3d 168, 172 (3d Cir. 2001) (quotations omitted). Only state conduct that is "arbitrary, or conscience shocking, in a constitutional sense" rises to this level. County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). "[T]he constitutional concept of conscience-shocking duplicates no traditional category of common-law fault . . . ." Id. at 848. The pertinent inquiry is "'whether the force applied caused injuries so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or ...

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