The opinion of the court was delivered by: Judge Caputo
Presently before the Court are two motions to reconsider this Court's September 16, 2009 Memorandum and Order (Doc. 199) denying summary judgment: (1) the motion of Defendant Abington Heights School District which argues that this Court made several clear errors of fact and law, or in the alternative, requesting that this Court certify its prior opinion for interlocutory appeal under § 1292(b); and (2) the motion of Defendants Northeastern Educational Intermediate Unit, Clarence Lamanna, and Fred Rosetti which adopts the arguments of Abington Heights and provides additional arguments that this Court committed clear error. Because the issues raised by these motions have either been addressed in the prior order, or because the record before this Court demonstrates a genuine issue of material fact remains, the Defendants' motions will be denied.
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.)
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. Y, attachment 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.) All parties filed their respective motions for summary judgment or partial summary judgment on April 15, 2009. (Docs. 123, 127, 130, 133.) This Court issued a Memorandum and Order on September 16, 2009 denying summary judgment to all parties. (Doc. 199.) The AHSD ...