The opinion of the court was delivered by: Gene E.K. Pratter, J.
The case before the Court on remand from the Third Circuit Court of Appeals has a long and tragic history.
Ronald E. and Leslie Chambers are the parents and guardians of Ferren Chambers ("Ferren"), a severely autistic and developmentally disabled twenty-five year-old woman (collectively the "Chambers Plaintiffs"). The Chambers Plaintiffs filed this lawsuit in 2005 against the School District of Philadelphia Board of Education ("School District") asserting a litany of statutory and constitutional violations in their own right and on Ferren's behalf. At the heart of their claims, the Chambers Plaintiffs alleged that the School District intentionally and continuously denied Ferren a free and appropriate public education ("FAPE"), resulting in permanent developmental injuries to Ferren, and damages in the form of pain and suffering and financial loss.
While acknowledging that Ferren's parents have endured frustration and heartache in their attempts to help their daughter, this Court granted the School District's motion for summary judgment on all counts and dismissed the Chambers Plaintiffs' claims. In a footnote to its decision, this Court noted that at oral argument, the Chambers Plaintiffs had waived the right to pursue the § 504 and ADA claims on Ferren's behalf. However, the Third Circuit Court of Appeals concluded that the Chambers Plaintiffs did not waive those claims, and remanded only Ferren's § 504 and ADA claims to this Court. The parties promptly filed cross-motions for summary judgment.
With the same sentiments of compassion and empathy for the Chambers family the Court expressed in its November 2007 decision, for the reasons set forth below, the Court will grant the Second Motion for Summary Judgment of the School District (Doc. No. 100) and deny the Partial Motion for Summary Judgment of the Chambers Plaintiffs (Doc. No. 94).*fn1
II. FACTUAL AND PROCEDURAL BACKGROUND
As a result of a congenital brain malformation and injuries sustained during her birth, Ferren,*fn2 now 25 years old, is a severely developmentally disabled young woman. She is profoundly mentally retarded, autistic, suffers seizures and communicates at the level of a two-year-old child. SD Exs. 2; 39; 40.
In September 1990, after attending early-intervention programs and being the subject of numerous neurological and psychiatric evaluations, Ferren began her public school education in a program for children with mental retardation at the Farrell School on the recommendation of a School District psychologist. After only three weeks, Ferren's father, Ronald Chambers, removed her from Farrell for the remainder of the school year because he felt the program was inappropriate to address her condition. SD Exs. 3; 4; 7. At a July 1991 hearing, a state appeals panel agreed with Mr. Chambers and re-classified Ferren as an autistic person with pervasive developmental delay. Accordingly, the panel ordered Ferren to be removed from the Farrell School and placed her in an autistic support program focusing on social relatedness, interaction, language, and activity level. SD Ex. 3.
Over the course of the next few years, several evaluations conducted by both the School District and private specialists continued to demonstrate that Ferren suffered in the profound range of mental retardation and that she was severely autistic. SD Exs. 4; 5. During this period, Mr. and Mrs. Chambers and the School District worked to find the appropriate placement for Ferren. In February 1992, the School District assigned Ferren to an autistic support program at its Greenfield School. A year and a half later, following complaints from Ferren's parents, Ferren was placed in a second autistic support program at Loesche Elementary School, where she allegedly received one-on-one assistance. SD Ex. 7. After Ferren attended only 11 1/2 days of school there, however, Mr. Chambers again removed her from school because he believed she was unable to adjust to the different classroom and teacher. SD Ex. 8.
On November 21, 1994, a school psychologist opined that Ferren should be placed in a more restrictive educational setting in a private school. SD Ex. 8. Although her parents requested the School District follow the psychologist's suggestion, the School District did not initially comply because it was unable to locate a private school both that would accept Ferren and of which Mr. Chambers approved. Chambers Mot. S.J. Ex. 4, at 21. In 1995, the Chamberses sent the School District a request for a due process hearing, which the School District reportedly misplaced. After a substantial delay, a state appeals panel ordered the School District to implement the psychologist's November 1994 recommendation to place Ferren in a private school. At the start of the 1995-1996 school year, the School District placed Ferren in the Wordsworth Academy. Ferren was then 11 years old. SD Exs. 9; 33, Chambers Dep. I 110:2-112:2.
While the Chamberses were largely satisfied with Ferren's placement at Wordsworth, in November 1996, they requested another due process hearing because, they claimed, the School District was failing to provide Ferren with speech therapy at Wordsworth as was required by her Individualized Education Program ("IEP").*fn3 SD Ex. 10. Thereafter, the parties entered into settlement agreements in both 1997 and 1998 in which the School District agreed to provide Ferren with the services she had not theretofore received. In March 1999, the Pennsylvania Bureau of Special Education issued a report chronicling the School District's failure to provide Ferren the speech services specified in her IEPs. After the report was issued, the parties agreed that Ferren's parents would obtain compensatory speech services through an approved provider and the School District would pay for the services. However, apparently due to difficulty determining who at the School District could guarantee payment to the provider, Ferren's parents never obtained the services for her. SD Ex. 33, Chambers Dep. II 28:22-30:24.
In January 2001, the School District requested the Chamberses to permit a special education consultant to evaluate Ferren's progress at Wordsworth. However, Ferren's parents objected to the evaluation, and another due process hearing ensued in September 2001. After the hearing officer ordered Ferren to be evaluated, the consultant concluded that Ferren was the lowest functioning member in the class of autistic students at Wordsworth, and that she should be placed in a school for severely mentally retarded students. The consultant also identified two specialists to perform the remaining evaluations ordered by the hearing officer. SD Ex. 17.
Over the next two years, Ferren's parents and the School District engaged in a protracted disagreement regarding who were appropriate parties to evaluate Ferren. SD Exs. 18, 19, 22. Meanwhile, in April 2002, the Chamberses filed another complaint with the Bureau of Special Education, asserting that the School District failed once again to provide speech and language services and occupational and physical therapy ("OT/PT") to Ferren during the 2000-2001 school year. The Bureau found that the School District did not provide Ferren the therapy as delineated in her 2000 IEP, largely because of time and travel constraints and the lack of qualified providers of speech services in the locale. SD Ex. 20, at 7-9.
Once the School District and Ferren's parents reached an agreement on who would serve as Ferren's independent evaluators, the School District reconvened its IEP team in June 2003.
Nonetheless, Mr. and Mrs. Chambers were unsatisfied with the IEP developed for Ferren. After rejecting the proposed IEP, Ferren's parents requested a pre-trial hearing conference where certain agreements were reached. SD Ex. 29. In November 2003, the Chamberses again requested a due process hearing regarding the IEP, but the School District failed to forward the request to the Pennsylvania Office of Dispute Resolution ("ODR"). In December 2003, the Chamberses followed up with the ODR to check on the status of their hearing request, only to learn that the School District did not pass along their request. The hearing was held in March 2004 before Hearing Officer Rosemary Mullaly.
At the hearing, the School District bore the burden of proof to establish it had offered Ferren a FAPE. But the School District presented no documentary evidence and "only one witness who ha[d] not never [sic] met [Ferren] before, and . . . had no real understanding of [her] educational program and placement." Pl. Mot. S.J. Ex. 1, at 9. On April 2, 2004, Hearing Officer Mullaly issued her decision. She concluded that Ferren had been denied an appropriate education from 2001 until April 2004, and the School District owed Ferren 3,180 hours of compensatory education. She ordered the School District to place $209,000 in an educational trust for Ferren's benefit. SD Ex. 29. Neither party appealed the decision of Hearing Officer Mullaly.
The Chambers Plaintiffs commenced the present action on May 27, 2005 seeking compensatory damages under section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, section 504 of the Rehabilitation Act of 1973 ("§ 504"), 29 U.S.C. § 794(a), the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415, and 42 U.S.C. § 1983. They premise their claims upon the School District's allegedly intentional and continuous refusal to provide appropriate education services to Ferren. In a Memorandum and Order dated November 29, 2007, this Court granted the School District's motion for summary judgment on all counts and dismissed the claims of the Chambers Plaintiffs. Ronald E. v. Sch. Dist. of Phila. Bd. of Educ., No. 05-2535, 2007 WL 4225584, at *1 (E.D. Pa. Nov. 29, 2007). In a footnote, the Court concluded that in their briefing and during oral argument the Chambers Plaintiffs had waived the claims on Ferren's behalf filed directly under § 504 and the ADA, and opted to pursue those claims only under 42 U.S.C. § 1983. Specifically, the Court noted:
It appears from the Amended Complaint as though Plaintiffs assert their Rehabilitation Act and ADA claims separately as well as through the vehicle of § 1983; however, in Response to Defendant's Motion, counsel seems to pursue the claims only under § 1983. During oral argument Plaintiffs' counsel confirmed that Plaintiffs are pursuing claims under § 1983, not the individual statutes.
See id. at *9, n. 8 (citations omitted). Accordingly, the Court's analysis of those claims was limited to the aforementioned footnote.
After the Chambers Plaintiffs filed a timely appeal, the Third Circuit Court of Appeals reversed this Court's ruling in part, holding that the Chambers Plaintiffs did not intend to waive their rights to pursue their § 504 and ADA claims on Ferren's behalf. Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 188 (3d Cir. 2009). Furthermore, the Court of Appeals found that an issue of material fact existed with respect to Ferren's § 504 and ADA claims. Id. at 189. In light of this Court's dismissal of the Chambers Plaintiffs' § 504 and ADA claims based on a perception of their position as the Court had understood the Chambers Plaintiffs to have articulated it, and because the Court of Appeals did not find summary judgment to be appropriate based on its review of the record with respect to the § 504 and ADA claims,*fn4 it vacated the grant of summary judgment on those claims and affirmed the remainder of this Court's ruling. Upon remand, both parties filed motions for summary judgment.
Upon motion of a party, summary judgment is appropriate if, "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials," the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." FED. R. CIV. P. 56©; Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). An issue is "genuine" if a reasonable jury could possibly hold in the non-movant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if its resolution could affect the result of the suit under governing law. Id.
In evaluating a summary judgment motion, the court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 217, 322 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
The party opposing summary judgment must support each essential element of that party's opposition by "citing to particular parts of materials in the record." FED R. CIV. P. 56(c)(1). "The Court need consider only the cited materials" when determining whether there exists a genuine issue of material fact for trial. FED R. CIV. P. 56(c)(3). If the cited evidence is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). This requirement upholds the "underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense." Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
The same standards and burdens apply on cross motions for summary judgment. See Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987); Peters Twp. Sch. Dist. v. Hartford Accident and Indem. Co., 833 F.2d 32, 34 (3d Cir. 1987). Cross motions for summary judgment: are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily ...