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D.E., A Minor, On His Behalf By His Parents, Et.Al v. Central Dauphin School District


January 3, 2013


The opinion of the court was delivered by: Stengel, J.


D.E. was a minor diagnosed with a learning disability and enrolled in school at the Central Dauphin School District.*fn1 D.E.'s parents, Mrs. Maria English and Mr. Ronald Sheffy,*fn2 on behalf of D.E. claim that while enrolled in the District he was deprived of a free appropriate public education ("FAPE") and that he was discriminated against based on his various disabilities in violation of the Americans with Disabilities Act and the Rehabilitation Act.*fn3


D.E. attended a school in Central Dauphin County School District from kindergarten to the seventh grade, when he and his family moved. In 1994, when D.E. was in kindergarten, his school file indicated that he should have been placed in special speech and language therapy courses, but he was not. (Doc. No. 1-2. ¶¶ 11-12). Despite recommendations, the District did not develop an individualized education program ("IEP") for the student for the first kindergarten year. (Doc. No. 1-2 ¶ 11). Seven months into the school year, the District evaluated D.E. for speech and language therapy, but did not test him for any other potential learning disabilities. (Doc. No. 1-2 ¶ 13). Additionally, the subsequent IEP contained only speech and language goals despite teacher and parent concerns. The report card for the 1995-96 school year stated that D.E. had difficulty with "reading readiness," although the District had more information that other needs existed for the student. (Doc. No. 1-2 ¶¶ 14-15). D.E. had to repeat his kindergarten year. (Doc. No. 1-2 ¶ 16). At the end of the repeat kindergarten year, the teacher noted that D.E. was still not doing grade level work. (Doc. No. 1-2 ¶ 32).

In 1997, D.E. started first grade, and his IEP was modified to recommend that he be placed in a full-time learning support room and the parents approved. (Doc. No. 1-2 ¶ 32). D.E.'s parents had D.E. evaluated by Pinnacle Health Services, which recommended that D.E. be re-evaluated by the District "within the next year." (Doc. No. 1-2 ¶ 39). The District failed to re-evaluate D.E. for intelligence, but did administer an additional WIAT scale. (Doc. No. 1-2 ¶ 42). Although the teacher questioned D.E.'s placement in the program, the CER did not address D.E.'s language-based disabilities. (Doc. No. 1-2 ¶ 42).

D.E. started second grade in 1998 in a full-time support program. (Doc. No. 1-2 ¶ 45). D.E.'s mother requested evaluations because the student was regressing. (Doc. No. 1-2 ¶ 47). D.E.'s second grade teacher expressed concern about whether the emotional support class was appropriate. (Doc. No. 1-2 ¶ 48).

When D.E. began third grade, his IEP was again modified to read "seriously emotionally disturbed." The NORA issued in March 2000 calls for continued placement in life skills support, although this placement was unsupported.*fn4 (Doc. No. 1-2 ¶ 66). The student was then mistakenly identified as having mental retardation. There was no adaptive behavior assessment completed. (Doc. No. 1-2 ¶ 68). D.E. remained in the Life Skills Program throughout third and fourth grade. (Doc. No. 1-2 ¶ 75). When D.E.'s mother realized D.E. was identified as mentally retarded, she filed a complaint and withdrew D.E. from the summer program. (Doc. No. 1-2 ¶ 78). In response to the complaint, the District was willing to apologize and change the inaccurate designation on the student's records. (Doc. No. 1-2 ¶ 79). In August 2000, during an IEP meeting, a District staff person found the designation error, fixed it, and advised D.E.'s mother.

(Doc. No. 1-2 ¶ 81). The student was then inaccurately found to be ineligible for extended school year services. (Doc. No. 1-2 ¶ 88).

In 2001, D.E.'s IEP was changed, and D.E. was to participate in regular education courses for his fifth-grade year, with an emphasis on his specific learning disability.*fn5

(Doc. No. 1-2 ¶ 89). In sixth grade goals and specially designed instruction regarding behavior and social issues were dropped from the IEP with no explanation. (Doc. No. 1-2 ¶ 95). Yet again, the student was found to be ineligible for extended school year services. (Doc. No. 1-2 ¶ 96).

In the 2003-2004 academic year, D.E. was in seventh grade. D.E.'s goals were to increase his math skills to a fourth grade level. (Doc. No. 1-2 ¶ 103). The seventh grade teacher was not trained in any research based math instruction and she did not show any records demonstrating progress on IEP goals. (Doc. No. 1-2 ¶ 106). In December 2003, the team responsible for D.E.'s IEP delayed the process while waiting for a new ER, which resulted in D.E. working under an expired IEP for three months. (Doc. No. 1-2 ¶ 109). The hearing officer determined that the new ER did not go far enough in assessing D.E.'s needs and the subsequent designation of emotional disturbance is problematic based on the records or D.E.'s behavior. (Doc. No. 1-2 ¶ 113).

Beginning in eighth grade, the District convened a meeting with D.E.'s parents where they reviewed the previous IEP and an evaluation report. (Doc. No. 1-2 ¶ 116). D.E. then moved from the District. D.E.'s parents requested a due process hearing after they moved alleging D.E. had not received a free adequate public education. After leaving the district, D.E. attended Cumberland Valley School District and then Pennsylvania Cyber School where he remains enrolled and taking classes. (Doc. No. 91 at ¶ 11). Later, D.E. obtained a forklift operator's license with the assistance of a job coach and a driver's license. (Doc. No. 91 at ¶¶ 12-13).

A. Outcome of the Administrative Hearing

A hearing was held, and, in a detailed decision, the administrative officer found violations of the Individuals with Disabilities Education Act ("IDEA") and the Rehabilitation Act. Among his factual findings were that D.E. was entitled to compensatory education from kindergarten to seventh grade because D.E. was denied a FAPE for all eight years while a student at the Central Dauphin School District. The District knew the student had more needs than those answered by speech and language therapy upon his entry into the district for his first year of Kindergarten.

The hearing officer awarded D.E. supplemental compensatory education in the amount of "one hour for each hour of each school day for each year he attended the Central Dauphin School District [and] fifteen hours for each of six weeks for missed summer programs for the years from 2000 to 2004."*fn6 The parent was to decide how the hours should be spent, provided that they take the form of appropriate instruction and further the goals of the student's pendant or future IEPs. The order was not appealed. (Doc. No. 91 at ¶ 7)*fn7

B. Current Litigation

The subsequently filed federal complaint alleged violations of the IDEA, ADA, and §504 of the Rehabilitation Act. It sought to recover a monetary equivalent of the nearly 10,000 hours of compensatory education awarded by the hearing officer and compensatory damages under the ADA, IDEA, and the Rehabilitation Act.*fn8 Following a motion for judgment on the pleadings, only the ADA and Rehabilitation Act claims remain.*fn9 For the reasons stated below, I will grant the Defendant's motion for summary judgment.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" when "a reasonable jury could return a verdict for the nonmoving party" based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it "might affect the outcome of the suit under the governing law." Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating to the district court that "there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response must cite "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw "all justifiable inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. The court must decide "not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's "version of events against the opponent, even if the quantity of the [moving party's] evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).


Plaintiffs' § 504 Claim and ADA Claim*fn10

The hearing officer in the underlying administrative action found that the District failed to provide a Free and Appropriate Public Education (FAPE) while D.E. was enrolled with the District. However, this finding alone is not evidence of per se discrimination under the ADA. Andrew M. v. Delaware Cty. Office of Menetal Health and Mental Retardation, 490 F.3d 337, 349-50 (3d Cir. 2007) (finding that "a violation of the IDEA is not a per se violation of §504."). Where a finding is made under the IDEA that a public school failed to provide FAPE, a plaintiff must still meet all of the elements of a prima facie case under to recover under § 504 of the Rehabilitation Act or the ADA. Id. (quoting Area Sch. Dist. v. H.H., 428 F. Supp. 2d 361, 363-364 (W.D. Pa. 2006)).

To show a prima facie case, D.H. must demonstrate that he: (1) has a disability; (2) "was otherwise qualified to participate in a school program;" and (3) "was denied the benefits of the program or was otherwise subject to discrimination because of [his] disability."*fn11 Id. 42 U.S.C. § 12102(1)(C); 29 U.S.C. § 705(2)(B).*fn12 Additionally, the Supreme Court has made clear that the remedies available under the ADA and the Rehabilitation Act "are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964." Barnes v. Gorman, 536 U.S. 181, 185 (2002). Under Title VI, a plaintiff may not recover compensatory damages absent proof of intentional discrimination.*fn13 See Alexander v. Sandoval, 532 U.S. 275, 282-83 (2001); Sher v. Upper Moreland Twp. Sch. Dist., 2012 U.S. App. LEXIS 8923 (3d Cir. Pa. May 2, 2012) (quoting Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011))("[a]ll circuits to decide the question have held that to recover compensatory damages under either the ADA or the Rehabilitation Act, a plaintiff must establish that the agency's discrimination was intentional.")

In a recent case from the Eastern District, the court held that the plaintiff must adduce some "evidence of intent, such as bad faith, gross misjudgment, or deliberate indifference, to sustain a claim for compensatory damages" under the Rehabilitation Act and the ADA. Durrell v. Lower Merion Sch. Dist., 2012 U.S. Dist. LEXIS 101048, *16- 17 (E.D. Pa. July 19, 2012); see also Chambers v. Sch. Dist. of Phila., 827 F. Supp. 2d 409, 422-24 (E.D. Pa. 2011); Brown ex rel. R.P. v. Sch. Dist. of Phila., No. 11-6019, 2012 U.S. Dist. LEXIS 104855, at *22-23 (E.D. Pa. July 26, 2012); David G. v. Council Rock Sch. Dist., No. 06-1523, 2012 U.S. Dist. LEXIS 51427, at *10-11 (E.D. Pa. Apr. 12, 2012). Intentional discrimination against a child solely by reason of his disability can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights; however, intentional discrimination does not require proof of animosity or ill will. See David G., 2012 U.S. Dist. LEXIS 51427, at *10-*11; Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999).*fn14 Plaintiffs could also prove intentional discrimination if an "official who has authority to address the alleged discrimination and to institute corrective measures on the [federal funding] recipient's behalf has actual knowledge of discrimination . . . and fails adequately to respond." Adam C v. Scranton Sch. Dist., 2011 U.S. Dist. LEXIS 27423 (M.D. Pa. Mar. 17, 2011) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). Additionally, "in the special education context, courts have held that a plaintiff must demonstrate more than an incorrect evaluation or substantively faulty IEP to establish liability; a plaintiff must show that defendants acted with bad faith or gross misjudgment." R.B. ex rel. L.B. v. Bd. of Educ. of City of N.Y., 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000). See also Smith v. Special School District No. 1, 184 F.3d 764, 769 (8th Cir. 1999) (finding that it is not enough to show that the district made an improper placement, or that the attempted accommodations proved inadequate); Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Central School Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005). Thus, to defeat the motion for summary judgment and recover compensatory damages, D.H. must come forward with evidence from which a jury could find that Defendant acted intentionally; that is with bad faith, gross misjudgment, or deliberate indifference, and not simply negligently to the rights secured to him by the ADA and Rehabilitation Act.*fn15

Plaintiff contends that summary judgment should not be granted because at the time the case was filed, Plaintiffs sought to enforce the decision from the March 23, 2006, administrative hearing.*fn16 Plaintiff argues that the position that the District was not liable for a "cash out" settlement was "odd" and more "peculiar" still was the result that the "still viable" IDEA claims were dismissed out of the case.*fn17 (Doc. No. 90 at 2-3).

Plaintiff goes on to argue that the hearing officers award specifically litigated the Rehabilitation Act and resolves any claims under the ADA through collateral estoppel principles.*fn18

Plaintiffs argue that the underlying proceedings created a record of intentional discrimination. (Doc. No. 90 at 12). Plaintiffs contend that the record cites knowingly deficient standards to meet D.E.'s known needs. Id. They argue that the IEP and other plans were not sufficient to meet the educational needs of D.E., despite repeated efforts of D.E.'s mother, as evidenced in the record, to address the shortcomings and bring maters to the attention of the appropriate personnel. Id. Finally, Plaintiffs allege that all parties knew at all times that D.E. suffered from a learning disability, yet he was denied the appropriate education for nine (9) years. Id.

The Defendant argues that Plaintiffs have not stated a prima facie case because they cannot prove that the District intentionally discriminated against D.E. on the basis of his disability. Defendant argues that an IDEA violation does not automatically raise a claim under the RA or the ADA because a finding of a FAPE violation by the hearing officer is not enough for a claim a discrimination. (Doc. No. 80 at 6). Defendant argues that it had implemented an IEP for D.E. under its IDEA obligations and whether it was insufficient is not enough to create liability under the ADA.

There is no dispute that D.H. was qualified to participate in school activities.*fn19

The initial issue is whether D.H. has put forth sufficient evidence to raise a genuine dispute of material fact regarding whether the District intentionally discriminated against D.E. on the basis of his disability.

Plaintiffs argue that the record clearly evidences that the District intentionally discriminated against D.E.*fn20 However, Plaintiffs' claims of discrimination under both Section 504 and the ADA are based upon Defendant's alleged failure to implement an appropriate IEP for D.E.*fn21 See McGraw v. Board of Educ., 952 F. Supp. 248, 254 (D. Md. 1997) (holding that plaintiffs did not present evidence of intentional discrimination when their allegations were merely reformations of the allegations regarding perceived violations of the provisions of the IDEA. Plaintiffs provided no evidence that Defendants intentionally discriminated against them, or denied them services, because of the student's disability).

In Durrell v. Lower Merion Sch. Dist., 2012 U.S. Dist. LEXIS 101048 (E.D. Pa. July 19, 2012), the court held that Plaintiffs had not produced any evidence of intentional discrimination which raised a trial issue of fact. In that case, Plaintiffs asserted that the School District discriminated against the student by: "(1) placing her in Title I classes; (2) misidentifying her as a student with disabilities; (3) excluding her from regular education classes; and (4) placing her in ISL classes, which are not counted towards a student's grade-point average." Durrell, 2012 U.S. Dist. LEXIS 101048, at *15. The court agreed that Plaintiffs had raised a genuine dispute of material fact regarding whether the School District was incorrect when it classified S.H. as having specific learning disabilities in math and reading because their experts pointed to a number of defects in the initial evaluation and reevaluations of the student. The court also found that Plaintiffs had "produced at least some evidence that school staff may have been uncooperative with Plaintiffs' initial attempts to remove S.H. from special education services, and in one instance was not truthful with plaintiffs about the existence of certain protocols." Id. at 23-24. However, the court found that:

[a]t most, this evidence raise[d] factual issues regarding whether the School District acted unreasonably in its treatment of [the student] and thus engaged . in educational malpractice. The ADA and Rehabilitation Act, however, are not educational malpractice statutes. While we find any misidentification of [the student] unfortunate, plaintiffs have not come forward with any evidence which would allow a reasonable jury to find that the School District intentionally discriminated against [the student] when it regarded her as disabled.

Based on this analysis, the court granted the defendant's motion for summary judgment.*fn22 Id.

Beginning in D.E.'s first kindergarten year, the District failed to provide a "full and individual initial evaluation" and, therefore, did not recognize that D.E. required special education. 20 U.S.C. § 1414(a)(1)(A). However, after determining that D.E. was in need of special education, the District implemented an IEP every year thereafter. While there were delays in evaluating D.E., there was no outright refusal to evaluate and accommodate D.E. His mother did make complaints and raised concerns in a few instances, but Plaintiffs have failed to adduce any evidence that the District knew of a substantial likelihood that it was impinging D.E.'s right to a free appropriate public education.

There is also no evidence in the record that could support an inference of intentional discrimination as to the misclassification of D.E. as mentally retarded. D.E asserts that he was placed into life skills without an appropriate evaluation and that the conducted evaluations did not indicate that the Life Skills designation was not the least restrictive environment as required under federal law. Even assuming that the District was on notice that D.E. may have been incorrectly identified as requiring Life Skills, there is no evidence in the record that could support an inference that the District acted with bad faith, gross misjudgment, or deliberate indifference. As soon as D.E.'s mother notified the District, the District apologized, was not uncooperative, and suggested it would correct the error. Soon after D.E.'s mother noted the misclassification, someone from the team reviewing D.E. noticed and corrected the designation.

The Plaintiffs also appear to argue the Defendant's failure to implement a meaningful IEP illustrates the Defendant's conduct was "intentional discrimination." However, the Plaintiffs have presented the court with no evidence indicating a nexus between D.E.'s disability and the Defendant's failure to provide a FAPE. Nor do they provide evidence to show that these actions were intentionally discriminatory as opposed to instances of negligence by decision-makers and failures to provide D.E. a FAPE. See Zahran ex rel. Zahran v. N.Y. Dep't of Educ., 306 F. Supp. 2d 204, 213-14 (N.D.N.Y. 2004) (dismissing Rehabilitation Act claim where plaintiffs' alleged no bad faith or gross misjudgment, challenge was really an IDEA claim as it was directed toward the substance or adequacy of the program and not a decision to deprive plaintiff of access to the program itself). Because Plaintiffs have failed to present any evidence of intentional discrimination, Plaintiffs' claims under the Rehabilitation Act and the ADA cannot sustain Defendant's Motion for Summary Judgment.

IV. Conclusion

For the reasons set forth above, I will grant Defendant's motion for summary judgment.

An appropriate Order follows.

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