T.F. a minor by this parents and D.F. and T. S.F., on their own behalf, Plaintiffs,
FOX CHAPEL AREA SCHOOL DISTRICT, Defendant.
MEMORANDUM OPINION ON RE: PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 28 AND 31)
ARTHUR J. SCHWAB, District Judge.
This is a civil rights action which centers on alleged disability based discrimination by Fox Chapel Area School District against a former kindergartner with a severe tree nut allergy. Plaintiffs, T.F. by and through his parents and on their own behalf, D.F. and T.F.R. (hereinafter "Plaintiffs, " "T.F." or "student") allege that Fox Chapel Area School District (hereinafter "Fox Chapel, " or "Defendant") failed to provide a Free Appropriate Public Education (FAPE) and discriminated against them in violation of Section 504 of the Rehabilitation Act of 1973, Title 15 of the Pennsylvania Code, and the Pennsylvania Human Relations Act. In Plaintiffs' Two Count Complaint they contend that Defendant was "deliberately indifferent" to T.F.'s needs in the following particulars: (1) Defendant failed to provide student with sufficient accommodation to address his allegedly life-threatening tree nut allergy, (2) Defendant failed to provide a Service Agreement,  that sufficiently detailed his individualized accommodations, (3) Defendant isolated and segregated against him at a separate small desk to eat his lunch in the cafeteria; (4) Defendant failed to intervene with prompt, effective remedial action after becoming aware that he was subjected to disability-based harassment; (5) Defendant unnecessarily disclosed his medical condition to parents of other students in Fox Chapel; (6) Defendant's nurse contacted his physicians and discussed confidential information with authorization to do so; and (7) Defendant retaliated against Plaintiffs by subjecting them to multiple truancy proceedings after student withdrew from school. Plaintiffs seek declaratory, injunctive and equitable relief as well as compensatory damages, including that Fox Chapel be required to pay tuition reimbursement for the full cost of attendance at The Shadyside Academy (based upon the alleged denial of a FAPE), the private school at which T.F. is currently enrolled as a second grader. Presently before this Court are Cross-Motions for Summary Judgment. Doc. Nos. 28 and 31. For the reasons that follow, this Court will GRANT Defendant's Motion for Summary Judgment (doc. no. 28) and DENY Plaintiffs' Motion for Summary Judgment (doc. no. 31).
II. Statement of Facts
The factual history of this case may be fairly summarized as follows. T.F. is an eight year old student who resides in Fox Chapel, and attended kindergarten from August, 2010, until December, 2010 at Fairview Elementary in the Fox Chapel School District. T.F. has a history of anaphylaxis due to a severe allergy to tree nuts, and is at "high risk for further life-threatening reactions, " if he is again exposed to tree nuts. T.F. cannot eats foods containing tree nuts, including foods at risk for cross-contamination from tree nuts, "as even trace amount can be enough to cause a severe reaction." At all times relevant, he was recognized as a protected disabled student with a tree nut allergy under Section 504 of the Rehabilitation Act of 1973. T.F. also suffers from asthma, which also puts him at a higher risk for a severe reaction should he ingest any allergens. Doc. No. 46 at Plaintiff's Statement of Facts, p. 23 at ¶ 1 and 2.
Fox Chapel had adopted a Food Allergies policy on May 10, 2010; however, the District's Food Allergies Policy was not disclosed to either Plaintiffs, or their counsel, until the first day of the administrative hearing in this case. Id. at ¶ 16. Unbeknownst to Plaintiffs, the Head Nurse testified that she uses material from the Food Allergy Anaphylaxis Network (FAAN) in training nurses and staff. FAAN produces a binder with a DVD, an EpiPen and trainer EpiPens. According to the Head Nurse, Fox Chapel trained staff on its "guidelines" and those guidelines were the FAAN guidelines. However, the "guidelines" section of Fox Chapel's Food Allergies Policy does not specifically mention the use of FAAN guidelines.
Upon expressing an interest in enrolling at Fox Chapel,  on May 26, 2010, T.S.F. (T.F.'s mother) requested a meeting to establish a "504 Plan." That meeting was scheduled for June 7, 2010, and took place on that date. It was the first of several meetings between Defendant and Plaintiffs. Plaintiffs had provided a letter to Defendant prior to that meeting from T.F.'s physician detailing the nature of his tree nut allergy. At the meeting, at which Parents, the Coordinator of Special Education, the Principal, the High School Nurse (responsible for training on food allergies), the Guidance Counselor, and the Kindergarten Teacher were all present, Plaintiffs were informed that indeed T.F. qualified for a 504 Plan. Id. at p. 26, ¶ 10.
The medical information informed the meeting participants of T.F.'s allergies, the necessity of an EpiPen, Jr., and an inhaler for T.F.'s use. Although T.F.'s treating allergist, Dr. MacGinnitie was not present at the initial 504 meeting, his original recommendation contained a the above discrete list of accommodations. At the meeting, Fox Chapel proposed the following accommodations in a written 504 plan, for T.F.: (1) he would not be given any food while at Fox Chapel unless provided by his parents; (2) Fox Chapel would provide an emergency care plan to teachers, cafeteria staff, and custodial staff; (3) a nurse or parent designee would go on T.F.'s field trips; and in case of medical emergency, Fox Chapel was to call, (a) 911; (b) Andrew J. MacGinnitie (T.F.'s physician), and (c) T.F.'s parents. Id. at p. 25 at ¶ 9.
Plaintiffs did not, however, approve original Service Agreement because it was their view that there were unresolved issues that required further exploration with Dr. MacGinnitie, such as the use of hand sanitizers and seating arrangements in the cafeteria. Id. at p. 7, at ¶ 30.
On August 20, 2010, Plaintiffs formally indicated their disapproval of the Service Agreement/504 Plan. Fox Chapel received a letter from Dr. MacGinnitie, which recommended that T.F. sit at a nut-free table due to his allergies. A second 504 meeting was held on August 24, 2010, at which T.S.F. made proposals to include in the 504 Plan, id. at p. 8, ¶¶ 31-33, including that T.F. not be required to sit alone at the cafeteria, and said document was approximately five (5) pages in length (the substance of it, with the overall packet being 19-pages long). That proposal was rejected by Fox Chapel.
According to the administrative record, the Coordinator of Special Education testified that the accommodations requested by T.S.F. in its August 24, 2010 proposal would "make it impossible for people to know what to do in an emergency because there would be too much to read." The Coordinator of Special Education stated three reasons why Fox Chapel did not incorporate the accommodations requested by T.S.F: (1) "part of the routine things that happen in the building at school;" (2) the 504 Plan only addressed issues that were done differently for T.F. than for other students covered by the District's Food Allergies Policy; and (3) she wanted the 504 Plan to be understandable and not too long. Id. at p. 28 at ¶ 14.
On August 24, 2010, a second 504 Plan was proposed by Fox Chapel that contained two new accommodations. First, during lunchtime, T.F. would be seated at "tree nut free" table, which was, in fact, a student desk. Second, a treat box would be provided by Parents to T.F. on occasions such as classroom parties and birthdays. This Plan also changed the procedures in case of medical emergency by first requiring the responder to call the school nurse before calling 911. Also, on August 27, 2010, the principal sent a letter to the parents of classmates informing them that a classmate had a severe nut allergy, sharing information about allergies, requesting that the parents take certain step to reduce the risk of contamination in the class room, and the letter did not mention T.F. by name.
On August 31, 2010, a third 504 Plan was proposed by Fox Chapel which added three further accommodations. First, Fox Chapel would provide and T.F. would be permitted to purchase a tree nut free lunch, in a sealed wrapper, in the cafeteria as of September 13, 2010. Second, T.F.'s teacher would keep a tree nut-free snack to provide T.F. when other students were receiving snacks; this meant that Plaintiffs provided snacks to the entire kindergarten so that T.F. did not have to always sit at a separate desk. Third, it also included a directive to follow a food allergy plan, including the use of an EpiPen in case of severe reactions. Id. at p. 9, at ¶ 36. Plaintiffs, however, did not agree to this Service Agreement. A fourth meeting was scheduled for September 8, 2010. Over the ensuing weeks, the parties communicated regarding a Section 504 plan. No changes were made to the Service Agreement at the September 8, 2010 meeting.
In an email dated September 8, 2010, T.S.F. stated that "most if not all" of what T.S.F. had requested in her proposed 504 Plan came from the FAAN guidelines. She even offered to purchase the FAAN guidelines for Fox Chapel. Even though Head Nurse remembers this email and testified regarding it at the Due Process hearing, she did not recall responding to T.S.F. to indicate that Fox Chapel in fact had the FAAN manual or that the District based its guidelines on it. Although, she testified that she brought the FAAN manual to the meetings with T.S.F., she did not recall ever providing or showing her the manual. Id . at p. 29, ¶ 19.
On September 15, 2010, the School Nurse contacted Dr. MacGinnitie and in an email from the School Nurse, she stated that "he agrees with our plan of care" for T.F. and he initialed it. Id. at ¶¶ 44-46; Doc. No. 39 at p. 23.
On September 17, 2010, Plaintiffs contacted the Pennsylvania Department of Education, Special Education Advisor, Malcolm Connor and informed Dr. Conner that their son had a severe tree nut allergy and that no service agreement had been developed by Fox Chapel, and that they were fearful that T.F. would come into contact with tree nuts. Id. at p. 12-13, at ¶¶ 49-50. Dr. Carey, Director of Special Education responded to Dr. Conner that the 504 team had met on June 7, August 24 and 31, and September, 8, 2010. Dr. Carey informed Dr. Connor that Fox Chapel had developed an appropriate program and provided Plaintiffs with procedural safeguards to advise them of their rights to challenge the program. Dr. Connor responded to Plaintiffs and stated that the 504 team had met, and he explained that due process proceedings were available to resolve the dispute. Id. at ¶¶ 52-53.
Plaintiffs claim that T.F. was teased and bullied, that he experienced anxiety as a result of the seating arrangement, and on September 22, 2010, T.S.F. wrote an email to T.F.'s teacher stating that that another child with round glasses teased him for his placement at the stand alone desk. The boy admitted to the teacher that he, in fact, did tease T.F. Id. at ¶ 36. The parties agree that the teacher handled the discipline of the other student, but disagree that the issue was resolved and it did not occur again. Id. at p. 15 at ¶ 64. However, Fox Chapel "collected data" to address Plaintiffs concerns of isolation in the cafeteria and according to Fox Chapel, the "data" revealed that T.F. engaged with student's throughout his lunch period and "was having no problems at school." Id. at ¶¶ 68-69. Plaintiffs dispute this contention and state that this statement relates only to the quantity of interactions, but provides no indication as to the "quality or content of the interactions, and consequently fails to address reports of harassment, teasing and bullying." Id.
T.F.'s treating physician then requested that he be seated at a rectangular table, on the end cap with a two foot buffer from his fellow students seated at the same table, and that the others at the table also maintain a nut-free lunch. Id. at ¶ 34. Coordinator of Special Education testified that Fox Chapel however denied that accommodation, because she believed that the current seating arrangement was an appropriate one, and the Principal and Head Nurse indicated that "lunch tables are ROUND" and the "rectangular tables... are activity' folding tables" that would "look VERY different from the rest of the tables, " for which they did not have appropriate chairs." Id. at ¶ 34. Plaintiffs contend that another parent agreed to provide a nut-free lunch for her child so that T.F. would not be alone; however, Defendant counters that there is no information in the record regarding this request.
Between September 30, 2010 and October 7, 2010, T.S.F. testified that she was concerned that T.F. was being exposed to tree nut allergens at Fox Chapel. Medical records reflect that T.F. sought medical treatment on September 30, 2010 for hives. Also, medical records show that T.F. also sought treatment for a bilateral ear infection from October 5-7, 2010, and had some type of allergic reaction which the parties dispute whether it was due to Motrin and Advil given to him at home by parents, or whether it was due to exposure to tree nut allergens.
In two emails to the Coordinator of Special Education on October 6, 2010 and October 11, 2010, T.S.F. asked for documentation regarding the Food Allergy Policy, and the Coordinator of Special Education testified that she did not respond to the requests in either of these emails. According to her testimony at the administrative hearing, she did not respond to the request in the first email because she believed the matter could be discussed again at the ensuing meeting, and she did not respond to the request in the second email because she felt it had been addressed at prior meetings.
In an October 12, 2010 email, T.S.F. stated "Head Nurse was supposed to show us where those policies were in writing to ensure that they were in fact policy so that we could refer to them in the 504 Plan to simplify it and scale it down in size." However, neither Head Nurse nor Coordinator of Special Education sent them. Id. at ¶ 20. Coordinator of Special Education, when questioned at the administrative hearing, stated, "I did not provide them any documents because I interpreted their requests to cover procedures that were in place in the building." When queried regarding whether she thought T.F.'s parents misunderstood the difference between policy and procedure, she answered in the affirmative, and went on to explain "Policy refers to school board policy; Procedures may be, and are most often, written procedures that are at either departmental levels or building levels; and Practices... can be procedures or they can be what we routinely do." Id. at ¶ 21. At the Due Process hearing, Dr. Carey, the Special Education Coordinator, testified that "the focus of the  meeting was going item through item with [T.S.F.] to explain how we did those things, not about where they were documented, but how we had done each of those items." Id. at ¶ 23.
On October 13, 2010, a fourth 504 Plan was proposed that included an additional accommodation requiring that T.F.'s cafeteria table (separate student desk) be cleaned with a cleaner that removes food allergens. Id. at p. 26 at ¶ 10.
Also, in October, 2010, T.F.'s class had a Halloween party. T.S.F. testified that although many of the mothers involved agreed not to bring in any food aside from apples and water, there were mothers bringing in food throughout the parties, and according to Plaintiffs following T.F. bobbing for apples, he suffered a "reaction" (he was grabbing his throat as if it was closing up) and was treated successfully at a hospital following this "medical emergency, " since he was already scheduled to be there for a doctor's appointment. Defendant denies that the medical records support this "medical emergency" occurred, and cite the expert opinion of school district expert, Dr. Eigen.
On October 18, 2010, T.S.F. filed a Due Process Complaint notice on behalf of T.F. Id. at p. 3, ¶ 9. In an email to Principal, dated November 12, 2010, T.S.F. reported that T.F. was the target of bulling and teasing. Principal, however, testified at the administrative hearing that she did not treat the second report as a "significant problem, " because T.S.F. was unable to provide the principal with situations, examples, or names of students who were bullying T.F. Id. at ¶ 36.
Fox Chapel policy requests the principal to prepare a written report within 15 days of a complaint, including a summary of the investigation, a determination of whether the complaint was substantiated, whether it is a violation of a non-discrimination policy, and a recommended disposition. Id. at ¶ 38. The Principal, however, admitted that she did not complete a written report, because she did not believe there was either a verbal or ...