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E.D. v. Colonial School District

United States District Court, E.D. Pennsylvania

March 31, 2017

E.D., by and through her parents, T.D. and C.D., and T.D. and C.D., individually


          R. BARCLAY SURRICK, J.

         Presently before the Court is Defendant Colonial School District's Motion for Judgment On the Administrative Record And For Summary Judgment (ECF No. 16), and Plaintiffs E.D., T.D., and C.D.'s Motion for Summary Judgment On The Supplemented Administrative Record On Count I Of The Complaint, And Partial Summary Judgment On The Issue Of Liability On Counts II And III Of The Complaint (ECF No. 17). For the following reasons, Defendant's Motion will be granted, and Plaintiffs' Motion will be denied.

         I. BACKGROUND

         In this lawsuit, T.D. and C.D., individually, and on behalf of their daughter, E.D., allege violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”) and Section 504 of the Rehabilitation Act, 20 U.S.C. § 794(a) (“Rehabilitation Act” or “Section 504”). Plaintiffs contend that Defendant Colonial School District denied Plaintiff E.D., who suffers from learning disabilities, a free appropriate public education (“FAPE”) during her Kindergarten and First Grade school years. Plaintiffs unsuccessfully asserted these claims at the administrative level. On August 29, 2009, after a due process hearing that spanned six sessions, a Pennsylvania Special Education Hearing Officer concluded that Plaintiffs were not entitled to tuition reimbursement and compensatory education. In this action, Plaintiffs seek reversal of the Hearing Officer's determination. Plaintiffs also assert claims for retaliation and interference under Section 504. The parties now each move for summary judgment.

         A. Factual Background

         1. 2006-07 School Year and Summer of 2007

         E.D. is a minor who resides with her parents, T.D. and C.D., in the Colonial School District. (Compl. ¶ 5, ECF No. 1.) For the school year of 2006-07, following several years of nursery school, E.D. enrolled in Plymouth Elementary School (“Plymouth”), which is under Defendant's supervision. At the time, E.D. was three months past her fifth birthday. (Hr'g Dec. 13, Pl.'s Mot. Ex. 1, ECF No. 17.) She was one of the younger members of the class. (Id. at 2.)

         Fewer than two months into the 2006-07 school year, E.D.'s kindergarten teacher noticed that E.D. was “having a lot of difficulty keeping up with the curriculum.” (Statement of Concern, ECF No. 18-2 at 17.) In a Statement of Concern dated October 20, 2006, the teacher wrote that “[E.D.] is unable to write her name or other letters of the alphabet.” (Id.) In addition, her teacher noted that E.D. seemed “very immature in the way she speaks/interacts with other children.” (Id.)

         E.D.'s parents were aware that their daughter was having trouble. E.D.'s teacher noted that E.D.'s mother, T.D., “realized that [E.D.] cannot do things that other children her age are doing, ” such as “write [her] name, complete [homework] assignments, draw recognizable pictures, [and] write letters of the alphabet.” (Id. at 44.) T.D. was concerned because E.D. had been enrolled in preschool prior to beginning kindergarten. (Id.) The teacher recommended that E.D.'s progress be monitored, that she be given extra practice in handwriting, and that E.D. should receive personalized help during “Kid Writing.”[1] E.D. was referred to the Student Support Team (“SST”)[2] in order to determine how best to proceed.

         Pursuant to the referral, the SST met with T.D. and C.D. on November 9, 2006. (SST Report, ECF No. 18-2 at 19.) The SST evaluated E.D.'s progress in several areas. In discussing her written expression ability, the SST noted that she was “not yet drawing recognizable pictures, ” but was able to “write one beginning letter for each word in her story” when her teacher worked with her one-on-one. (Id. at 20.) E.D.'s teacher further noted that she had been devoting extra attention to E.D.'s handwriting in the hope of improving her legibility. (Id. at 21.)

         The SST discussed E.D.'s poor performance in mathematics, noting that she was having difficulty with number writing, simple addition and subtraction, and number patterns. (Id.) The SST pointed to speech and language issues, including difficulty articulating speech sounds, difficulty understanding conversations, and unusual voice quality. (Id.) Finally, the SST noted that E.D. had difficulty paying attention and staying on task. (Id. at 22.)

         In prescribing future action, the SST suggested that Kid Writing improvement should be E.D.'s primary goal. (Id. at 14-15.) The SST recommended that E.D. receive an “OT (occupational therapy) screening” and a “speech screening, ” and that ongoing interventions continue. (Id. at 15.) The SST proposed a follow-up meeting at the end of March 2007. (Id.)

         In January 2007, Defendant conducted a speech and language evaluation of E.D. The evaluation confirmed that E.D. suffered from a speech and language impairment that affected both her receptive and expressive language skills, and placed her significantly below her peers. (Hr'g Dec. 3, ¶ 4.) This diagnosis led Defendant to conclude that E.D. was eligible for supplemental educational services under the IDEA. (Id.) Further assessment in February 2007 indicated that E.D. was scoring well below average on several speech and language related tests. (First IEP, ECF No. 18-1 at 1.)

         In March 2007, Defendant prepared an Individualized Education Program[3] (IEP) to address E.D.'s speech/language disability (“First IEP”), and scheduled it for implementation on March 14, 2007. The IEP was intended to last almost a full calendar year, and expire on March 7, 2008. The IEP noted that E.D.'s “functional performance appears to be age-appropriate, ” but that her speech and language difficulties were impacting her classroom performance. (Id. at 4-5.) The IEP also noted that, according to her recent report card, E.D. was “proficient in reading, ” while her math skills ranged from “below basic” to proficient. (Id. at 4.)

         The First IEP prescribed several program modifications designed to accommodate E.D.'s needs. First, E.D. was to receive six monthly sessions of small group instruction, each lasting thirty minutes. Second, E.D.'s classroom teacher and speech therapist were to engage in “collaboration” once a month. Third, the First IEP recommended that the classroom teacher repeat directions, break directions into smaller steps, use graphic cues, and give verbal praise and reinforcement to encourage E.D.'s progression in the classroom. (Id. at 9.)

         The First IEP determined that E.D. was not eligible for an Extended School Year program (“ESY”), because she was “newly enrolled in speech and language support services.” (Id.) The First IEP alluded to a lack of data as a factor in making this determination, saying that data collected in the future would be used to determine her eligibility for ESY programming. (Id.) The IEP team determined that ESY was not necessary to provide E.D. with a FAPE as guaranteed by the IDEA. (Id. at 9-10.)

         E.D. was more extensively evaluated by the SST over the ensuing months, and a report was prepared on August 7, 2007.[4] (SST Evaluation, ECF No. 18-1 at 14.) This report was substantially more detailed than the March 2007 report. The report was based on conversations with E.D.'s teacher and parents, input from various specialists who had worked with E.D., and observation of E.D. in the context of the classroom environment. (Id. at 20-21.) The report first noted that E.D.'s behavior, and both her teacher's and parents' description of that behavior, strongly suggested that E.D. suffered from Attention Deficit Hyperactivity Disorder (ADHD). (Id. at 23.) The report analyzed various tests, which had been administered to E.D. over the course of the prior months, and discussed progress that had resulted from the speech and language accommodations, which had been incorporated into E.D.'s curriculum pursuant to the First IEP. The report noted the scant progress that E.D. had made in math over the course of the year. (Id. at 7.) In addition, the report declared E.D. to be “not proficient” in reading and writing. (Id.) The report concluded that E.D. was in need of specially designed instruction due to her speech and language disability. (Id.) Notably, the report did not find that E.D. was eligible for additional disability categories. (Id.)

         E.D. made some progress by the end of the 2006-07 school year. In response to being asked to list her daughter's strengths, E.D.'s mother noted on a Parental Input Form that E.D. “has come a long way since September, is able to write her name and read some sight words, ” and that she “[k]nows her numbers.”[5] (Hr'g Dec. 6, ¶ 24; Parental Input Form, ECF No. 18-1 at 13.) E.D.'s mother, in the same document, noted her daughter's “lack of progression compared to children her age.” (Id.) E.D.'s Kindergarten report card, which spotlighted some of E.D.'s progress, indicated that E.D. was having difficulty in a number of academic areas. (Kindergarten Report Card, ECF No. 18-2 at 10-11.) Her end-of-year assessments indicated that E.D. was “not proficient” in reading, with her Rigby score of 0 unchanged from her mid-year and beginning of year assessments. (SST Evaluation 16.) E.D.'s Kindergarten teacher testified at the due process hearing that E.D. made progress during the Kindergarten year in the areas of story retelling and name writing, recognizing high frequency words in print, producing beginning sounds in words, recognizing rhyme, recognizing numbers using pictures, and identifying the concepts of time. (Hr'g Tr. 649-51; see also Hr'g Dec. 6.) E.D.'s teacher also testified that E.D.'s reading and writing skills showed progress. (Hr'g Tr. 661, 659.)

         2. 2007-08 School Year and Summer of 2008

         E.D.'s struggles continued during the 2007-08 school year. She had difficulty adapting to the academic curriculum and social pressures of first grade. A series of e-mails exchanged internally among school officials in February 2008 casts doubt on the rate of E.D.'s progress. Discussing a doctor's recent diagnosis that E.D. did not have ADHD, but was likely to “never live a normal life, ” E.D.'s learning support teacher, Debra Quaco, and other school officials again noted that E.D.'s behavioral problems were likely at the root of her academic struggles.[6] (Pl.'s Mot. Ex. 5, ECF No. 17-5 at 32-33.) Quaco noted that E.D. was immature, and that second grade would be a challenge for her “socially.” (Id. at 32.) (emphasis in original). In assessing her academic progress, Quaco noted that in terms of reading and writing, E.D. seemed to be at a Kindergarten level, though Quaco attributed some of her proficiency to having memorized sight words. (Id.) In math, Quaco stated that E.D. was between kindergarten and first grade in proficiency, but noted that when E.D. had difficulties, she modified her activities by employing “much smaller numbers.” (Id.) Quaco and other school officials discussed the possibility of retaining E.D. in first grade for the 2008-09 school year, “if the parents request.” (Id.) The basis for such a proposal seems to have been concerns about E.D.'s social and behavioral problems; academics was not cited as a reason.

         In April 2008, Plaintiffs requested copies of all educational records related to E.D. (ECF No. 18-2 at 23-24.) During the same month, E.D. was evaluated and determined to be in a “weak range” in a variety of aptitude, reading, writing, and math tests. (ECF No. 17-3 at 11-14.) In June 2008, a Functional Behavior Assessment conducted on E.D. noted a range of social and behavioral problems. (ECF No. 17-3 at 1-9.) According to this assessment, E.D. was struggling to pay attention and remain focused, was frequently disruptive in class, and seemed to exhibit “babyish” behavior. (Id. at 1.) The assessment suggested that the behavior could be related to academic, social, and communication skills deficits. (Id. at 8.)

         Initially, Defendant determined that E.D. was not eligible for ESY programming during the summer of 2008. (Hr'g Dec. at 8, ¶ 39.) After Plaintiffs requested that Defendant reconsider its decision, Defendant offered, as an alternative, a Notice of Recommended Educational Placement (NOREP) in reading for the summer of 2008. (Id.) E.D. participated in Defendant's reading instruction summer programs, and was accompanied by a teacher to provide individualized support. (Id.) It appears that E.D.'s reading ability may have been below the threshold for many ESY programs in reading. (Id.)

         A recurring problem throughout 2007-08 was E.D.'s difficulties with motor and sensory skills expected of a child her age. Throughout 2007-08, an OT specialist visited E.D.'s classroom on a weekly basis, working with all students. (Hr'g Dec. 7, ¶ 35.) Testimony provided at the Due Process Hearing indicated that E.D.'s teacher frequently requested that the OT specialist work with E.D. to address her motor skills deficiencies and provide appropriate sensory instruction. (Id. ¶¶ 35-36.) In August 2008, following internal discussions among school officials and prompting by E.D.'s parents, Defendant provided an independent OT/Sensory Integration and Praxis Test (“SIPT”) evaluation. (ECF No. 16 at 13.) This appears to have been the first time that E.D.'s sensory abilities were formally considered as part of the development of appropriate educational plans.

         3. Preparations for the 2008-09 School Year

         In August 2008, the Defendant offered its final IEP (“Third IEP”) for E.D.'s second grade year. (Hr'g Dec. 8, ¶¶ 40-44.) The IEP articulated 27 goals in a variety of areas, including in OT and social skills areas. (Id. ¶¶ 42, 44.) Plaintiffs then elected to withdraw E.D. from Plymouth, and enroll her in a private school for the 2008-09 school year.

         Plaintiffs sought to have an expert, Dr. Daniel Cane, Ed.D. (“Dr. Cane”), observe classes at Plymouth to determine if they were an appropriate fit for E.D.[7] (ECF No. 21 at 11.) Defendant initially agreed to allow Dr. Cane to observe and evaluate the program. However, in a December 7, 2008 e-mail from Defendant's then-counsel, Sharon Montanye, to Plaintiffs' counsel, Defendant informed Plaintiffs that Dr. Cane would not be permitted to conduct an evaluation. (ECF No. 17-5 at 38.) Defendant suggested that “the intention of Dr. Cane's visit was for the purpose of developing an expert report for litigation purposes” and not for evaluating the school's ability to accommodate E.D.'s needs. (Id.) Defendant further noted that it would not “entertain requests for reimbursement for [Dr. Cane's] services, ” because Defendant believed that the purpose of Dr. Cane's visit was litigation-related. (Id.) E.D.'s parents do not contest that Dr. Cane's visit was intended, at least in part, to assist them in exercising their procedural rights under the IDEA.[8] Dr. Cane charged Plaintiffs $840.00 for services rendered in anticipation of his planned visit to Plymouth. (Id. at 44.)

         B. Procedural History

         In March 2009, Plaintiffs requested a due process hearing seeking tuition reimbursement for the 2008-09 school year, as well as compensatory education for the 2006-07 and 2007-08 school years and ESY periods. (Hr'g Dec. at 2.) The due process hearing occurred over six sessions between May 1 and July 13, 2009. (Id.) The record closed on August 14, 2009, and the Hearing Officer issued a decision on August 29, 2009. (Id. at 1.)

         On October 21, 2009, Plaintiffs filed a Complaint (ECF No. 1), seeking review of the Hearing Officer's decision, the award of compensatory education under the IDEA, as well as additional compensatory damages, expert fees, and damages for interference and retaliation under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.[9] Defendants moved for Judgment on the Administrative Record and for Summary Judgment. (ECF No. 16.) Plaintiffs moved for Summary Judgment as to Count I, and Partial Summary Judgment as to liability for Counts II and III. (ECF No. 17.) Both parties filed responses to the other's Motions. (ECF Nos. 21, 22.) Plaintiffs later added an exhibit to their original Motion (ECF No. 18), and filed Memoranda of Law Regarding Supplemental Authority (ECF Nos. 25, 34). Defendant filed Supplemental Memoranda in Support of its Motion for Judgment on the Administrative Record and for Summary Judgment. (ECF No. 36.)

         On March 22, 2017, the United States Supreme Court decided the case Endrew F. ex rel. Joseph F. v. Douglas County School District, ___ U.S.___, 2017 WL 1066260 (Mar. 22, 2017). Plaintiffs and Defendant jointly requested to submit supplemental briefs in light of the Endrew case, which addressed the standards to assess FAPEs under the IDEA. The Parties submitted their supplemental briefs on March 30, 2017. (ECF Nos. 40, 41.)


         We review the decision of a Special Education Hearing Officer pursuant to the IDEA under an “unusual” standard, which is sometimes referred to as “modified de novo” review. Shore Reg'l High School Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004); P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 734 (3d Cir. 2009). A district court reviewing an IDEA decision must make its own findings by a preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). However, we are also bound to accord “due weight” to the Hearing Officer's determinations. Bd. of Educ. of Hendrick Hudson Central Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982). Under this standard, we consider the Hearing Officer's factual findings to be “prima facie correct, ” and although we are free to accept or reject these findings, we must explain our reasons if we fail to accept them. S.H. v. State- Operated Sch. Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir. 2003). However, when analyzing any live testimony delivered by witnesses before the Hearing Officer, we accord “special weight” to the Hearing Officer's credibility determinations. Shore Regional, 381 F.3d at 199. We are only permitted to overrule findings as to witness credibility if “the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or . . . the record in its entirety would compel a contrary conclusion.” Carlisle, 62 F.3d at 529. In this context, the word “justify” requires essentially the same standard of review given to a trial court's findings of fact by a federal appellate court. Shore Regional, 381 F.3d at 199 (citation omitted).

         A party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). The presence of “a scintilla of evidence in support of the [non-moving party] will be insufficient” to carry the case to trial. Id. at 252. Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact is genuinely . . . disputed must support the assertion by . . . citing to particular parts of materials in the record.”); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (noting that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”). “Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citations omitted). When deciding a motion for summary judgment, courts must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Courts must not resolve factual disputes or make credibility determinations. Siegel v. Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).

         When a court is faced with cross-motions for summary judgment, “[t]he rule is no different.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). “Cross-motions 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 justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.” Id. (quoting Rains v. Cascade Indus., Inc., 402 F.3d 241, 245 (3d Cir. 1968)).


         Plaintiffs move for summary judgment on Count I of the Complaint, which is an appeal of the Hearing Officer's decision. Plaintiffs also move for partial summary judgment as to liability on Count II (request compensatory damages) and on Count III (retaliation and interference claims). Defendant seeks summary judgment in its favor on all three Counts of the Complaint.

         A. Count I: Appeal from Hearing Officer's Decision

         Plaintiffs make three principal arguments in support of their contention that the Hearing Officer's decision denying their claims should be reversed. First, Plaintiffs contend that there were procedural irregularities that violated their due process rights and caused them prejudice in preparing for the due process hearing before the Hearing Officer. In this regard, Plaintiffs request a spoliation inference as a result of the Defendant's alleged failure to take appropriate steps to preserve evidence once litigation became apparent. In addition, Plaintiffs argue that they were denied access to evidence and an expert evaluation prior to the due process hearing, which caused them to be denied a fair hearing. Second, Plaintiffs argue that the Hearing Officer incorrectly concluded that Defendant did not deny E.D. a FAPE and did not violate its “child find” obligations during E.D.'s ...

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