United States District Court, W.D. Pennsylvania
Flowers Conti Chief United States District Judge.
before the court are the cross-motions for summary judgment
filed by plaintiff K.K. (“K.K.”) (ECF No. 65) and
defendant North Allegheny School District (the
“District”) (ECF No. 61).
amended complaint, K.K. alleges that the District
discriminated against her in violation of her rights under
section 504 of the Rehabilitation Act of 1973 (“section
504”), 29 U.S.C. § 794, Chapter 15 of the
Pennsylvania Code (“Chapter 15”), 22 Pa. Cons.
Stat. § 15, and Title II of the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. §
12132. See Am. Compl. (ECF No. 47). She asserts that
the District, beginning in 2012, and continuing through the
2013-2014 school year, refused to modify its transportation
program to reasonably accommodate her need for transportation
services between her severely disabled son's school and
day care facility. Id., ¶¶ 39, 44, and 48.
Under that program, the District transported students between
schools and day care centers located within its attendance
boundaries. Id., ¶ 20. K.K. had requested that
the District transport her son, S.K., between school and his
day care center, which was located outside the District's
attendance boundaries because none of the day care centers
located within the District's attendance boundaries could
accommodate S.K.'s special medical needs. Id.,
¶¶ 19 and 21. The District refused because the day
care facility was located outside the District's
attendance boundaries. Id., ¶ 25.
seeks summary judgment on all her claims. She filed a brief
in support of her motion (ECF No. 66), a concise statement of
material facts (ECF No. 67), an appendix with exhibits (ECF
No. 68), a redacted appendix with exhibits (ECF Nos. 71-74),
and a reply memorandum of law in support of her motion (ECF
No. 83). In response to K.K.'s motion, the District filed
a brief in opposition (ECF Nos. 76 and 84) and a reply to
plaintiff's concise statement of material facts (ECF No.
District also seeks summary judgment on K.K.'s claims
against it, arguing that K.K. is barred from recovery because
there is no evidence from which a reasonable juror could
conclude that it discriminated against K.K. based upon her
association with S.K. The District filed a brief in support
of its motion, (ECF No. 62), a concise statement of material
facts (ECF No. 63), an appendix with exhibits (ECF No. 64),
and a reply brief in support of its motion (ECF No. 85). In
response to the District's motion, K.K. filed a response
in opposition (ECF No. 77), a brief in opposition (ECF No.
78), and a response to the District's statement of
material facts (ECF No. 79).
the parties also filed a joint statement of material
undisputed and disputed facts (ECF No. 86).
matter is fully briefed and ripe for disposition. As more
fully explained below, both motions for summary judgment will
Standard of Review.
judgment is appropriate when “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The parties must support their respective positions
by “citing to 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)(A). In other words, summary judgment
may be granted only if there exists no genuine issue of
material fact that would permit a reasonable jury to find for
the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “When confronted
with cross-motions for summary judgment, the
‘”court must rule on each party's motion on
an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule
56 standard”.'” Anderson v. Franklin
Institute, 185 F.Supp.3d 628, 635 (E.D. Pa. 2016)
(quoting Schlegel v. Life Ins. Co. of N. America,
269 F.Supp.2d 612, 615 n. 1 (E.D. Pa. 2003); Charles A.
Wright, Arthur R. Miller et al., 10A Fed. Prac. and Proc.
§ 2720 (3d ed. 1998)).
reviewing the evidence, the court draws all reasonable
inferences in favor of the nonmoving party. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Huston v.
Procter & Gamble Paper Prod. Corp., 568 F.3d 100,
104 (3d Cir. 2009) (citations omitted). It is not the
court's role to weigh the disputed evidence and decide
which is more probative, or to make credibility
determinations. See Anderson, 477 U.S. at 255;
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004); Boyle v. County of Allegheny, 139 F.3d
386, 393 (3d Cir. 1998). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson, 477 U.S. at 247-48. An issue is
“genuine” if a reasonable jury could possibly
hold in the nonmovant's favor with regard to that issue.
See id. “Where the record taken as a whole
could not lead a reasonable trier of fact to find for the
nonmoving party, there is no ‘genuine issue for
trial.'” Matsushita, 475 U.S. at 587;
Huston, 568 F.3d at 104.
section reviews the facts relevant to the parties'
cross-motions for summary judgment. If the parties agree on a
fact, the court will cite to the relevant page and paragraph
in the parties' joint statement of material undisputed
and disputed facts (ECF No. 86). If a party disputes a fact
alleged by the other party, the court will cite to the
specific evidence of record that supports the fact in
K.K.'s son, was born in 2006. ECF No. 86 at 16, ¶ 1.
K.K. and S.K. resided in the District during the 2012-2013
and 2013-2014 school years and S.K. was initially enrolled in
the District in March 2012 to attend kindergarten in the
2012-2013 school year. Id. at 1, ¶ 2; 17,
¶ 7. S.K. has been diagnosed with Cornelia de Lange
Syndrome. Id. at 16, ¶ 2. S.K. is blind, deaf,
and incapable of basic self-care such as feeding and
toileting. Id. at 2, ¶ 4. S.K. also has
significant speech and language delays, cognitive
impairments, social interaction skills deficits, attentional
deficits, gross and fine motor delays, and other adaptive
Way is a day care center for children with special medical
needs and has a staff of registered nurses and child care
associates. Id. at 3, ¶ 7; 17, ¶ 11. S.K.
initially began attending Child's Way in 2011 so that
K.K. could work and support their family by working the day
time shift at Home Depot twenty-five to thirty-five hours per
week. Id. at 3, ¶ 7; 17, ¶ 10; 18,
¶¶ 14-16. Prior to 2011, K.K. had been working a
maximum of twenty hours per week at night and S.K. did not
attend day care. Id. at 17, ¶¶ 8-9.
Child's Way is located 9.7 miles outside the
District's attendance boundaries. Id. at 19,
to S.K. attending Child's Way, in 2010, K.K. and her
ex-husband compiled a list of all the day care centers within
the District and called them to see if they would accept S.K.
Tr. of K.K. Dep. (ECF No. 73) at 38-39. K.K. and her
ex-husband were told that none of the day care centers would
accept S.K. Id. at 38-40. One reason given for not
accepting S.K. was that the day care center did not have the
licensing to care for a child with medical or special needs.
Id. at 40. Another reason given was that the day
care center was unable to provide S.K. with a one-to-one
child to teacher ratio which S.K. required. Id. at
40-41. A third reason provided was that the day care center
was not staffed to meet S.K's medical needs. Id.
contacted all the day care centers located in the District
again in 2012, 2013, and 2014. Each time, she was given the
same reasons by these day care centers about why S.K. could
not attend the day care centers in the District. Id.
first requested transportation between Child's Way and
the School for the Deaf(where S.K. was attending an ESY
(extended school year) program for the summer of 2011).
Id. at 50. Initially, the District agreed and
provided the requested transportation for the summer of 2011,
acknowledging that K.K. “was in a difficult
situation.” ECF No. 86 at 4, ¶ 12. The District
made K.K. aware at this time, however, that it would not
continue transporting S.K. between Child's Way and his
school throughout the school year because Child's Way was
not located within the District's boundaries and the
District did not want to set a precedent. ECF No. 73 at 63.
provided the District with a letter dated July 28, 2011, from
Dr. Brian Kilpela, M.D. (“Dr. Kilpela”),
S.K.'s doctor. ECF No. 86 at 5, ¶ 13. In the letter,
Dr. Kilpela stated,
Due to [S.K.'s] hearing deficit and problems with speech
and motor skills, he is not able to attend a
“regular” daycare. There were no daycare centers
in his school district that either had openings or were able
to meet his needs. He is currently attending Child's Way
on Penn Avenue. This facility is a Pediatric Extended Care
Center. It specializes in offering care to kids with special
needs. [S.K.] has a nurse one-on-one. This type [of] care is
medically necessary due to his conditions.
. . .
As his physician, I would like to offer that this type of
setting and care for [S.K.] is required.
July 28, 2011 Dr. Kilpela Letter, ECF No. 71-3.
again reached out to the District in May 2012 and requested
that transportation be provided by the District for S.K.
between the Western Pennsylvania School for Blind Children
(“WPSB”), where S.K would be attending
kindergarten during the 2012-2013 school year, and
Child's Way. ECF No. 86 at 4, ¶ 11. K.K. also
suggested that the District could accommodate her
transportation request by making “arrangements with a
neighboring school district that does pick up students from
Child's Way and transports them to the WPSB, and pay the
neighboring school district for the additional transportation
costs.” Id. at 5, ¶ 15. K.K. had heard
from other parents of students who attended Child's Way
and the WPSB that several other school districts provided
transportation. ECF No. 73 at 30. At one point, one of those
school districts, Shaler Area School District
(“Shaler”), offered to contract with the District
to bus S.K. between Child's Way and the WPSB.
Id. at 85.
May 8, 2012, and May 14, 2012, K.K. and Dr. John DeMann
(“Dr. DeMann”), a school psychologist for the
District, exchanged a number of emails about K.K.'s
transportation request. ECF No. 74-1 at 2-4. The email
exchange culminated in Dr. DeMann stating to K.K. that he
would be providing Dr. Arlene Wheat (“Dr.
Wheat”), the District's Assistant Director of
Special Education, with all the relevant information and that
Dr. Wheat would then reach out to K.K. about the issue.
Id. at 4.
14, 2012, Dr. DeMann and Dr. Wheat exchanged a series of
emails concerning K.K.'s request for transportation for
S.K. in the mornings from Child's Way to the WPSB.
Id. at 2-3. Dr. DeMann explained to Dr. Wheat that
he had been told by Donna Liberto (“Ms. Liberto”)
of the District's transportation department, “that
the district's policy prohibits transportation from
daycare providers that are outside the district” and
that he had told K.K. about this decision. Id. at 3.
Dr. DeMann also explained to Dr. Wheat that Brenda from the
WPSB had reported to him, “that several other school
districts are providing transportation from this daycare
(Childs Way) to WPSBC, and suggested that NA could partner
with one of them to transport [S.K.]” and that
“another district (I think Shaler) has room on their
bus to take students from this daycare to WPSBC.”
Id. at 2-3. Dr. Wheat asked Dr. DeMann to gather
information for her to review and inquired, “What are
we currently doing, what is the cost, etc.”
Id. at 2. Dr. DeMann agreed to gather the
information for Dr. Wheat and stated, “I don't
think we are currently providing any transportation.”
May 15, 2012 (1:50 P.M.) email from Dr. DeMann to Dr. Wheat
(with a “cc” to Ms. Liberto), Dr. DeMann noted in
I spoke with [S.K.'s] mother and Brenda at WPSBC and
copied below (italicized) the proposed plan for his
transportation needs. Since we currently transport several NA
students to/from WPSBC, the only difference would be the
transportation from Child's Way to WPSBC rather than
picking him up at his home each morning. There are other
students from other districts that transport their students
from Child's way to WPSBC, and Brenda suggested working
with one of them to coordinate if this is a possibility.
Id. at 1-2. The italicized plan referenced in the
[K.K.] would like to continue to drop [S.K.] off at
Child's Way every morning (Monday through Friday) between
6:30 - 7 am. At this time, transportation taking him to WPSB
can pick him up when needed and take him to school. At the
close of the school day, [K.K.] would like [S.K.] to be
transported to my Home in the North Allegheny district at
[K.K.'s home address]. There are multiple children
transported from Child's Way to WPSB every morning, and
there are also children transported from WPSB back to their
homes located with the North Allegheny school
Id. at 2.
subsequent May 15, 2012 (3:24 P.M.) email from Dr. Wheat to
Dr. McMann (with a “cc” to Mr. Roger Botti,
Liberto, and Mr. Bob Wagner), Dr. Wheat asked, “Donna,
Can we do this? Will it cost anything extra?”
Id. at 1. Mr. Wagner emailed (3:27 P.M.) Ms. Liberto
and stated, “[w]hat part of ‘NO' is getting
lost in the shuffle here? Do I need to get Roger involved
before someone in the District ends up making promises that
are not approved of difficult to retract?” Id.
May 16, 2012 (6:33 A.M.) email from Ms. Liberto to Mr.
Wagner, Ms. Liberto stated, “I know…this is
gonna open a whole new can of worms … and I think
roger [sic] is already involved….” Id.
subsequent May 16, 2012 (11:09 A.M.) email exchange between
Mr. Wagner and Mr. Botti, Mr. Botti asked Mr. Wagner where
the day care center was located. Id. at 5. Mr.
Wagner responded that he thought it was “downtown near
another May 16, 2012 (2:12 P.M.) email from Mr. Botti to Dr.
Wheat (with a “cc” to Dr. DeMann and Ms.
Liberto), Mr. Botti stated:
We told this parent no last summer. I am going to take the
same positon this summer.
Our recommendation for her was if other Districts were
providing the service from daycare to school then she should
be able to coordinate with the schools to have the service
provided. It is an inconvenience for others on the bus to
have to go out of the way to accommodate her.
I also believe we checked with the solicitor and [redacted].
Id. at 1.
May 17, 2012 email from Dr. Wheat to Mr. Botti and Dr.
DeMann, Dr. Wheat told Dr. DeMann, “John, you have your
answer but do not forward this email. Tell [K.K.] the
District does not provide that service for anyone and we are
unable to do so.” Id.
May 21, 2012 email from Dr. DeMann to K.K., Dr. DeMann told
K.K. that he had spoken to Dr. Wheat. Id. at 8.
“Unfortunately the information I gave you a few weeks
ago still stands. I was told that the district does not
provide this service for ...