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K.K. v. North Allegheny School District

United States District Court, W.D. Pennsylvania

June 27, 2017

K.K., Plaintiff,


          Joy Flowers Conti Chief United States District Judge.

         Pending 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).

         In her 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.

         K.K. 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. 75).

         The 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).

         Together the parties also filed a joint statement of material undisputed and disputed facts (ECF No. 86).

         This matter is fully briefed and ripe for disposition. As more fully explained below, both motions for summary judgment will be denied.

         I. Standard of Review.

         Summary 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)).

         In 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.

         II. Relevant Facts.

         This 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 question.

         S.K., 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 needs. Id.

         Child's 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, ¶ 19.

         Prior 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. at 41.

         K.K. 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. at 42-43.

         K.K. first requested transportation between Child's Way and the School for the Deaf[1](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.

         K.K. 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.

         K.K. 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.

         Between 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.

         On May 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.” Id.

         In a May 15, 2012 (1:50 P.M.) email from Dr. DeMann to Dr. Wheat (with a “cc” to Ms. Liberto), Dr. DeMann noted in pertinent part:

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 email was:

[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 district.[]

Id. at 2.

         In a subsequent May 15, 2012 (3:24 P.M.) email from Dr. Wheat to Dr. McMann (with a “cc” to Mr. Roger Botti, [2] Ms. 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. at 6.

         In a 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. at 5.

         In a 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 Consol.” Id.

         In 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.

         In a 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.

         In a 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 ...

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