D.E. v. Cent. Dauphin Sch. Dist.

D.E., a minor, on his behalf by his parents, et.al., Plaintiffs,

v.CENTRAL DAUPHIN SCHOOL DISTRICT, Defendant.

CIVIL ACTION No. 06-2423

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

January 3, 2013

MEMORANDUM

Stengel, J.

D.E. was a minor diagnosed with a learning disability and enrolled in school at the Central Dauphin School District.¹ D.E.'s parents, Mrs. Maria English and Mr. Ronald Sheffy,² 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 basedon his various disabilities in violation of the Americans with Disabilities Act and the Rehabilitation Act.³

I. Background

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 recommendedthat 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.⁴ (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.⁵ (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 afterthey 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."⁶ The parent was to decide how thehours 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)⁷

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.⁸ Following a motion for judgment on the pleadings, only the ADA and Rehabilitation Act claims remain.⁹ For the reasons stated below, I will grant the Defendant's motion for summary judgment.

II. Standard

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).

III. Discussion

Plaintiffs' § 504 Claim and ADA Claim¹⁰

The hearing officer in...