K.C. v. Chappaqua Cent. Sch. Dist.

K.C., individually and on behalf of J.C.T., M.T., individually and on behalf of J.C.T., andJ.C.T., on behalf of himself, Plaintiffs, v. CHAPPAQUA CENTRAL SCHOOL DISTRICT, Defendant.

No. 16-CV-3138 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 18, 2019

OPINION & ORDER

Appearances:

Rachel S. Asher, Esq.

Asher Gaughran, LLP

Armonk, NY

Counsel for Plaintiffs

Mark C. Rushfield, Esq.

Shaw, Perelson, May & Lambert, LLP

Poughkeepsie, NY

Counsel for Defendant

KENNETH M. KARAS, United States District Judge:

Plaintiffs K.C. and M.T. ("Plaintiff Parents"), and their son J.C.T. ("J.C.T.") (collectively, "Plaintiffs"), bring this Action alleging that Defendant Chappaqua Central School District ("Defendant" or the "District") denied J.C.T. a free and appropriate public education ("FAPE") at Bell Middle School ("Bell") for the 2011-12 and 2012-13 school years, in violation of the Individuals With Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1415 et seq., New York Education Law §§ 4401, 4404, 4410, and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794 et seq., and discriminated against J.C.T. in violation of Section 504 and Title II of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. § 12132. (See Am. Compl. (Dkt. No. 52).) Currently before the Court is Defendant's Motion for Summary Judgment (the "Motion"). For the reasons discussed below, the Motion is granted.

I. Background

The general factual and procedural background of this Action has been discussed in detail by the Court in its previous Opinions & Orders on this case, so the Court assumes familiarity with the general issues in dispute. (See Op. & Order on Def.'s Mot. for Judgment on the Pleadings ("2017 Op.") 2-7; Op. & Order on Def.'s Mot. for Summ. J. on the Statute of Limitations ("2018 Op.") 2-23 (Dkt. Nos. 40, 88).) The Court supplements certain factual issues and the procedural background below and will address other facts as needed throughout this Opinion & Order. The Court refers to the Parties' Rule 56.1 Statements and Counterstatements and underlying exhibits to inform its understanding of the facts. (See Def.'s Rule 56.1 Statement in Supp. of Mot. ("Def.'s 56.1"); Pls.' Counterstatement to Def.'s 56.1 ("Pls.' Counter 56.1"); Pls.' 56.1 Statement of Additional Facts in Opp'n to Mot. ("Pls.' 56.1"); Def.'s Counterstatement to Pls.' 56.1 ("Def.'s Counter 56.1"); Def.'s Reply to Pls.' Counter 56.1 ("Def.'s Reply 56.1") (Dkt. Nos. 140, 142, 143, 153, 154).)¹

A. Factual Background

1. Class Attendance

One of the issues highlighted in the Parties' papers is the question of J.C.T. allegedly missing a significant amount of class time at school. Accordingly, the Court summarizes some of the undisputed and disputed facts on this issue.

J.C.T. testified that his disabilities, which include early onset bipolar disorder and Attention Deficit Hyperactivity Disorder ("ADHD"), (see Def.'s 56.1 ¶ 17; Pls.' 56.1 ¶ 1), affected his ability to remain in class during the 2011-12 school year by triggering him to leave some of his classes when he was asked to do classwork, (Def.'s 56.1 ¶ 18). J.C.T.'sIndividualized Education Plan ("IEP") for the 2011-12 school specifically recommended that J.C.T. take breaks from the classroom, especially as "levels of frustration escalate or fatigue sets in." (Aff. of Committee on Special Education ("CSE") Chairperson Elizabeth Wright ("Wright") ("Wright Aff.") Ex. K ("Feb. 15, 2012 CSE Meeting Notes and IEP") 10 (Dkt. No. 127-11).)²

During the 2011-12 school year, J.C.T. commonly left classrooms after the instructional portion had ended and just before he was required to do group or individual schoolwork. (Def.'s 56.1 ¶¶ 19, 21.) J.C.T. would frequently go to the bathroom, the nurse's office, Guidance Counselor Jason Sclafani's ("Sclafani") office, or Special Education Teacher Clint Keegan's ("Keegan") classroom. (Id. ¶ 22.) When J.C.T. left the classroom during the 2011-12 school year, his teaching assistant would either follow him or search for him at his usual locations. (Id. ¶ 25.)³ Although Defendant contends that, during his absences, J.C.T. would often do make-up work or schoolwork with Keegan or a teaching assistant, Plaintiffs, pointing repeatedly to the same quotes from J.C.T.'s deposition, counter that J.C.T. believed that this "teaching" was "rarely successful" and that he would rarely do the work that was assigned before he left the classroom. (See Pls.' Counter 56.1 ¶¶ 30-31.) On this point, Plaintiffs also repeatedly point to the testimony of Keegan at the Impartial Hearing Officer ("IHO") proceedings, where he testified that he did not recall what J.C.T. typically did when he left class, whether excused or unexcused. (Id.) Sclafani contends that he would usually get a call from the school nurse or from Keegan about J.C.T's wandering and would go find J.C.T. and try to talk to him. (Def.'s56.1 ¶ 32.) Sclafani avers that, in those circumstances, he would usually obtain the requisite classwork from the relevant teacher and bring that material down to J.C.T. in an attempt to either get J.C.T. to return to the academic classroom or to do the work, often in Keegan's classroom. (Sclafani Aff. in Supp. of Mot. ("Sclafani Aff.") ¶ 9 (Dkt. No. 129).) Plaintiffs dispute this assertion but only cite to the same segments of J.C.T.'s testimony where he generally testified that "he wasn't being taught" while he was out of his academic classrooms and that it was rare that he "would not have done the work" assigned to him outside of the classroom. (Pls.' Counter 56.1 ¶ 33.) Stein-Dince affirms that she would usually follow J.C.T. out of the classroom and, if she could not get J.C.T. to return after a few minutes, she and J.C.T. would usually sit down in the hallway and try to do the schoolwork until the end of that class period, (see Def.'s 56.1 ¶¶ 35-36), but Plaintiffs partially dispute this, once again pointing to the same testimony of J.C.T and Keegan as discussed above, (see Pls.' Counter 56.1 ¶ 36).

Plaintiffs contend that J.C.T. was reported to have 197 excused and unexcused absences during the 2011-12 school year. (Pls.' 56.1 ¶ 222.) The Parties acknowledge that there were problems with the accuracy of the information recorded for period-by-period attendance for the 2011-12 school year, (see Def.'s Counter 56.1 ¶ 222; Pls.' Mem. in Opp'n to Mot. ("Pls.' Mem.") 12 (Dkt. No. 141)), but Defendant argues that this suggests that the number of true absences was below 197, (Def.'s Counter 56.1 ¶ 222), while Plaintiffs argue that this suggests that the number of true absences was possibly above 197, (Pls.' Mem. 12). Defendant posits that this number, which comes from the Student Period Attendance Detail for the 2011-12 school year, (see Aff. of Cary Vigilante ("Vigilante") ("Vigilante Aff.") Ex. A ("2011-12 Period Attendance") (Dkt. No. 133-1)), exaggerates the amount of time that J.C.T. spent unattended because (1) teachers would mark him absent even if he was with the guidance counselor orschool nurse, which should have been noted as an excused absence or delay, (Vigilante Aff. ¶ 3 (Dkt. No. 133)); (2) J.C.T. was sometimes picked up from school by his parents to attend tutoring sessions for his ninth period, which was an excused absence but not always designated as such, (id. ¶ 19); (3) J.C.T was sometimes picked up from school because of illness, which was an excused absence but not always designated as such, (id.); and (4) there were multiple recording errors apparent from the face of the records, (see id. ¶¶ 5-18; see also Def.'s Counter 56.1 ¶ 222). Defendant argues that an "accurate examination" of the 2011-12 Period Attendance report "reveals that there were no more than about 12 unexcused absences of J.C.T. in total from J.C.T.'s core academic class periods during days in which he was in attendance at school" for the 2011-12 school year. (Def.'s Counter 56.1 ¶ 222 (citing to Aff. of Principal Martin Fitzgerald ("Fitzgerald") ("Fitzgerald Aff." ) ¶ 18 (Dkt. No. 135)).) Based on a total of 724 total core academic class sessions for the school year, Defendant claims that J.C.T. actually only missed less than 2% of core academic periods. (See Fitzgerald Aff. ¶ 20.) Even accounting for all excused and unexcused absences during days when he was in school, "as modified by [Vigilante's] [A]ffidavit," which sought to correct a number of purported recording errors, Fitzgerald claims that J.C.T. only missed 30 core academic class periods, indicative of a 4% absence rate for those classes, one that Fitzgerald does not consider to "reflect a pattern of unexcused absences" or "excessive absenteeism" from core academic classes. (See id. ¶¶ 21-22.)

Plaintiffs argue that the report actually underreports the amount of time that J.C.T. spent unattended because (1) Mallory Chinn ("Chinn"), a social studies teacher, wrote that she would not mark J.C.T. absent when the school nurse, Sclafani, or Keegan provided "advance notice" that J.C.T. would not be in class that day, (Chinn Aff. in Supp. of Mot. ("Chinn Aff.") ¶ 2 (Dkt.No. 136)); (2) Sclafani testified at the IHO Hearing that he "couldn't tell you where [J.C.T.] was each and every one of" the times J.C.T. was marked absent because "three years" later, "it's hard to recall where [J.C.T.] was then," (Pls.' 56.1 ¶ 225; Def.'s Counter 56.1 ¶ 225); (3) the school nurse allegedly reported that J.C.T. frequently came to the nurse's office without being accompanied by Sclafani or Keegan, although Plaintiffs do not cite to a source for this proposition, (Pls.' 56.1 ¶¶ 233-34); and (4) another teacher, Patricia Wolff ("Wolff"), did not report J.C.T. absent when she received "notice in advance" from Keegan that J.C.T was with Keegan, (Wolff Aff. in Supp. of Mot. ("Wolff Aff.") ¶ 6 (Dkt. No. 137)). Plaintiffs offer no proposed number outside of the number reported in the 2011-12 Period Attendance report as to what their estimates of J.C.T.'s actual absences...