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

Case No. 16-CV-3138 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 29, 2018

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, District Judge:

Plaintiffs K.C. and M.T. ("Plaintiff Parents"), and their son J.C.T. ("C.T.") (collectively "Plaintiffs"), bring this Action alleging that Defendant Chappaqua Central School District ("Defendant" or the "District") denied C.T. a free and appropriate public education ("FAPE") for the 2011-2012 and 2012-2013 school years, in violation of the Individuals With Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1415 et seq., New York Education Law, N.Y. Educ. Law §§ 4401, 4404, 4410, and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794 et seq., and discriminated against 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).) Defendant now moves for partial summary judgment based upon the statutes of limitations. (Not. of Mot. (Dkt. No. 54).) For the reasons stated below, Defendant's Motion for Partial Summary Judgment is denied.

I. Background

A. Factual Background

The following facts are taken from Defendant's statement pursuant to Local Civil Rule 56.1 (Def.'s Rule 56.1 Statement ("Def.'s. 56.1") (Dkt. No. 59)), Plaintiffs' response to that statement, (Pls.' Resp. to Def.'s 56.1 Statement ("Pls.' 56.1 Resp.") (Dkt. No. 63)), Plaintiffs' statement of additional material facts and counterstatement of facts (Pls.' Rule 56.1 Counterstatement ("Pls.' 56.1 Counter.") (Dkt. No. 64)), Defendant's response and counterstatement of facts (Def.'s Rule 56.1 Counterstatement ("Def.'s 56.1 Counter.") (Dkt. No. 83)), and the admissible evidence submitted by the Parties, and are recounted in the light most favorable to Plaintiff, the non-movant. The facts as described below are not in dispute, except to the extent indicated.¹

Plaintiff C.T. was classified by the District as a disabled student with emotional disturbance. (Rachel Asher Decl., Esq. ("Asher Decl.") Ex. 74, at 5 (Independent Hearing Officer ("IHO") Decision ("IHO Decision")) (Dkt. No. 77).) C.T. attended the District's schools from kindergarten through 7th grade. (Id. at 44-46). C.T.'s social issues, avoidance of fine motor activities, and distractibility were documented concerns since preschool. (Id. at 44.) C.T. was diagnosed with ADHD in the third grade and with early onset bipolar disorder at the beginning of sixth grade. (Id. at 19, 30, 44-45.)

C.T. attended the District's Bell Middle School under an Individualized Education Plan ("IEP") during the 2011-12 school year. (Def.'s 56.1 ¶ 4.)² C.T. started the 2011-12 schoolyear pursuant to an IEP developed on March 23, 2011, (Asher Decl. Ex. 1 ("Mar. 23, 2011 IEP"), at 8). His IEP was updated on February 15, 2012 as a result of an annual review. (Asher Decl. Ex. 18 ("Feb. 15, 2012 IEP"), at 8.) Pursuant to both IEPs, C.T. was permitted to take breaks from the classroom for "a brief walk or other type of short break" when he became frustrated or fatigued. (Mar. 23, 2011 IEP at 8; Feb. 15, 2012 IEP at 8.) C.T.'s 2011-12 IEPs also provided that he would be kept in large mainstream classes but would receive additional counseling and assistance from a school guidance counselor. (Mar. 23, 2011 IEP at 5-8; Feb. 15, 2012 IEP at 5-8.) Throughout the 2011-12 school year, Plaintiff Parents asked the District to place C.T. in a small, therapeutic school setting, but the District denied their requests and kept. C.T. in a general education setting. (Asher Decl. Ex. 78 ("IHO Tr."), at 42-49, 154-56, 1247.)³

Several "Committee on Special Education" ("CSE") meetings were held during the 2011-12 academic year to discuss C.T.'s progress. At each CSE meeting that Plaintiff Parents attended, they were handed a packet of materials. (Def.'s 56.1 ¶ 33.)⁴ After each CSE meeting, Plaintiff Parents would take the packet of materials provided to them home. (Def.'s 56.1 ¶ 34.) Plaintiff Parents did not review the documents in the packets of materials provided to them during the CSE meetings during the 2011-12 school year before providing them to their attorney to use as a source of information in Plaintiffs' May 27, 2014 Due Process Complaint Notice. (Def.'s 56.1 ¶¶ 35-36.)

The Parties agree that during the 2011-12 school year C.T. was in the 7th grade and that the "District reported on his bizarre nonverbal gestures, his use of a high-pitched voice, the fact that he banged on desks, fidgeted, and that his behavior interfered with his ability to attend to instruction." (Def.'s 56.1 ¶ 9.)⁵ They also agree that during that same year C.T.'s out-of-control behaviors paralyzed his family and police were called to their home on four different occasions during the school year "when he repeatedly became violent and aggressive." (Def.'s 56.1 ¶ 10.) Clint Keegan ("Keegan") was the special education teacher for the 7th grade team at the District's Bell School and C.T.'s consultant teacher during the 2011-12 school year. (Def.'s 56.1 ¶ 30.) Keegan testified before the IHO that he did not recall what C.T. would have been doing at times when he left class during an excused or unexcused absence, but that he knew"[C.T.] wasn't leaving, for example, an academic class to go somewhere else for instruction." (IHO Tr. 477.)

C.T. was banned from riding the school bus for parts of the 2011-12 school year, but as of May 2012, he sporadically rode the school bus again. (Def.'s 56.1 ¶ 91.)

The Parties dispute the contents and timing of most other communications between the District and Plaintiff Parents regarding C.T.'s progress during the 2011-12 school year.

1. CSE Meetings

a. February 10, 2012 CSE Meeting

The Parties dispute what was discussed and which documents were shared at the 2011-12 CSE meetings. For example, Defendant alleges that the CSE packet provided at the February 15, 2012 CSE meeting, included a "Student Attendance Detail" for C.T. for the 2011-12 school year, generated on January 31, 2012, for the 2nd quarter of the 2011-12 school year. This document set forth that during that period C.T. was recorded as absent from his classes for a total of 72 class periods, comprised of 35 excused classroom period absences and 37 unexcused classroom period absences. (Aff. Elizabeth Wright ("Wright Aff.") ¶ 5c (Dkt. No. 57); Wright Aff. Ex. 4 ("Q2 Student Period Attendance Detail").) The IEP produced following the February 15, 2012 CSE meeting summarizes the meeting but contains no reference to the Attendance Detail or class-by-class attendance having been discussed at the meeting. (Feb. 15, 2012 IEP at 1-2.) However, page two of the February 2012 IEP, which Plaintiffs admit to receiving during the 2011-12 school year, lists an "Attendance Report" among the "Evaluations/ Reports" considered in the preparation of that IEP. (Feb. 15, 2012 IEP at 3.)

Dr. Marta Flaum ("Flaum"), C.T.'s psychologist, attended all the CSE meetings for the 2011-12 school year and she testified that the student's class-by-class attendance was neverdiscussed at any of those meetings and that she only learned that "[C.T.] missed an extraordinary number of classes" while preparing for the due process hearing. (IHO Tr. 732-33.) C.T.'s tutor, Kate Pearce ("Pearce"), attended C.T.'s June 2012 CSE meeting, and testified that she did not recall any discussion of his attendance at that meeting. (IHO Tr. 879.) Plaintiff M.T. considered C.T. having excused absences from 99 class periods and unexcused absences from 37 class periods through March 2012 of the 2011-12 school year to be egregious. (Def.'s 56.1 ¶ 28.)

The Parties also dispute whether Plaintiff Parents received a Functional Behavior Assessment: Worksheet ("FBA Worksheet") dated February 10, 2012 at the February 15, 2012 CSE meeting. CSE Chairperson Elizabeth Wright ("Wright") alleges that the packet provided to the CSE members, including Plaintiff Parents, at the February 15, 2012 CSE meeting, contained the FBA Worksheet and that this document identified that "behavior[s] of concern that have been occurring" included "[w]ork avoidance" and "[l]eaving the classroom." (Wright Aff. ¶ 5a; Wright Aff. Ex. 2 ("FBA").) Wright also claims that the CSE packet provided at the February 15, 2012 CSE meeting, included a Positive Behavior Support Plan: Worksheet ("PBSP Worksheet") dated February 10, 2012. This document set forth, among other things, interventions and positive supports that would be applied in order to address C.T.'s interfering behaviors, including one addressed to C.T.'s practice of leaving classrooms while they were in session. (Wright Aff. ¶ 5b; Wright Aff. Ex. 3 ("PBSP").) Neither the FBA Worksheet nor the PBSP Worksheet contain data regarding the frequency with which Plaintiff C.T. was unable to remain in the classroom. (FBA; PBSP.) Plaintiffs do not dispute the contents of these sheets, however, K.C. and Flaum both testified that the FBA and PBSP Worksheets were not reviewed at the February 15, 2012 CSE meeting, and that the first time either of them saw these documents was during preparation for the impartial hearing in 2014. (IHO Tr. 712, 1237-40.) Notably, in adifferent portion of K.C.'s testimony before the IHO, on redirect, when shown the FBA and PBSP forms and asked if she had seen them, she said "[y]eah, we did look at this at one of the CSE meetings. I don't recall which one . . . I guess I wasn't focusing." (IHO Tr. 1377.)⁶

Plaintiffs further offer the fact that the FBA and PBSP Worksheets are each date-stamped "ORIGINAL RECEIVED MAR 13 2012 CSE/CPSE" as evidence that Plaintiffs did not receive or review...