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S.S. v. District of Columbia

United States District Court, D. Columbia.

September 19, 2014

S.S., a minor child, by and through YVETTE STREET, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant

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[Copyrighted Material Omitted]

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For YVETTE STREET, Plaintiff: Michelle Suzanne Kotler, LEAD ATTORNEY, Frederick, MD.

For DISTRICT OF COLUMBIA, Defendant: Veronica A. Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Plaintiff Yvette Street filed suit as the parent and next friend of her son, S.S., seeking injunctive and declaratory relief against the District of Columbia under the Individuals with Disabilities Education Improvement

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Act (" IDEA" ),[1] 20 U.S.C. § 1400 et seq. Plaintiff is appealing the Hearing Officer Determination that denied in part and granted in part Plaintiff's administrative due process complaint alleging that the District of Columbia Public Schools (" DCPS" ) denied S.S. a free, appropriate, public education (" FAPE" ) during the 2011-2012 and 2012-2013 school years. Plaintiff also asserts violations of Section 504 of the Rehabilitation Act of 1973. Presently before the Court are the parties' cross-motions for summary judgment as well as Plaintiff's motion to supplement the Administrative Record. Upon consideration of the parties' briefs,[2] the Administrative Record, and the applicable authorities, the Court DENIES Plaintiff's Motion to Supplement the Administrative Record. As for the parties' cross-motions for summary judgment, the Court finds the Hearing Officer Determination was correct. The Court further finds that Plaintiff has failed to exhaust her Section 504 retaliation claim and failed on the merits to meet her burden of proof on the remaining Section 504 claims. Accordingly, Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Cross-Motion for Summary Judgment is GRANTED.

I. BACKGROUND

A. Factual Background

Plaintiff does not dispute that the Hearing Officer set out as part of her Determination all of the relevant evidence from the record presented to her. Plaintiff disputes some of the credibility findings and some of the conclusions reached by the Hearing Officer based on the factual record. Accordingly, the Court will cite to evidence, findings, and conclusions as they relate to the discussions of the issues raised in this case.

B. Procedural Background

a. Administrative Due Process Complaint and IDEA Hearing Officer Determination

On December 21, 2012, Plaintiff filed an administrative due process complaint against the District. AR at 387-399. Plaintiff identified the following issues in her administrative complaint: (1) failure to provide S.S. a FAPE due to disability harassment and bullying by students and staff; (2) failure to adequately evaluate S.S. in all areas of suspected disability; (3) failure to provide S.S. special education and related services regarding discipline and corporal punishment; (4) failure to provide S.S. an assistive technology device

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and assistive technology services; (5) failure to provide S.S. an appropriate placement at McFarland; and (6) failure to provide S.S. home instruction during the 2012-2013 school year. Id. at 397.

On January 23, 2013, a pre-hearing conference was held and a pre-hearing order was issued. Id. at 449. The Hearing Officer identified the following issues for adjudication: (1) " Whether [DCPS] denied [S.S.] a free, appropriate, public education (" FAPE" ) during the 2011-2012 school year when the classroom aide and other students repeatedly physically harmed him, which prevented him from accessing the curriculum and making progress on the goals in his individualized education program (" IEP" ); " (2) " Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 school year by failing to conduct assistive technology and developmental vision assessments of [S.S.]; " (3) " Whether [DCPS] denied [S.S.] a FAPE during the 2012-2013 school year by failing to prevent other students from physically harming him, which prevented [S.S.] from accessing the curriculum and resulted in his developing school phobia; " (4) " Whether [DCPS] denied S.S. a FAPE from October 25, 2012, through the present by failing to provide him home-based instruction while he was unable to attend school due to the injuries he suffered after another student injured him in the school cafeteria and due to his school phobia; " (5) " Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him assistive technology, i.e., a laptop computer or iPad and related software to assist him with communication; " and (6) " Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him a sufficiently restrictive placement, i.e., place him in a separate, special education day school for students with severe autism." Id. at 451-452. Plaintiff did not object to the issues the Hearing Officer determined for adjudication in the pre-hearing order, either within the three-day window to object following the issuance of the pre-hearing order or when the Hearing Officer read the issues certified for hearing at the beginning of the due process hearing. Id. at 38 n. 380.

The due process hearing was held on February 27, 28, and March 4, 2013. Id. at 887; 1160; 1409. During the hearing, Plaintiff withdrew her claim that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him assistive technology (Issue #5) and her claim that DCPS denied S.S. a FAPE during the 2011-2012 school year by failing to conduct an assistive technology assessment of S.S. (Issue #2). Id. at 898-900. Plaintiff also withdrew her proposed compensatory education plan as a remedy for failing to provide home instruction (Issue #4) and confirmed that it should be withdrawn with prejudice. Id. at 1450-51.

Plaintiff; Dr. Alsan Bellard, S.S.'s pediatrician; Janeen Curry, a bus attendant on the bus S.S. took to school; Nicole Zeitlin, an expert in clinical psychology; and Kristin Conaboy, an occupational therapist who evaluated S.S., testified for Plaintiff. DCPS Autism Coordinator Emily Pearson testified on behalf of DCPS. The Hearing Officer issued a Determination on March 16, 2013. Id. at 3-39. The Hearing Officer concluded that Plaintiff proved that DCPS denied S.S. a FAPE during the 2011-2012 school year by failing to conduct a developmental vision assessment and ordered related relief. Id. at 33-34. The Hearing Officer also concluded that Plaintiff proved that DCPS denied S.S. a FAPE from October 25, 2012, through the present by failing to provide home-based instruction. Id. at 34-35. However, the Hearing Officer did not provide a remedy for this denial of a FAPE because during

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the hearing, Plaintiff withdrew her claims for compensatory education with prejudice, which the Hearing Officer determined was the proper remedy. AR at 35; 1450-51.

The Hearing Officer ruled against Plaintiff on the remaining issues. Specifically, the Hearing Officer concluded that Plaintiff failed to prove that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by failing to stop other students and the Classroom Aide from bullying S.S., which prevented him from accessing the curriculum, resulting in S.S. developing school phobia. Id. at 29-32. The Hearing Officer also concluded that Plaintiff failed to prove that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him a sufficiently restrictive placement, that is, a separate special education day school for students with autism. Id. at 35-38.

b. District Court Complaint

Plaintiff filed suit on April 24, 2013, asserting that DCPS denied S.S. a free appropriate public education. Plaintiff filed an Amended Complaint on August 26, 2013, appealing the March 16, 2013, Hearing Officer Determination and alleging violations of Section 504 of the Rehabilitation Act. See ECF No. [23]. Specifically, Plaintiff alleges that Defendant violated the IDEA by failing to provide S.S. a FAPE due to disability harassment (Count I), failing to implement the IEP (Count II), failing to protect S.S. from bullying (Count III), and by failing to provide home instruction (Count IV). Plaintiff further alleges that Defendant violated Section 504 by denying S.S. a FAPE due to disability harassment and the creation of a hostile environment (Count V), through other acts (Count VI), and by retaliating against Plaintiff for legally protected activities (Count VII). Finally, Plaintiff alleges that the Hearing Officer failed to render a fair and proper decision (Count VIII).

On January 20, 2014, Plaintiff filed her Amended Motion for Summary Judgment.[3] On January 30, 2014, Defendant filed a Cross-Motion for Summary Judgment arguing that (1) Plaintiff failed to exhaust her administrative remedies as to her Section 504 retaliation claim; (2) Plaintiff was raising the failure to implement the IEP before this Court in the first instance, without first presenting the issue to a hearing officer; (3) Plaintiff failed to show that S.S. was bullied by other students or by the Classroom Aide; and (4) Plaintiff failed to present an argument to sustain her Section 504 claims. Alternatively, Defendant argues that DCPS did not violate any provisions of Section 504. In addition, with respect to Count VIII of Plaintiff's Amended Complaint, Defendant argues that the Court should deny Plaintiff's Motion because the Hearing Officer Determination is legally sufficient and entitled to due deference. The parties subsequently filed oppositions and replies to their respective motions for summary judgment. Accordingly, the parties' motions are now ripe for review by the Court.

Plaintiff also filed a Motion for Leave to File Additional Evidence. Plaintiff seeks to supplement the Administrative Record with four pieces of evidence: (1) evidence that DCPS' witness at the due process hearing lied under oath about her credentials; (2) newly discovered evidence that DCPS failed to provide S.S. adapted physical

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education as required in S.S.'s 2011-2012 IEP; (3) after-occurring evidence related to DCPS' alleged retaliation against Plaintiff; and (4) S.S.'s developmental optometry evaluation and evidence of DCPS' alleged non-response to the evaluation. Defendant filed an opposition to Plaintiff's Motion for Leave to File Additional Evidence and Plaintiff filed a reply. Accordingly, Plaintiff's Motion is also ripe for the Court's review.

II. LEGAL STANDARD

A. Summary Judgment Under Federal Rule of Civil Procedure 56

Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and [that he] ... is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a " material" fact. Id. Accordingly, " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be " genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record--including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence--in support of his position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66, 385 U.S.App.D.C. 347 (D.C. Cir. 2009). Moreover, where " a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may " consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66, 387 U.S.App.D.C. 62 (D.C. Cir. 2009). In the end, the district court's task is to determine " whether the evidence presents a sufficient disagreement to require submission to [the trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must " do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); " [i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted).

B. Review of an Administrative Decision Under the IDEA

Under the IDEA, a " party aggrieved by the findings and decision" of

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the hearing officer may bring a civil action in federal court " without regard to the amount in controversy." 20 U.S.C. § 1415(i)(2)(A). The court " shall receive the records of the administrative proceedings," " shall hear additional evidence at the request of a party," and, " basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." § 1415(i)(2)(C). In a civil action reviewing an IDEA administrative determination, " [a] motion for summary judgment operates as a motion for judgment based on the evidence comprising the record and any additional evidence the Court may receive." D.R. v. District of Columbia, 637 F.Supp.2d 11, 16 (D.D.C. 2009).

The reasons for a court to hear additional evidence at the request of a party " might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Town of Burlington v. Dep't of Ed., 736 F.2d 773, 790 (1st Cir. 1984). The trial court has the discretion to determine what constitutes " additional" evidence under the IDEA and " must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo." Id. at 791; see also Springer v. Fairfax Cnty. Sch. Bd., 134 F.3d 659, 667 (4th Cir. 1998) (" A lax interpretation of 'additional evidence' would 'reduce the proceedings before the state agency to a mere dress rehearsal by allowing appellants to transform the Act's judicial review mechanism into an unrestricted trial de novo ' " (internal citation omitted)). Furthermore, additional evidence should not be introduced in the trial court " to patch up holes in [a party's] administrative case," Springer, 134 F.3d at 667, since that would result in administrative proceedings " no longer receiv[ing] the weight that they are due," Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir. 2009). Finally, additional evidence should be relevant to the challenged decisions of the hearing officer. Miller v. Bd. of Ed. of Albuquerque Pub. Sch., 565 F.3d 1232, 1241 (10th Cir. 2009).

The party challenging the Hearing Officer Determination bears the burden of proof and must " at least take on the burden of persuading the court that the hearing officer was wrong." Reid v. District of Columbia, 401 F.3d 516, 521, 365 U.S.App.D.C. 234 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887, 274 U.S.App.D.C. 139 (D.C. Cir. 1989)). The preponderance-of-the-evidence standard in this context does not grant the reviewing court unfettered de novo review. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (" Thus the provision that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." ). Rather, courts must give " due weight" to the administrative proceedings. Id. " [F]actual findings from the administrative proceeding are to be considered prima facie correct." Roark v. District of Columbia, 460 F.Supp.2d 32, 38 (D.D.C. 2006) (quoting S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). Because the IDEA permits a reviewing court to entertain additional evidence at the request of a party, courts employ " 'less deference than is conventional' in administrative proceedings." Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887). Nevertheless, the Court should " defer to the [hearing officer's] factual

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findings unless it can point to contrary nontestimonial extrinsic evidence on the record." S.H., 336 F.3d at 270; accord Alfono v. District of Columbia, 422 F.Supp.2d 1, 8 (D.D.C. 2006); Armstrong v. District of Columbia, No. 03-2598, 2005 WL 433448, at *2 (D.D.C. Feb. 24, 2005).

III. DISCUSSION

A. Motion to Supplement Administrative ...


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