Gandy v. Howard Cnty. Bd. of Educ.
| Decision Date | 01 September 2021 |
| Docket Number | Civil Action GLR-20-3436 |
| Parties | KATHRYN GANDY, et al, Plaintiffs, v. HOWARD COUNTY BOARD OF EDUCATION, et al., Defendant. |
| Court | U.S. District Court — District of Maryland |
THIS MATTER is before the Court on Defendants Howard County Board of Education (“BOE”) and Carol Hahn's (together, “BOE Defendants”) Motion to Dismiss (ECF No. 25); Defendant Breona Whittaker's Motion to Dismiss Amended Complaint (ECF No. 26); and Defendant Amanda Peter's Motion to Dismiss Amended Complaint (ECF No. 29). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021). For the reasons outlined below, the Court will grant in part and deny in part the Motions.
Plaintiffs Kathryn Gandy (“Mrs. Gandy”) and Christian Gandy (“Mr. Gandy”) (together, the “Gandys”) are the parents of Student Doe who, at the time of the incident at issue here, was a six-year-old child enrolled at Bellows Spring Elementary School (“Bellows Spring”). (Am. Compl. ¶¶ 1-2 63, ECF No. 16). Student Doe has been diagnosed with intellectual and behavioral disabilities, including Autism Spectrum Disorder and Mixed Expressive Language Disorder. (Id. ¶ 13). These disorders render Student Doe non-verbal and behaviorally impaired. (Id.).
As a result of his intellectual and behavioral disabilities Student Doe is eligible for special education services including an Individualized Educational Program (“IEP”) and Behavioral Intervention Plan (“BIP”), which were developed for him and implemented by the Howard County Public School System (“HCPSS”). (Id. ¶ 14). Student Doe's IEP was developed in April 2018, during the 2017-18 school year. (Id. ¶ 19). The IEP noted that Student Doe needed “close adult supervision” while at Bellows Spring. (Id. ¶ 20). Despite his significant disabilities, Student Doe's IEP noted that he demonstrated significant progress and success during the 2017-18 school year after enrolling in HCPSS's Primary Learner program. (Id. ¶ 22). The Primary Learner program is different from a regular curriculum in that it “is designed for students with education disabilities in kindergarten through second grade, that present with significant delays in functional communication, engagement and social interaction.” (Id. ¶¶ 16-17).
At the start of the 2018-19 school year, Defendant Amanda Peter, a special education teacher, was assigned to Student Doe's class at Bellows Spring. (Id. ¶¶ 4, 15, 23). Student Doe's class comprised of five students who also suffered from significant disabilities; these students were assigned to a small “self-contained classroom” at Bellows Spring separated from the rest of the student population. (Id. ¶ 15). Peter was aided by at least three “para-educators, ” including Defendant Breona Whittaker. (Id.). Aside from Peter and Whittaker, numerous other Bellows Spring personnel entered Student Doe's classroom throughout the day to supervise. (Id. ¶ 18).
On August 31, 2018, just before the 2018-19 school year started, the Gandys wrote to the principal of Bellows Spring stating their concern that Peter, whom they had met earlier that day, seemed unfamiliar with Student Doe's IEP and other basic information, such as whether Student Doe used a communication device. (Id. ¶ 47). The Gandys also expressed concern that most of the staff were new to the classroom. (Id. ¶ 48). Additionally, the Gandys expressed their lack of confidence that Student Doe's teacher understood his needs, possessed the ability to properly care for Student Doe, and could keep Student Doe safe. (Id. ¶ 49). According to the Gandys, because Student Doe and the other students were accustomed to the Primary Learner program, any deviation or inconsistency from this teaching style would confuse the students and, in turn, increase challenging behaviors among them and possibly threaten their safety. (Id. ¶ 50).
During the first few weeks of the 2018-19 school year, the Gandys corresponded with Bellows Spring staff on several occasions regarding their concern that Student Doe's teachers were not meeting his safety needs. (Id. ¶¶ 51-52). The Gandys explained that they knew something was wrong because Student Doe was coming home agitated every day. (Id.). Additionally, the Gandys told Bellows Spring staff that Student Doe had come home with an unexplained cut on his elbow. (Id. ¶ 52). On September 16, 2018, Mrs. Gandy sent an email to Terrell Savage, the special education director for HCPSS, pleading for Savage to intervene in what she described as a “dire situation” at Bellows Spring and a “crisis” in Student Doe's classroom. (Id. ¶ 53). In the email, Mrs. Gandy explained that she was called on two occasions to pick Student Doe up early from school because he suffered injuries without explanation. (Id. ¶ 54). Mrs. Gandy also explained that Student Doe's BIP was not being implemented properly and that his teachers were “new, confused, and tentative, ” which threatened Student Doe's safety. (Id. ¶ 55). Due to their concerns about the treatment of their son, the Gandys scheduled their in-home board-certified behavioral analyst to observe Student Doe in his classroom on Tuesday, September 18, 2018, to provide guidance on how to keep Student Doe safe at Bellows Spring. (Id. ¶ 61). However, on Monday, September 17, 2018, Student Doe was injured at school. (See id. ¶¶ 62-87).
Video footage from September 17, 2018 shows that Student Doe was “smiling and happy” and “calmly walking” as he was escorted towards the self-contained classroom after getting off the bus that morning.[2] (Id. ¶ 64). Likewise, Student Doe's bus driver and the bus aide do not recall any difficulty or agitation with Student Doe on the bus that morning. (Id.). Video footage also shows Student Doe calmly walking in and out of his classroom throughout the day. (Id. ¶¶ 65-66). But at 2:55 p.m., shortly before the school day ended, the school nurse was called to Student Doe's classroom, where she found Student Doe crying and experiencing swelling on his forehead. (Id. ¶¶ 68-69). The school nurse left Student Doe's classroom at 3:10 p.m. (Id.¶ 71).
Video footage from around 3:16 p.m. shows that Student Doe was “lacking coordination, ” had “an unsteady gait and loss of balance, ” and had “trouble supporting himself without the aid of an adult or the wall” while he walked through the halls. (Id. ¶ 72). Around 3:39 p.m., video footage shows that Student Doe's head appeared to be swollen as he walked back to his classroom from the administrative area of the building, near the nurse's office. (Id.¶ 73). Around 3:46 p.m., Defendant Whittaker walked Student Doe to the bus. (Id. ¶ 74). Although Student Doe “could barely stand on his own” and had “obvious defects in his coordination and gait, ” Whittaker failed to assist him while walking. (Id.). While waiting for the bus, Student Doe could not support himself on his own and leaned on a windowsill to prevent himself from falling over; despite this, Whittaker turned her back to Student Doe. (Id. ¶ 76). Then, when the bus arrived, Whittaker “hurriedly drag[ged] Student Doe to the bus” and appeared to be “completely unconcerned about Student Doe's head injury, his inability to walk, and his general daze.” (Id. ¶ 77).
Student Doe rode a bus with other disabled students. (Id. ¶ 79). The bus had both a driver and a bus aide. (Id. ¶ 80). While on the bus, Student Doe was strapped into a harness and placed away from the window to prevent him from striking his head on the seat in front of him or window next to him. (Id. ¶¶ 82, 84). Student Doe lived less than a mile from Bellows Spring, and his bus ride home took less than ten minutes. (Id. ¶¶ 78, 81). On the day of the incident, the bus aide walked up and down the aisle during the ride home and did not witness Student Doe hit his head on anything. (Id. ¶ 84). However, the bus aide recalled that Student Doe had a swollen forehead and seemed dazed, “zombied out, ” pale, and not himself on the bus ride. (Id. ¶ 83).
Upon arriving at the Gandys' home, the bus aide told Mrs. Gandy that Student Doe “was dazed and not himself.” (Id. ¶ 85). A photograph that Mrs. Gandy took of Student Doe when he got home shows that his forehead was red and swollen. (Id. ¶ 86). Mrs. Gandy then took Student Doe to Howard County General Hospital. (Id. ¶ 88). Student Doe vomited on the way to the hospital. (Id. ¶ 89). Student Doe was ultimately diagnosed with a concussion. (Id. ¶ 90). A photograph of Student Doe taken after he returned home from the hospital shows that his forehead was enlarged and swollen. (Id. ¶ 91). Two days after the incident, Student Doe's eyes were bruised and “mostly swollen shut due to the effect of gravity on the blood in his forehead flowing down into his eyes.” (Id. ¶ 92). Four days later, during a follow-up visit with Student Doe's pediatrician, Student Doe “exhibited an abnormal level of agitation and resistance to examination.” (Id. ¶ 93). Student Doe later suffered several seizures and was hospitalized at Johns Hopkins Hospital in Baltimore, Maryland. (Id. ¶ 94).
In addition to his physical injuries, Student Doe also suffered from emotional trauma after the September 17, 2018 incident. Student Doe cried every time he was driven by Bellows Spring experienced “significant nightmares that woke him up during the night screaming and crying”; exhibited diminished appetite, sensitivity to light, headaches, and dizzy spells; and suffered from significant separation anxiety and increasingly erratic behavior. (Id. ¶ 95). The Gandys also experienced “significant emotional trauma” after the incident. (Id. ¶ 96). For example, Mrs. Gandy “often cried herself to sleep at night, ” and the Gandys “began to demonstrate...
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