S.S. v. Dist. of Columbia, Civil Action No. 13–557CKK

• Decision Date: 19 September 2014
• Docket Number: Civil Action No. 13–557CKK
• Citation: 68 F.Supp.3d 1
• Court: U.S. District Court — District of Columbia
• Parties: S.S., a minor child, by and through Yvette Street, Plaintiff, v. District of Columbia, Defendant.

68 F.Supp.3d 1

S.S., a minor child, by and through Yvette Street, Plaintiff

v.District of Columbia, Defendant.

Civil Action No. 13–557CKK

United States District Court, District of Columbia.

Signed (September 19, 2014)

Michelle Suzanne Kotler, Frederick, MD, for Plaintiff.

Veronica A. Porter, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

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 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 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 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...