Tveter v. Pinkerton Acad.
| Decision Date | 02 November 2020 |
| Docket Number | Case No. 16-cv-329-PB |
| Citation | 2020 DNH 193 |
| Parties | Elizabeth Tveter v. Pinkerton Academy et al. |
| Court | U.S. District Court — District of New Hampshire |
Children with disabilities are protected by several federal statutes. The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., guarantees disabled school children the right to a "free appropriate public education" ("FAPE"), 20 U.S.C. § 1412(a)(1)(A). Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, also protect disabled children from unlawful discrimination, harassment, and retaliation. Congress has specified, however, that a would-be litigant must comply with the IDEA's exhaustion requirement before suing under either the ADA or the Rehabilitation Act if the relief she seeks is also available under the IDEA. See 20 U.S.C. § 1415(l). The principal issue presented by the pending summary judgment motion is whether the plaintiff's remaining ADA and Section 504 claims are subject to the IDEA's exhaustion requirement.
The plaintiff in this case, Elizabeth Tveter, began attending Pinkerton Academy as a freshman in the fall of 2012. In her freshman and sophomore years, she played on Pinkerton's varsity field hockey team. She was an exceptional player and well-liked both by her teammates and the school's athletic staff.
In January 2014, Tveter suffered a traumatic brain injury while playing field hockey on a club team unaffiliated with Pinkerton. As a result of that injury, Tveter became disabled.
Shortly after her injury, Tveter was identified as a qualified student with a disability under Section 504 of the Rehabilitation Act. A Section 504 plan was developed for her in April 2014. One of the plan's accommodations granted Tveterextra time to complete academic assignments. See Ex. 18 in Supp. of Pl.'s Obj. to Defs.' Mot. for Summ. J. ("Pl.'s Ex."), Doc. No. 210-1 at 35. Tveter retained her Section 504 plan until she graduated in 2016.
In March 2015, Tveter was identified as having a qualifying disability under the IDEA. Pinkerton proposed an individualized education program ("IEP") for her and assembled an IEP team. The proposed IEP contained a variety of academic accommodations and one nonacademic accommodation for Tveter's disability. The academic accommodations included extended time for completing tests and assignments, a quiet location for taking tests and quizzes in the company of a paraprofessional, open notes for tests and quizzes, ability to orally supplement tests, quizzes and assignments, adjustments to lengths of writing assignments with emphasis on quality over quantity, access to a speech-to-text device, access to teachers' notes, ability to leave class 3-5 minutes early, a quiet setting for lunch, access to a quiet area without bright lights when feeling unwell, and access to elevators. See Ex. 3 in Supp. of Defs.' Mot. for Summ. J. ( ), Doc. No. 182-3 at 13-14.
In addition, Tveter's mother requested that the IEP include a nonacademic accommodation related to Tveter's participation in school sports. The IEP team agreed to include that request in her draft IEP, which stated that Tveter would "remain eligiblefor athletics and extra[]curricula[r] activities provided coursework is incomplete as a result of the implementation of these accommodations for her disability." Doc. No. 182-3 at 14; see Defs.' Ex. 1, Doc. No. 182-1 at 1-2.
In November 2015, the IEP team completed its review of Tveter's draft IEP. Although Tveter and her mother initially agreed to the IEP with an exception pertaining to the sports-related accommodation, they subsequently rescinded the agreement and refused the IEP altogether on November 30. See Doc. No. 182-1 at 2; Defs.' Ex. 4, Doc. No. 182-4 at 1-2.
Tveter and her mother received copies of the New Hampshire Procedural Safeguards Handbook for Special Education. See Doc. No. 182-1 at 2. They did not request an administrative due process proceeding to challenge any area of disagreement with the IEP. See Doc. No. 182-1 at 2.
In the fall of 2014, Tveter, then a junior, attempted to try out for Pinkerton's field hockey team. The school's athletic director refused to allow her to participate in the tryouts or even to sit in the bleachers to watch, which she was required to do in order to reserve a spot on the team as an injured player. The athletic director explained that she was ineligible to try out for the team because she had incomplete grades, even though her Section 504 plan allowed her extra timeto finalize those grades. He also cited her lack of a medical clearance to participate in the sport, despite Pinkerton's receipt of multiple notes from Tveter's treatment providers clearing her to participate in tryouts and certain drills. See Pl.'s Ex. 36, Doc. No. 210-1 at 60-62.
After her parents filed a complaint with Pinkerton, Tveter was permitted to join the varsity field hockey team. She did not play in any games that season. After incrementally clearing her to return to play, Tveter's treating providers cleared her for full participation in the sport at the end of October 2014, after the regular season had ended and the playoffs had begun. See Doc. No. 210-1 at 62-65; Defs.' Ex. 14, Doc. No. 182-14 at 14-15; Defs.' Ex. 6, Doc. No. 182-6 at 2-3. At that point, however, Pinkerton still did not allow her to play, citing the fact she had not completed Pinkerton's concussion protocol, as she was continuing to report symptoms of a concussion. See Doc. No. 182-6 at 2-3.
On four separate occasions that season, Tveter's field hockey teammates pressured her into giving up items of clothing that someone on the team needed, including a pair of socks, a skirt, a practice jersey, and an undershirt. See Pl.'s Ex. 4, Doc. No. 210 at 93-101. In her complaint Tveter calls those incidents "gang stripping" and alleges that her skirt was "forcibly" removed, Am. Compl. ¶¶ 34-36, however she haspresented no admissible evidence to support those claims. Indeed, in her deposition Tveter could not remember the circumstances surrounding three of the incidents and could only recall the incident involving her socks in some detail. See Doc. No. 210 at 93-101. She testified that, while the team was on the bus on the way to a game, one of her teammates told Tveter to give her Tveter's brand-new socks in exchange for a pair of socks that were the wrong color. Tveter tearfully relented after two other girls joined in telling her she needed to hand over her socks because Tveter would not be playing in the game. See Doc. No. 210 at 96-97. Nothing similar had happened to Tveter in the prior years on the team before she became disabled.
Coach Resmini was on the bus when this incident occurred, but there is no evidence that she witnessed it or was told about it at the time. See Doc. No. 210 at 97. A few days later, in early November 2014, Tveter's mother emailed Coach Resmini about the clothing incidents. See Pl.'s Ex. 28, Doc. No. 210-1 at 49. This was the first time the incidents were brought to the attention of a school employee. In the email, Tveter's mother described what had happened with the socks and noted that there had been other instances when Tveter's teammates had "turned to" Tveter for items they needed and that she had complied because she was "kind[]hearted." Doc. No. 210-1 at 49. The email makesno mention of bullying or harassment. See Doc. No. 210-1 at 49. Coach Resmini met with Tveter and her mother to discuss the incidents. See Doc. No. 210 at 152. In that meeting, Tveter and her mother complained that the incidents constituted bullying. See Doc. No 210 at 152. Coach Resmini spoke with the student who took Tveter's socks and that student gave Tveter a pair of socks shortly after. See Doc. No. 210 at 151; Doc. No. 210-1 at 49. Coach Resmini did not take further steps to remedy the situation, as the field hockey season had ended. See Doc. No. 210 at 152.
After discovering that the wrong socks had been returned to Tveter, her mother emailed school officials in February 2015, referring to the bus incident as bullying. See Doc. No. 210 at 73. Pinkerton staff investigated and found that no bullying had occurred. They concluded that Tveter had loaned her teammate one pair of socks and that she had received two pairs in return. See Doc. No. 210 at 74. Because her mother insisted that the two pairs of socks Tveter had received were of inferior quality, Pinkerton reimbursed her for a new pair. See Defs.' Ex. 12, Doc. No. 182-12 at 10.
The following month, Tveter signed up for tennis tryouts, but the athletic director told her she was not eligible to participate. See Pl.'s Ex. 1, Doc. No. 210 at 16-17. Initially he cited her failing grade in one class, even though he knew theonly reason she was failing was Pinkerton's refusal to allow her to attend that class. See Doc. No. 210 at 16-17. When the grade was corrected in response to a complaint from her parents, the athletic director again found Tveter ineligible for the tryouts. See Doc. No. 210 at 17. This time he cited her incomplete grade in another class, even though Tveter's Section 504 plan provided her extra time to complete assignments for that class. See Doc. No. 210 at 17. The athletic director also refused to grant Tveter an exception pursuant to the rules of the New Hampshire Interscholastic Athletic Association ("NHIAA"), which permit Pinkerton to exempt a disabled student from such academic requirements. See Doc. No. 210-1 at 65-66. Tveter's mother reported the athletic director's actions to Pinkerton, alleging bullying, harassment, discrimination, and retaliation. See Doc. No. 210 at 16-17.
In the interim, Tveter completed the missing academic work, and Pinkerton responded to the...
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