Vernon v. Bethel Sch. Dist.
| Decision Date | 28 August 2012 |
| Docket Number | No. 41510-1-II,41510-1-II |
| Court | Washington Court of Appeals |
| Parties | NANCY VERNON, Individually as Guardian ad Litem for D.V ., Appellant, v. BETHEL SCHOOL DISTRICT, a Municipal Corporation, Respondent. |
Hunt, J. — On behalf of her minor child, DV,1 Nancy Vernon appeals the superior court's summary judgment dismissal of her common law tort and Washington Law Against Discrimination (WLAD)2 claims against the Bethel School District. She argues that the superior court erred in (1) concluding that her state law claims were subject to the federal Individual with Disabilities Education Act (IDEA)3 and its exhaustion-of-remedies requirement; (2) dismissingwith prejudice her state-law claims that arose before August 7, 2006, on grounds that she had failed to bring them within the IDEA's two-year statute of limitations; and (3) dismissing her remaining state-law claims—disability discrimination under chapter 49.60 RCW, negligent infliction of emotional distress, outrage, injury to the parent-child relationship, assault, battery, and negligent hiring, retention, and supervision—for failure to submit sufficient admissible evidence to establish a prima facie case. We affirm.
At the time of Nancy Vernon's 2009 lawsuit, DV4 was severely disabled from in utero exposure to cytomegalovirus.5 Although able to discern some color, motion, and shapes with one eye, he was legally blind and profoundly deaf in both ears. He had a diagnosed seizure disorder,6 autistic-like behaviors,7 limitations to sensory input, developmental delays, and possible undiagnosed cognitive disabilities. Although he could communicate with a limited number of modified American Sign Language signs, his sensory limitations hindered effective communicationwith the people in his life. Even as an adolescent, Vernon "had to care for [DV] day and night because he couldn't cope with anyone else." Clerk's Papers (CP) at 90.
His pediatric neurologist believed that DV was "capable of learning at a very rudimentary level." CP at 46. At age three, DV began receiving special education services at Spanaway Elementary School in the Bethel School District. According to Vernon, at some point DV began exhibiting "characteristics of posttraumatic stress": When DV approached "any school building," he "wouldn't get out of [her] car," and he had panic attacks. CP at 75. Although Vernon consulted medical and psychological health care providers, it is unclear whether they were treating DV because, according to Vernon, he could not "actually go into a doctor's office and sit and communicate." CP at 82. It is also not clear from the record on appeal whether DV regularly took medications for his conditions, except for phenobarbital to control his seizure disorder and other medications during the 2007-2008 school year. Several days a week after school, Vernon took DV to Good Samaritan Hospital's children's therapy unit.
As the person who knew, understood, and loved DV best, Vernon was his staunch advocate during the years he received education in the District's schools. Sometimes, however, the District viewed her actions as inappropriate interference with his education.
During the 2005-06 school year, DV was 12 years old in the fifth grade. Vernon participated in creating an Individualized Education Program (IEP) for DV.8 DV's IEP providedthat he would (1) spend the majority of his time away from other children in a "sensory friendly" room, where he would receive services, such as "work time" and "free choice" time; and (2) leave the sensory-friendly room periodically throughout the day for "active free time, life skills[,] and computer skills times." CP at 236. The IEP stated that DV "enjoy[ed]" his sensory-friendly room and that he appeared "calmer" in this less stimulating environment. CP at 236.
At the beginning of fifth grade, DV began breaking objects at home after he got off the school bus and poking his eyes, which, by December, developed into keratoconus,9 damaging his corneas. Believing these behaviors to be signs of distress, Vernon suspected that something was wrong with DV's treatment at school; eventually, she visited DV's his school, met with District staff members, and demanded to see his classroom. According to Vernon, (1) the District kept DV isolated in an 8- by 12-foot room, which resembled a "prison" because it contained nothing "except a bean bag" and its door had a lock; and (2) the school's hallways were "cluttered" with dollies, garbage cans, mailboxes, and food drive boxes, which hindered DV's ability to feel the walls as he walked, despite her admonitions to the District.10 CP at 222, 233.
Several hours after DV came home from school on October 13, 2005,11 Vernon noticedbruising on his arm. The next day, she called the police, took pictures of the bruising,12 and contacted the school.13 The District contacted Child Protective Services, which contacted the Tacoma Police Department; the police were unable to determine what had happened to DV because no one had witnessed the incident that had caused the bruising.14
Vernon continued to visit DV's school. She noticed that the District required DV to eat lunch by himself before the other students.15 On one occasion, Vernon observed an "assistant" tell a class of first and second grade children, ; according to Vernon, this comment caused a little boy to cower in the corner, "dehumanized" DV, and presented him as a "monster." CP at 225, 253.
As a result of her observations at school and DV's behaviors at home, Vernon believedthat (1) District staff members had "attacked" and "punished" DV on a regular basis because he could not see, hear, or do things they wanted him to do; (2) he exhibited signs of "abuse," even though she had never personally seen DV restrained, or physically and emotionally abused, at school16; and (3) DV had been trying to communicate his frustration when he threw objects at home and poked his eyes. CP at 208, 226, 234. Vernon attempted, but was unable, to arrange for DV to be transferred to a different school.
CP at 47 (emphasis added). This April 2006 IEP also provided that DV would have a full-time,one-on-one special education teacher and two full-time para-educators for the new school year.
After engaging in a "nation-wide search" for DV's special education teacher, the District hired recent college graduate Jennifer Hippensteal, whom Vernon had encouraged the District to consider. CP at 20. Hippensteal had previously worked as a District para-educator and had provided respite care for DV. Recognizing that this was Hippensteal's first teaching job, the District hired her under a conditional certification program; and before she began working with DV, the District required her to complete a week-long training program in Yakima, focusing on the needs of deaf-blind students. The District also provided a behavioral specialist to serve as her mentor. In addition, the District obtained the services of a vision specialist, an orientation and mobility specialist, a specialist in the field of educating deaf-blind students, and a university professor recognized as an expert in special education students' behavioral issues. These specialists consulted with the District and made specific recommendations for DV's instructional plan.
DV continued to exhibit disruptive behaviors at school. During the 2006-2007 school year, (1) the District had six reported incidents of DV's biting or pinching and bruising his teachers and para-educators; and (2) he began taking his clothes off at school. The District responded by installing "blue boards" over his classroom windows to give him privacy and to prevent him from injuring himself by banging on the windows.18 CP at 28.
During the next school year, 2007-08, DV again attended the District's Cougar Mountain Junior High School. In March 2007, Vernon again actively participated in creating a new IEP for DV. This new school year, however, DV became more agitated and aggressive.
According to Hippensteal, DV arrived at school very angry and was unable to calm himself down. By December 2007, he was climbing on tables, removing ceiling tiles, and throwing chairs in the classroom. From September 10, 2007, to February 21, 2008, the District had 29 reports of DV's grabbing, pinching, biting, elbowing, or kicking staff members, causing them injuries, including fracturing Hippensteal's nose, which required surgery.19 Eventually the District required its staff members assigned to work with DV to wear arm guards, chest protectors, and back braces at all times for their protection; staff members in contact with DV were also instructed to avoid wearing loose clothing.
DV had a history of striking or banging on the windows at school, and he sometimes removed his clothes at school; in response, the District conducted "lock down drills," during which it covered the windows in DV's classroom with "blue boards" to protect him from injury and to...
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