VICKY M. v. NORTHEASTERN EDUC'L. INTERMEDIATE UNIT

• Decision Date: 16 September 2009
• Docket Number: No. 3:06-CV-01898.,3:06-CV-01898.
• Citation: 689 F. Supp.2d 721
• Parties: VICKY M. and Darin M., as Parents and Natural Guardians of a Minor, A.J.M., et al., Plaintiffs, v. NORTHEASTERN EDUCATIONAL INTERMEDIATE UNIT, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

689 F.Supp.2d 721

VICKY M. and Darin M., as Parents and Natural Guardians of a Minor, A.J.M., et al., Plaintiffs, v. NORTHEASTERN EDUCATIONAL INTERMEDIATE UNIT, et al., Defendants.

No. 3:06-CV-01898.

United States District Court, M.D. Pennsylvania.

September 16, 2009.

Christina A. Coury, Moosic, PA, Dennis C. McAndrews, Gabrielle C. Sereni, McAndrews Law Offices, Berwyn, PA, Lawrence J. Moran, Lenahan & Dempsey, Edwin A. Abrahamsen, Jr., James J. Conaboy, Abrahamsen Conaboy & Abrahamsen, P.C., Scranton, PA, for Plaintiffs.

John E. Freund, III, King Spry Herman Freund & Faul, LLC, Bethlehem, PA, Richard A. Polachek, Thomas P. Clark, Polachek & Associates, P.C., Wilkes-Barre, PA, Gerald A. Connor, Margolis Edelstein, Cynthia E. Banks, Robin B. Snyder, Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA, for Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court are four motions for summary judgment: a motion for summary judgment on all relevant counts by Defendant Susan Wzorek (Doc. 123); a motion for partial summary judgment collectively by Plaintiffs on Count II and Count XI (Doc. 127); a motion for summary judgment on all relevant counts by Defendants Northeastern Education Intermediate Unit, Fred Rosetti, and Clarance Lamanna (Doc. 130); and a motion for summary judgment on all relevant counts by Defendants Abington Heights School District, David Arnold, William McNulty, and Mariellen Sluko (Doc. 133). For the reasons stated below, the motions for summary judgment will be granted in part and denied in part, as described in the attached order.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction"). This is a removal action for which federal jurisdiction is predicated upon the counts of Plaintiffs' Complaint that allege violations of the United States Constitution and federal law including the Individuals with Disabilities Education Act, codified at 20 U.S.C. § 1400 et seq. The Court exercises supplemental jurisdiction over Plaintiffs' state-law tort claims pursuant to 28 U.S.C. § 1367.

BACKGROUND

I. Factual Background

Northeastern Educational Intermediate Unit ("NEIU") is an educational resource agency that acts as a liaison between the Pennsylvania Department of Education and a number of school districts and also provides education services. (Doc. 130, Ex. 2, ¶ 1). Dr. Fred Rosetti ("Rosetti") was the Executive Director of NEIU during the relevant times to this litigation. (Id. ¶ 7.) Dr. Clarence Lamanna ("Lamanna") was the Director of Special Education at NEIU at all relevant times. (Id. ¶ 9.) Collectively, NEIU, Rosetti, and Lamanna are the NEIU Defendants. Susan Wzorek ("Wzorek") was a teacher employed by NEIU during all relevant times. (Id. ¶ 1.) Jill Celli ("Celli") and Robin Medeiros ("Medeiros") were teacher's aides employed by NEIU during all relevant times. (Id. ¶ 16.)

The Abington Heights School District ("AHSD") is a school district duly organized and existing under the laws of the Commonwealth of Pennsylvania. (Doc. 134, ¶ 1.) David Arnold, Ed.D. ("Arnold") was the Superintendent of AHSD from July 1, 2002 until June 30, 2004. (Id. ¶ 4.) William McNulty ("McNulty") was the Director of Special Education for AHSD from 2001 until 2005. (Id. ¶ 9.) Mariellen Sluko ("Sluko") was the Principal of Clarks Summit Elementary School during the 2002-2003 school year. (Id. ¶ 7.) Collectively, AHSD, Arnold, McNulty, and Sluko are the AHSD Defendants.

During the 2001-2002 and 2002-2003 school years Wzorek was a teacher in an autistic support class at Clarks Summit Elementary School. (Doc. 125, ¶ 1.) AHSD contracted with NEIU to provide services during the same time frame, including the placement of students in Wzorek's classroom. (Id. ¶ 20.) Plaintiffs are the parents of students allegedly abused in Wzorek's classroom during the 2001-2002 and 2002-2003 school years. (Doc. 91.)

There is at least some evidence on the record to support the following facts:

Wzorek was certified to teach special education for students K-12. (Doc. 155, pg. 101.) This qualified her to teach all special education students except those with visual, hearing, or speech impediment disabilities. (Id. at 151.) Wzorek asserts that while some training with regard to disciplining autistic children was offered, she failed to complete any courses. (Doc. 157, pg. 146.) While Wzorek did show up for one class, the instructor failed to arrive and Wzorek never returned. (Id.) She also took a course on classroom setup (Id. at 147) and a course on language programs for autistic students. (Id. at 148.) Wzorek failed to complete the entire twelve (12) hour safe crisis management program offered. (Doc. 155, pg. 80.)

During the school years NEIU supervisors Nasser (Doc. 157, pg. 137) and Weir (Doc. 176) would visit the classroom. Teacher evaluations were performed for Wzorek during both school years. (Doc. 155, pgs. 10-17.) The evaluations took into account feedback from only Wzorek and Lamanna, with Lamanna having never been in the classroom. (Doc. 158, pg. 95.); (Doc. 176). Visits to the classroom by supervisors were described to range between "quite frequent" (Doc. 157, pg. 14-23), to maybe once a month (Doc. 159, pg. 59.) The door to the public school, Clarks Summit Elementary, was described as open at times, closed at others. (Doc. 158, pg. 99.)

Wzorek's classroom was described as "chaos" through the first month, where there were children with severe behavioral problems, ages five (5) to eleven (11), all in one classroom. (Doc. 156, pg. 20.) Wzorek was also described as "really aggressive" during the second year (2002-2003), particularly after Christmastime. (Id. at 21-25.) The allegations of abuse include: the use of bungee cords for restraint and discipline (Id. at 16); the use of duct tape on students as restraints (Doc. 159, pg. 48); leaving students restrained in a chair and on the floor for several minutes after the students had overturned the chair (Doc. 156, pg. 21); using Rifton chairs for punishment or restraint (Doc. 159, pg. 51); grabbing students by the ear or pinching noses causing bruising (Doc. 156, pg. 23); grabbing students by the back of the neck (Id. at 26); dragging students by the hair and arms (Id. at 119); backhanding a student causing a bloody lip (Id. at 27); screaming into the faces of students (Doc. 158, pg. 60, 63); squeezing students' hands as a punishment (Doc. 156, pg. 54); crushing a student's fingers (Doc. 159, pg. 105); stepping on students' insteps for intimidation (Doc. 159, pg. 91); squeezing students' faces (Doc. 156, pg. 57); striking a student in the head with a tissue box (Doc. 158, pg. 62); depriving a non-verbal student of a picture communication system, preventing him from being able to communicate needs such as the bathroom (Doc. 159, pg. 76); forcing a student to ride home for over an hour on the bus soaked in urine (Doc. 172); and withholding food from a student as a punishment (Doc. 159, pg. 104.)

All parties agree the trigger for the removal of Wzorek from the classroom came after Celli and Medeiros reported the alleged abuse to Lamanna on July 28, 2003. (Doc. 130, Ex. 2, ¶ 21.) There is some evidence that there were several prior warnings provided to NEIU, Rosetti, and Lamanna about abuse in Wzorek's classroom. (Doc. 171) (Thomas R. attempted to contact NEIU "long before" the aides complained); (Doc. 157, pg. 99) (injury after student backhanded reported); (Doc. 173) (Rosetti contacted by Eva L. during 2001-2002 school year after observing a student being forced into a Rifton chair); (Doc. 172) (contacted after a student was forced to ride home for over an hour in urine soaked clothing); (Doc. 174) (Rosetti contacted by Gloria G. after being told her child could not take a medication during the week).

NEIU had policies detailing requirements for reporting student abuse, but none specifically for the abuse of disabled students. (Doc. 155, pg. 98.) Instead, they expected anything unusual to be reported by the NEIU employees or the non-NEIU personnel in the classrooms. (Id.) Celli and Medeiros stated that they waited so long to report the conduct because they were told that no one would believe them over a teacher. (Doc. 159, pg. 108.) Allegedly, there was a "code of silence" which discouraged reports against teachers. (Doc. 177, Ex. 2.) Medeiros had previously reported another teacher, but "nothing was ever done." (Doc. 158, pg. 57.) Wzorek also told Celli and Medeiros that no one would believe them. (Doc. 159, pgs. 73-74.) NEIU teachers allegedly congratulated a teacher "on keeping her mouth shut" when giving a deposition about these allegations. (Doc. 158, pg. 73.) Detective Kolcharno, an officer investigating Wzorek for criminal charges stemming from the abuse commented:

We've done internal affairs investigations for police departments, and people talk about the blue wall, that cops don't testify against each other. I have never—never done an investigation where people covered for each other and people didn't want to get involved like this case. It was just unbelievable. I thought cops were bad, before I investigated a teacher.

(Doc. 170, pg. 44.) Before meeting with Celli and Medeiros to discuss the allegations, Rosetti allegedly stated "don't worry about it, Sue (Wzorek), they're coming in here today to shoot their loads and then it's going to be over so don't worry about it." (Doc. 177, Ex. 1.) NEIU conducted an internal investigation, but may have missed interviewing several important witnesses. (Doc. 163, pgs. 130-31.) NEIU never reported the abuse allegations to the authorities. (Doc. 163, pg. 27.)

The officials of AHSD were never informed by Celli or Medeiros of the allegations, and only heard about them after the July 28, 2003 report to Lamanna. (Doc. 165, pg. 22.) After reporting the allegations, AHSD teachers refused to allow Celli or Medeiros into their classrooms. (Doc. 164,...