Zdrowski v. Rieck

• Decision Date: 11 August 2015
• Docket Number: Case No. 13–cv–12995.
• Citation: 119 F.Supp.3d 643
• Parties: Stephanie ZDROWSKI, Guardian Ad Litem of C.R., a minor, Plaintiff, v. Stacey RIECK, Nicole Adamson, Michael E. Sharrow, and Algonac Community Schools, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

119 F.Supp.3d 643

Stephanie ZDROWSKI, Guardian Ad Litem of C.R., a minor, Plaintiff,

v.Stacey RIECK, Nicole Adamson, Michael E. Sharrow, and Algonac Community Schools, Defendants.

Case No. 13–cv–12995.

United States District Court, E.D. Michigan, Southern Division.

Signed Aug. 11, 2015.

Mark W. Hafeli, Hafeli, Staran & Christ, P.C., Sylvan Lake, MI, for Plaintiff.

John L. Miller, Timothy J. Mullins, Giarmarco, Mullins & Horton, P.C., Troy, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [69]

LAURIE J. MICHELSON, District Judge.

Plaintiff Stephanie Zdrowski's son ("C.R.") has been diagnosed with Asperger's

Syndrome

, Oppositional Defiant Disorder, and other disabilities. This lawsuit arises from C.R.'s experiences in the Algonac Community School District. Zdrowski alleges that the school superintendent, the School District, and two of C.R.'s teachers discriminated against C.R. due to his disabilities and that they committed negligent and intentional torts against him. Now before the Court is Defendants' Motion for Summary Judgment. (Dkt. 69.)

Many of Zdrowski's disability claims were not adjudicated through the administrative process prescribed by the Individuals with Disabilities Education Act and are therefore not properly before this Court. Others are not factually supported by the record. As to those claims which pass those two hurdles, Zdrowski has not established that the Defendants intended to discriminate against C.R. because of his disability. Further, Defendants are entitled to governmental immunity on the tort claims and Zdrowski's state law disability claim is preempted. For these reasons, the motion will be GRANTED.

I. FACTUAL BACKGROUND

Because this is Defendants' motion, the Court views the facts in the light most favorable to Plaintiff and draws all reasonable inferences in her favor.

A. Background

C.R. spent a few years in the Algonac Community School District ("the School District"). He attended Millside Elementary School as a kindergartener in the 2009/2010 academic year, and left at the end of third grade when his parents moved into the Port Huron Public School district. (Dkt. 77, Zdrowski Dep. at 56.) During the events giving rise to this suit, Defendant Michael Sharrow was the superintendent of the School District. (Compl. at ¶ 10; Def.'s Br. at 3.) Non-party Valerie Baldwin is the principal of Millside Elementary. (Dkt. 72, Baldwin Dep. at 55.)

C.R. displayed certain behavioral issues before and during his time in the School District. After C.R. turned three, his parents started to notice "oppositional behavior" and that he would "anger very easily." (Dkt. 77, Zdrowski Dep. at 92.) C.R. "denie[d]" these behaviors and when confronted, "he simply g[ot] angrier and more defiant." (Id. ) C.R.'s mother, Stephanie Zdrowski,¹ raised concerns with his pediatrician regarding these behaviors beginning in 2008, when C.R. was 4. (E.g. Dkt. 79, Medical Record of Dec. 12, 2008.)

Before C.R. matriculated at Millside, the School District prepared an Individualized Education Program ("IEP") for him (presumably because he would be starting in the District as a kindergartener). (Dkt. 78, IEP No. 1.) The School District recommended that C.R. be provided with a speech pathologist and other special education services. (Id. ) Zdrowski signed the IEP on November 27, 2001, certifying that she had "been informed of all procedural safeguards and sources to obtain assistance [and] ... under[stood] the contents of this IEP [and] ... agreed with the IEP and its implementation." (Id. at 5.) The signature box also advised, "If a parent or public agency disagrees with this IEP, either party has the right to request a due process hearing by following the procedures outlined in the Procedural Safeguards." (Id. )

Zdrowski alleges that C.R. was bullied throughout his time in the School District. (Dkt. 101–2, Zdrowski Aff. at ¶ 30.) At her deposition, Zdrowski recalled some instances of misbehavior on the school bus (Zdrowski Dep. at 127) and that C.R. was not included in a "popcorn party" in the classroom (Id. at 122). She also submitted a drawing by C.R. in which she says he "drew ... himself being bullied." (Pl.'s Resp. Br. at 22; Dkt. 101–20, Drawing.) Baldwin testified that she did remember some instances of reported bullying. (Baldwin Dep. at 46.) She first stated that C.R. felt "bothered ... that the students would tell on him." (Id. at 46–47.) But she also said that there was a boy on C.R.'s bus who also had autism

spectrum disorder, and that apparently the two had been making faces at each other. (Id. at 48.) Baldwin stated that she talked to the boy about how his actions made C.R. feel but that no official action was taken. (Id. )

B. Kindergarten

C.R. entered kindergarten at Millside in the fall of 2009. His teacher reported several incidents involving other students to his parents, including verbal threats and hitting by C.R. (Dkt. 80, Behavior Reports.) The report slips indicate that copies were to be sent to C.R.'s parents, principal, and teacher. (E.g. id. at PageID 654.) During this time, C.R. was in therapy. (Zdrowski Dep. at 26.) Defendants say that Zdrowski never informed the school of this, but Zdrowski avers that she kept the school updated as to C.R.'s treatment. (Zdrowski Aff. at ¶¶ 2–4.) Zdrowski reported concerns about C.R.'s anger to his doctors. (Id. at 28.) Zdrowski also avers that she requested a one-on-one aide for C.R. from the school at this time. (Zdrowski Aff. at ¶ 4.) She says that C.R.'s teachers made him sit alone in a corner when he was misbehaving. (Zdrowski Aff. at ¶ 40.)

Eventually, the School District formed a "Teacher Assistance Team" to address C.R.'s behavioral problems. (Zdrowski Dep. at 2.) Zdrowksi avers that she did not give her consent to form the Teacher Assistance Team, but Defendants attached a consent form signed by Zdrowski, which reads "I am aware that my child was referred to the Teacher Assistance Team to discuss appropriate intervention Strategies. The team will discuss my child's school performance and implement appropriate strategies to enhance his/her performance." (Dkt. 81, Consent Form.)

C. First Grade

Zdrowski testified that first grade got off to a good start and that there were no problems. (Zdrowski Dep. at 120.) But during the 2010–11 academic year, C.R. developed anger issues related to his grandfather dying, his new sister being born, and his parents moving. (Id. ) His teachers filed reports of hitting, pinching, spitting, and threatening behaviors. (See Behavior Reports.) Medical providers at Catholic Social Services of St. Clair County diagnosed C.R. with Adjustment Disorder and Oppositional Defiant Disorder

. (Zdrowski Dep. at 32; Dkt. 82, Medical Records.) The report states that C.R. had expressed a desire to commit suicide. (Medical Records.)

In response to C.R.'s behavior, the school performed a Functional Behavior Assessment ("FBA") (Dkt. 84) and created a Behavior Intervention Plan ("BIP") (Dkt. 83). (See Baldwin Dep. at 56.) The FBA summarized C.R.'s issues as follows: "The available information suggests that when C.R. is asked to do work in conjunction with unstructured situations, he is disrespectful ...." (Assessment at 2.) The Plan prescribed a set of actions to help C.R. in the classroom, including sensitivity training for C.R.'s class (which Zdrowski did not agree to), using a points chart for good behavior, and daily e-mails sent to Zdrowski. (BIP.) The BIP also stated that "If C.R. gets physical ... contact parent," and to do so "when applicable." (Id. at 2 (ellipses in original).) The BIP also provided for "Crisis Intervention," stating that "Principal/Office will be contacted immediately" by school staff on an "ASAP" basis. (Id. at 3.)

Baldwin testified that during the 2010 academic year, the School District was attempting various accommodations for C.R. before referring him to a special education class. (Baldwin Dep. at 14–16.) For example, C.R. was seated close to the teacher, was allowed extra time in the halls to allow him to cope with the unstructured setting, and he was allowed to be first in line to limit the potential for conflicts regarding personal space. (Dkt. 85, IEP No. 2.) The goal, Baldwin testified, was to determine whether C.R. was capable of succeeding in a general education setting. (Baldwin Dep. at 14–16; 57–59.) Zdrowski acknowledges this testimony and admits that the aforementioned accommodations were used, but says that during this time she wanted a one-on-one aide for C.R. and requested an IEP hearing to discuss this request, but that her request was denied. (Zdrowski Dep. at 10.)

D. Second Grade

Defendant Stacey Rieck was C.R.'s teacher for second grade, and Defendant Nicole Adamson taught in a nearby classroom. (Dkt. 73, Rieck Dep. at 5; Dkt. 74, Adamson Dep. at 5.) Rieck is certified to teach K–12 and has training in teaching students with autism

. (Id. at 29.) Adamson is a special education teacher with training in crisis response and intervention. (Adamson Dep. at 4–5, 18.)

The summer before second grade, C.R. was diagnosed with Attention Deficit Hyperactivity Disorder

("ADHD") and Oppositional Defiant Disorder by Dr. Hull of Children's Health Care of Port Huron. (Dkt. 101–24, Children's Health Care Records.) And shortly after entering second grade, C.R. was examined at St. John Children's Center by Dr. John J. Zmiejko. (Dkt. 86, St. John Record.) Dr. Zmiejko offered this assessment:

[C.R.] is a 7–year and 8–month–old boy with a clinical diagnosis of ADHD and oppositional defiant disorder

based on the most recent psychological evaluation. According to mother, he has been on ADHD medications on and off for the past 1–1/2 years with no improvement in his symptoms.... The major behavioral problems include defiance, noted both at school and at home, and very poor social skills.... [C.R.] can be very moody and change his mood in a split second.

(Id. at 1.) The doctor also noted that C.R. "may get...