SEAN F. COX, District Judge.
Plaintiffs filed this action against Defendants alleging that Defendants violated the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act by refusing to allow the minor student
Upon remand, the parties asked to have limited discovery on the issue of administrative remedies pursued and that discovery has since concluded. The matter is now before the Court on cross-motions for summary judgment, wherein each party asks the Court to rule in their favor as to Defendants' affirmative defense of failure to exhaust administrative remedies under the IDEA. The motions were fully briefed and the Court heard oral argument on August 16, 2018. As explained below, the Court concludes that it cannot make a summary judgment ruling as to this affirmative defense based upon the evidence that was presented in connection with the cross-motions. As such, the Court shall DENY BOTH MOTIONS WITHOUT PREJUDICE.
On December 17, 2012, Plaintiff E.F., a minor, by her next friends, Stacy and Brent Fry (her parents), filed this action against Defendants Napoleon Community Schools, Jackson County Intermediate School District, and Pamela Barnes ("Defendants"). The action was assigned to Judge Zatkoff.
Plaintiffs' Complaint asserts that Defendants violated Title II of the ADA and § 504 of the Rehabilitation Act.
The Complaint alleges that Defendants violated the Rehabilitation Act by "denying [E.F.] equal access" to Ezra Eby Elementary School and limiting her access to the District's and ISD's facilities, programs, and services compared to her non-disabled, non-service animal user peers. (D.E. No. 1 at ¶ 68). It alleges that Defendants' "discrimination was intentional as Defendants "knowingly refused to recognize Wonder as a service dog despite having full knowledge that [E.F.] qualified as an individual with disabilities and relied upon Wonder to obtain equal access to the District's and ISD's facilities, programs, and services as compared to her non-disabled, non-service animal user peers." (Id. at ¶ 70).
The Complaint alleges that Defendants violated the ADA by their "deliberate refusal to recognize Wonder as a service dog and to permit his access in the instructional setting, discriminated against [E.F.] as a person with disabilities who uses a service animal by denying her equal access and otherwise limiting her access to the District's and ISD's facilities, programs, and service as compared to her non-disabled, non-service animal user peers." (Id. at ¶ 82). It alleges that Defendants "illegally discriminated against [E.F.] in their continuing refusal to reasonably accommodate [E.F.] as a person with disabilities who uses a service animal." (Id. at ¶ 83).
The Complaint alleges that Defendants "refusal to accommodate [E.F.'s] disabilities has caused her harm," which includes:
(D.E. No. 1 at Pg ID 8-9).
Plaintiffs' Complaint seeks a declaration that Defendants violated Plaintiffs' rights under Section 504 of the Rehabilitation Act and Title II of the ADA, an award of monetary damages
Defendants filed an Answer and Affirmative Defenses on February 11, 2013 (D.E. No. 11) and it includes the following as an affirmative defense: "Plaintiffs have failed to exhaust their administrative remedies generally and specifically with the Individuals With Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act." (Id. at Pg ID 73).
On July 24, 2013, Defendants filed a motion asking the Court to dismiss the action pursuant to Fed. R. Civ. P. 12(c), asserting that "[b]ecause of Plaintiff's failure to exhaust administrative remedies, her claim should be dismissed for lack of jurisdiction." (Id. at Pg ID 124).
In an Opinion & Order issued on January 10, 2014, Judge Zatkoff granted Defendants' motion and dismissed Plaintiffs' Complaint without prejudice. EF ex rel. Fry v. Napoleon Commty. Sch., 2014 WL 106624 (E.D. Mich. 2014). Plaintiffs appealed.
In an Opinion issued on August 5, 2015, a divided panel of the Sixth Circuit affirmed in Fry v. Napoleon Commty. Sch., 788 F.3d 622 (6th Cir. 2015). As the Supreme Court summarized:
Fry, 137 S.Ct. at 752.
The United States Supreme Court granted certiorari "to address the confusion in the courts of appeals as to the scope of § 1415(l)'s exhaustion requirement," vacated the Sixth Circuit's decision, and remanded the case to the Sixth Circuit. Id. at 752.
In Fry, the Supreme Court held that "Section 1415(l) requires that a plaintiff exhaust the IDEA's procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit `seek[s] relief that is also available' under the IDEA." Id. at 752. "The only relief that an IDEA officer can give — hence the thing a plaintiff must seek in order to trigger § 1415(l)'s exhaustion rule — is relief for the denial of a FAPE." Id. at 753.
The Court explained that if a parent's IDEA complaint protested a school's failure to provide some accommodation for a child with a disability, and that accommodation is needed to fulfill the IDEA's FAPE requirement, the hearing officer could (and must) order that relief. On the other hand, if that accommodation is not needed in order to provide the student with a FAPE, the hearing officer cannot provide the requested relief. "For that reason, § 1415(l)'s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a [FAPE]. If a lawsuit charged such a denial, the plaintiff cannot escape § 1415(l) merely by bringing her suit under a statute other than the IDEA — as when, for example, the plaintiffs in Smith claimed that a school's failure to provide a FAPE also violated the Rehabilitation Act." Id. at 754.
But if the remedy sought in a suit brought under another statute "is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required." Id. at 754. A school's refusal to make an accommodation might injure the student "in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA. A complaint seeking redress for those other harms, independent of any FAPE denial, is not subject to" the exhaustion requirement. Id. at 754-55.
The Court held that in determining whether a plaintiff seeks relief for the denial of a FAPE, "what matters" is the gravamen of the plaintiff's complaint, "setting aside any attempts at artful pleading." Id. at 755.
"That inquiry makes central the plaintiff's own claims," because, in effect § 1415(l) "treats the plaintiff as `the master of the claim.'" Id. at 755. As such, in deciding whether the exhaustion requirement applies here, this Court "must therefore examine whether a plaintiff's complaint — the principal instrument by which she describes her case — seeks relief for the denial of an appropriate education." Id. And that inquiry looks to substance, not labels. Thus, exhaustion is required "when the gravamen of a complaint seeks redress for a school's failure to provide a FAPE, even if not phrased or framed precisely that way." Id.
The Court again stressed the IDEA's goal is to provide a student with a FAPE. "By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools." Id. at 756. Those statutory differences "mean that a complaint brought under Title II and § 504 might instead seek relief for simple discrimination, irrespective of the IDEA's FAPE obligation." Id.
The Court then suggested that consideration of a pair of hypothetical questions may help guide the inquiry:
Id. at 756 (emphasis added).
In a footnote addressing concerns raised in the concurring opinion, the majority opinion stated that the "point of the questions is not to show that a plaintiff faced with a particular set of circumstances could only have proceeded under Title II or § 504 — or, alternatively, could only have proceeded under the IDEA. (Depending on the circumstances, she might well have been able to proceed under both.) Rather, these questions help determine whether a plaintiff who has chosen to bring a claim under Title II or § 504 instead of the IDEA — and whose complaint makes no mention of a FAPE — nevertheless raises a claim whose substance is the denial of an appropriate education." Id. at 757 n.10 (italics in original).
Finally, the Court suggested a "further sign" that should be considered in deciding if the gravamen of a suit is the denial of a FAPE:
Id. at 757.
The Court noted that the Sixth Circuit "did not undertake the analysis we have just set forward," and ultimately remanded for that analysis because it lacked all the information required. Id.
But before remanding, the Court considered the Fry's complaint, and the hypothetical questions it suggested, and stated as follows:
Id. Nevertheless, Court remanded the case so that the history of the proceedings could be considered:
Id. at 758 (emphasis added).
Justice Alito, with whom Justice Thomas joined, concurred in the result but wrote separately to explain that he would not suggest the "clues" included in the majority opinion, particularly with respect to the clue suggesting the court look at whether the parents pursued then abandoned procedures under the IDEA:
Id. at 759 (emphasis added).
In an Order issued on July 21, 2017, the Sixth Circuit noted that the case was before it on remand from the United States Supreme Court and then stated:
(D.E. No. 33) (emphasis added). The mandate issued on August 15, 2017. On September 5, 2017, this case was reassigned from Judge Zatkoff to the undersigned.
On October 10, 2017, this Court held a Status Conference with Counsel, after which it issued a text-only order setting "discovery as to Administrative Remedies Pursued due by" December 11, 2017.
This Court's practice guidelines are included in the Scheduling Order and provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
(D.E. No. 16 at 2-3).
On February 9, 2018, Plaintiff filed a "Motion for Partial Summary Judgment to Dismiss Defendants' Affirmative Defense of Failure to Exhaust Administrative Remedies." (D.E. No. 39). Plaintiff complied with the Court's practice guidelines for motions for summary judgment such that its motion included a separate "Statement of Material Facts Not In Dispute" ("Pl.'s "Stmt."). In response to that motion, Defendants filed a response brief (D.E. No. 43) and a separate response to Plaintiff's Statement of Material Facts. (D.E. No. 43-1). Defendants' Statement does not identify any issue of material of fact as to which they contend there is a genuine issue for trial.
On February 12, 2018, Defendants filed a Motion for Summary Judgment (D.E. No. 40). Defendants did not comply with the Court's practice guidelines as their motion does not include a separate Statement of Facts Not in Dispute.
Both motions have been fully briefed. The Court heard oral argument on both motions on August 16, 2018.
Summary judgment will be granted where there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.
The Court "must view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the non-moving party." Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002). "The court's duty to view the facts in the light most favorable to the nonmovant does not require or permit the court to accept mere allegations that are not supported by factual evidence." Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). "This is so because the nonmovant, in response to a properly made and supported motion for summary judgment, cannot rely merely on allegations but must set out specific facts showing a genuine issue for trial." Id.
Because this issue is before the Court on cross-motions for summary judgment, unless otherwise noted, the Court includes here only undisputed evidence. The Court will also note gaps in the relevant evidence that has been presented by the parties.
E.F. is a minor child with a severe form of cerebral palsy and she is qualified for special education services under the IDEA.
Before enrolling her in the Ezra Eby Elementary School kindergarten program for the 2009-2010 school year, E.F.'s parents informed the school administration that they planned to obtain a service dog for E.F. and expected the animal to attend school with E.F. (Pl.'s & Defs.' Stmts. at ¶ 3). Jim Graham, the Superintendent of the Napoleon Community School District, testified that Stacy Fry so informed him of this during some type of program at the elementary school. He testified that he walked away without saying anything in response. (Graham Dep. at 12-13).
On October 12, 2009, E.F.'s parents wrote a letter to Graham, as the Superintendent of the Napoleon School District that stated, in pertinent part:
(D.E. No. 39-5).
E.F.'s parents provided the Napoleon Community Schools with an October 30, 2009 letter from E.F.'s physician stating that E.F.'s "spastic quadriplegic cerebral palsy makes it medically necessary that she use a guide/helper dog. It will be necessary for her dog to also be allowed to assist her at school, and will be in school with her for daily activities." (D.E. No. 39-3).
Stacy Fry testified that there was a meeting at the elementary school that took place on December 11, 2009, during which they discussed the service dog. (Stacy Fry Dep. at 43-44). She further testified that a future meeting was then set for January 7, 2010.
Before that meeting was held, on December 17, 2009, E.F.'s parents sent Graham a letter that stated:
(D.E. No. 39-7). Graham testified as follows:
(Graham Dep. at 38-39).
Graham sent the Frys a letter dated January 4, 2010, in response to their December 17, 2009 letter. (D.E. No. 39-8). It stated, in pertinent part, that:
(Id.).
Another meeting was held on January 7 2010. Stacy Fry testified as follows regarding that meeting:
(Stacy Fry Dep. at 100-101).
At the conclusion of the January 7, 2010 meeting, the Frys were informed in writing that the "request of a service dog has been considered and rejected by the IEP team. It is felt by the IEP team that all of the student's physical and academic needs are being met through the services/programs/accommodations of the IEP." (D.E. No. 39-9). That same form noted that the "Parents were comfortable and agreed with the rest of the IEP as outlined." (Id. at Pg ID 414).
That form, given to the Frys on that date, had the following section to be filled out by the parents:
(D.E. No. 39-9 at Pg ID 415). Graham testified:
(Graham Dep. at 59-60).
The Frys, who were not represented by counsel, signed the form and checked the box that said, "I do not agree with this plan and request mediation." (Id.).
Stacy Fry testified that they checked that box "[b]ecause we wanted to continue the discussion of [E.F.] being able to have her service dog accompany her to school, and this was the only way we knew how . . . We had to check a box and we wanted to continue the conversation. And so just having the door closed on us, we always believed that it was [E.F.'s] right independent of the education plan to have the service dog with her, but this was the only means for us to continue the conversation with the school." (Fry Dep. at 72-73).
Later the same day they signed that form, January 7, 2010, the Frys sent Graham a letter that stated:
(D.E. No. 39-10) (italics in original; bolding added for emphasis).
At some point after the January 7, 2010 meeting, the ACLU began representing the Frys. On January 21, 2010, the ACLU sent Defendants a letter, that stated in pertinent part:
(D.E. No. 39-11) (bolding and italics added for emphasis).
Stacy Fry testified that the mediation consisted of a one-time meeting on January 29, 2010. (Stacy Fry Dep. at 95).
On March 22, 2010, Plaintiffs and Defendants signed an "Interim Agreement." (D.E. No. 40-9). It noted that an IEP team meeting had been held on January 7, 2010 and that, at the conclusion of it, the Frys "requested mediation to address their concerns regarding the IEP Team's conclusion that the presence or use of a dog was not necessary to provide E.F. with a free appropriate public education." (Id. at Pg ID 580). It stated that the "Parties held a mediation session on January 29, 2010" and that they were agreeing to allow the dog access to the instructional setting at the school, while accompanied by a designated handler provided by Plaintiffs, for a trial period. The agreement notes that Defendants "recognize that it is the Parents' view that Wonder is a service animal as that term is defined by the [ADA]" but states that they "do not concede that to be the case." The agreement states that the Parties "agree that this Interim Mediation Agreement constitutes a mediation agreement pursuant to 20 U.S.C. § 1415, and as such, is enforceable under IDEA in any court of competent jurisdiction."
The evidence provided by the parties does not include any evidence as to the details of how or why the trial period with Wonder did not succeed. But it appears undisputed that it did not work out. It also appears that the Frys removed E.F. from school and began home-schooling her. But again, the parties have not provided evidence regarding these alleged facts. That is because Plaintiff's Statement was, in portions, based on allegations in the complaint, and Defendants responded by denying those statements without offering any evidence to show otherwise. (See, e.g., Stmts. at ¶ 27-29).
Although there is no evidence in the record on this either, it appears undisputed that Plaintiffs never filed a complaint for a due process hearing under the IDEA.
On June 24, 2010, the ACLU filed a discrimination complaint on behalf of the Frys against Defendants with the United States Department of Education, alleging "Discrimination on the basis of disability". (D.E. No. 40-10). That letter asserted that Defendants "refusal to recognize Wonder as a service dog, and permit his access in the instructional setting, is a denial of [E.F.'s] rights pursuant to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1972." (Id at Pg ID 590). That same letter asserts that Wonder is a valuable tool to help [E.F.] increase her independence" and that "[s]uch independence is critical for [E.F.'s] educational success and thus a necessary component of her IEP." (Id. at Pg ID 591). The letter states that the Frys "request that the Department of Education — Office of Civil Rights investigate this matter and ultimately find in favor or [E.F.] and permit her to return to Ezra Eby Elementary School in September with her service dog Wonder, and that Wonder be utilized fully in assisting [E.F.] and have full access within the school setting." (Id.)
On or about May 3, 2012, the Office of Civil Rights ("OCR") issued a decision letter, which is attached to Plaintiff's Complaint at D.E. No. 1 at Pg ID 19. The OCR agreed with the Frys that Defendants' exclusion of E.F.'s service animal violated her rights under the ADA and Section 504 of the Rehabilitation Act. The OCR "explained in its decision letter that a school's obligations under those statutes go beyond providing educational services: A school could offer a FAPE to a child with a disability but still run afoul of the laws' ban on discrimination." Fry, 137 S.Ct. at 751. As the Supreme Court explained, the OCR found that:
Ezra Eby had indeed violated that ban, even if its use of a human aide satisfied the
Fry, 137 S.Ct. at 751.
It is undisputed that in order to settle the complaint with the OCR, Defendants entered into a six-page resolution agreement in which they agreed to take E.F. back with Wonder and allow Wonder to accompany and assist E.F. throughout the school. (Pl.'s & Defs.' Stmts. at ¶ 33).
It appears undisputed, however, that E.F. did not return to school after that agreement. The Frys claim to have enrolled E.F. in another school that enthusiastically welcomed E.F. and Wonder, because, after a contentious meeting with a school official, they feared school officials might resent E.F. and make her return to school difficult. But there is no evidence in the record as to this either, as Plaintiffs' Counsel just references the complaint in support of this assertion and Defendants simply denied it as untrue.
On December 17, 2012, the Frys filed this action in federal court, asserting claims under the ADA and Section 504 of the Rehabilitation Act.
Although the Supreme Court's decision remanded for consideration of just the final "clue" regarding history of the proceedings, the Court addresses here all of the components of the inquiry.
Again, the Supreme Court noted that the "central inquiry" is the "plaintiff's own claims." Fry, supra, at 755. Thus, a "court deciding whether § 1415(l) applies must therefore examine whether a plaintiff's complaint — the principal instrument by which she describes her case — seeks relief for the denial of an appropriate education." Id.
As the Supreme Court noted, the Plaintiff's complaint in this case "alleges only disability-based discrimination, without making any reference to the adequacy of the special education services E.F.'s school provided." Id. at 758. Plaintiff's complaint "contains no allegation about the denial of a FAPE or about any deficiency in E.F.'s IEP. More, it does not accuse the school even in general terms of refusing to provide the educational instruction and services that E.F. needs." Id. "The Frys instead maintained, just as OCR had earlier found, that the school districts infringed E.F.'s right to equal access — even if their actions complied in full with the IDEA's requirements." Id.
In addition, the complaint contains factual allegations as to how the Frys ultimately chose to send E.F. to a school in another district, one that allegedly enthusiastically welcomed E.F. and Wonder. There is no indication in the complaint that the Frys ever intended to have E.F. return to Ezra Eby Elementary School. In fact, during the years during which this case has proceeded, E.F. has since finished elementary school.
Accordingly, there is nothing about the allegations in the Plaintiffs' complaint in this action that indicate that it is actually seeking relief for the denial of a FAPE by Defendants.
Consideration of the pair of hypothetical questions suggested by the majority opinion also suggests that the essence of Plaintiff's complaint is equality of access to public facilities, and not the adequacy of special education.
In a footnote addressing concerns raised in the concurring opinion, the majority opinion stated that the "point of the questions is not to show that a plaintiff faced with a particular set of circumstances could only have proceeded under Title II or § 504 — or, alternatively, could only have proceeded under the IDEA. (Depending on the circumstances, she might well have been able to proceed under both.) Rather, these questions help determine whether a plaintiff who has chosen to bring a claim under Title II or § 504 instead of the IDEA — and whose complaint makes no mention of a FAPE — nevertheless raises a claim whose substance is the denial of an appropriate education." Id. at 757 n.10 (italics in original).
Consideration of the hypothetical questions here, shows that the substance of Plaintiffs' complaint asserting ADA/Section 504 claims, with no allegation of a denial of a FAPE and not seeking to modify her IEP, is not the denial of a FAPE. As the Supreme Court noted in the majority opinion:
Fry, 137 S.Ct. at 758-59.
This Court agrees with the Supreme Court that consideration of the pair of hypothetical questions also indicates that the Plaintiffs' Complaint is not seeking relief for the denial of a FAPE.
Consideration of the history of the proceedings, therefore, is the only "clue" that could possibly suggest that the gravamen of the Plaintiffs' complaint is actually the denial of a FAPE. See Fry, 137 S.Ct. at 758 ("From all that we know now," this suit has nothing to do with the provision of educational services "[b]ut we do not foreclose the possibility that the history of these proceedings might suggest something different.").
In this Court's view, both Plaintiffs' and Defendants' briefs miss the mark in terms of analyzing this issue upon remand.
Plaintiffs contend that their involvement in the IDEA procedures does not indicate that this action is about a denial of FAPE for three reasons: 1) because the Frys did not decide to invoke the IDEA's procedures, Defendants did; 2) because the Frys testified they only participated in IDEA mediation because they thought it was the only way they could continue the conversation about the service dog; and 3) because other courts have found exhaustion not required, even though the plaintiffs had participated in some IDEA procedures. Thus, Plaintiffs give us evidence as to why Plaintiffs "started down the IDEA road," but offer no evidence as to why Plaintiffs changed course.
Defendants continue to make the same kind of arguments that they made before the Sixth Circuit, that exhaustion is required because the Frys made many statements indicating that E.F.'s use of the dog was needed to develop "independence" and, since that is the goal of her IEP, exhaustion is required.
Notably, neither party has offered this Court any evidence as to the reasons behind the Frys change from participating in the IDEA's administrative procedures to their decision to pursue federal court litigation based on the ADA and Section 504 of the Rehabilitation Act alone. (See 8/16/18 Hrg. Tr.) (when asked by the Court if counsel for either party ever asked the Frys during their depositions why they changed course and decided to bring suit under the ADA/Section 504 alone, counsel responded "no.")
In discussing the consideration of the history of proceedings issue, the majority opinion stated that a "court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute — thus starting to exhaust the Act's remedies before switching midstream and explained:
Fry, 137 S.Ct. at 757. The majority noted that "whether that is so depends on the facts" at hand in each case. And it gave an example of circumstances under which the shift to judicial proceedings would not be indicative of a strategic calculation about how to maximize the prospect of a remedy for the denial of a FAPE — a court may conclude "that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely." Fry, 137 S.Ct. at 757.
The concurring opinion gave three other examples of circumstances that would not be indicative of a strategic calculation about how to maximize the prospect of a remedy for the denial of a FAPE: 1) "circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide;" or 2) circumstances under which the "parents might be advised by their attorney that the relief they were seeking under the IDEA is not available under that law but is available under another; or 3) "the parents might change their mind about the relief that they want, give up on the relief that the IDEA can provide, and turn to another statute." Fry, 137 S.Ct. at 759.
Here, however, the parties have not provide any evidence as to the reasons why the Frys changed course (i.e., why they stopped pursuing administrative relief under the IDEA and, instead, filed suit in federal court under the ADA/Rehabilitation Act alone). In other words, there is no evidence in the record as to the reasons behind their shift to judicial proceedings. Absent such evidence, in light of the Supreme Court's instructions upon remand, and mindful of the factual gaps in the proceedings discussed earlier, the Court concludes that a summary judgment ruling is not appropriate at this time.
For the reasons set forth above, IT IS ORDERED that both motions for summary judgment on the affirmative defense of failure to exhaust remedies are DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
