RAY KENT, Magistrate Judge.
This matter is now before the Court on a motion for summary judgment and to dismiss filed by defendants (ECF No. 17).
The plaintiffs in this case are Robert Lang, Susan Lang, and Anastasia Lang. Plaintiffs Robert Lang and Susan Lang (sometimes referred to as the "Parents") are the father and mother of Anastasia Lang (sometimes referred to as the "Student"). Compl. (ECF No. 1, PageID.1). The defendants are the Oakridge Public Schools (sometimes referred to as the "District"), the Oakridge Public Schools Board of Education, James McVoy (an administrator of the District's education programs and services), and Kurt Kiesgen (a teacher and athletic coach at the District). Compl. at PageID.4-5.
Plaintiff Anastasia Lang was 19 years old when the complaint was filed. Id. at PageID.3. She "has been diagnosed with an autism spectrum disorder and other mental and emotional health issues which significantly limit her ability to communicate, learn, concentrate and self-advocate, and/or is regarded as having such impairments." Id. While Anastasia attend school in the District, plaintiffs engaged in "protected activity," seeking educational planning, supports, accommodations, and modifications to help her achieve equal access to the education environment. Id. at PageID.5. The "recommended supports and modifications needed" for Anastasia included sensory integration tools and accommodations, such as a "safe space" accessible to her at all times to reduce stimuli in order to prevent or manage anxiety and sensory overload. Id. Plaintiffs allege that defendants discriminated against Anastasia by:
Id. at PageID.5-6.
Plaintiffs claim that defendants did not comply with their responsibilities under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12203 and 28 C.F.R. §35.134 and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794(a) and 29 C.F.R. § 33.13, "to make accommodations and modifications to address the needs of the Student and other students with disabilities." Id. at PageID.6. In addition, "[t]he benefits or services provided to [Anastasia] were not equally effective as those provided to other students as they did not afford [her] an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as other students." Id. Defendants also used discriminatory policies, practices and procedures which discriminated against students with disabilities or had the effect of "defeating or impairing accomplishment of the objectives of the education program in regard to students with disabilities." Id. Defendants also discriminated against Anastasia with policies, practices and procedures "regarding [her] movement in the building and access to accommodations and modifications, as well as regarding discipline for alleged violations of rules resulted in discrimination against [her] and other students with disabilities, subjecting her to punishment for attempting to access accommodations and modifications and then prohibiting access to needed accommodations and modifications during the disciplinary process." Id. at PageID.6-7.
Defendants also "engaged in prohibited retaliation and discrimination by mocking, harassing, and punishing [Anastasia] when she attempted to access the agreed upon sensory tools and accommodations and by preventing her from accessing a `safe space' when needed and as agreed upon." Id. at PageID.7. In this regard, Anastasia "was formally disciplined on at least two occasions for attempting to access accommodations and modifications." Id.
Plaintiffs alleged that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or rights. Id. In this regard, Anastasia "struggled to be present in the school environment," "often ended up having to leave or not attending school at all," and "experienced extreme anxiety, fear, and depression as a result of the hostile environment at Oakridge, leading to increased self-injurious behaviors and suicidal thoughts, ideations, and behaviors." Id. Plaintiffs alleged that a causal connection existed between the protected activity and the retaliatory action "based on an unusually suggestive temporal proximity between the protected activity and the retaliatory action, and/or a pattern of antagonism contemporaneous to the actions which the Langs [the Parents] were taking to secure and enforce [Anastasia's] rights under state and federal law." Id.
In ¶¶ 33-37 of their complaint, plaintiffs set forth the actions which they took with respect to defendants:
Id. at PageID.8.
Plaintiffs' complaint consists of two counts. In Count I, plaintiff Anastasia Lang claims damages for discrimination "Based on disability and denial of equal opportunity and access to appropriate educational services, as guaranteed by Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130 (ADA) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) and 34 C.F.R. § 104 (Section 504)." Id. PageID.9 (emphasis omitted). Specifically, plaintiffs allege that defendants discriminated against Anastasia:
Id. at PageID.9.
In Count II, plaintiffs Robert Lang, Susan Lang, and Anastasia Lang claim damages for retaliation in violation of the ADA and the Section 504. Id. at PageID.10. In this regard, plaintiffs allege that:
Id. at PageID.10.
Plaintiffs seek compensatory and punitive damages, attorney fees, and unspecified equitable relief. Id. at PageID.11.
In their dispositive motion, defendants seek summary judgment pursuant to Fed. R. Civ. P. 56, and alternatively request the Court to dismiss defendant Oakridge Board of Education pursuant to Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction). However, defendants' supporting brief does not include the legal standards applicable to relief under these two court rules; defendants simply conclude with requests that "this Court grant them summary judgment," with an alternative request "that this Court dismiss Defendant Board of Education pursuant to Fed. R. Civ. P. 12(b)(2)." Defendants' Brief (ECF No. 17, PageID.107). Despite defendants' failure to provide the applicable legal standards, the Court will view the motion as one brought for summary judgment under Fed. R. Civ. P. 56 because there is a factual record in the form of an affidavit from Gregory Bodrie (Director of Special Education for defendant District) which provides evidence that plaintiffs did not exhaust their administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. (ECF No. 17-5).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:
Copeland, 57 F.3d at 478-79 (citations omitted). AIn deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.@ McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
As an initial matter, defendant Oakridge Board of Education seeks dismissal because it is an entity which cannot be sued. Plaintiffs concur to the extent that the Board should be dismissed without prejudice. Defendants do not address plaintiffs' concession in their reply brief. Based on plaintiffs' concession, defendant Oakridge Board of Education should be dismissed without prejudice.
Defendants seek summary judgment on the ground that plaintiffs failed to exhaust their administrative remedies under the IDEA. The Sixth Circuit addressed the importance of the exhaustion requirement in actions involving the IDEA in Crocker v. Tennessee Secondary School Athletic Association, 873 F.2d 933 (6th Cir. 1989):
Crocker, 873 F.2d at 935.
While plaintiffs have not alleged an IDEA violation in either Count I or Count II, the statute's exhaustion requirement applies because they raised federal claims related to the alleged denial of Anastasia's "equal access and opportunity to appropriate educational services". Compl. at PageID.2. While plaintiffs' complaint did not seek relief under the IDEA, their allegations clearly establish that Anastasia's situation was covered by that statute:
Id. at PageID.3-4.
As this Court stated in Richards v. Sturgis, No. 1:18-cv-358, slip op. (ECF No. 50) (W.D. Mich. Sept. 14, 2018), plaintiffs cannot avoid exhaustion under the IDEA by filing claims under the ADA and the Rehabilitation Act, where the gravamen of the complaint is that the defendant failed to provide a disabled student with the denial of a free and appropriate public education:
Richards, No. 1:18-cv-358, slip op. (ECF No. 50, PageID.381-383) (emphasis in original).
As in Richards, the gravamen of Anastasia's discrimination claims under the ADA and Section 504 is that defendants denied her a FAPE by failing to provide her with a number of accommodations directly related to her education as a student enrolled in the District. Here, the record reflects that plaintiffs did not exhaust this claim under the IDEA. Because this lawsuit involves the alleged denial of a FAPE, plaintiff cannot escape the exhaustion requirement "merely by bringing [her] suit under a statute other than the IDEA.'" Richards, slip op. at PageID.381, quoting Fry, 137 S. Ct. at 754.
To the extent that plaintiffs contend that exhaustion is futile because they seek monetary damages, their claim fails. "The federal courts require a plaintiff to exhaust IDEA remedies as a prerequisite to bringing claims under another federal statute where a student's injury could be redressed `to any degree' by the IDEA's administrative procedures." B.H. v. Portage Public School Board of Education, No. 1:08-cv-293, 2009 WL 277051 at *9 (W.D. Mich. Feb. 2, 2009) (citing Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162, 1168 (9th Cir. 2007)). "[T]he mere fact that a plaintiff seeks an award of damages that may be unavailable in IDEA administrative proceedings is irrelevant." B.H., 2009 WL 277051 at *9. As the Sixth Circuit stated in S.E. v. Grant County Board of Education, 544 F.3d 633 (6th Cir. 2008):
Grant County Board of Education, 544 F.3d at 642 (quoting Covington v. Knox County School System, 205 F.3d 912, 916 (6th Cir. 2000). For these reasons, defendants' motion for summary judgment should be granted as to Anastasia Lang's discrimination claim.
Next, defendants contend that Anastasia's retaliation claim should be dismissed. Defendants rely on Rose v. Yeaw, 214 F.3d. 206 (1st Cir. 2000). In Rose, the plaintiffs claimed that the defendant school department engaged in a number of wrongful acts, which included failing to accommodate the student's asthma, conditioning the student's placement at the high school based upon consent to a psychological examination, retaliating against the student "in response to [his parents'] efforts to enforce his educational rights," and generally failing to implement his plan. Rose, 214 F.3d at 210. The court concluded that the IDEA's exhaustion requirement applied to a student's claim that the school department retaliated against the student because of his parent's educational advocacy:
Id. As discussed, the gravamen of Anastasia's claims in this case is educational in nature. Because the IDEA exhaustion requirement applies to Anastasia's retaliation claim, defendants' motion for summary judgment should be granted as to that claim.
Finally, plaintiffs Robert and Susan Lang's retaliation claims are subject to the IDEA's exhaustion requirements because their retaliation claims are derivative from their status as Anastasia's educational advocates. "The IDEA affords parents of a disabled child the opportunity to present a complaint `with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. . . .' 20 U.S.C. § 1415(b)(6)(A) (emphasis added)." Batchelor v. Rose Tree Media School District, 759 F.3d 266, 274 (3d Cir. 2014). See Z.G. by and through C.G. v. Pamlico County Public Schools Board of Education, 744 Fed. Appx. 769, 779 (4th Cir. 2018) (where plaintiffs' retaliation claim under the ADA and the Rehabilitation Act arise directly from the parents' advocacy for the student's educational rights, "the retaliation claim is grounded on the school's failure to provide a FAPE, and the plaintiffs were required to exhaust the IDEA's administrative process before bringing that claim"). Here, as in Batchelor and Pamlico County Public Schools, Robert and Susan Lang's retaliation claims arose from their advocacy for Anastasia's education rights at the Oakridge Public Schools. For these reasons, defendants' motion for summary judgment should be granted as to Robert and Susan Lang's retaliation claim.
Accordingly, I respectfully recommend that defendants' motion for summary judgment (ECF No. 16) be
In the alternative, I further recommend that defendant Oakridge Board of Education be dismissed pursuant to plaintiffs' concurrence.
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
