JAMES G. CARR, Senior District Judge.
This is one of a series of cases brought on behalf of DH, a multi-handicapped child (now fourteen years of age) in which her parents, suing pro se,
Pending are plaintiff's motion for partial summary judgment (Doc. 28) and defendants' motion for summary judgment (Doc. 33).
There are essentially two issues in this case on which all else depends. First, why has DH not been enrolled in TPS since the end of the 2005-06 school year. Second, whether her placement in EduCare, a child care/education center owned by the University of Toledo and used by TPS for placement of children with disabilities, was an appropriate placement for DH as of the start of the 2006-07 school year.
I find that, on the basis of undisputed (or insufficiently disputed) material facts that DH's parents are solely responsible for DH's failure to attend school. I also find that, as of the beginning of the 2006-07 school term, EduCare was an appropriate placement.
DH attended EduCare as a pre-school pupil beginning with the 2001-02 school year. As of the 2003-04 school year, DH was, in accordance with her Individual Education Plans (IEPs) in a self-contained classroom for pupils with multiple disabilities at EduCare. She attended that facility from then through the 2005-06 term.
On receiving the complaint, defendant Thom Billau, then Director of Student Services for TPS, notified the parents he was holding places open for DH at both EduCare and Larchmont. (Ex. 049029).
The parents did not enroll DH in EduCare. Unquestionably, they would have been able to do so in August, 2006. Although, as discussed below, TPS notified the parents on August 13, 2008, that DH had been withdrawn retroactively from TPS as of August 29, 2006, the record makes manifestly clear that the parents could have returned DH to EduCare as a pupil in good standing at the beginning of the 2006-07 school term.
Initial Hearing Officer (IHO) Sprenger, following a hearing on the parents' administrative complaint, issued an order stating, inter alia; that:
(Ex. M, p. 61).
On appeal to this court, I upheld the Administrative Order. Bd. of Educ.of the Toledo City Sch. Dist. v. Horen, 2010 WL 3522373, *29 (N.D.Ohio), aff'd, 10-4238 (6th Cir. May 26, 2011) (Horen II). In the meantime, the parents did not comply with the placement at EduCare that the IHO had ordered.
Contrary to plaintiff's contention in this case (which are that TPS had withdrawn DH as of August 29, 2006), the record shows repeated efforts by the District to have her returned to EduCare. On February 16, 2007, TPS wrote to the parents, calling their attention to the failure to return DH to school. The letter asked, "Please advise whether [DH] will resume attending school at Educare, and if so, when that will occur." In addition, the letter notified the parents:
(Tr. 557-58; Ex. 0, TOO102).
Instead of complying either with the IHO's order or the District's request to return DH to school, the parents sent an e-mail asserting that TPS was threatening them with truancy proceedings, DH was not being home-schooled, and she was being denied an FAPE. The parents also stated, however, that they looked forward to an interim IEP meeting. (Ex. 0, TOOI03-105).
On February 19, 2007, TPS e-mailed the parents, asking them to return DH to school so that staff could assess her present levels of performance before convening the interim IEP meeting. (Tr. 558-559; Ex. 0, TOO106). In response, the parents said DH would not return to school without a current IEP. They claimed they had safety concerns, but they did not describe what those concerns were. (Exh. O, T00112).
The parents thereby created a Catch-22 situation: they would not return their daughter even for a performance evaluation, which, in turn, would facilitate the effectiveness of the interim IEP meeting — but they also asserted they would not return her without an IEP.
In making this demand, the parents were ignoring and preventing accomplishment of the purpose of an IEP as highlighted in several cases. See, e.g., D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir.2010) (citations omitted) (emphasis supplied) ("An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services.").
This was the first in a series of situations in which the parents, in response to TPS offers to assist in formulating in IEP, would respond with inappropriate demands that the District could not meet.
(Tr. 560; Ex. 0, TOO114-115).
The parents instead offered to bring DH to school on March 2, 2007, with an IEP meeting immediately to follow that afternoon. TPS agreed. (Tr. 560-62; Ex. 0, TOO116, T00120-121). However, when they appeared with their daughter, the parents refused to proceed because TPS's attorney would be attending the IEP meeting. (Tr. 562-68; Ex. 0, T00140-143). Plaintiff also stated he had refused to allow staff to evaluate DH the previous day because TPS's attorney was not present. (Id.).
There ensued a fruitless series of TPS attempts — each and every one that the parents frustrated in one way or another — to have an IEP meeting. The District scheduled IEP meetings on dates that the parents either selected or agreed to for
Because of the repeated cancellations resulting from the parents' unfulfillable demands, the District sent a letter on June 21, 2007, asking whether they would participate — or continue to refuse to participate — in an IEP meeting without tape recording and with the TPS attorney present. (Ex. 0, T00246-248; Tr. 573-74). The parents did not respond.
Given the parents' refusal to cooperate in the District's efforts to have DH return to the EduCare placement, to which the parents had not previously objected, and as the IHO had ordered, in July, 2007, the District filed an administrative due process complaint in Case No. 1992-2007. (Tr. 548-550; Ex. 0, T00001-00006).
On October 10, 2007, while this complaint was pending with the ODE, TPS sent the parents a draft proposed IEP for DH (Tr. 449-453; Ex. G, S00233-238). TPS asked the parents to update the District as to DH's then current levels of performance and provide any recent reports from therapists regarding DH (Ex. G, S00233-238). The parents left this letter unclaimed. (Ex. G, S00243).
By letter dated October 22, 2007, the parents asked for an IEP meeting on October 30, or November 1, 2007. (Ex. H, S00258; Tr. 844). In response, the District sent a Parent Invitation for a meeting on November 1. (Ex. H, S00259; Tr. 845). The purpose of the meeting, the invitation stated, was to develop an interim IEP in accordance with the IHO's orders in Case 1872-2006. (Id.).
The parents responded in an e-mail with a complaint that the invitation was deficient because it did not state that the meeting was being convened at their request. (Ex. H, S00260; Tr. 849-850). Whereupon defendant Billau sent a revised invitation with that change. (Ex. H, S00264; Tr. 851). Billau told DH's teacher, Ms. Martin, of the scheduled IEP meeting. Ms. Martin, in turn, notified DH's services providers. (Ex. H, S00262; Tr. 851-852).
This meeting, too, did not go forward. That was so because on Sunday night, October 28, 2007, plaintiff e-mailed Billau demanding that before the November 1st meeting, TPS provide the parents with DH's "educational information as well as charter, licensing and/or contract information about her stay-put placement, Educare." (Ex. H, S00261; Tr. 851).
This is not a demand that TPS could meet, given the fact that the parents consider themselves — not the ODE or courts — the final arbiter of what constitutes full compliance with the IDEA. That this is so is apparent from their next communication with the District. On November 7th, the parents responded to the October 7th draft IEP and request to meet by restating their refusal to participate in an IEP meeting unless they were allowed to tape record and exclude TPS's attorney. (Tr. 454-455; Ex. G, p. S00257).
About six months later, on April 7, 2008, the parents filed the due process complaint, which is the subject, in part, of this proceeding, Case 2102-2007. After the parents had amended their complaint, they appealed an adverse decision by the IHO to the SLRO. The SLRO remanded to the IHO for a hearing and findings to determine specified issues regarding the 2007-08 school year:
(IRO Davis Decision, 8/5/2011, p. 2-3)
This began another period of delay on the part of the parents.
The IHO set a prehearing conference for September 3, 2009. The parents sought leave to file a motion to disqualify TPS's counsel, which the IHO denied. (Id. at 3).
At a second prehearing conference on December 16, 2009, the IHO scheduled a hearing for March 19, 2010, with a disclosure conference to occur on March 4, 2010. At the March 4th conference, plaintiff stated he was, due to work commitments, only available for hearings on weekends. (Id.). The IHO reset the hearing for May 8, 2010, with a disclosure conference scheduled for April 29, 2010. (Id. at 5).
On April 22, 2010, the IHO received a letter from the parents stating that, due to urgent family issues, they would not be available until June, 2010. The IHO reset the hearing for August 28, 2010, with a prehearing disclosure conference on August 12, 2010. (Id.).
Due to the parents' claim of urgent family medical issues, the August 28th hearing became a disclosure conference. The IHO reset the hearing for October 9 and 23, 2010, with a disclosure conference on October 2nd. On the date of the disclosure conference, the parents, contrary to the IHO's order, failed to bring their exhibits.
The hearing to address the issues remanded from the SLRO began on October 23, 2010. Because the hearing could not be concluded that day, the IHO agreed to resume on a Saturday in November. The parents stated they were only available Thanksgiving weekend. This was not acceptable to the IHO, who set December 4, 2010, for resuming. The hearing resumed on that date and also on January 8, February 5, and March 5, 2011. After the last hearing date, the IHO told the parents she not was available for any Saturdays in April. The IHO agreed to make herself available to complete the hearing on March 19, 2011. (Id.).
On March 18th, one day before the date for the final hearing, the parents notified the IHO of another family emergency which made them unavailable for the March 19th hearing. Despite her earlier statement that she was not available on Saturdays in April, the IHO agreed to conclude the hearing on April 30, 2011. (Id.).
The hearing on April 30th ended early due to another family emergency. The IHO told the parents that the next hearing date would have to be on a weekday. At a May 3, 2011, prehearing conference, the parties agreed on a June 3, 2011, concluding date. (Id.).
However, in the late evening of June 2, 2011, the parents delivered an "Affidavit of Petitioners' Motion to ODE," which stated that they were only available for hearing on weekends or Friday evenings. (Id.) The IHO denied the motion and concluded the hearing on June 3, 2011, without the parents' participation. (Id.).
Following post-hearing briefing, the IHO issued her decision on August 5, 2011. In response to the five remanded issues, the IHO ruled:
(Id. at 25-27).
For these reasons, the IHO found TPS not liable for a lack of a FAPE for DH. (Id. at 31). On December 2, 2011, the SLRO affirmed the IHO's decision. (Id.).
The standard of review for both procedural and substantive issues in an appeal from and administrative determination under IDEA is a "modified de novo review." Burilovich v. Bd. of Educ. of Lincoln Consolo Schools, 208 F.3d 560, 567 (6th Cir.2000). As stated in that case:
Id.
Before beginning my issue-by-issue review of the SLRO's decision in light of this standard, I emphasize that the pertinent events and the course they took are not in dispute. Contrary to the contention which makes up the bulk of both his motion for partial summary judgment and opposition to the defendants' motion for summary judgment, TPS did not withdraw their daughter on August 27, 2006, and thereby preclude her from the benefits of the IDEA.
Instead, she remained a pupil — albeit one who was not in attendance, until the District sent a letter to the parents on August 13, 2008, that DH had been withdrawn effective August 28, 2006. (Doc. 33-4, at 3).
Likewise, the record which TPS has produced with regard to the status, good standing, and qualifications of EduCare to act as a suitable placement for DH is not, contrary to the plaintiff's suppositions and assertions, in dispute.
Plaintiff has not otherwise contested any of the material facts, as summarized in the preceding section. Consequently, this case is ready for consideration on summary judgment.
The SLRO found:
Except for plaintiff's claim, made solely in light of the date Murphy referenced in his letter, there is no basis whatsoever in the record to support the contention that DH was no longer enrolled with TPS as of August, 2006. Had the situation been otherwise, the District hardly would have undertaken the extensive and continuing efforts that it made to have the parents return her to school in accordance with the IHO's order. Plaintiff's efforts to make the record of the facts other than what they are does not suffice to create a jury question on the issue of when DH was no longer enrolled and whether, had her parents comply with the "stay put" order to return her to EduCare, she would have been allowed back in. No rational trier of fact could find that TPS would not have permitted DH to resume attending school.
In ¶ 31(a), (j), (g), the complaint alleges this finding was erroneous because:
These three findings each relate to the IHO's finding that the parents were unwilling to participate in creating an IEP for DH, and thus TPS was neither responsible nor liable for failing to provide an FAPE to DH.
As noted, there is no genuine dispute of fact with regard to the record, which indisputably shows, inter alia: 1) TPS repeatedly scheduled IEP meetings to develop an IEP for the period including the 2007-08 school year; and 2) the parents' unilateral actions repeatedly caused the meetings not to go forward.
In doing so, the parents failed to fulfill their duty to participate in the IEP process, and thereby impaired that process irredeemably. They cannot contend they did not have such duty, or that they were unaware that they did, in light of my decision in Horen I, supra, 655 F.Supp.2d at 805 (N.D.Ohio 2009), in which I stated: "The parties have a duty to participate in the IEP process." See also CG v. Five Town Community Sch. Dist., 513 F.3d 279, 288 (1st Cir.2008) ("Congress deliberately fashioned an interactive process for the development of IEPs."); 20 U.S.C. § 1414(d)(1)(B); 34 CFR 300.321(a).
See also Doe v. Defendant I, 898 F.2d 1186, 1189 n. 1 (6th Cir.1990) (parent could not complain that school district failed to complete a timely IEP when IEP's non-completion was attributable to parent's actions).
TPS convened at least four IEP meetings that the parents stymied by their unwarranted refusal to proceed unless they were allowed to tape record and keep TPS's attorney from the meeting. In addition, two days before the last scheduled IEP meeting they submitted demands for production that TPS could not meet.
Even in the face of such persistent non-cooperation TPS prepared a draft proposed IEP. At no time did the parents find any specific fault or failing with the draft. Nor did they respond to TPS's request for information. Instead, they ignored both the proposal and request. Their doing so kept the cornerstone of an IEP from the builder's hands.
Even without a completed, jointly created IEP, the District made clear its willingness to provide an FAPE to DH when it: told the parents it was keeping placements open at EduCare and Larchmont; repeatedly sought to convene IEP meetings; expressed a willingness to complete an IEP; sought participation from the parents; and prepared the draft proposed IEP. The parents chose to ignore these efforts; their doing so does not change the fact they were made, or the consequences of that fact — namely, that they alone are responsible for the lack of an FAPE for DH.
Courts confronted with similar circumstances have regularly refused to impose liability on school district defendants. See e.g. J.J. v. Dist. of Columbia, 768 F.Supp.2d 214, 219 (D.D.C.2011); K.G. v. Sheehan, 2010 WL 5644782 (D.R.I.); LeSesne v. Dist. of Columbia, 2005 WL 3276205 (D.D.C.).
The SLRO correctly allocated responsibility for the lack of an FAPE where it belonged, which was not on TPS.
In ¶ 31(e) of the complaint plaintiff alleges that the SLRO erred:
Plaintiff argues that the IHO failed to address DH's rights as separate from those of the parents. The problem with that contention is that, by impeding the
The division of interests on which plaintiff bases this claim does, at least in the circumstances of this case, not exist. No error occurred when the SLRO upheld the IHO's findings and conclusions, which were well-founded and within, not outside the law, on remand.
The complaint, ¶ 31(c), asserts error:
The issue in this case and appeal is who was responsible DH being left without an FAPE. One circumstance contributing to that situation was the parents' persistent and unjustified demand to be able to record the IEP sessions. This was something the TPS could not accommodate in light of its duties under the collective bargaining agreement with the Union.
Had the parents been willing to accept that fact, which is indisputable, they would not (and should not, in any event) have refused to go forward with the IEP sessions. Their unilateral interpretation of their "right" to record, which was counter-factual, and their placing their "right: to do so ahead of their daughter's right to an IEP" were facts which both hearing officers were fully entitled to take into account in assessing responsibility for the lack of an FAPE for DH.
Insistence on recording was not the basis for the decision. The basis for the decision was, rather, that, among other obstructive tactics, the parents wrongfully conditioned their daughter's IEP on their non-existent "right" to record the proceedings.
The rights at stake belonged to DH, and they were real. The "right" that the plaintiff and his wife insisted on asserting, even to the point of derailing the IEP process, was not theirs, and it was unrealistic of them to act as they did when they did not get their way.
Consideration of this circumstance was proper, and involved no error on the part of either hearing officer.
Paragraph 31(b) of the complaint alleges the IHO erred:
There is no factual basis for this contention whatsoever. Indeed, the IHO was unusually accommodating to the parents. The IHO worked with the parents to find dates and places that were reasonably convenient to them. This included scheduling sessions on weekends to suit the parents' contentions that they were not available otherwise, and rescheduling sessions in response to their requests for such accommodation.
There was nothing arbitrary or abusive in her exercise of discretion — in consultation with the parents — with regard to scheduling matters.
These delays were allowed by the IRO due to medical emergencies of Petitioners' family members and also to accommodate Mr. Horen's work schedule that would only allow for weekend hearing.
Paragraph 31(d) claims the SLRO erred: "(d) In failing to permit the parents an opportunity to submit additional evidence as required by Ohio law."
This contention apparently relates to the SLRO's refusal to consider certain evidence that the parents proffered in their Motion to Supplement Record. The evidence included a DVD containing the parent's exhibits, a CD, rebuttal testimony of plaintiff, an affidavit of DH's caregiver, and all evidence that was proffered and denied admission throughout the hearings.
In response to this proffer, the SLRO stated:
The record supports the SLRO's assessment and refusal to admit the evidence into the record. Although an SLRO can allow additional evidence, it is entirely proper for an SLRO to decline, in the exercise of discretion, to do so. No manifest error occurred, and the ruling was procedurally proper.
Plaintiff had not provided some of the evidence to defendants in advance of the hearing. No error occurs when a tribunal declines to allow last-minute sandbagging. Cf. United States v. Johnson, 815 F.Supp. 492, 494 (D.D.C.1993) (rejecting, in part, defendant's proffer during trial of previously undisclosed evidence).
The record before both hearing offices was already vast and plaintiff has not shown how refusal to let these additional items into the record would have had any effect on the outcome or otherwise prejudiced him.
There is no merit to this contention.
Plaintiff claims TPS discriminated and retaliated against DH in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794, on the basis of her disabilities because it has failed to provide her with educational and related services. (Doc. 5, ¶¶ 6, 23, 24).
The factual allegations plaintiff offers in support of these claims are:
Id. at ¶¶ 11, 25.
Defendants argue that plaintiff has not met the requirement of exhausting his administrative remedies with respect to
The administrative complaint in Case 2102-2007 leading to the decisions under review in this case did not include these claims, though they relate to DH's right to an FAPE.
Because plaintiff has not exhausted his administrative remedies, these allegations cannot serve as the basis for his § 504 or ADA claim. Accordingly, TPS is entitled to summary judgment, without prejudice to plaintiff's rights in any other venue or proceeding.
Alternatively, defendants argue that the two-year limitations period, Southerland v. Hardaway Mgt., Inc., 41 F.3d 250 (6th Cir.1994); Hall v. Knott Cty. Bd. of Educ., 941 F.2d 402, 407-408 (6th Cir.1991), bars plaintiff's § 504 and ADA claims, insofar as plaintiff asserts those claims on behalf of DH.
Defendants argue that plaintiff's claims vis-a-vis DH arose when she was administratively withdrawn in 2008. Plaintiff knew of this fact from the letter of August 13, 2008. A claim that TPS discriminated against DH by virtue of her withdrawal from TPS had to be filed within the next two years. It was not.
Plaintiff claims TPS acted unlawfully under the ADA and § 504 when it withheld documents following his October 28, 2007, demand for documents relating to EduCare's allegedly unauthorized status as a child care facility associated with TPS. Though TPS may not have given plaintiff a formal rejection statement, the two-year statute of limitations period ran well before he filed this case more than four years later.
Likewise, plaintiff's claims regarding EduCare and his allegation that TPS discriminated and retaliated against DH by "requiring" her to attend EduCare to receive services arise out of the 2007 and 2008 school years.
The ADA and § 504 claims are, accordingly barred by the statute of limitations.
Plaintiff expends considerable effort arguing that TPS denied DH her right to an FAPE by withdrawing her from its system in August, 2006. In addition, he claims that EduCare was, for various reasons, not qualified to serve as a proper placement for DH.
Aside from the fact that plaintiff bases his contentions as to these issues on speculation and an insubstantial inferential chain, while defendants have clearly established facts on theirs, plaintiff cannot prevail as to either contention because prior judicial proceedings have adjudicated them against him or parties in privity with him.
As to each, there has been claim preclusion, because each has been the subject of "[a] valid, final judgment rendered upon the merits," which `bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.'" Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995). Likewise, there has been issue preclusion, whereby "a party and its privies are precluded from re-litigating facts or issues previously litigated and decided in a prior suit by a court of competent jurisdiction." Id. (citing Thompson v. Wing, 70 Ohio St.3d 176, 637 N.E.2d 917 (1994)).
Defendants have accurately laid out the sequence of decisions in which hearing officers and courts have found, as a matter of fact in dispute, that the parents kept DH from attending school during the 2006-07 term and thereafter. (Doc. 32, at 7-9 of 19):
What matters most for res judicata are my statements in Horen I and Horen II with regard to who was responsible for the failure of DH to resume her education with TPS beginning with the 2006-07 school year.
As noted above, in Horen II, I stated, adopting the finding of the SLRO, "As the SLRO pointed out, her lack of education since that time has been a direct consequence of her parents' actions, not the Board's." 2010 WL 3522373, *29 (N.D.Ohio). The issue of responsibility for the failure to attend EduCare, which was the "stay put" placement which the parents had sought, was pertinent in that case with regard to the issue of relief (the parents having prevailed with regard to the failure to provide an FAPE). In determining to award compensation for the violation, I had to determine whether such relief was appropriate in light of the facts before me. Id.
I concluded that monetary relief was not appropriate. I based that decision on the fact that TPS had, despite its other failings in that case (which are unrelated to what is at issue here), notified the parents that it was keeping placements at both Larchmont and EduCare open for the 2006-07 term. This, coupled with the fact, which I concluded the SLRO had summarized properly (as quoted above), that the parents had kept DH from returning to her stay put placement at EduCare, caused me to find that no monetary relief was appropriate. Id.
The parents' actions in failing to return DH to Educare was, as part of the overall totality of the facts in that case, dispositive, in fact, on the issue to which it related — namely, the parents' demand for monetary compensation from the Board. So I agree with TPS that my finding has preclusive effect on that issue in this case.
In Horen I, supra., 655 F.Supp.2d at 794, the issue of whether DH was lawfully not attending school was also at issue. Indeed, underlying the IHO's order that the parents either have their child attend school or affirm that they were home schooling her (which the SLRO affirmed) was the fact that the parents had not brought DH to school. That was a predicate fact from which the IHO's order and the SLRO's affirmance (and mine as well) of that order flowed. As I stated, "Due to the plaintiffs' continuing dispute with TPS, and their insistence that they have the right to record IEP meetings and bar TPS's counsel from attending those meetings, the plaintiffs have refused to have their child attend school." 655 F.Supp.2d at 804 (emphasis supplied). Had that not been so, there would have been no basis for the IHO to order them either bring DH to school or show that they were educating her through home schooling.
Plaintiff claims that EduCare is a not a suitable placement because, according to him, EduCare was not operating with a charter classification under O.R.C. § 3301, medical students were permitted to conduct human experiments at Educare, and TPS has not accurately reported its status to the ODE and has failed to provide information about EduCare to the plaintiff.
In contending that res judicata precludes consideration of plaintiff's challenge on the issue of the suitability of EduCare, defendants point to Horen v. Bd. of Educ. of the City of Toledo Public Schools, 2010 WL 3064394 (Ohio App.). Two issues in that case are pertinent to and preclusive of consideration of the same issues here.
The first of these is plaintiff's contention the EduCare is a medical facility and permits medical students to conduct human experiments. With regard to those contentions, the court found no evidence in the record of any such activity. Id. at *2 (claim of medical experimentation unsupported in record), at *16 ("the facts alleged by appellees related to medical experimentation are not supported by the record of this cause. Nor does the record support the allegation that Educare is some type of medical research facility.").
The second issue is the lawfulness of EduCare's status under Ohio law. In the state case the plaintiff urged the court to find that state-law immunity under O.R.C. § 2744 was not available because the case was governed by federal, not state law. Id. Rejecting this assertion, the court stated, "The evidence in the record does support a finding that Educare is a public school operated by a political subdivision, TPS, and, as a result, falls within the parameters of R.C. Chapter 2744."
Thus, with regard to the issues of medical experimentation, whether EduCare was a medical facility, and whether EduCare was a public school operated by TPS, res judicata precludes re-litigation in this case.
Even if prior judicial decisions do no preclude consideration of the question of who was responsible for DH not attending school — and thus, not receiving the benefits of an FAPE — indisputable facts make clear that the parents bear sole responsibility for that circumstance. This is true, despite the plaintiff's vain efforts to re-read the record otherwise.
These facts are indisputable:
The gist of the plaintiff's argument in the face of these incontestable facts is that TPS withdrew DH from its school system as of August 29, 2006, the beginning of the 2006-07 term.
While, as noted, the letter of notification of withdrawal referenced 2006, no rational jury could find anything other than that was a typographical error — the actual date of withdrawal was 2008 — retroactive for administrative purposes to 2006. In the meantime, nothing either party did or sought to do resulted in the belief or understanding that DH was no longer deemed a TPS pupil.
There is no genuine dispute as to the material fact that the parents, and only the parents, were responsible for the failure to DH to obtain an FAPE. Even if res judicata does not preclude the plaintiff from prevailing, defendants are entitled on the merits to summary judgment as to this aspect of plaintiff's § 504 and ADA claims.
In response to defendants' motion for summary judgment, plaintiff argues principally that EduCare is not within the TPS system. He bases this argument on his contention that, contrary to defendant's evidence and contentions (and the finding of the state court of appeals, supra) that EduCare is not affiliated with Glendale-Feilbach, an elementary school within TPS. Plaintiff points to the fact that the two facilities are at different locations within the City of Toledo. He claims that the fact that Principal at Glendale-Feilbach is the District's administrative head of EduCare is immaterial.
Plaintiff's contentions, which are either speculative, conclusory, or immaterial, fail in the face of the affidavits of TPS personnel with knowledge of the relationship between Glendale-Feilbach and EduCare. The affidavit of Janice Kilbride, TPS Chief Academic Officer, shows conclusively that none of plaintiff's conclusory contentions about the status and of EduCare operation, including its status as a "medical facility," which he has not supported with admissible evidence, is correct. (Doc. 33-1).
Nothing about EduCare gives rise to a cause of action against TPS under § 504 or the ADA. Defendants are entitled to summary judgment as to plaintiff's claims as they relate to EduCare.
Plaintiff claims that TPS discriminated against DH on the basis of her disability in violation of § 504 and the ADA.
To prevail on a § 504 discrimination claim, plaintiff must show:
Horen I, 655 F.Supp.2d at 801 (quoting Sandison v. Michigan High School Athletic Assn., Inc., 64 F.3d 1026, 1031 (6th Cir.1995)).
As with all claims of discrimination, plaintiff, to establish a prima facie case, must show differential treatment between his daughter and similarly situated individuals. See, e.g., id. at 802 (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)). To meet his burden of pointing to a comparable person whom he alleges TPS treated differently, plaintiff must, as I stated in Horen I, show:
Id. at n. 8.
Plaintiff has failed to point to any similarly situated pupil whom TPS treated differently than it treated DH. He has thus failed to meet his initial burden of establishing a prima facie case.
Defendants are entitled to summary judgment on plaintiff's § 504 and ADA claims for discrimination.
Plaintiff claims that TPS retaliated against DH and her parents because it viewed the parents as troublemakers and they otherwise had been persistent in their assertion of their daughter's rights under IDEA.
To make out a prima facie claim for retaliation, plaintiff must show:
Lauren W ex rel. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007).
Plaintiff has not shown that either DH or he was affected by an adverse action.
With regard to DH, TPS's decision in 2008 to withdraw her from its system as of August 29, 2006, was an administrative act that simply caused its records to reflect the reality of her absence for the intervening two years. Nothing TPS did caused her non-attendance; as noted above, her parents were directly and solely responsible for DH's non-attendance. Any resulting adverse effects are, therefore, attributable only to them, and not to TPS.
Plaintiff contends that the mother was told at one point that all she had to do was to enroll DH in any school. When Ms. Horen took DH to a nearby elementary school, she was told that she could not enroll DH there.
The result of this isolated effort does not constitute an adverse action. There can be no question that enrolling DH in a conventional elementary school would not be either suitable for DH, or, acceptable to her parents. After all, what started the series of complaints and lawsuits was the effort of TPS to do just that, by transferring DH to Larchmont. In light of the parents' opposition to Larchmont, no rational jury could give credence to the bona fides of an attempted enrollment at a neighborhood school, or find that Ms. Horen had undertake it in good faith.
Thus, DH suffered no adverse action at the hands of TPS.
Plaintiff claims that adverse action occurred when TPS "required" DH to attend EduCare to receive services. It was the IHO, rather than TPS, who directed that EduCare serve as the "stay put" facility. During the period that the parents were disregarding that order, the District only sought to have DH brought to EduCare (or, perhaps, elsewhere), for purposes of an updating of her condition in preparation for an IEP session. This did not create an impermissible condition on the provision of services; to the contrary, it was a means by which TPS sought to facilitate the availability of services. Here too, the fact that that effort was fruitless is attributable to the parents, not TPS.
The parents have not suffered any cognizable adverse actions. Accepting as true the allegation that a former TPS attorney referred them as troublemakers in the legal and educational community and referred to Ms. Horen as "crazy," such random, isolated statements do not rise to the level of adverse action sufficient to get the retaliation claim to the jury. Cf., Kavanaugh v. Miami-Dade County, 775 F.Supp.2d 1361, 1370 (S.D.Fla.2011).
In any event, plaintiff has not shown a causal connection between the isolated comments and TPS's actions regarding himself and his daughter. There must be a temporal or other link between hostile terms and the alleged adverse action. See, e.g., Munoz v. Parpart, 2003 WL 23198864, *3 (D.Neb.).
Plaintiff claims Mr. Billau engaged in fraud or fraudulent behavior.
To prove such claim, plaintiff must show:
Funk v. Durant, 155 Ohio App.3d 99, 103, 799 N.E.2d 221 (2003).
I agree with defendants' argument that plaintiff has failed to meet the heightened pleading requirements for claims of fraud under Fed.R.Civ.P. 9(b). As noted by the Sixth Circuit, "at a minimum, Rule 9(b) requires that the plaintiff specify the `who, what, when, where, and how' of the alleged fraud." Sanderson v. HCA-The Healthcare Co., 447 F.3d 873 (6th Cir.2006).
Plaintiff's complaint fails to pass this test. Nothing in his opposition to defendants' motion for summary judgment cures this deficiency. Mr. Billau is entitled to summary judgment on this claim.
Plaintiff has not directly attributed the statement about the parents being troublemakers and calling Ms. Horen crazy to defendant Billau. Thus, they have not stated a claim for defamation against him.
Even if plaintiff filed his complaint within the limitations period, he has not stated a cause of action for defamation, which "is the unprivileged publication of a false and defamatory matter about another." Lakota Loc. Sch. Dist. Bd. of Ed. v. Brickner, 108 Ohio App.3d 637, 647, 671 N.E.2d 578 (1996) (citing McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 353, 609 N.E.2d 216 (1992)).
The court decides "as a matter of law whether a statement is defamatory." Early v. The Toledo Blade, 130 Ohio App.3d 302, 320, 720 N.E.2d 107 (1998) (citation omitted). Calling someone "crazy" or a "troublemaker" is not defamatory as a matter of law. Rather, such statements are expressions of opinion, which are not actionable. Rizvi v. St. Elizabeth Hosp. Med. Ctr., 146 Ohio App.3d 103, 110, 765 N.E.2d 395 (2001) (crazy); Molnar v. Klammer, 2005 WL 3528870, *17 (Ohio App.) (troublemaker).
Plaintiff has filed three motions: for partial summary judgment (Doc. 28); to consolidate (Doc. 36), and to amend (Doc. 37).
Each is founded on or related to the same underlying transactions and events. Defendants have conclusively shown they are entitled to summary judgment as to all causes of action that plaintiff has sought to assert against them. Therefore, each of plaintiff's motions is moot and shall be overruled on that basis.
Plaintiff has not shown any error on the part of the state hearing officers vis-a-vis his IDEA complaint. Likewise, he has not shown any dispute of material fact with regard to his § 504 and ADA claims, nor has he shown that he, rather than the defendants, is entitled to summary judgment.
It is, accordingly
ORDERED THAT:
So ordered.
