Alston v. District of Columbia ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHANDA ALSTON et al., :
:
Plaintiffs, : Civil Action No.: 07-0682 (RMU)
:
v. : Re Document Nos.: 82, 84
:
DISTRICT OF COLUMBIA et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING THE DEFENDANTS’ MOTION TO ALTER OR AMEND INTERLOCUTORY
JUDGMENT; DENYING THE PLAINTIFFS’ CROSS-MOTION TO ALTER OR
AMEND INTERLOCUTORY JUDGMENT
I. INTRODUCTION
The plaintiffs, a student with disabilities (“C.A.”) and her mother, Chanda Alston,
commenced this action against the District of Columbia (“the District”) and various District of
Columbia Public Schools (“DCPS”) officials, alleging violations of the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794. On
March 30, 2010, the court issued a ruling granting in part and denying in part the defendants’
motion for summary judgment and denying the plaintiffs’ cross-motion for summary judgment.
The only claims to survive this ruling were the plaintiffs’ ADA and Rehabilitation Act claims
concerning a month-long period in the summer of 2005 during which the plaintiff was allegedly
denied a free and appropriate public education (“FAPE”), as required by the IDEA.
This matter is now before the court on the parties’ cross-motions to alter or amend the
court’s March 30, 2010 ruling. In their motion, the defendants ask the court to grant them
summary judgment on the plaintiffs’ surviving claims.1 The plaintiffs, in turn, ask the court to
amend the portions of its earlier March 30, 2010 ruling granting the defendants summary
judgment on the plaintiffs’ claims that the defendants had violated the ADA and Rehabilitation
Act by failing to provide C.A. an appropriate residential placement in 2006. Because the
plaintiffs have not raised a genuine dispute of material fact as to whether C.A.’s disability was
the sole or motivating factor for the denial of benefits that occurred in the summer of 2005, the
court grants the defendants’ motion to alter or amend and enters summary judgment for the
defendants on these claims. Furthermore, because the plaintiffs have presented no persuasive
evidence or argument that the court erred in granting summary judgment to the defendants on the
plaintiffs’ claims concerning C.A.’s 2006 residential placement, the court denies their cross-
motion to alter or amend.
II. FACTUAL & PROCEDURAL BACKGROUND
C.A. was born to Chanda Alston in 1992. Defs.’ Statement of Material Facts ¶¶ 1, 2. In
1998, C.A. was identified as disabled for purposes of the IDEA and has been on an
Individualized Education Plan (“IEP”) since that time. Id. ¶ 4. Over the last thirteen years, the
plaintiffs and the defendants have litigated numerous disputes surrounding C.A.’s receipt of a
1
The defendants style their motion as a supplemental motion for summary judgment on the
plaintiffs’ ADA and Rehabilitation Act claims regarding the alleged denial of benefits in the
summer of 2005. See generally Defs.’ Supplemental Mot. for Summ. J. (“Defs.’ Mot.”). This
court had, however, ordered the defendants to file a motion to alter or amend addressing these
claims, rather than a supplemental motion for summary judgment, see Minute Order (June 1,
2010), as the court had previously denied summary judgment to the defendants on those claims,
Mem. Op. (Mar. 30, 2010) at 20-22. The court therefore construes the defendants’ motion as a
motion to alter or amend an interlocutory judgment pursuant to Federal Rule of Civil Procedure
54(b). See infra Part III.A.
2
FAPE. Mem. Op. (Mar. 30, 2010) at 2-7. The court briefly recounts below the events pertinent
to the motions presently before the court.2
Prior to the summer of 2005, C.A.’s IEP called for her placement in an instructional day
program at Cabin John Middle School (“Cabin John”) in Montgomery County, Maryland. Id. ¶
6. The defendants, however, did not authorize payment for C.A. to attend Cabin John before the
school year started on August 29, 2005. Id. ¶ 10. As a result, C.A. was excluded from attending
classes at Cabin John at the beginning of the school year (“the Summer 2005 Exclusion”). Id. ¶
9. The plaintiffs filed a due process complaint on September 13, 2005, alleging that the
defendants’ failure to pay for Cabin John deprived C.A. of a FAPE. See Mem. Op. (Mar. 30,
2010) at 4. The defendants eventually authorized payment, allowing C.A. to start classes at
Cabin John on September 28, 2005.3 Defs.’ Statement of Material Facts ¶ 14. The parties
ultimately settled the plaintiffs’ IDEA claims, and on November 22, 2005, a hearing officer
issued a hearing officer determination (“HOD”) memorializing that settlement agreement.4 Id. ¶
16.
In addition to the placement at Cabin John, C.A.’s IEP called for her placement in a
residential program at the Grafton School (“Grafton”), a private residential facility in Rockville,
Maryland. Id. ¶ 5. Grafton announced in late 2005 that it would be closing, and ultimately
closed its doors in February 2006. Mem. Op. (Mar. 30, 2010) at 4. Months after the closure,
2
A more detailed presentation of the factual and procedural background of this case may be found
in the court’s memorandum opinion on the parties’ cross-motions for summary judgment. See
Mem. Op. (Mar. 30, 2010) at 2-7.
3
This court had ordered “stay put” relief two days earlier requiring C.A. to remain at Cabin John
pending a due process hearing. See Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 67 (D.D.C.
2005).
4
Specifically, the District agreed to provide C.A. with 305 additional hours of academic tutoring,
among other relief, to compensate C.A. for the month of classes she missed at Cabin John. Defs.’
Statement of Material Facts ¶ 16.
3
DCPS still had not arranged for a new residential placement for C.A. (“the 2006 Exclusion”),
which prompted her mother to pursue various administrative and legal remedies. See id. at 4-5.
Ultimately, the plaintiffs applied to have C.A. enroll at Woods Services, a residential facility in
Pennsylvania, and C.A. enrolled there in November 2006. Id. at 5.
The plaintiffs filed a complaint in this court on March 22, 2007, asserting claims against
multiple individual and municipal defendants under the IDEA, the ADA, the Rehabilitation Act,
the District of Columbia Human Rights Act (“DCHRA”), 42 U.S.C. § 1983 and provisions of the
D.C. Code. See generally Compl. These claims concerned events spanning from 2001 to 2007,
including the Summer 2005 Exclusion and the 2006 Exclusion. The court resolved many of
these claims in rulings issued in June 2008 and March 2009. See generally Mem. Op. (Jun. 19,
2008); Mem. Op. (Mar. 20, 2009).
In August 2009, the defendants filed a motion for summary judgment on the plaintiffs’
remaining claims. See generally Defs.’ Mot. for Summ. J. First, the defendants argued that
insofar as the plaintiffs’ remaining claims were premised on events that had occurred before
September 2005, those claims were barred by various procedural limitations such as res judicata
and failure to exhaust administrative remedies. See id. at 9-13. Second, the defendants asserted
that based on the evidence in the record, no reasonable jury could find for the plaintiffs on their
remaining claims. See id. at 13-15. In their cross-motion for summary judgment, the plaintiffs
argued that they were entitled to judgment as a matter of law on their discrimination and
retaliation claims, brought pursuant to the ADA and the Rehabilitation Act, concerning the
exclusions that C.A. had experienced from 2001 to 2006. See Pls.’ Cross-Mot. for Summ. J. at
9-11.
4
On March 30, 2010, the court issued a memorandum opinion granting in part and denying
in part the defendants’ motion for summary judgment and denying the plaintiffs’ cross-motion
for summary judgment. See generally Mem. Op. (Mar. 30, 2010). As pertinent here, the court
denied the defendants’ motion for summary judgment with respect to the plaintiffs’ ADA and
Rehabilitation Act claims premised on the Summer 2005 Exclusion because res judicata did not
bar those claims, the claims were not procedurally barred and the defendants had not addressed
the merits of the claims in their motion for summary judgment. Id. at 20-22. The court,
however, granted the defendants’ motion for summary judgment and denied the plaintiffs’ cross-
motion for summary judgment with respect to the plaintiffs’ ADA and Rehabilitation Act claims
based on the 2006 Exclusion because the plaintiffs “failed to offer any evidence to substantiate
these allegations” in their cross-motion or opposition, both of which were marked by an utter
lack of references to the record supporting the plaintiffs’ allegations. Id. at 25.
On May 10, 2010, the parties jointly filed a status report in which the defendants
requested leave to file a supplemental motion for summary judgment on the plaintiffs’ ADA and
Rehabilitation Act claims premised on the Summer 2005 Exclusion and the plaintiffs requested
leave to file a motion to alter the court’s ruling on their ADA and Rehabilitation Act claims
premised on the 2006 Exclusion. See generally Joint Status Report (May 10, 2010). On June 1,
2010, the court granted the parties leave to file motions to alter or amend the court’s rulings on
the claims that the parties identified. Minute Order (June 1, 2010). Accordingly, the defendants
have filed a motion seeking summary judgment on the plaintiffs’ ADA and Rehabilitation claims
premised on the Summer 2005 Exclusion. See generally Defs.’ Mot. The plaintiffs have filed a
cross-motion to alter or amend in which they request that the court grant them summary
5
judgment on their ADA and Rehabilitation claims premised on the 2006 Exclusion. See
generally Pls.’ Cross-Mot. These motions are now ripe for adjudication.
III. ANALYSIS
A. Legal Framework
1. Legal Standard for Altering or Amending an Interlocutory Judgment
A district court may revise its own interlocutory decisions “at any time before the entry
of judgment adjudicating all the claims and the rights and liabilities of all the parties.” FED. R.
CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing the
Advisory Committee Notes to Federal Rule of Civil Procedure 60(b)). The standard for the
court’s review of an interlocutory decision differs from the standards applied to final judgments
under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt,
133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) (noting that “motions for [relief upon] reconsideration
of interlocutory orders, in contrast to motions for [relief upon] reconsideration of final orders, are
within the sound discretion of the trial court”) and United Mine Workers v. Pittston Co., 793 F.
Supp. 339, 345 (D.D.C. 1992) (discussing the standard applicable to motions to grant relief upon
reconsideration of an interlocutory order) with LaRouche v. Dep’t of Treasury, 112 F. Supp. 2d
48, 51-52 (D.D.C. 2000) (analyzing the defendant’s motion for relief from judgment under Rule
60(b)) and Harvey v. Dist. of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996) (ruling on the
plaintiff’s motion to alter or amend judgment pursuant to Rule 59(e)). A motion pursuant to
Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F.
Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e)
6
or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d
1205, 1208 (D.C. Cir. 1996) (per curiam); FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at
51-52.
By contrast, relief upon reconsideration of an interlocutory decision pursuant to Rule
54(b) is available “as justice requires.” Childers, 197 F.R.D. at 190. “As justice requires”
indicates concrete considerations of whether the court “has patently misunderstood a party, has
made a decision outside the adversarial issues presented to the [c]ourt by the parties, has made an
error not of reasoning, but of apprehension, or where a controlling or significant change in the
law or facts [has occurred] since the submission of the issue to the court.” Cobell v. Norton, 224
F.R.D. 266, 272 (D.D.C. 2004) (internal citation omitted). These considerations leave a great
deal of room for the court’s discretion and, accordingly, the “as justice requires” standard
amounts to determining “whether [relief upon] reconsideration is necessary under the relevant
circumstances.” Id. Nonetheless, the court’s discretion under Rule 54(b) is limited by the law of
the case doctrine and “subject to the caveat that, where litigants have once battled for the court’s
decision, they should neither be required, nor without good reason permitted, to battle for it
again.” Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal
citations omitted).
2. Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings and evidence show “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are
7
“material,” a court must look to the substantive law on which each claim rests. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute” is one whose resolution
could establish an element of a claim or defense and, therefore, affect the outcome of the action.
Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion
for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to
the absence of evidence proffered by the nonmoving party, a moving party may succeed on
summary judgment. Id.The nonmoving party may defeat summary judgment through factual representations
made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene,
164 F.3d at 675 (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides “direct
testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Indeed,
for the court to accept anything less “would defeat the central purpose of the summary judgment
device, which is to weed out those cases insufficiently meritorious to warrant the expense of a
jury trial.” Greene, 164 F.3d at 675.
8
B. The Court Grants the Defendants’ Motion to Alter or Amend
1. The Defendants Have Established Their Entitlement to Summary Judgment on the
Plaintiffs’ Discrimination Claims Premised on the Summer 2005 Exclusion
The defendants contend that the plaintiffs have failed to raise a genuine dispute of
material fact as to the viability of their discrimination claims premised on the Summer 2005
Exclusion. Defs.’ Mot. at 9. Specifically, the defendants assert that “[a]ll plaintiffs have shown
is that DCPS failed to promptly authorize payment for C.A. to attend Cabin John,” and that
“C.A.’s IEP was not met for approximately one month.” Id. at 7. Furthermore, the defendants
assert that the month-long delay before the defendants authorized payment for Cabin John in the
summer of 2005 “demonstrates nothing more than a breach of C.A.’s IEP.” Id. Because this
evidence cannot, as a matter of law, satisfy the causation requirements of the ADA and the
Rehabilitation Act, the defendants argue, the court should revisit its earlier ruling and grant
summary judgment to them on these discrimination claims. Id. at 6-7.
The plaintiffs counter by first asserting that the denial of a FAPE, standing alone,
constitutes actionable discrimination under the ADA and the Rehabilitation Act. Pls.’ Opp’n at
3-4. Thus, the plaintiffs argue, by excluding C.A. from part of her IEP for the first month of the
2006 school year, the defendants denied C.A. her FAPE and, as a result, discriminated against
her in violation of the ADA and the Rehabilitation Act. Id. Alternatively, the plaintiffs argue
that even if the denial of C.A.’s FAPE does not, in and of itself, give rise to a cause of action
under the two statutes, the defendants engaged in systematic misconduct between 2002 and 2006
designed to deny C.A. her legal right to a FAPE. Id. at 10-11. According to the plaintiffs, this
evidence raises a dispute of fact as to whether the defendants discriminated against C.A. because
of her disability. Id. at 1.
9
The ADA provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132 (emphasis added). To show that the exclusion was “by reason of” his or her disability, an
individual must establish that the disability “actually play[ed] a role in the . . . decision making
process and [had] a determinative influence on the outcome.” Pinkerton v. Spellings, 529 F.3d
513, 519 (5th Cir. 2008) (quoting Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 503-04 (5th
Cir. 2002)); accord Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004);
see also Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009)
(observing that a plaintiff must show that she “was denied the benefits of the program or was
otherwise subject to discrimination because of her disability”) (emphasis added); Foster v.
Arthur Andersen, L.L.P., 168 F.3d 1029, 1033 (7th Cir. 1999) (observing that the plaintiff’s
disability need not be the “only reason” for the denial, but must be a “substantial factor”),
abrogated on other grounds by Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.
2010); but see Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452-55 (6th Cir. 2004) (applying
a “solely by reason of” causation standard to ADA claims).
The standard of causation differs, however, under the Rehabilitation Act because “the
causative link between discrimination and adverse action is significantly dissimilar.” Baird v.
Rose, 192 F.3d. 462, 469 (4th Cir. 1999); see also McNely v. Ocala Star-Banner Corp., 99 F.3d
1068, 1073-77 (11th Cir. 1996) (drawing on statutory language, legislative history and Supreme
Court interpretations of similar language in Title VII cases to distinguish between claims brought
under the ADA and the Rehabilitation Act). Specifically, the Rehabilitation Act states that “[n]o
10
otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a)
(emphasis added). In light of this heightened causation standard codified in the statutory text,
this Circuit has held that the Rehabilitation Act requires plaintiffs alleging discrimination in the
special education context to show “something more than a mere failure to provide the [FAPE]
required by [the IDEA].” Lunceford v. Dist. of Columbia, 745 F.2d 1577, 1580 (D.C. Cir. 1984)
(quoting Monahan v. Neb., 687 F.2d 1164, 1170 (8th Cir. 1982)). Rather, a plaintiff proceeding
under the Rehabilitation Act must demonstrate “bad faith or gross misjudgment on the part of the
governmental defendants.” Douglass v. Dist. of Columbia, 605 F. Supp. 2d 156, 168 (D.D.C.
2009) (citation omitted); accord Robinson v. Dist. of Columbia, 535 F. Supp. 2d 38, 42 (D.D.C.
2008); R.S. v. Dist. of Columbia, 292 F. Supp. 2d 23, 28 (D.D.C. 2003) (citing Walker v. Dist. of
Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2001)).
The plaintiffs’ first argument – that the denial of a FAPE, standing alone, establishes a
violation of the ADA and the Rehabilitation Act – merits little discussion. As noted, the Circuit
has squarely held that the mere denial of a FAPE cannot give rise to a Rehabilitation Act
violation. See Lunceford, 745 F.2d at 1580; see also Miller v. Bd. of Educ. of the Albuquerque
Pub. Sch., 565 F.3d 1232, 1246 (10th Cir. 2009) (observing that “the IDEA and [the
Rehabilitation Act] differ, and a denial [of FAPE] under the IDEA does not ineluctably establish
a violation of [the Rehabilitation Act]”). Likewise, the ADA requires more than the defendant’s
“[m]ere awareness of a plaintiff’s disability.” Foster, 168 F.3d at 1033; see also McNely, 99
F.3d at 1076 (holding that “the ADA imposes liability whenever the prohibited motivation makes
11
the difference in the employer’s decision, i.e., when it is a ‘but-for’ cause”); French v. N.Y. State
Dep’t of Educ., 2010 WL 3909163, at *12 (N.D.N.Y. Sept. 30, 2010) (dismissing the plaintiff’s
ADA and Rehabilitation Act claims because those claims were “substantially the same as the
[plaintiff’s] IDEA claim”); J.D.P. v. Cherokee Cnty., Ga. Sch. Dist., 735 F. Supp. 2d 1348, 1364
(N.D. Ga. 2010) (observing that “a plaintiff asserting claims under the ADA or [the
Rehabilitation Act] must show more than an IDEA violation based upon a failure to provide a
FAPE” but rather, “must also demonstrate intentional discrimination or ‘some bad faith or gross
misjudgment by the school’” (quoting W.C. ex rel. Sue C. v. Cobb Cnty. Sch. Dist., 407 F. Supp.
2d 1351, 1363-64 (N.D. Ga. 2005))). Indeed, as one Circuit has recently observed, “[w]here the
essence of the claim is one stated under the IDEA for denial of FAPE, no greater remedies than
those authorized under the IDEA are made available by recasting the claim as one brought under
. . . the ADA.” Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 19 (1st Cir. 2006). Thus, the
evidence that the Summer 2005 Exclusion constituted the denial of a FAPE does not, standing
alone, give rise to a violation of the ADA or Rehabilitation Act.5
The plaintiffs also argues that even if the mere denial of a FAPE does not give rise to an
ADA or Rehabilitation Act violation, the defendants’ systematic misconduct from 2002 to 2006
5
In their opposition and in their cross-motion, the plaintiffs fail to cite any authority for the
proposition that the denial of a FAPE, standing alone, constitutes actionable discrimination under
the ADA. See generally Pls.’ Opp’n; Pls.’ Mot. And although the plaintiffs have cited several
cases which they claim stand for the proposition that such a denial establishes a violation of the
Rehabilitation Act, see, e.g., Andrew M. v. Del. Cnty. Office of Mental Health & Mental
Retardation, 490 F.3d 337 (3d Cir. 2007); Barbour v. Wash. Metro. Area Transit Auth., 2002 WL
34236909 (D.D.C. May 24, 2002), this Circuit has conclusively ruled on this matter, see
Lunceford, 745 F.2d at 1580.
12
elevates the defendants’ conduct to actionable discrimination.6 The plaintiffs, however, have
presented the court with no evidence indicating a nexus between C.A.’s disability and the
defendants’ failure to fund her placement at Cabin John in September 2005. See Pinkerton, 529
F.3d at 519 (noting that the plaintiff’s disability must have a “determinative influence” on the
deprivation). Although the plaintiffs contend that the defendants’ conduct from 2002 to 2006
evidences a “consistent objective” by the defendants to remove C.A. from Cabin John, Pls.’
Opp’n at 8, the plaintiffs have not explained how the existence of such a campaign would
demonstrate that C.A.’s disability played any role in the Summer 2005 Exclusion, see generally
id. At any rate, the evidence does not reasonably suggest the existence of a concerted campaign
directed against C.A., but rather, shows sporadic instances of negligence7 by different decision-
makers and failures to provide C.A. a FAPE over a nearly four-year period. See Pls.’ Opp’n at 8-
9 (stating that the aforementioned exclusions took place in December 2002, April-May 2003,
6
The court notes that the period of the Summer 2005 Exclusion specifically refers to the
defendants’ failure to authorize payment for C.A. to attend Cabin John, which ended on
September 23, 2005 when the school received payment. Laster v. Dist. of Columbia, 394 F.
Supp. 2d 60, 66 (D.D.C. 2005). In its most recent opinion in this case, the court ruled on the
plaintiffs’ allegations involving the defendants’ conduct occurring before the Summer 2005
Exclusion, and concluded that those claims were barred based on the plaintiffs’ failure to exhaust
their administrative remedies and the expiration of the relevant statute of limitations. See Mem.
Op. (Mar. 30, 2010) at 7-19.
7
The only instance of alleged misconduct that arguably rises above mere negligence is the
plaintiff’s claim that DCPS official Martin Cherry forged documents and made
misrepresentations to hearing officers and the court. See Pls.’ Opp’n at 11-12. Yet the plaintiffs
have offered no evidence indicating any connection between Cherry’s alleged forgery and the
Summer 2005 Exclusion that would indicate that the latter incident was the result of
discriminatory animus. See generally Pls.’ Opp’n. The alleged forgery occurred in the summer
of 2003, more than two years before the Summer 2005 Exclusion. See Hearing Officer
Determination (Aug. 22, 2003) at 6. Furthermore, Cherry resigned his position in September
2003 and had no involvement with the Summer 2005 Exclusion. See Decl. of Melissa Phillips
(Sep. 7, 2005) at 2 (identifying DCPS officials Arthur Fields and Dierdre Council-Ellis as the
principal officials most involved with C.A.’s case). Accordingly, this isolated incident of alleged
misconduct does not raise a genuine dispute as to whether the Summer 2005 Exclusion was the
result of disability discrimination.
13
August 2003-January 2004, December 2005, and May 2006). The plaintiffs have not explained
how these isolated incidents indicate that the one-month denial of a FAPE in September 2005
constituted bad faith or gross misjudgment. See generally id.; see also J.D.P., 735 F. Supp. 2d at
1364. In short, this evidence does not raise a genuine dispute of fact as to whether C.A.’s
disability had a determinative influence on the Summer 2005 Exclusion.
Nor does this evidence raise a genuine dispute regarding the plaintiffs’ discrimination
claim under the Rehabilitation Act. The Rehabilitation Act’s requirement that plaintiffs prove
“something more” than a denial of a student’s FAPE imposes an “extraordinarily high” burden
on the plaintiff. Doe v. Arlington Cnty. Sch. Bd., 41 F. Supp. 2d 599, 608 (E.D. Va. 1999). As
discussed, the defendants’ alleged misconduct between 2002 and 2006 amounts to nothing more
than garden-variety IDEA violations, which do not reasonably suggest the existence of bad faith
or gross misconduct and do not give rise to a viable discrimination claim under the
Rehabilitation Act. See, e.g., Holmes-Ramsey v. Dist. of Columbia, 2010 WL 4314295, at *5
(D.D.C. Nov. 2, 2010) (concluding that the District’s year-long delay in evaluating a disabled
student and developing an IEP “amount[ed] to garden variety IDEA violations” that did not give
rise to a Rehabilitation Act violation); Torrence v. Dist. of Columbia, 669 F. Supp. 2d 68, 69, 72
(D.D.C. 2009) (observing that liability under the Rehabilitation Act is “attuned to programmatic
failures” and concluding that a five-month delay in conducting a student’s psychological
evaluation “do[es] not show anything other than a possible denial of FAPE under the IDEA”);
Walker v. Dist. of Columbia, 157 F. Supp. 2d 11, 13-14, 36 (D.D.C. 2001) (observing that
“[o]nly in the rarest of cases will a plaintiff be able to prove that a school system’s conduct is so
persistent and egregious as to warrant such a unique remedy not otherwise provided for by the
14
IDEA itself,” and holding that conduct including misdiagnosing a student’s disability, failing to
provide an IEP for several school years and failing to provide an appropriate placement for five
years collectively did not meet that standard). Because the plaintiffs have only offered evidence
that the defendants deprived C.A. of her FAPE, they have not raised a genuine dispute of
material fact regarding their Rehabilitation Act discrimination claim premised on the Summer
2005 Exclusion.
In sum, the defendants have demonstrated the absence of a genuine dispute of material
fact with respect to the plaintiffs’ ADA and Rehabilitation Act discrimination claims premised
on the Summer 2005 Exclusion. In light of the absence of a genuine dispute of material fact as
to the claims at issue, the court concludes that amending the portion of its earlier ruling denying
the defendants summary judgment on these claims is both necessary and appropriate under the
relevant circumstances. See Cobell, 224 F.R.D. at 272. The court therefore grants the
defendants’ motion to amend the relevant portion of its earlier ruling and grants summary
judgment to the defendants on the plaintiffs’ ADA and Rehabilitation Act discrimination claims
premised on the Summer 2005 Exclusion.
2. The Defendants Have Established Their Entitlement to Summary Judgment on the
Plaintiffs’ Retaliation Claims Premised on the Summer 2005 Exclusion
The defendants also contend that they are entitled to summary judgment on the plaintiffs’
retaliation claims concerning the Summer 2005 Exclusion because the plaintiffs have offered no
evidence of a causal connection between the Summer 2005 Exclusion and the plaintiffs’
involvement in any protected activity. Defs.’ Mot. at 8. The defendants assert that the last
protected activity that the plaintiffs engaged in prior to the Summer 2005 Exclusion was a due
process hearing in August 2003. Id. Because the time span between this protected activity and
15
the Summer 2005 Exclusion is too great to give rise to an inference of causation, and in the
absence of any other evidence of causal connection, the defendants argue that the court should
grant summary judgment to them on the plaintiffs’ retaliation claims. Id. The plaintiffs respond
by citing protected activities, such as the filing of due process complaints and participation in
due process hearings, in which they engaged in September 2005 and early 2006, which allegedly
led to the Summer 2005 Exclusion. Pls.’ Opp’n at 12-14.
“To make out a prima facie case of retaliation, an ADA plaintiff must show first, that she
‘engaged in protected activity’; second, that she ‘was subjected to adverse action by the
employer’; and third, that ‘there existed a causal link between the adverse action and the
protected activity.’” Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 369
(D.C. Cir. 2007) (citing Smith v. Dist. of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)).
Likewise, “[t]o establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff
must show that (1) he engaged in statutorily protected activity; (2) the employer was aware of the
activity; (3) the plaintiff suffered an adverse . . . action; and (4) there was a causal connection
between the protected activity and the adverse employment action.” Duncan v. Wash. Metro.
Area Transit Auth., 2003 U.S. Dist. LEXIS 9157, at *22-23 (D.D.C. Mar. 29, 2003); cf.
Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010)
(observing that the standard for retaliation claims under the ADA and the Rehabilitation Act is
the same).
As a threshold matter, the court concurs with the plaintiffs that filing due process
complaints, writing letters requesting action by the District and participating in due process
hearings qualify as protected activities under the ADA and the Rehabilitation Act. See Corrales
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v. Moreno Valley Unified Sch. Dist., 2010 WL 2384599, at *5 (C.D. Cal. Jun. 10, 2010) (noting
that “protected activity must go beyond merely assisting special education students,” but instead,
requires “affirmative action in advocating for, or protesting discrimination related to, unlawful
conduct by others” (quoting Reinhardt, 595 F.3d at 1132)); Reinhardt, 595 F.3d at 1132-33(observing that “advocacy” on behalf of students and lodging complaints constitute protected
activity under the ADA and the Rehabilitation Act); Montanye v. Wissahickon Sch. Dist., 218 F.
App’x 126, 131 (3rd Cir. 2007) (noting that “mere assistance” to disabled students is not
protected activity). The court also concurs with the plaintiffs that the Summer 2005 Exclusion
itself constituted an adverse action as required to establish a viable retaliation claim. See
Corrales, 2010 WL 2384599, at *6; Reinhardt, 595 F.3d at 1132-3.
Yet none of the protected activities cited by the plaintiffs occurred with sufficient
temporal proximity to the Summer 2005 Exclusion to support an inference of causation. The
Summer 2005 Exclusion lasted from August 29, 2005 – when C.A. was unable to begin school at
Cabin John because DCPS had not authorized payment – to September 28, 2005 – when DCPS
finally authorized payment and C.A. began school. See Defs.’ Statement of Material Facts ¶¶ 10,
14. The two-year gap between the 2003 due process hearing and the Summer 2005 Exclusion is
too great to suggest a causal link. See, e.g., Williams v. Phila. Hous. Auth. Police Dep’t, 380
F.3d 751, 760-61 (3d Cir. 2004) (holding that a two-month gap between an employee’s request
for accommodation and his termination was too long to establish an ADA retaliation claim);
Jasmantas v. Subaru-Isuzu Auto, Inc., 139 F.3d 1155, 1157 (7th Cir. 1998) (holding that a four-
month gap between the time an employee filed an EEOC claim and her termination did not
establish causation for an ADA retaliation claim). The other instances of protected activity cited
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by the plaintiffs occurred after the Summer 2005 Exclusion and plainly do not support an
inference of causation. See Pls.’ Opp’n at 12-13 (identifying that the plaintiff engaged in
protected activities by filing a due process complaint on September 13, 2005 and writing letters
on March 9, 2006 and April 5, 2006 requesting a residential placement for C.A.). In the absence
of any other evidence supporting a reasonable inference of causation between the plaintiffs’
protected activity and the Summer 2005 Exclusion, the court grants summary judgment to the
defendants on the plaintiffs’ retaliation claims under the ADA and the Rehabilitation Act based
on the Summer 2005 Exclusion.
C. The Plaintiffs Have Not Established That They Are Entitled to Summary Judgment on
Their Discrimination Claims Premised on the 2006 Exclusion
In their cross-motion to alter or amend, the plaintiffs assert that the court erred in granting
summary judgment to the defendants on their discrimination claims premised on the 2006
Exclusion.8 Pls.’ Cross-Mot. at 20. The plaintiffs contend that in their motion for summary
judgment and supporting statement of material facts, the defendants “admitted” facts that
revealed their bad faith or gross misjudgment with respect to the 2006 Exclusion. Id. at 10-12.
The plaintiffs argue that these facts indicate that: the defendants failed to implement C.A.’s IEP;
the defendants repeatedly violated the orders of hearing officers and this court; and the
defendants attempted to provide educational services to C.A. that various authorities had
previously “deemed inadequate.” Id. at 12-13. Therefore, the plaintiffs argue that the court
should amend its previous denial of summary judgment and grant summary judgment to the
plaintiffs with respect to the discrimination claims premised on the 2006 Exclusion. Id. at 20.
8
In its March 30, 2010 memorandum opinion, the court also granted summary judgment to the
defendants on the plaintiffs’ 2006 claims arising under the anti-retaliation provisions of the ADA
and the Rehabilitation Act. See Mem. Op. (Mar. 30, 2010) at 27-30. The plaintiffs have not
challenged this portion of the court’s ruling in their cross-motion to alter or amend. See generally
Pls.’ Mot. to Alter or Amend (“Pls.’ Mot.”).
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The defendants respond that “none of the purported ‘admissions’ listed by plaintiffs can
be properly attributed to [the defendants]” because they are “mischaracterizations of defendants’
statements regarding findings from other proceeding[s].” Defs.’ Opp’n. at 3. In addition, the
defendants argue that those admissions “at best establish a breach of C.A.’s IEP,” which is
insufficient to show that the defendants violated the anti-discrimination provisions of the ADA
or the Rehabilitation Act. Id. Accordingly, the defendants assert that the court should not
disturb this portion of its March 30, 2010 ruling. Id. at 5.
The record is clear that C.A.’s IEP required that she be provided a residential placement
in addition to an instructional day program. See Pls.’ Mot. at 11; Dep. of Dierdre Council-Ellis
(Apr. 28, 2009) at 93. The defendants, however, left C.A. without a residential placement
between February 14, 2006 – when Grafton closed – and November 23, 2006 – when C.A.
enrolled at Woods Services. Mem. Op. (Mar. 30, 2010) at 4-5. These facts demonstrate that the
District denied C.A. her FAPE during the 2006 Exclusion. See Torrence, 669 F. Supp. 2d at 72(determining that failure to meet a student’s IEP also denies the student a FAPE).
As previously discussed, however, the mere denial of a FAPE does not, standing alone,
constitute actionable discrimination under the ADA or the Rehabilitation Act. See supra Part
III.B.1. Rather, to survive summary judgment, the plaintiffs must offer evidence from which a
reasonable juror could conclude either that C.A.’s disability played a determining role in the
defendants’ actions or the defendants’ actions amounted to bad faith or gross misjudgment.
As with their discrimination claims premised on the Summer 2005 Exclusion, the
plaintiffs’ attempt to bolster their discrimination claims concerning the 2006 Exclusion with
other incidents of alleged misconduct by the defendants – namely, the defendants’ alleged failure
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to comply with an HOD issued in August 2003 that ordered the District to fund C.A.’s residential
placement and rejected Kramer Middle School as a suitable placement for C.A. Pls.’ Cross-Mot.
at 11-13. Again, however, these incidents amount to little more than denials of C.A.’s right to a
FAPE and do not suggest that C.A.’s disability had a determinative influence on the denial of
services at issue as necessary to establish an ADA violation. See Pinkerton, 529 F.3d at 519.
Nor do these incidents raise a genuine dispute of fact as to whether the plaintiffs can meet the
“extraordinarily high burden” of demonstrating bad faith or gross misjudgment, as they must to
succeed on their Rehabilitation Act claims. See Doe, 41 F. Supp. 2d at 608; Douglass, v. 605 F.
Supp. 2d at 168. Accordingly, the court denies the plaintiffs’ motion to alter the portion of its
March 30, 2010 ruling granting summary judgment to the defendants on these claims.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion to alter or amend and
denies the plaintiffs’ cross-motion to alter or amend. An Order consistent with this
Memorandum Opinion is separately and contemporaneously issued this 21st day of March, 2011.
RICARDO M. URBINA
United States District Judge
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