DocketNumber: No. CV98 033 25 03 S
Citation Numbers: 2001 Conn. Super. Ct. 2717
Judges: ADAMS, JUDGE.
Filed Date: 2/16/2001
Status: Non-Precedential
Modified Date: 4/17/2021
On July 23, 1998, the plaintiff filed a complaint against the Board and Elda Kluth, the special education and student services director of the Board. The complaint alleges three counts consisting of a claim for attorney's fees and costs pursuant to § 1415 of the IDEA; a claim against the Board pursuant to § 504 of the Rehabilitation Act of 1973,
The first count of the complaint alleges the following. Prior to June CT Page 2718 13, 1996, the Board had an obligation to "select, identify, program and service the plaintiff' pursuant to the IDEA. On June 13, 1996, the Board violated its obligations to the plaintiff under the IDEA. The violation was due to an intentional and malicious threat from Kluth that if the plaintiff did not agree with Kluth's proposals, educational services that the Board was obligated to provide would be withheld from the plaintiff. The plaintiff retained an attorney and commenced a due process hearing in order to obtain the services. As a result of such hearing, the defendants subsequently provided substantial and significant evaluation, consultation and additional services to the plaintiff and, therefore, the plaintiff is a prevailing party under the IDEA and is entitled to attorney's fees and costs.
The second count of the complaint seeks damages pursuant to § 504 of the Rehabilitation Act. It alleges that the plaintiff has exhausted all administrative remedies available to him by law. It also alleges that he was damaged educationally and emotionally by the failure of the Board to provide appropriate evaluations, identifications and an individualized educational plan prior to June 13, 1996.
The third count alleges a claim of intentional infliction of emotional distress against Kluth. It alleges that Kluth failed to advise the plaintiff's parents of their rights, threatened to withhold services from the plaintiff if the parents did not agree to the proposals regarding the plaintiff's educational program prior to June 13, 1996, and caused the members of the Planning and Placement Team (PPT) to deny services to which the plaintiff was entitled under the IDEA. On July 12, 1999, the defendants filed a motion for summary judgment on the ground that there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law as to all counts of the complaint.2 The plaintiff did not file any documents in opposition to the motion, nor was plaintiff's counsel present for oral argument on the motion.3
The following additional facts, which set forth the plaintiff's individual special education background, are excerpted from the proof submitted by the defendants. Prior to the fall of 1996, the plaintiff was enrolled at Fox Run Elementary School in Norwalk. The Board convened several PPT meetings to identify and develop an appropriate educational program for the plaintiff.4 On November 2, 1995, at a PPT meeting, it was decided that the plaintiff would receive services for reading and language arts, phonics analysis assistance and educational counseling. At the next PPT meeting on March 5, 1996, the behavioral component of the plaintiff's individual educational program was reviewed. A psychiatric evaluation of the plaintiff was also scheduled. At a PPT meeting on April CT Page 2719 2, 1996, the PPT reviewed the psychiatric evaluation and revised the plaintiff's behavior modification plan.
At the request of the plaintiff's parents, the PPT convened a meeting on May 13, 1996, where the parents informed the PPT that the plaintiff was receiving private tutoring at the parents' expense. They requested that the Board pay for the private tutoring. They also expressed concerns regarding the plaintiff's educational progress and the possibility that the plaintiff had attention deficit disorder (ADD). The parents inquired about the necessity for an independent evaluation of the plaintiff. The PPT determined that the plaintiff's educational progress and possible need for independent evaluation could be ascertained at the plaintiff's annual review PPT meeting that was to take place on May 30, 1996. During the course of the meeting, Ms. Shippee, a PPT member, offered to explain to the parents of their due process rights and to provide to the parents another copy of their rights. The parents declined both offers.
At the annual review PPT meeting on May 30, 1996, the plaintiff's parents indicated to the PPT that they were no longer requesting an independent evaluation of the plaintiff and that they decided to enroll the plaintiff at a different Norwalk public school, Tracey Elementary School, in the fall of the upcoming school year. The PPT determined that the plaintiff would benefit from the continuance of the specialized instruction that was being provided to him.
At the plaintiff's next PPT meeting on June 21, 1996, his parents informed the PPT that they had removed him from school after a behavioral incident occurred at school approximately two weeks prior to the meeting. The PPT agreed to pay for the private tutoring the plaintiff received during the two weeks he had been removed from school and continuing until the start of the next school year. The PPT also agreed to provide independent educational and psychological evaluations of the plaintiff.
The PPT was convened again on October 29, 1996, in order to consider the plaintiff's independent evaluations, the implementation of the PPT's recommendations of the June 21, 1996 meeting, and the plaintiff's adjustment to the Tracey School. Based on the independent evaluations, the PPT determined that the plaintiff did not have ADD, and the plaintiff was doing well at the new school environment.
A review of the proof submitted to this court shows that no due process adjudication before an impartial hearing officer of the State of Connecticut Department of Education was ever heard, or requested, at any relevant time by the plaintiff or the Board.5 CT Page 2720
On May 14, 1997, the plaintiff's parents filed a suit on behalf of the plaintiff in the United States District Court for the District of Connecticut against the Board and Kluth. The federal complaint contains virtually the same counts and allegations that exist in the complaint in this case. On September 19, 1997, the federal complaint was dismissed for failure to comply with Local Civil Rule 38, which implements Federal Rule of Civil Procedure
The defendants, in support of their motion, argue that: (1) the present action is barred by the doctrines of res judicata and collateral estoppel; (2) the court does not have jurisdiction to award attorney's fees and costs under the IDEA; (3) even if the court has jurisdiction to award attorney's fees and costs, the plaintiff was not a prevailing party entitled to such relief; (4) the plaintiff did not exhaust all available remedies in order to state a claim under section 504 of the Rehabilitation Act; (5) the plaintiff's claim of intentional infliction of emotional distress is barred by federal preemption; (6) the emotional distress claim is legally insufficient because Kluth's alleged conduct was not "extreme and outrageous" as a matter of law; and (7) because the CT Page 2721 defendants' actions were discretionary and expressly and implicitly granted by law, the claims against them are barred by the doctrine of governmental immunity. The court will address each of the defendants' arguments seriatim.
The defendants first argue that the plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel because the plaintiff brought identical claims in a federal action, which was dismissed for failure to comply with federal court discovery procedures. The court does not agree with the defendants' proposition. The assertion of res judicata or claim preclusion must be predicated upon a final decision on the merits. Marone v. Waterbury,
The defendants next argue that the court does not have jurisdictional authority to award attorney's fees under the IDEA and summary judgment should be granted as to the first count of the complaint. The court agrees and holds that only federal district courts have the authority to award attorney's fees to a parent who is a prevailing party under the IDEA.
Section 1415(i) of the IDEA authorizes both the judicial review of alleged violations of the IDEA and the awarding of attorney's fees to the parents of a disabled child, who is a prevailing party under the administrative procedures set forth in the IDEA.7 This case forces the court to face the question of whether it has jurisdiction to award CT Page 2722 attorney's fees concurrently with the federal district courts or whether the jurisdiction is solely vested with our federal counterparts. Since there is no appellate precedent on the issue, the court agrees with the sole Superior Court case and holds that it does not have authority under the IDEA to award attorney's fees to a prevailing party.
In State of Connecticut v. Department of Education, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 705783 (July 25, 1997, Maloney, J.) (
The court in Curtis K. differentiates the causes of action set forth in the IDEA. Curtis K. v. Sioux City Community School District, supra,
This court finds that the law articulated in State of Connecticut v.Board of Education, supra; and Curtis K. v. Sioux City Community SchoolDistrict, supra, correctly interprets the language and intent of the IDEA. This outcome is particularly appropriate here where the plaintiff initially sought review in federal court. The plaintiff is entitled to bring an action for judicial review under the IDEA in state court; however, his claim for attorney's fees must be brought in federal court. Accordingly, the defendants' motion for summary judgment as to the first count is granted.8 CT Page 2723
The plaintiff alleges in the second count that the Board violated section 504 of the Rehabilitation Act9 by failing to provide appropriate evaluations, identifications and an individualized education plan prior to June 13, 1996. The defendants argue that summary judgment is appropriate because the plaintiff has failed to exhaust all the available administrative remedies and, thus, the plaintiff cannot continue to assert the claim in this court. The court finds that, in the present case, the administrative procedures set forth in the IDEA also apply to the Rehabilitation Act claim and that the plaintiff has failed to exhaust those procedures.
Congress enacted the IDEA to ensure that all handicapped students receive a free and appropriate education. Honig v. Doe,
The enactment of the IDEA also established procedural safeguards ensuring that parents of disabled students will have the opportunity to be closely involved with the decision-making process of their child's educational development. Id., 311-12. If a parent has a complaint concerning the school system's furnishing of a free and appropriate education, the parent can initiate a due process hearing before an impartial state education official. Honig v. Doe, supra,
Although the second count of the complaint alleges a violation of the Rehabilitation Act, "Connecticut has the same system for hearing § 504 and IDEA claims." Lillbask v. Sergi,
The second count of the complaint merely incorporates the allegations of IDEA violations found in the first count. The plaintiff seeks relief that can be afforded by the rights of action set forth in § 1415 of the IDEA. Accordingly, the court finds that the plaintiff's claim of a violation of the Rehabilitation Act is subject to the exhaustion procedures set forth in the IDEA.
Only after the procedural safeguards set forth in the IDEA are exhausted may a parent seek judicial review in the Superior Court. Garrov. State of Connecticut,
As to the third count of intentional infliction of emotional distress against Kluth, the defendants argue that the claim is legally deficient because the allegations do not rise to the level of "extreme and outrageous" conduct necessary to support such an action. The court agrees with the defendants' conclusion that summary judgment should be granted.12
In order to establish the existence of intentional infliction of emotional distress, "it must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that theconduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Emphasis added; internal quotation marks omitted; brackets omitted.) Parsons v. UnitedTechnologies Corp.,
The plaintiff alleges that Kluth failed to advise the plaintiff's parents of their rights, threatened to withhold services from the plaintiff if the parents did not agree to the PPT's proposals regarding the plaintiff's individual education program and caused the members of the PPT to deny services to which the plaintiff was entitled under the IDEA. The plaintiff has submitted no proof to support the claim of emotional distress.
Section 1415(d) of the IDEA requires the school system to provide to the parents of a disabled child a notice of the procedural safeguards available to them.
The allegations of threats and prepossessions also do not evince extreme or outrageous conduct. Kluth, in her position as the director of special education of Norwalk Board of Education, directs and coordinates all PPT meetings and procedures and serves as an ex officio member of the PPT. Her responsibilities include close dealings with members of PPTs. There is, however, no evidence of a threat from any person to withhold services from the plaintiff. Nor is there evidence of an inducement by Kluth to cause the PPT to deny services.13 Moreover, Kluth was under no duty to inform the plaintiff's parents of their rights after they declined an offer of explanation and an offer of a written copy of their rights under the IDEA at the PPT meeting on May 13, 1996. Kluth's conduct and actions involving the plaintiff do not approach, let alone exceed, the bounds usually tolerated by a decent society. Thus, the court finds that there are no genuine issues of material fact on whether the defendant Kluth's actions were extreme and outrageous, and summary judgment as to the third count of the complaint is completely warranted.14
Recapitulating, the defendants' motion for summary judgment on the first count of the complaint is granted because the court does not have jurisdictional authority to award attorney's fees under the IDEA. As for count two, the defendants' motion is granted because there are no genuine issues of material fact as to whether the plaintiff exhausted all available remedies under the IDEA. Finally, the defendants' motion as to the third count of intentional infliction of emotional distress is granted because there are no issues of material fact as to whether Kluth's conduct in her dealings with the plaintiff were extreme and outrageous.
Adams, J.
mark-garro-plaintiff-appellant-cross-appellee-v-state-of-connecticut , 23 F.3d 734 ( 1994 )
lloyd-hope-and-constance-fennell-individually-and-as-parents-and-lawful , 69 F.3d 687 ( 1995 )
John Doe, a Minor, by and Through His Parent and Next ... , 898 F.2d 1186 ( 1990 )
Conference Center Ltd. v. TRC—The Research Corp. , 189 Conn. 212 ( 1983 )
Kakadelis v. DeFabritis , 191 Conn. 276 ( 1983 )
Mellaly v. Eastman Kodak Co. , 42 Conn. Super. Ct. 17 ( 1991 )
Hiers v. Cohen , 31 Conn. Super. Ct. 305 ( 1973 )