Jаmes COSTELLO; Jamie Costello, Individually and as next friends and parents of Sadonya Costello, minor child, Appellants, v. MITCHELL PUBLIC SCHOOL DISTRICT 79; Board of Education of Mitchell Public Schools; Roger Kercher, individually and in his official capacity; Kent Hally, individually and in his official capacity; Donald Wagner, individually and in his official capacity, Appellees.
No. 00-3746
United States Court of Appeals, Eighth Circuit
Submitted: June 13, 2001. Filed: Sept. 24, 2001.
Rehearing and Rehearing En Banc Denied: Nov. 19, 2001.
266 F.3d 916
Anthony C. Coe, Lincoln, NE, argued, for appellant.
Steven W. Olson, Scottsbluff, NE, argued, for appellee.
Before WOLLMAN, Chief Judge, BOWMAN, and HAMILTON,1 Circuit Judges.
WOLLMAN, Chief Judge.
James and Jamie Costello (the Costellos), and their daughter Sadonya Costello (Sadonya) (collectively, the plaintiffs), appeal from the district сourt‘s2 grant of summary judgment in favor of Mitchell Public School District 79, the school board and superintendent of Mitchell Public Schools, the principal of Mitchell High School (Mitchell or the school), and a teacher at Mitchell (collectively, defendants). We affirm.
In this appeal from the grant of a summary judgment motion, we recite the facts in the light most favorable to the plaintiffs. We begin with a brief note on terminology. According to the lexicon of special education services, an SAT is a student assistance team, which evaluates students, attempts to assist teachers in providing general education, and may refer a child to a multidisciplinary teаm (MDT) for further evaluation. An MDT is responsible for determining if a child has a verified disability under the regulations and for developing and implementing an individual education plan to ensure that child receives an appropriate education.
During her first four years at Morrill Elementary School in Morrill, Nebraska, Sadonya received special education services. By fifth grade, however, she was not verified as having a disability sufficient to qualify her for the provision of special education services under Nebraska‘s regulations, see
In the summer of 1996, the Costellos completed the appropriate paperwork to have Sadonya and her older brother attend Mitchell High School, where Sadonya accordingly matriculated for seventh grade during the 1996-1997 school year. Her educational records were transferred from Morrill to Mitchell.
At the beginning of the fall 1996 semester, principal Kent Halley, guidance counselor Joe Yauney, and special education teacher Carey Brown met to discuss Sadonya‘s medical records and concluded that she was not eligible for special education services because her disability had not been verified under Nebraska law. Brown testified that this was an SAT meeting. Sadonya was informally monitored, however, and during the first semester Mitchell‘s staff saw no indication that Sadonya would need special education services. Both Halley and Brown observed that Sadonya‘s grades were generally average, that she was very social, and that she seemed to be well accepted by her peers. Her grades dropped somewhat during the second quarter of that semester, however, and by the end she was failing band class.
Several weeks into the semester the Costellos became aware of the fact that Sadonya was not receiving special education services when Sadonya reported that she was not receiving occupational therapy. During the next few months, and particularly in the spring of 1997, many contacts occurred between the Costellos and Mitchell High School‘s administrators and staff regarding Sadonya‘s status. The Costellos signed a release so that Sadonya‘s doctоrs could send information on her health to the school. The diagnoses and evaluations the school received, however, were outdated and did not explain Sadonya‘s current status. For example, several letters stated that Sadonya had previously been diagnosed with epileptic seizures, attention deficit disorder, and unspecified learning disabilities, but did not give her current status and abilities. One report did indicate, however, that Sadonya was currently taking phenobarbitol.
At the end of her first semester at Mitchell, Sadonya was having difficulty with her band teacher, Roger Kercher. She testified in her deposition that he daily called her “retarded,” “stupid,” and “dumb,” in front of her classmates. In one instance, after belittling her in front of the class for a bad grade on an assignment in her notebook, he threw the notebook at her, hitting her in the face. During a basketball game in either late December or early January at which the band was playing, Sadonya came to her mother and explained that Kercher had just told her that she could no longer play in the band because she was too stupid and that he did not have to teach students like her and that he would not. Jamie Costello asked Kercher about it, who just laughed and said “yeah, something like that.”
Jamie Costello subsequently met with Halley, Yauney, Kercher, and Sadоnya‘s therapist about the problems with band, although Kercher became angry and left the meeting. During the meeting, Jamie Costello asked Sadonya‘s therapist what she thought about Sadonya remaining in band class, and “she said if Mr. Kercher feels that way, [Sadonya‘s] not going to gain anything by being in one of his classes.” Sadonya was then removed from band and placed in a required music appreciation class, which was also taught by Kercher. Sadonya completed the music appreciation class despite Kercher‘s comments. Several other students and par-
Early in the second semester, principal Halley convened an SAT meeting with Sadonya and various staff members, including Yauney and Sadonya‘s social studies teacher, to discuss ways to improve Sadonya‘s academic situation. Sadonya subsequently signed a contract with Mitchell that required her to ask for more help from teachers when she needed it. Sadonya‘s grades continued to drop during the spring, however, and the Costellos were sent several notices in January, March, and May about her failing grades. Sadonya also was less social and had more absences than during the priоr semester. Mitchell‘s staff members sent letters on behalf of the school seeking additional information from various health professionals about Sadonya‘s current impairments and contacted the Costellos about the need for more medical information. In the absence of such information, Sadonya‘s case stalled and she received no formal special education services.
In May of 1997, Dr. Mark R. Scanlan, a psychiatrist, wrote a letter to Mitchell, concluding that if Sadonya “returns to school at this point her situation would only worsen, both physically and mentally.” Sadonya has been home-schooled since that time. She has suffered from depression and suicidal thoughts and receives counseling and treatment.
Sadonya and her parents filed suit in the district court, bringing three
On November 22, 1999, the district court granted partial summary judgment against the Costellos and Sadonya, holding that the individual defendants were entitled to qualified immunity and dismissing on the merits the intentional infliction of emotional distress claim. On September 14, 2000, the court3 granted summary judgment in favor of the remaining defendants. The Costellos and Sadonya appeal.
II.
We review the district court‘s grant of summary judgment de novo. Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.;
A. Due Process Clause
The Costellos and Sadonya argue that they have a liberty interest in Sadon-
Assuming the existence of a protected liberty interest, we turn first to the procedural due process issue. The record shows that Sadonya‘s disability was not verified. Her records at Morrill Elementary show her as a student with a disability consisting of an “other health impairment,” but they lack the required written report detailing her current health status. See
We also conclude that the plaintiffs’ substantive due process claim, based on Kercher‘s verbal harassment of Sadonya, fails. To establish a substantive due process claim, the plaintiffs must show that the “government‘s actions either shock the conscience or offend judicial notions of fairness or human dignity.” Young v. City of St. Charles, 244 F.3d 623, 628 (8th Cir. 2001) (internal quotation marks omitted). Although Kercher‘s behavior, as alleged by the plaintiffs, strikes us as being singularly unprofessional, we conclude that the plaintiffs have not raised a genuine issue of material fact on whether his behavior was sufficiently shocking to the conscience to state a substantive due process claim. See Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992); cf. Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1258 (10th Cir. 1996) (teacher repeatedly calling student a prostitute and turning a deaf ear while her classmates did so held not to constitute a substantive due process violation).
B. Equal Protection
Plaintiffs acknowledge that a disability like retardation is “not ‘a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.‘” Heidemann v. Rother, 84 F.3d 1021, 1031 (8th Cir. 1996) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985)). A plaintiff may bring an equal protection claim as a “class of one” where she alleges “that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
The plaintiffs argue that Sadonya‘s removal from band class violated her equal protection rights. We conclude that the plaintiffs have not raised a genuine issue of material fact on whether removing Sadonya from the band was rationally related to a legitimate governmental purpose—namely, providing Sadonya with a public education that is conducive to learning. Although removal from band may not have been the only option available to Mitchell, we conclude that there is no issue of material fact about whether this determination was rationally related to a legitimate governmental purpose. See Heidemann, 84 F.3d at 1031 (finding no equal protection
C. The IDEA
The IDEA was intended to ensure that children with disabilities receive an education that is both appropriate and free. Florence Cty. Sch. Dist. 4 v. Carter, 510 U.S. 7, 13 (1993);
In granting summary judgment in favor of the defendants on the IDEA claim, the district court found that the Costellos and Sadonya had failed to raise a genuine issue of material fact on whether Sadonya had a verified disability. The plaintiffs argue that Mitchell violated the IDEA because Sadonya did not receive special education services despite a verified disability and because they did not receive proper notice that Sadonya‘s services would be discontinued when she entered Mitchell.
Although Morrill Elementary treated Sadonya as having a verified “other health impairment,” her records from that school lacked the necessary physician‘s report on Sadonya‘s current health impairments. Mitchell was required under the appropriate regulations to determine if Sadonya was qualified for special education services at her current level of functioning, not her past levels. See
Turning to the procedural issue, the IDEA requires parental notice whenever an educational “agency proposes to initiate or change or refuses to initiate or change the identification, evaluation, or education-al placement of the child.”
Not all procedural errors result in a loss of educational opportunity. See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); Heather S. v. Wisconsin, 125 F.3d 1045, 1059 (7th Cir. 1997) (quoting W.G. v. Bd. of Trustees, 960 F.2d 1479, 1483 (9th Cir. 1992)). Despite the failure to provide the notice required by
D. The ADA and Rehabilitation Act
The plaintiffs argue that Sadonya was disabled within the meaning of the ADA because she has a disability, was regarded as disabled, or has a record of disability, and that the defendants therefore violated the ADA and Rehabilitation Act by denying her the benefits of participating in band class. See
Under the ADA, disability is defined as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.”
Sadonya and her parents point to her past impairment diagnoses to support a claim of actual disability. They present no evidence, however, of a physical or mental impairment that substantially limits Sadonya in the life activity of learning. The evidence demonstrates that it is more difficult for her to learn than for her peers, but that this limitation has not prevented Sadonya from advancing to the next grade each year or from currently working toward her G.E.D. The evidence points to the conclusion that whatever Sadonya‘s impairments may be, they are only moderately limiting. Indeed, in the beginning of seventh grade, before band class became intolerable, Sadonya‘s grades were average, and later in the year, educational professionals still believed that Sadonya would be able to keep up with her class so long as she asked for and received some additional help. The plaintiffs have therefore not shown that Sadonya‘s impairment causes a substantial limitation when compared to the general population. See Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598 (8th Cir. 1998) (difficulties in life that do not hinder performance of required tasks not substantial limitation); Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (describing moder-
We turn then to the plaintiffs’ assertions that Sadonya was regarded as disabled by the defendants. To be regarded as disabled under the ADA, an individual must show that she has an impairment that “does not substаntially limit major life activities but is treated by a covered entity as constituting such limitation.”
Finally, we address plaintiffs’ contention that Sadonya had a record of disability. To establish the existence of a record of a disability, an individual must show that she “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one оr more major life activities.”
We conclude that there exists no genuine issue of material fact on the issue of whether Sadonya was disabled within the meaning of the ADA and Rehabilitation Act, and summary judgment was therefore properly granted in favor of all defendants on this claim.
E. Intentional Infliction of Emotional Distress
With regard to the intentional infliction of emotional distress claim, the district court concluded that the Costellos and Sadonya had failed to present a genuine issue of material fact under Nebraska law on whether Kercher‘s actions were so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency.
To constitute intentional infliction of emotional distress, a plaintiff must show
(1) [t]hat there has been intentional or reckless conduct; (2) [t]hat the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community; and (3) [t]hat the conduct caused emotional distress so severe that no reasonable person should be expected tо endure it.
Gall v. Great W. Sugar Co., 219 Neb. 354, 363 N.W.2d 373, 377 (1985). Assuming that the plaintiffs have raised a genuine issue of material fact on the first and third parts of the test, we agree with the district court that Kercher‘s words and conduct, however unprofessional, intemperate, and unworthy of one entrusted with the responsibility of educating students, did not rise to the level that would satisfy part two of the test set forth in Gall. Accordingly, the district court did not err in granting summary judgment in favor of all defendants on the merits of this claim.
The judgment is affirmed.
HAMILTON, Circuit Judge, concurring in part and dissenting in part.
I concur in all of the court‘s opinion but the part that affirms the district court‘s grant of summary judgment in favor of Roger Kercher (Kercher) with respect to
I
To fully appreciate the unquestionably deplorable nature of Kercher‘s conduct, a recitation of the relevant facts is necessary.
On August 2, 1996, Sadonya celebrated her thirteenth birthday. Approximately one month later, Sadonya began attending the seventh grade at Mitchell High School, a school completely new to her. Sadоnya initially enrolled in band class, taught by Kercher, wherein she played the clarinet. Kercher knew that Sadonya was a new student at Mitchell High School because she had introduced herself to Kercher as such during her tour of Mitchell High School prior to the start of the school year.
For Sadonya, her seventh grade year began reasonably well. She earned passing grades for the first half of the first semester, was very social, and seemed to be well accepted by her peers. By the beginning of the second half of the first semester, however, Sadonya began to have performance problems in all her classes. With respect to band class, Sadonya asked Kercher for after-school help on a regular basis. For a while he complied with her requests without complaint. Then, every day for approximately one month prior to Christmas vacation, Kercher told Sadonya in front of her fellow band classmates that she was retarded, stupid, and needed to go to a school where retarded people were taught. Kercher almost always made these humiliating statements in response to Sandoya‘s continued requests for after-school help with her clarinet.
On one occasion, Kercher snapped at Sadonya in response to a request for after-school help: “If you‘re so retarded, you don‘t need to be in this classroom.” (J.A. 329). Furthermore, during this same time period, Kercher threw Sadonya‘s band notebook (that he had just been grading) at her while calling her “stupid” and declaring that if she “could not do any better than that, then he didn‘t want somebody like [her] in his class.” (J.A. 330). The notebook hit Sadonya in the face. This notebook incident also took place in front of Sadonya‘s fellow band classmates.
Kercher‘s crass behavior toward Sadonya resumed after Christmas vacation. For example, during a school basketball game at which the school band performed, Kercher told Sadonya that he was gоing to kick her out of the band because she was “too stupid.” (J.A. 347). Moreover, Kercher‘s statements referring to Sadonya as stupid and retarded in front of her classmates continued on a frequent basis during the entire nine weeks that Sadonya was enrolled in Kercher‘s music appreciation class, which began in late January 1997, despite the fact that Kercher learned
Over the course of time, Kercher‘s cruel behavior toward Sadonya caused her extreme emotional distress. On January 27, 1997, Sadonya reported to her treating psychiatrist, Dr. Mark Scanlan, M.D. (Dr. Scanlan), that she hаd particular problems at school with her band teacher being mean towards her, and as a result, she had been more moody and tearful. Dr. Scanlan reported that Sadonya felt quite stressed by the school situation. He diagnosed her with major depression.6
On April 2, 1997, Dr. Scanlan examined Sadonya again. His notes reflect that she continued to have trouble with teachers, particularly Kercher. His notes from this visit further state: “She states she tends to rush though her work and is otherwise distracted and anxious about school problems. She also appears somewhat more depressed lately with decreased mood, [and] variable sleep pattern.” (J.A. 173). Again, he diagnosed her with major depression and ordered her to continue individual mental health counseling.
By early May 1997, Sadonya‘s mental and emotional state had reached an all time low with her becoming suicidal. Thus, on May 7, 1997, Dr. Scanlan again examined Sadonya and diagnosed her with major depression. His notes reflect he felt that Sadonya withdrawing from the remainder of the school year at Mitchell High School was “important for her overall improvement” and Sadonya‘s treatment at school “was certainly a cause of her recent decompensation.” (J.A. 170). On the same day, Dr. Scanlan sent a letter to Mitchell High School stating that if Sаdonya “returns to school at this point her situation would only worsen, both physically and mentally.” (J.A. 145).
II
To recover for intentional infliction of emotional distress under Nebraska common law, Sadonya must prove the following elements by a preponderance of the evidence: “(1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intoler-able in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonаble person should be expected to endure it.” Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604, 620-21 (2001). The evidence in the present case, when viewed in the light most favorable to Sadonya, is sufficient for a reasonable jury to find in her favor with respect to each of these elements, and thus, the district court‘s grant of summary judgment in favor of Kercher was, in my opinion, reversible error.
A reasonable jury could infer that Kercher intended to inflict emotional distress on Sadonya from the nature of his statements to her under all the facts and circumstances of this case. In determining whether a defendant‘s conduct meets the second element of an intentional infliction of emotional distress claim, the еxtreme and outrageous element, all of the facts and circumstances of the particular case must be considered. Id. at 621. For example, the relationship between the parties is an important factor to be considered because the extreme and outrageous char-
There is no doubt that recitation of the facts in the present case, as set forth above, to an average member of the Nebraska community would arouse resentment against Kercher and lead such member of the community to exclaim “Outrageous!” In his capacity as Sadonya‘s teacher, Kercher intentionally attempted to publicly humiliate Sadonya, a child, on the topic of the inadequacy of her intelligence, knowing that she would be particularly susceptible to resulting emotional distress given her young age, the fact that she was a new student at Mitchell High School, and that she was already dоing poorly in his class. Additionally, as of January 22, 1997, Kercher knew that Sadonya required the services of a mental health counselor. Under these facts, I cannot say, as a matter of law, that Kercher‘s conduct was not so outrageous as to exceed the bounds of decent society. Cf. Baird v. Rose, 192 F.3d 462 (4th Cir.1999) (holding that plaintiff stated cause of action under Virginia common law for intentional infliction of emotional distress against her seventh grade show choir teacher where plaintiff alleged that the teacher, in her capacity as the plaintiff‘s teacher, intentionally attempted to humiliate the plaintiff in front of her classmates, knowing that plaintiff was suffеring from clinical depression). Sadonya has met the second element of her intentional infliction of emotional distress claim against Kercher. Brandon, 624 N.W.2d at 620-21.
Sadonya has also met her burden of proffering sufficient evidence to survive summary judgment with respect to the last element of her intentional infliction of emotional distress claim—that Kercher‘s conduct caused Sadonya emotional distress so severe that no reasonable person should be expected to endure it. Id. That Sadonya suffered extreme emotional distress, including major depression and thoughts of suicide, as the result of Kercher‘s conduct is well documented in Sadonya‘s medical records. Indeed, Kercher‘s conduct left Sadonya in such a fragile emotional state that she was not able to finish out the short remaining period in the school year.
III
In sum, I concur in the court‘s opinion except that I would allow Sadonya‘s intentional infliction of emotional distress claim against Kercher to go to a jury. If all of Sadonya‘s allegations about Kercher‘s conduct are true, society would immeasurably benefit from the imposition of civil liability upon such conduct.
HAMILTON
CIRCUIT JUDGE