M.O., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 11-1695 (RBW)
United States District Court, District of Columbia.
September 30, 2013
REGGIE B. WALTON, United States District Judge
use of discretion by supervisors, i.e. the policy that Brooks “opposed,” is not necessarily a violation of Title VII. Def.‘s Reply at 24. While this is may be true, it is also the case that “giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory since an employer‘s undisciplined system of subjective decisionmaking can have precisely the same effects as a system pervaded by impermissible intentional discrimination.” Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2554, 180 L. Ed. 2d 374 (2011) (internal quotations and citations omitted). Plaintiffs have not yet had an opportunity to fully present their case regarding the alleged disparate-impact that the discretion of lower-level supervisors created in the training and assignment opportunities for African-American Deputy Marshals. Accordingly, it is too early to determine whether Brooks “opposed a practice made unlawful by Title VII” when he insisted on giving out assignments and training in a more standardized format.
However, even assuming that Brooks opposed the discriminatory practice of USMS in providing training and assignments, his retaliation claim must still fail. Brooks has provided no evidence to support that USMS acted adversely against him because of his opposition to the discriminatory practices in providing training and assignment practices. See McGrath v. Clinton, 666 F.3d at 1380 (explaining that one of the prima facie elements for a retaliation claim is that the employer took the action “because the employee opposed the [discriminatory] practice“). Brooks claims he was subjected to an internal investigation and denied promotions and special assignments, but provides no evidence from which a reasonable juror could infer that USMS took these actions because of the changes that Brooks had implemented in providing training and assignments to his subordinates. Accordingly, the Court grants Defendant‘s motion for summary judgment with respect to Brooks’ retaliation claim.
V. CONCLUSION
For the foregoing reasons, the Defendant‘s motion for partial summary judgment is DENIED in part and GRANTED in part.
SO ORDERED.
Laura George, Office of Attorney General, Washington, DC, for Defendant.
MEMORANDUM OPINION
REGGIE B. WALTON, United States District Judge
The plaintiffs in this civil case, M.O., through her parents, Elizabeth Seymour and Robert Ourlian, allege that the defendant, the District of Columbia (“District“), failed to provide M.O. with the free appropriate public education (“FAPE“) to which she is entitled under the Individuals with Disabilities Education Act (“IDEA“),
I. BACKGROUND
The full factual background of this action has already been laid out in great detail in Magistrate Judge Facciola‘s Report and Recommendation, see R & R ¶¶ 1-134, and the parties have not objected to the findings of fact contained therein, see generally, Pls.’ Obj.; Def.‘s Opp‘n; Def.‘s Obj.; Pls.’ Opp‘n; Def.‘s Reply, and thus this Court will not repeat all of those facts again here. The following facts are relevant to the parties’ objections.
Over several months in late 2009 and early 2010, several professionals conducted evaluations of M.O.:
- Dr. Paula Elitov conducted a psycho-educational evaluation of M.O. on October 29, 2009, November 9, 2009, and November 16, 2009, in which she diagnosed M.O. with a learning disability, not otherwise specified (NOS), and attention deficit disorder, primarily the inattentive type. Id. ¶ 15. Among other educational supports, Dr. Elitov recommended a “small group setting” for M.O. Id. ¶ 15.
- Dr. Larry Silver conducted a psychiatric evaluation of M.O. on February 8, 2010, id. ¶ 16, and recommended that “[b]ased on the recommendations of the full faculty at the Maddox [sic] School, [M.O.] should continue next year in an intensive special education program that can address her learning, language, and motor disabilities.” Id. ¶ 17.
- Beth Ciangiulli-Levy, a Speech-Language Pathologist, issued a speech and language re-assessment summary for M.O. on March 2, 2010, which recommended that M.O. continue with weekly speech and language therapy. Id. ¶ 18.
- Allison Misttrett of Leaps and Bounds Pediatric Occupational Therapy evaluated M.O. on March 29, 2010, and April 1, 2010, and recommended that M.O. receive “individual occupational therapy services 1-2 times per week for 1 hour” and that the therapist should be “trained and certified in sensory integration therapy.” Id. ¶ 19 (citation omitted).
The Lab School, a private, special education school, Compl. ¶ 20, also conducted an Intermediate Speech and Language Assessment of M.O. on June 10 and 11, 2010, and proposed an Individualized Education Program (“IEP“) for the 2010-2011 school year. R & R ¶ 21. The assessment was conducted by Kathryn Riverso, a Speech-Language Pathologist. Id. ¶¶ 21-22. She concluded that M.O. would do best in a classroom with ““a small teacher-student ratio, specialized teachers and instruction methods (e.g., hands-on, kinesthetic learning), and speech-language therapy and other related services in a pull-out format and integration of these services within the classroom.” Id. ¶ 22 (citation omitted).
The plaintiffs completed the District‘s Private-Religious Student Referral for Special Education Services form on June 16, 2010, id. ¶ 23, and subsequently notified Dr. Shellie Wood, the Special Education Coordinator at Janney Elementary School (“Janney Elementary“), the public elementary school in their area, that they wanted to convene a multidisciplinary team to address M.O.‘s educational disability and her need for special education, id. ¶ 24. On July 15, 2010, before a multidisciplinary team was convened, the plaintiffs informed Dr. Wood that M.O. would not be attending Janney Elementary for the 2010-2011 school year, but would instead attend the Lab School. Id. ¶ 26. At Dr. Wood‘s request, the plaintiffs permitted members of the multidisciplinary team to observe M.O. at the Lab School, and also permitted District officials to obtain information about M.O. from the Maddux School. Id. ¶¶ 27-29.
Dr. Wood received M.O.‘s 2009-2010 School Progress Report from the Maddux
Deborah Lahre-Joyner, a District Psychologist, observed M.O. at the Lab School, reviewed multiple reports, including those prepared by Doctors Elitov and Silver, and thereafter issued a Review of Independent Educational Evaluation report on October 25, 2010, in which she recommended that M.O. ““continue to receive specialized instruction in all academic areas due to weaknesses in multiple areas of functioning.” Id. ¶ 35 (citation omitted).
Dr. Wood issued a Prior Written Notice form on November 1, 2010, stating that M.O. met the criteria to be identified as a student with a disability under the IDEA and that she required special education and similar services. Id. ¶ 38. On November 17, 2010, the same day as M.O.‘s next multidisciplinary team meeting, Dr. Wood issued a Prior Written Notice which stated:
[The District] offers & proposes placement in [M.O.‘s] neighborhood school; Janney Elementary in accordance with the Least Restrictive Environment [(“LRE“)] of IDEA. [The District] rejects the parent[s‘] request for [a] full time special education separate school setting as that would deny LRE. Janney can provide all requirements in [the] IEP by providing placement in a generalized class with inclusion support and instruction in a separate class for remediation in reading[,] writing and math. A dedicated aide will provide small group instruction as needed.
Id. ¶ 40. The District also issued an IEP for M.O. on November 17, 2010, which provided for a set number of hours per week of specialized training in various subjects in both a “General Education” and an “Outside General Education” setting, as well as “the support of a full-time dedicated aide” for M.O. AR at 6; R & R ¶ 42. Despite the issuance of the District‘s IEP, M.O.‘s mother did not remove her from the Lab School due to concerns that M.O. would be unable to handle the pace of the classroom, the noise, and the large class size at Janney Elementary. Id. ¶ 46.
In March 2011, the plaintiffs hired Amy Mounce, an Educational Consultant, to conduct a comparison between the District‘s proposed program and M.O.‘s then current educational program at the Lab School. Id. ¶ 47. Mounce concluded that M.O. benefitted from a special education program with a low student-teacher ratio, that the Lab School provided such an environment and the proper educational supports, that M.O. could become overly reliant on the use of a dedicated aide, and that the District‘s proposed program did not provide sufficient behavior supports for M.O. Id. The plaintiffs subsequently filed an administrative Due Process Complaint Notice, which presented three questions concerning the District‘s November 17, 2010 IEP, id. ¶ 48; AR at 260, specifically:
- Did [the District] deny [M.O.] a FAPE by failing to develop an appropriate IEP for the 2010/2011 school year?
- Did [the District] deny [M.O.] a FAPE by failing to propose a proper placement?
-
Is The Lab School of Washington a proper placement for [M.O.]?
AR at 265. The hearing officer, Bruce Ryan, issued a Pre-Hearing Order in June 2011, which confirmed that the parties had agreed during a pre-hearing conference that the case presented the same three issues enumerated in the plaintiffs’ administrative Due Process Complaint Notice. R & R ¶ 55; AR at 294-96.
During the course of the administrative due process hearing, two expert witnesses testified that M.O. required a full-time special education program, that the use of a full-time dedicated aide would be inappropriate and unnecessary, and that the Lab School was able to provide M.O. with the required educational supports, while Janney Elementary was unable to do so. R & R ¶¶ 59-73 (discussing the testimony of Dr. Jennifer Durham, who holds a Ph.D. in education focusing on special education, and educational consultant Amy Mounce). Five other expert witnesses testified that they believed the District‘s November 17, 2010 IEP was appropriate, and each specifically stated that she approved of the component of the IEP that called for a full-time dedicated aide for M.O. Id. ¶¶ 77-129 (discussing testimony of Janney Elementary social worker Maureen Leventhal; Janney Elementary speech language pathologist Toni Wills; Janney Elementary principal Norah Lycknell; Joyner; and Dr. Wood). In their written closing argument, the plaintiffs asserted that the District officials had failed to review all of the information concerning M.O. that M.O.‘s parents had submitted to them. AR at 10.
The hearing officer issued his determination on July 7, 2011, which stated:
The November 17, 2010 IEP provides extensive special education and related services in a combination setting that appears to reflect reasonable judgments by the educational professionals and other members of the Student‘s IEP team as to how to serve her unique educational needs in the least restrictive environment, based on the information available to the team as of that date. [The District] has also offered an educational placement that can implement the IEP and is otherwise appropriate to meet the Student‘s demonstrated needs. As such, this program and placement are reasonably calculated to provide meaningful educational benefit. No more is required of [the District] under the
IDEA .
Id. at 9-10. The hearing officer further determined that the plaintiffs had waived the issue of whether the District had failed to review information about M.O. submitted by her parents because they did not raise that issue in their administrative due process complaint. Id. at 10.
On September 20, 2011, the plaintiffs filed a complaint in this Court seeking declaratory and injunctive relief and alleging that the District “failed to provide M.O. with the [FAPE] to which she is entitled under the [
the Hearing Officer literally ignored significant evidence in the record, failed to reference in any way the faulty schedule given by [the District] to the parents, failed to rule on the school system‘s blatant disregard of M.O.‘s documentation of the extent of her disability, and summarily dismissed the deleterious effects of a one-to-one aide on M.O.‘s independence and continued development.
Id. They alleged further that
[t]he Hearing Officer erred in issuing a Decision that concluded that the [IEP] offered by [the District] in November of 2010 for the 2010-2011 school year con-stituted
a FAPE that could be implemented at the proposed school placement. The Hearing Officer similarly erred in determining that the parents were not entitled to receive tuition reimbursement for the 2010-2011 school year.
Id. ¶ 2.
The parties filed cross motions for summary judgment, which were referred to Magistrate Judge Facciola for a Report and Recommendation. Magistrate Judge Facciola agreed with the hearing officer‘s determination that because the plaintiffs did not raise the issue of whether the District failed to review information on M.O. submitted by her parents in their administrative due process complaint, they could not raise that issue at the administrative due process hearing. R & R at 24. Magistrate Judge Facciola also found that the hearing officer erred by failing “to grapple with all of the evidence before him” and by failing “to explain why he accepted [the District‘s] position that M.O. could secure some educational benefit from placement in a general education setting” and subsequently rejected the evidence to the contrary. Id. at 25. He thus recommended that both motions for summary judgment be denied and that the matter be remanded to the hearing officer “for further evaluation of the evidence before him, particularly that evidence that contradicted his conclusion that M.O. could benefit from the general education setting proposed by [the District].” Id. at 26.
The parties subsequently filed objections and oppositions to the Magistrate Judge‘s Report and Recommendation, which are the subject of this memorandum opinion.
II. STANDARDS OF REVIEW
A. Objections to Report and Recommendation
B. Rule 56 Motion for Summary Judgment
Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate “that there is no genuine issue as to any material fact and that the [moving party] is entitled to judgment as a matter of law.”
In reviewing a hearing officer‘s decision in an IDEA case, the Court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as [it] determines is appropriate.”
III. LEGAL ANALYSIS
A. Waiver of Issue in Due Process Complaint
The plaintiffs object to the Magistrate Judge‘s conclusion that because they did not in their administrative Due Process Complaint Notice raise the issue of whether the District failed to examine all of the information that the plaintiffs had provided to the IEP team, the plaintiffs could not raise that issue at the due process administrative hearing. Pls.’ Obj. at 1-3.
The IDEA‘s implementing regulations make clear that schools must consider information provided by a child‘s parents when conducting evaluations. See
Here, the plaintiffs filed their administrative Due Process Complaint Notice in April 2011, challenging the District‘s November 17, 2010 IEP. And as noted above, the administrative Due Process Complaint Notice and the hearing officer‘s Pre-Hearing Order identified the same three issues concerning the IEP and its development. See AR at 260-66; 294-96. Neither the administrative Due Process Complaint Notice nor the Pre-Hearing Order mentioned the issue of whether the District failed to consider the totality of the information and evaluations provided to the IEP team by M.O.‘s parents. Accordingly, the Court finds that the plaintiffs waived their ability to raise the issue now.2 See
The plaintiffs contend that “the issues that were before the [h]earing [o]fficer, including whether [the District] denied M.O. a FAPE by proposing an inappropriate IEP and placement, are directly related to the failure of the [IEP] team to consider the parents’ documentation,” and thus the “issues are intertwined.” Pls.’ Mot. at 13, n.5 (citation omitted). In advancing their position, the plaintiffs rely on Gellert v. District of Columbia Public Schools, a case in which another member of this Court found that a hearing officer erred in concluding that the issue of the appropriateness of the IEP had been waived. 435 F. Supp. 2d 18, 23-24 (D.D.C. 2006). The District3 in Gellert “argue[d] that the [h]earing [o]fficer was only asked to consider whether Wilson could implement the . . . IEP, not whether the underlying IEP was adequate to provide educational benefit” to the student. Id. at 23. The Court found the argument “unpersuasive,” in part because “since the very beginning of the administrative process, [the] [p]laintiffs ha[d] objected to the failure of the . . . IEP to include” appropriate accommodations. Id. By contrast, the plaintiffs here admit that they did not raise the issue until it was raised at the administrative due process hearing.4 Pls.’ Obj. at 1.
The District “objects to the [Report and Recommendation‘s] conclusion that the hearing officer failed to consider all of the evidence before him, objects to the recommended remand, and maintains that” summary judgment is appropriate. Def.‘s Obj. at 1.
Although the IDEA provides no specific guidance concerning what specifically must be included in a hearing officer‘s determination, it states that “a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.”
To be sure, “[a] court must give ‘due weight’ to the [hearing officer‘s determination] and ‘may not substitute its own notions of sound educational policy for those of the school authorities.‘” Turner v. District of Columbia, 952 F. Supp. 2d 31, 35-36, 2013 WL 3324358, at *3 (D.D.C. 2013) (quoting S.S. v. Howard Rd. Acad., 585 F. Supp. 2d 56, 63 (D.D.C. 2008)). However, “less deference is to be accorded to the [hearing officer‘s determination] than would be the case in a conventional administrative proceeding.... Thus, a court may not simply ‘rely on the Hearing Officer‘s exercise of discretion,’ for a decision ‘without reasoned and specific findings deserves little deference.‘” Id. (quoting Reid, 401 F.3d at 521). So while a certain amount of deference should be accorded to the knowledge and expertise of the hearing officer, courts will accord less deference if the hearing officer‘s determination lacks reasoned and specific findings.
The Court‘s review of the hearing officer‘s determination in this case reveals that the determination lacks sufficiently detailed reasoning. The determination states in conclusory fashion that the “program and placement [outlined in the November 17, 2010 IEP] are reasonably calculated to provide meaningful educational benefit.” AR at 9-10. In the face of extensive evidence to the contrary, including evaluations from Doctors Paula Elitov and Larry Silver; assessments of Kathryn Riverso and Amy Mounce; and testimony of Doctor Jennifer Durham and Amy Mounce, the Court is not convinced that the November 17, 2010 IEP was not inappropriate.
Unlike other cases where the plaintiffs alone testified in support of their position, see, e.g., Kerkam v. Superintendent, 931
Because the Court “may not substitute its own notions of sound educational policy for those of school authorities,” Turner, 952 F. Supp. 2d at 35-36, 2013 WL 3324358, at *3, the Court finds that on the record before it “a remand for further consideration of the evidence, and for further findings of fact and conclusions of law, is the only vehicle by which review consistent with the applicable statutory scheme can be accomplished,” Options Pub. Charter Sch. v. Howe ex rel. A.H., 512 F. Supp. 2d 55, 57-58 (D.D.C. 2007) (remanding case where hearing officer made “no findings with respect to the basis upon which she credited . . . testimony” and “elsewhere . . . relie[d] upon speculation“); see also Iowa v. FCC, 218 F.3d 756, 760 (D.C. Cir. 2000) (remanding case for further consideration because the Commission failed to address the petitioner‘s argument); Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (“[T]he [agency‘s] decision did not respond to two of [petitioner‘s] arguments, which do not appear frivolous on their face and could affect the [agency‘s] ultimate disposition....“).5
IV. CONCLUSION
For the foregoing reasons, the Court will adopt Magistrate Judge Facciola‘s Report and Recommendation, deny the parties’ motions for summary judgment, vacate the hearing officer‘s decision, and remand the matter to the hearing officer for further evaluation and in particular to explain why certain evidence was credited in lieu of other conflicting evidence.
SO ORDERED this 30th day of September, 2013.6
Richard ANDERSON, et al., Plaintiffs, v. Arne DUNCAN, in his official capacity as the Secretary of the U.S. Department of Education, Defendant.
Civil Action No. 06-1565 (RMC)
United States District Court, District of Columbia.
September 30, 2013