ENFORCING RIGHTS OF SPECIAL EDUCATION STUDENTS AND FAMILIES

As a private bar attorney with Children and Family Law Division of the Massachusetts Committee for Public Services, I get updates on recent cases and here is one (which I hope I am allowed to reprint) about a recent Supreme Court case which provides more remedies for families with disabled children who have been harmed by schools. 

Perez v. Sturgis Public Schools, No. 21–887, slip op. (U.S. Mar. 21, 2023)

Michelle Scavongelli

Senior Counsel, The EdLaw Project

 

REQUIREMENT OF EXHAUSTION NO LONGER A BAR TO RECOVERY OF DAMAGES FOR SPECIAL EDUCATION STUDENTS AND THEIR FAMILIES Last week, the United States Supreme Court handed down a unanimous decision in Perez v. Sturgis Public Schools, No. 21–887, slip op. (U.S. Mar. 21, 2023). The Court held that the Individuals with Disabilities Education Act’s (IDEA) exhaustion requirement does not apply to lawsuits seeking only money damages under the Americans with Disabilities Act (ADA).

The plaintiff, Miguel Luna Perez, had attended Sturgis Public Schools since he was nine years old. Mr. Perez is deaf. To accommodate his disability, the school was required to provide him with aides to translate classroom instruction into sign language. However, the aides assigned to Mr. Perez were either unqualified or largely absent from the classroom.

The district also inflated Mr. Perez’s grades, advancing him from grade to grade without regard to his progress. That led Mr. Perez and his parents to believe he was on track to graduate with his class. The school reached out just months before graduation to inform them that Mr. Perez would not be awarded a standard diploma.

Mr. Perez and his family filed a complaint with the Michigan Department of Education under the IDEA, claiming that the school district had failed to provide Mr. Perez a free and appropriate public education (FAPE). They settled with the school district before the case went to a hearing. According to the settlement, the school district agreed to provide Mr. Perez with relief available under the IDEA, including additional schooling at the Michigan School for the Deaf as well as additional compensatory education.

Mr. Perez then filed a lawsuit under the ADA seeking monetary relief for harms flowing from Sturgis’ failure to provide FAPE. The school district objected. It argued that the IDEA required Mr. Perez to “exhaust” the administrative procedures in the IDEA—that is, file a due-process complaint and litigate the case to a final administrative decision before he could file a lawsuit under the ADA.

The Court disagreed. It held that the exhaustion requirement only applies when a plaintiff asks for remedies that are also available under the IDEA, such as injunctive relief or compensatory education. Because the remedy that Mr. Perez is seeking—monetary damages—is not available under the IDEA, his lawsuit may proceed. He had already obtained the relief available under IDEA through the settlement of the IDEA claim.

The Court’s holding will allow students who have been denied FAPE to settle their IDEA claims and still receive the monetary damages to which they are entitled under ADA. School districts may respond by requiring a general release of all claims, including ADA claims, to settle an ADA claim.

Perez represents a significant departure from prior practice. In 2017, the Court held that the IDEA’s exhaustion rule applies when a plaintiff seeks relief for the denial of FAPE. Fry v. Napoleon, 580 U.S. __ (2017). The Court reasoned that providing FAPE is the IDEA’s “core guarantee,” and so claims seeking relief for denial of FAPE must be channeled through the statute’s administrative processes. The Court specifically reserved the question of whether damages only ADA claims could be brought without exhausting administrative remedies under IDEA.

The ruling in Perez clarifies that the exhaustion requirement does not apply when a plaintiff seeks only money damages under ADA even if the gravamen of the claim is related to FAPE. The Court’s decision in Perez ensures that students’ allegations of harm and requests for compensation will not be administratively barred.

 

WORKPLACE DISPUTE AND EMPLOYMENT DISCRIMINATION

BUTRYM v. BURNT HILLS-BALLSTON LAKE CENTRAL SCHOOL DISTRICT, Dist. Court, ND New York 2022:

"To make out a prima facie case of employment discrimination under the ADA, a plaintiff must show that (1) her employer is subject to the ADA; (2) she was disabled within the meaning of the ADA; (3) she was otherwise qualified to perform the essential functions of the job, with or without a reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020).^[7] A failure-to-accommodate claim under the ADA relies on the first three factors, but substitutes the fourth factor with the question of whether the employer has refused to make a reasonable accommodation. Id.

Upon review, defendants are entitled to summary judgment on both of these claims because Butrym has failed to establish a triable issue of fact regarding whether she was "disabled." Generally speaking, the ADA defines a "disability" as any "physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(1)(A). Importantly, however, "[n]ot every impairment is a `disability' within the meaning of the ADA." Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005). Instead, there are two general qualifications: (1) the impairment must limit a "major life activity" and (2) the limitation must be "substantial." Id.

As to the first requirement, major life activities include physical functions like walking, standing, and lifting as well as other common activities such as reading, concentrating, and working. 42 U.S.C. § 12102(2)(A). As to the second requirement, a plaintiff's impairment must "substantially limit[ ] the ability of an individual to perform a major life activity as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(ii).

In 2008, Congress amended the text of the ADA "to make clear that the substantial-limitation requirement in the definition of `disability' is not an exacting one." Woolf 949 F.3d at 94. Even so, it remains the case that "[n]ot every impairment that affects an individual's major life activities is a substantially limiting impairment." B.C. v. Mt. Vernon Sch. Dist., 837 F.3d 152, 160 (2d Cir. 2016) (cleaned up). Thus, "in assessing whether a plaintiff has a disability, [courts] have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities." Id. (emphases in original).

Viewed in the light most favorable to her, the evidence establishes that Butrym informed her supervisors on multiple occasions that she suffers from anxiety, OCD, and autism. The evidence further establishes that plaintiff demanded to be kept separate from Quinn, a co-worker who aggravated her anxiety and made her feel physically sick.

But those facts do not establish a "disability" within the meaning of the ADA. As the Second Circuit recently reiterated, "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Woolf, 949 F.3d at 95 (affirming grant of summary judgment against plaintiff who alleged disability from migraines that were exacerbated by job-related stress from supervisors' criticisms). Courts have applied this general rule to conclude that the inability to work with a particular co-worker or supervisor (as opposed to a limitation in the plaintiff's ability to work more generally or work in a broad range of jobs) does not qualify as a "substantial limitation" on the major life activity of "working." See, e.g., Shields v. N.Y. City Health & Hosps. Corp., 489 F. Supp. 3d 155, 164 (E.D.N.Y. 2020) (dismissing a failure-to-accommodate claim where plaintiff alleged "only that his purported disabilities prevent him from working" with a particular co-worker and a single supervisor); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th Cir. 2000) ("Standing alone, a personality conflict between an employee and a supervisor — even one that triggers the employee's depression — is not enough to establish that the employee is disabled, so long as the employee could still perform the job under a different supervisor.")

In Butrym, it was noted that this body of ADA caselaw was likely fatal to plaintiff's claims. 2021 WL 1927073, at *5 & n.7. However, as explained, it was "reluctant to reach this conclusion at the pleadings stage, especially where, as here, the plaintiff is pro se." Id. at n.7. At the time, there remained the possibility that plaintiff, though unrepresented by counsel, might be able to establish in discovery that her impairments were substantially more limiting than her pleading suggested. Discovery has shown that they are not. As Butrym herself explained at her deposition:

Q. And so when you say that you can do the job without a reasonable accommodation, as long as you're not assigned with Megan Quinn, you're saying you don't need any accommodation; correct?

A. Correct. Her behavior to this day is still an obsession of me. And as long as that's controlled — you know, it's still going on today so it doesn't matter if we're together or not, you know, employee-wise. But going further, it just — you know, she has to be spoken to.

Q. Okay. But there's nothing else about the job that you can't do, provided Megan Quinn is not assigned to the bus you're on?

A. Correct. I mean, like again she needs to be told, you know, "Stop obsessing with her."

Pl.'s Tr. at 78:7-78:25.

In other words, Butrym's discrimination and accommodation claims do not rest on broad limitations in her ability to "work" that might be attributed to her diagnosed impairments. Cf. Weiss v. Cty. of Suffolk, 416 F. Supp. 3d 208, 214 (E.D.N.Y. 2018) ("It is insufficient for a plaintiff to prove a disability on the basis of a diagnosis alone—that is, not every impairment is a disability."). Instead, these claims rest on symptoms that arise solely from plaintiff's interactions with Quinn, who was occasionally assigned to her as a co-worker. Because plaintiff has not shown that these work-induced symptoms "substantially limited [her] ability to work in a class or broad range of jobs, no reasonable factfinder could conclude that [she] has a `disability' within the meaning of the ADA." Woolf, 949 F.3d at 95. Even assuming otherwise, Butrym has failed to establish that the termination of her employment by Czub and/or Sarsick was just a pretext for unlawful disability discrimination. See McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009); see also Frantti v. New York, 414 F. Supp. 3d 257, 285 (N.D.N.Y. 2019) (observing that on summary judgment ADA claims for employment discrimination are analyzed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Defendants' submissions establish Mazure and Sarsick conducted a prompt investigation into Butrym's first complaint about Quinn. These submissions further establish that defendants concluded plaintiff's complaints were without merit and, in fact, plaintiff was not properly performing her own duties as a school bus monitor. Plaintiff's second complaint about Quinn led to a second investigation, which again revealed to defendants that plaintiff was "not doing her job" and that her complaints about Quinn's behavior "were unfounded."

The parties agree that these events culminated in a meeting on March 25, 2019. There, the parties discussed "a number of concerns regarding [plaintiff's] employment," including various things that, in her supervisors' view, justified the termination of her employment. Although plaintiff denies being guilty of "poor work performance" and insists that at least some of her alleged misconduct (e.g., gift-giving to children) was not against the rules, both parties agree that plaintiff walked out of this meeting and was fired shortly afterward.

Even if it were to resolve those disputed facts in her favor, no reasonable jury could conclude that Butrym's impairments were the but-for cause of this adverse employment action. A review of plaintiff's deposition transcript reveals that while she denies certain alleged deficiencies in her work performance, she concedes others. Absent more, no factfinder could return a verdict in plaintiff's favor on this discrimination claim. Cf. Canales-Jacobs v. N.Y. State Office of Court Admin., 640 F. Supp. 2d 482, 500 (S.D.N.Y. 2009) ("The ADA does not excuse workplace misconduct because the misconduct is related to a disability.").

To the extent Butrym's ADA claim might be construed as a request for an accommodation that involved no contact with Quinn, a single co-worker, that request was unreasonable as matter of law. See, e.g., Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998) (applying pre-amendment ADA law to conclude that plaintiff's "request to be transferred away from individuals causing him prolonged and inordinate stress" was "unreasonable as a matter of law under the ADA" in terms of an accommodation).

In sum, even viewed in the light most favorable to her and construed liberally in light of her pro se status, Butrym has failed to identify evidence from which a reasonable jury could find in her favor on either of these ADA claims. Accordingly, plaintiff's discrimination and failure-to-accommodate claims must be dismissed."

BULLYING AND FEDERAL CLAIMS AGAINST SCHOOL

In this case:

"Plaintiffs bring claims under Section 504 of the Rehabilitation Act of 1983 (the "Rehabilitation Act"), 29 U.S.C. § 794, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that Defendant "failed to protect J.L. from the repeated and frequent bullying which occurred because of his disability on the schools' premises" ("Count One" and "Count Two," respectively). (Compl. ¶¶ 42-60.) Plaintiffs also bring a variety of common-law claims, including negligence, negligent infliction of emotional distress, and negligent hiring and supervision ("Count Three," "Count Four," and "Count Five," respectively). (Id. ¶¶ 61-90.)

Defendant argues that Plaintiffs must first exhaust their administrative remedies with respect to any disability claim pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq prior to bringing the suit. (Mot. 4-10.) Plaintiffs, by contrast, contend that exhaustion of their claims is not necessary because their claims do not pertain to access to a free appropriate public education ("FAPE"), a right guaranteed by IDEA. (Pl. Opp'n at 3-4.)"

The court denied the motion and went into an overview of the IDEA exhaustion requirement and held that the plaintiffs' claims were beyond the reach of the IDEA's exhaustion requirement.

PARKER-LEON v. MIDDLE VILLAGE PREPARATORY CHARTER SCHOOL, No. 17-CV-4548 (NGG) (RML), United States District Court, E.D. New York, June 4, 2019:

"Under the IDEA, parents of disabled children are guaranteed "a variety of procedural safeguards," Mr. P, 885 F.3d at 741, including the right "to request a due process hearing in order to present complaints as `to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.'" Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (quoting 20 U.S.C. § 1415(b)(6)(A)). These administrative proceedings are determined by and conducted pursuant to the laws of each state. See 20 U.S.C. § 1415(f)(1)(A), (g). "New York has opted for a two-tier administrative system" for review of IEPs:

First, an impartial hearing officer is selected from a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision. That decision can then be appealed to a state review officer of the New York Education Department.

Cave, 514 F.3d at 245. "Only after exhaustion of these procedures has an aggrieved party the right to file a suit in a federal or state court." Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

The exhaustion requirement applies to all suits that "seek relief for the denial of a FAPE," regardless of whether the suit was brought under the IDEA or "similar laws," which include the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 752 (2017); see 20 U.S.C. § 1415(1) ("Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under . . . other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].").

"[I]n determining whether a suit indeed `seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiffs complaint." Fry, 137 S. Ct. at 752. "[I]f, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required." Id. at 754; see L.K. v. Sewanhaka Cent. High Sch. Dist., 641 F. App'x 56, 57 (2d Cir. 2016) (summary order) ("[I]f the `theory' behind a claim relates to the `education of disabled children,' IDEA exhaustion is required ...." (quoting Polera v. Bd. of Educ., 288 F.3d 478, 481, 487-88 (2d Cir. 2002))).

"[T]he exhaustion requirement does not apply `in situations in which exhaustion would be futile." Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d Cir. 2007) (quoting Polera, 288 F.3d at 488). "To show futility, a plaintiff must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process." Id. (internal quotation marks and citations omitted). Futility may exist where the case involves "systemic violations that could not be remedied by local or administrative agencies." Baldessarre ex rel. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App'x 131, 134 (2d Cir. 2012) (summary order) (quoting Cave, 514 F.3d at 249); accord J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 113 (2d Cir. 2004). "The rationale behind this exception is that while the administrative hearing officers have the authority to enforce established regulations, policies[,] and procedures, they generally do not have the authority to set new policies or to alter existing ones." King v. Pine Plains Cent. Sch. Dist., 918 F.Supp. 772, 781 (S.D.N.Y. 1996). While claims of systemic violations are often asserted as part of a class action, they "can be made at the individual level, provided `a systemic policy is at stake' and `the administrative officer has no power to correct the violation.' J.Z. v. N.Y.C. Dep't of Educ., 281 F.Supp.3d 352, 362 (S.D.N.Y. 2017) (quoting F.C. v. N.Y.C. Dep't of Educ., No. 15-CV-6045 (PAE), 2016 WL 8716232, at *8 (S.D.N.Y. Aug. 5, 2016)). "The burden of demonstrating futility rests with the party seeking to avoid the exhaustion requirement." Coleman, 503 F.3d at 205.

Exhaustion may also be excused where "the parents have not been notified that [administrative] remedies were available to them." Weixel, 287 F.3d at 149; see Dervishi ex rel. T.D. v. Stamford Bd. of Educ., 691 F. App'x 651, 652 (2d Cir. 2016) (summary order) ("[E]xhaustion is excused if the defendant failed to notify the plaintiff of her procedural rights under the IDEA.")."

DISABILITY AND HOSTILE WORK ENVIRONMENT UNDER THE ADA

In this case, the employee Fox suffered from Tourette’s Syndrome and Obsessive‐ Compulsive Disorder since birth. A complaint was filed against his longtime employer for disability discrimination under the Americans with Disabilities Act and New York State Human Rights Law, asserting claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation. The Second Circuit held that his hostile work environment claim is cognizable under the ADA, and with respect to that claim, they found that there were disputes as to material facts.

Fox v. Costco Wholesale Corp., No. 17-0936 (2d Cir. Mar. 6, 2019):

"We have previously assumed without deciding that hostile work environment claims are cognizable under the ADA. See, e.g., Fleiger v. E. Suffolk BOCES, 693 F. App’x 14, 19 (2d Cir. 2018) (summary order) (assuming the plaintiff could bring a hostile work environment claim under the ADA where such claims failed at summary judgment in any event). Moreover, a number of courts that have considered this question have found such claims to be cognizable under the ADA. See Lanman v. Johnson Cty., 393 F.3d 1151, 1155–56 (10th Cir. 2004); Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir. 2003); Flowers v. S. Reg’l Physicians Servs., Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d 169, 175–76 (4th Cir. 2001).

We are persuaded by our sister Circuits, which have reasoned that claims for hostile work environment are actionable under the ADA. Under the ADA, a covered employer “shall [not] discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). “Congress borrowed this language from Title VII, which similarly provides that it ‘shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.’” Lanman, 393 F.3d at 1155 (quoting 42 U.S.C. § 2000e‐2(a)(1)) (emphasis in original). “Thus, when Congress included the phrase ‘terms, conditions, and privileges of employment’ in the ADA, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.” Shaver, 350 F.3d at 720.

“[I]n construing a statute, we must look at how its text was understood at the time that it was passed.” Id. When the ADA was enacted, the Supreme Court had twice concluded that Title VII provided for hostile work environment claims. See Lanman, 393 F.3d at 1155–56. By borrowing Title VII’s language, Congress suggested that it intended for the ADA to be coextensive, at least in this respect, with Title VII. This view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people. See, e.g., id.

“Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment—” it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII under that statute, Gen. Motors, 247 F.3d at 176, and we here so recognize.

B.

To prevail on a hostile work environment claim, Fox must show “(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). Although the victim must subjectively perceive the conduct as abusive, the misconduct shown also must be “severe or pervasive enough to create an objectively hostile or abusive work environment.” Id. at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Even an isolated act may be so serious that it requires the conclusion that the terms and conditions of employment were altered. Id. A plaintiff alleging a hostile work environment claim under the ADA, therefore, “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Id. (internal quotation marks omitted). Courts look to the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the plaintiff’s] work performance.” Harris, 510 U.S. at 23.

PUBLIC ACCOMMODATION EXEMPTIONS

The Americans with Disabilities Act (ADA) provides guidelines for what is necessary for organizations to provide accommodation to individuals with disabilities. While private clubs,religious entities and governments must comply with portions of the ADA, they are exempt from the ADA as it relates to public accommodation.

From Americans with Disabilities Act Title III Regulations, Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on August 11, 2016):

"§ 36.102 Application.

...........

(e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation), or to any religious entity or public entity."