J.P. v. Belton School District No. 124

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

J.P., by his foster mother and next friend, )

ALISHA OGDEN, )

)

Plaintiff, )

)

v. ) Case No. 4:20-cv-00189-NKL

)

BELTON SCHOOL DISTRICT 124, )

)

Defendant. )

)

ORDER

Before the Court is Plaintiff J.P.’s Motion for Judgment on the Administrative Record or,

in the Alternative, Summary Judgment on Count 1 of His Second Amended Complaint, Doc. 186,

and Defendant Belton School District 124’s Motion for Judgment on the Administrative Record

or, in the Alternative, for Summary Judgment on Count 1 of Plaintiff’s Second Amended and

Motion for Summary Judgment on Count II of Plaintiff’s Second Amended Complaint, Doc. 184.

The Second Amended Complaint (hereinafter “the Complaint)” states two claims: An appeal from

the decision of the Administrative Hearing Commission affirming the District’s decision to move

Plaintiff from Kentucky Trail Elementary School to Trails West, a state-run school for the Severely

Disabled (Count 1); and (2) a retaliation claim under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101, et seq., and § 504 of Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. (Count

2). For the reasons stated below, the District’s Motion for Judgment on the Administrative Record

on Count 1 and its Motion for Summary Judgment on Count 2 are granted, Plaintiff’s cross-

motions are denied, and the claims are dismissed with prejudice.

I. Background

Plaintiff J.P. is a 10-year-old boy in the care of his foster mother, Alisha Ogden. Doc. 29-

1, at 1.1 Alisha Ogden is a 40-year-old woman who lives in Belton, Missouri, where she cares for

Plaintiff, two adopted children, another foster child, and her natural child. Doc. 187-7 at 2-3. At

the time of the administrative hearing, Plaintiff was 9 years old. Id. Since February 20, 2018, he

has attended school at Kentucky Trail Elementary School, a school in Belton School District 124

in Cass County, Missouri. Doc. 29-1 at 2, Doc. 28-2 at 206. He was in fourth grade during the

2019-2020 school year. Id. at 1.

Plaintiff is profoundly disabled. He has been diagnosed with cerebral palsy, microcephaly,

and epilepsy. Id. He is almost entirely non-verbal and lacks any functional communication skills.

Doc. 28-2 at 394-395. He requires constant adult assistance in every aspect of his life, including

eating, toileting, and cleaning himself. At the age of seven, developmental behavioral experts

determined his cognitive level were equivalent to a three-month-old or a six-month-old infant, and

that his gross motor skills were equivalent to a one-year-old child. Id. In 2016, his IQ was measured

at 36. Doc. 29-1 at 3. He does not participate in the general curriculum of his school in any way.

Instead, he spends all classroom time in a contained special education classroom where he is given

individualized instruction by a rotating team of specialized instructors and therapists. Doc. 28-2 at

32. Although he shares this room with approximately twelve other disabled students who rotate

between that classroom and the regular classroom setting, he is isolated from other students in the

room because “his programming requires a completely different type of instructional approach

than all the rest of the students in the class.” Doc. 28-2 at 32-33, 309. He is attended to by a

1 For purposes of Count 1, the Court relies exclusively on the 3173-page Administrative Record

compiled by the Commissioner. The Administrative Record is sealed to protect Plaintiff’s

privacy, but the Court will quote from it selectively as it is contained in Docket Entries 29-32.

Document 29-1 contains facts stipulated to by the Parties.

paraprofessional every moment he is at school. Doc. 28-2 at 206. He does not attend art class,

music class, P.E., or assemblies, and his interactions with non-disabled peers are limited to

incidental contact in the hallways and during recess. Doc. 28-2 at 286-287, 308-309. His ability to

interact with others is limited because too much sensory input will cause him to cover his ears and

fall to the ground. Doc. 28-2 at 246. The simple act of someone walking into the special education

classroom can take him completely off task. Doc. 28-2 at 376. His sensory issues often lead to

bouts of vomiting and cause him to bite others, requiring District employees to wear bite guards

when assisting him. Doc. 28-2 at 376, 401. Instances of biting and scratching District employees

have resulted in injury reports and worker’s compensation claims. Doc. 185-1 at 2.

A. Facts Related to the Administrative Decision

1. Kentucky Trail Elementary School

Plaintiff arrived at Kentucky Trail sometime in February 2018. Doc. 28-2 at 20-21. Due to

his disabilities, an Individualized Education Plan (“IEP”) was created for Plaintiff Doc. 29-1 at 2.

Plaintiff’s IEP Team included Alisha Ogden, Jessica Hoots, the District’s Director of Special

Education, Elizabeth Hart, a special education teacher, Lori Rodgers, an IEP coordinator, Denise

Sterling, a speech pathologist, Susan McAllister, an occupational therapist, and Cari Dunn, a

physical therapist. Doc. 29-27 at 58-59.

On March 22, 2018, his IEP Team agreed on and set out the following six goals in his IEP:

Goal #1:

Functional Skills: given instruction and practice, [J.P] will increase his functional

skills by engaging in a functional activity (pushing buttons, filling/dumping

containers, grasping a writing tool and taking it to paper, opening/turning pages in

a board book) for up to 5 minutes on 4 of 5 trials on 4 of 5 data days by the end of

the IEP year. Baseline: 30 seconds.

Goal #2:

Functional skills: Given instructions and activity, [J.P] will grasp a pre-loaded

feeding utensil from his tray, take a bite, and return the utensil to the tray on 4 of 5

opportunities on 4 of 5 data days by the end of the IEP year. Baseline: [J.P.] requires

physical assistance to use feeding utensils.

Goal #3:

Language: In order to improve language skills [J.P.] will use eye gaze and/or touch

to choose between two activities on 2 out of 3 opportunities on 3 consecutive data

days by the end of the IEP year.

Goal #4:

Language: In order to improve language skills, [J.P.] will use a variety of switches

to ask for more, make choices, and operate cause/effect activities, on 2 out of 3

opportunities, 3 consecutive data days by the end of the IEP year.

Goal #5:

Gross Motor: [J.P.] will demonstrate increased trunk strength and muscle control

by independently maintaining static and dynamic sitting with upright posture in

wheelchair and adapted seating or standard classroom chair for 5 minutes while

performing functional activities (feeding, table top activities, pre-writing) and

maintain standing at support surface with contact guard assistance/supervision for

2 minutes on 2 of 3 trials on out of 4 consecutive data days per IEP year. Baseline:

[J.P] inconsistently maintains static sitting with upright posture for 1-2 minutes. He

maintains standing at a support surface for approximately 30 seconds with minimal

assistance.

Goal #6:

Gross Motor: [J.P.] will demonstrate increased locomotion by safely walking 50

feet with reverse rolling walker, steering around obstacles with close supervision

with less than 3 verbal cues to maintain grip on walker and maintain upright posture

on 2 of 3 trials on 3 out of 4 data days per IEP year. Baseline: [J.P.] walks 10-15

feet in his reverse walker, without steering around obstacles, with minimal

assistance to guide and/or maintain forward movement. Multiple and frequent

physical and tactile cues are required to maintain grip on reverse rolling walker.

Doc. 28-2 at 306-08.

2. School Placement Dispute

On May 15, 2018, Ogden was notified that the District was considering whether Plaintiff

was eligible for placement at Trails West, a state school intended only for disabled students run

under the Missouri Schools for the Severely Disabled (“MSSD”) program. Doc. 28-2 at 239; Doc.

29-1 at 3. On September 14, 2018, the IEP Team met to discuss whether Plaintiff should be placed

at Trails West or remain at Kentucky Trail, but no final decision was made. Id. On October 15,

2018, the IEP Team (without Ogden) met again and formally determined Plaintiff should attend

Trails West. Doc. 29-1 at 4. It notified Ogden of that decision two days later. Id. On October 24,

2018, Ogden filed a Due Processing Hearing Request challenging the IEP Team’s decision under

the IDEA. Id. Ogden dismissed that due process complaint on December 3, 2018, with the

understanding that Plaintiff would stay at Kentucky Trail until Plaintiff’s functioning and progress

toward his educational goals could be reassessed. Id.

On May 17, 2019, after a total reevaluation of Plaintiff’s functioning and behavior, the IEP

Team notified Ogden that it still intended to send Plaintiff to Trails West. Doc. 28-2 at 263. In

response, Ogden filed her second Due Process Hearing Request on May 24, 2019. Id. Ogden

dismissed that complaint on July 22, 2019, on the understanding that the IEP Team would again

reassess its decision after considering her input regarding Plaintiff’s functioning and goals, and

that Plaintiff would stay at Kentucky Trail until then. Id. at 363-64.

On August 23, 2019, after seeking and receiving Ogden’s input, the IEP Team stood by its

decision to place Plaintiff at Trails West. The IEP Team thought the change appropriate “because

[Trails West] will provide immersive and comprehensive instructions and services to meet his

specific needs at a level” that Kentucky Trail could not provide. Doc. 28-2 at 241; Doc. 29-1 at 5.

It found “[t]he high level of support at the Public Separate School will increase his opportunity to

meaningfully benefit in the implementation of his IEP, resulting in greater independence due to

the increased adult to student ratio.” Id. The IEP Team considered his current placement at

Kentucky Trail inappropriate because Plaintiff’s “cognitive and adaptive functioning is so severe

that education in general or special education classes in the District . . . cannot be achieved

satisfactorily” and that his current placement “will not result in any meaningful benefit[.]” Id. The

IEP team stated that Plaintiff had made only limited progress in achieving his IEP goals. The IEP

Team found that the progress he had made on Goals 5 and 6 (both gross motor goals) were

attributable entirely to natural physical development and maturation, not to the instruction he

received at Kentucky Trail, Doc. 28-3 at 48-49, and did not represent real progress appropriate in

light of his particular circumstances. The IEP Team found that Plaintiff had regressed in the areas

of communication, daily living, socialization, and motor and overall adaptive skills. Doc. 28-2 at

242; Doc. 28-3 at 119.

On August 29, 2019, the IEP Team notified Ogden of its decision. Id. at 364. Its notice

stated that “The IEP team determined Public Separate School placement is appropriate for [J.P.]

because it will provide immersive and comprehensive instruction and services to meet his specific

needs at a level that previous placements have not . . . The Public Separate School provides [J.P.]

with a Free and Appropriate Public Education in the least restrictive environment.” Doc. 31-17 at

1.

The day after receiving this notification, Ogden filed her third Due Process Hearing

Request challenging that placement. Id. On September 25, 2019, she filed an Amended Due

Process Complaint. Id. at 360. On January 30, 2020, the Administrative Hearing Commissioner

(AHC) after a hearing issued a 70-page Order denying her challenge and adopting the IEP placing

Plaintiff at Trails West. Id. at 425. That Order is challenged in Count 1 of Plaintiff’s Complaint

and subject to judicial review under 20 U.S.C. § 1415(i)(2).

3. Findings and Decision of the Administrative Hearing Commissioner (AHC)

The AHC received testimony and other evidence at a hearing before affirming the IEP

Team’s decision. She received testimony from many witnesses, including Plaintiff’s classroom

teachers, occupational and physical therapists, caseworkers, speech pathologists, special education

teachers, neurologists, psychologists, and school administrators. Id. at 365-67. She also received

testimony from an expert retained by Plaintiff, Dr. Peter Blanck, Ph.D., who testified that Plaintiff

was making some progress at Kentucky Trail and recommended against placement at Trails West.

Id. at 371. The Court will not recount each of these witnesses’ testimony or relationship with

Plaintiff except when necessary.

At the hearing, Plaintiff primarily objected to the IEP Team’s contention that he was not

making appropriate progress on his IEP goals in light of his circumstance and that Trails West was

the least restrictive environment (“LRE”) where he could make such progress.

As to Goal 1, the AHC found that Plaintiff “was making minimal progress” but “was

having a difficult time in the extended school year and was unable to maintain attention for more

than 30 seconds.” The evidence showed Plaintiff improving his ability to maintain attention

between May and June 2018, but at no point was he able to maintain his attention for more than

30 seconds. Id. at 379. However, by December 2018, his earlier progress had slowed or been

wholly erased. Id. The AHC found that his “time on task has not appropriately increased over the

last 18 months.” Id.

As to Goal 2, the AHC found that Plaintiff’s progress “went up and down.” Id. Plaintiff’s

ability to lift a piece of food to his mouth has progressed and regressed at different times since the

goal was set, but as of the time of the hearing the AHC found “Student has not made any progress

as he continued to require hand-over- hand assistance to redirect him to return the eating utensil to

the tray. Further, Student had reverted back to trying to grab the food rather than look for and use

the utensil.” Id. at 380.

As to Goal 3, the AHC received testimony from Plaintiff’s occupational therapist that on

some days Plaintiff was capable of using touch to communicate what objects he wishes to interact

with, and on other days was totally incapable, and that his instructor could not predict how he will

perform any given day. Id. at 382-83. The AHC found that although Plaintiff had made some

progress, it “cannot necessarily be attributed to the services provided at the District because he has

been in a consistent environment at home and school and has physically developed.” Id. at 383.

The AHC also noted that Plaintiff was not progressing toward “the next logical step of the goal”,

which was to reach out to pictures to communicate his desires, as opposed to toys. Id. As to Goal

4, the AHC received testimony that Plaintiff did not show readiness to meet this goal and in fact

regressed from the date of his IEP to October 2019. Id. at 383-84.

Finally, as to Goals 5 and 6, which involved his ability to sit upright and travel using a

reverse rolling walker, respectively, the AHC received testimony that he had met both goals.

However, the AHC noted that his instructors believed this was due to natural physical development

and maturation, not due to instruction.

The AHC found that Plaintiff was already in the most restrictive environment offered by

Kentucky Trail. Id. at 422. Plaintiff was the least functioning student in the District in that he

received all services in isolated special education settings and did not interact with other students,

even the other disabled students in his classroom, except at recess and in the hallways. The AHC

characterized Plaintiff as becoming “more and more isolated” because of his individual

programming and as totally incapable of functioning with other students because it was

overstimulating. Id. He noted Hoots’ testimony that although Plaintiff was healthier than he was

when he arrived at Kentucky Trail, his IEP progress was “very minimal and inconsistent” with

regard to functional activities. Id. at 376-78. Overall, the AHC found that Plaintiff was receiving

“little benefit” from his placement at Kentucky Trials and agreed with the District that it was not

appropriate to implement Plaintiff’s IEP at Kentucky Trail. The AHC found that Trails West was

the least restrictive environment where Plaintiff could make appropriate progress toward his IEP

Goals. Id. 423-24.

The AHC reviewed the testimony and report of Dr. Blanck, Plaintiff’s retained expert. Doc.

28-2 at 371-72. Placing the dispute in a racial and historical context, Blanck testified that African

American students like Plaintiff often face conscious or unconscious bias in the classroom from

educators who underestimate their capabilities. Doc. 171-2 at 32 (Blanck Report). He testified as

to the benefits of including Plaintiff in a mainstream school as opposed to the harms of segregating

Plaintiff at Trails West and noted that African American students are more frequently segregated

than white students in Missouri. Id. The AHC heard but did not assign much weight to Blanck’s

testimony. Doc. 28-2 at 412. The AHC noted that Blanck only met Plaintiff in person one time,

does not have a degree in education or special education, did not talk to any of Plaintiff’s teachers,

and had never visited an MSSD school or observed Plaintiff at Kentucky Trail. Id. at 371-72

B. Facts relating to the Retaliation Claim

1. Mandatory Reporting

Missouri law requires school employees to report suspicion of abuse or neglect of students

to the Children’s Division of the Missouri Department of Social Services. RSMo. § 210.115.1.

The District requires all employees to attend annual trainings regarding mandated reporting of

suspected child abuse. The District asks staff members who suspect a student is being abused to

make a child abuse report to the Children’s Division and to afterward inform the school resource

officer, in this case Officer Rachel Pruitt.

Six reports were filed with the Children’s Division by District employees against Plaintiff’s

foster mother, Alisha Ogden, between November 14, 2019, and June 9, 2020, regarding suspected

abuse by Ogden against Plaintiff or one of her other foster children.

a. November 14, 2019 Report

On November 14, 2019, Pruitt made a report to Children’s Division regarding Plaintiff.

because she was concerned that he was not being medicated properly, that the District did not have

adequate diapers for Plaintiff because Ogden was not providing them, and that he was often

arriving to school in a saturated diaper. Doc. 187-7 at 1. Pruitt made this report of her own accord,

and she does not recall the outcome of the report. Doc. 187-6 at 8 (Pruitt Depo.). After meeting

and discussing these issues with Ogden, an employee at Children’s Division stated, “This worker

has no concerns about [J.P.’s] care with Ms. Ogden” and closed the investigation. Doc. 187-7 at

4. Pruitt stated she did not know either Plaintiff or Ogden at the time she made this report. Doc.

187-6 at 15.

b. January 6, 2020 Report

On January 6, 2020, Dr. Michelle Biondo, the building administrator at Cambridge

Elementary School in the District was at the school although students were on winter break. Doc.

187-7 at 12. K.W., a child in care of Ogden, arrived at the school alone and told Biondo that she

did not feel safe at home. Id. She asked Biondo to not contact Ogden “because she would be mad.”

Biondo contacted the child’s case worker at the Children’s Division and Officer Rachel Pruitt, the

District school resource officer. Id. Biondo reported the incident to the Children’s Division because

she suspected child abuse and neglect. Id. The Children’s Division did not proceed with an

investigation based on her report. Id. at 13. Biondo stated that when she made the report, she did

not know who Plaintiff was, did not know of any due process hearing or reports involving Plaintiff

or Ogden, and had not made any other reports involving Plaintiff or anyone else in Ogden’s care.

Doc. 187-8 at 3 (Biondo Affidavit).

c. January 13, 2020 Report

Cassandra Gabauer is a special education paraprofessional at the District who was assigned

to work with M.W., one of Ogden’s foster children, during the 2019-2020 school year. On January

13, 2020, she observed that M.W. had a deep fingernail mark on her left thumb and a circular

bruise on her top right forearm. Doc. 187-7 at 34. Because M.W. is nonverbal, she was not able to

tell Gabauer how she received those injuries. Doc. 187-5 at 2 (Gabauer Affidavit). Gabauer,

suspecting child abuse, reported the injuries to the Children’s Division. 187-7 at 34. The Children’s

Division accepted her report but then downgraded the report to an “assessment” and did not

investigate further. Id. at 35. Gabauer stated that when she made the report, she had no knowledge

of Plaintiff’s due process hearing or any litigation related to Plaintiff or Ogden. Doc. 187-5 at 3-4.

d. January 28, 2020 Report

On January 28, 2020, Hart, a special education teacher, reported to her supervisors as well

as Officer Pruitt that Plaintiff had come to school that day with a saturated diaper soaked in urine

and with dried feces stuck to his skin. Doc. 187-2 at 5 (Hart Affidavit and Report). Hart had the

impression that the only way this could have happened was if he was not fully cleaned by his

caretaker at home after a bowel movement. Doc. 187-2 at 2. Hart, suspecting child neglect, made

a report to the Children’s Division via its online portal. Doc. 170-2 at 7. Hart stated that when she

made this report, she had no knowledge of any other reports by district employees against Ogden,

although she had discussions with Officer Pruitt about Plaintiff being sent to school without the

proper supplies for cleaning and hygiene. Id. at 8. The Children’s Division did not move forward

with an investigation of Ogden based on Hart’s report, which surprised Hart. Doc. 170-2 at 7.

e. March 4, 2020 Report

On March 4, 2020, Gabauer again observed bruises on the arms of M.W., the child she was

working with that schoolyear. Doc. 187-7 at 49. Gabauer, again suspecting child abuse, reported

the injuries to the Children’s Division. Id. Gabauer stated that when she made the report, she had

no knowledge of Plaintiff’s due process hearing. A Children’s Division employee interviewed

Gabauer regarding her report one day later. Id. One day after that, on March 6, 2020, Gabauer

informed that employee that she had observed a new bruise on M.W.’s arm. Id. at 50. Based on its

investigation, Children’s Division concluded that M.W. was not in danger and did not move

forward with its investigation. Id. at 50-51.

f. June 9, 2020 Report

On June 9, 2020, Pruitt reported to Children’s Division that K.W. had an ongoing issue of

running away from Ogden’s home and that Ogden did not have the ability to monitor K.W.’s

location or keep the child at home. Doc. 187-7 at 96-101. She reported that on June 9, 2020, a law

enforcement officer found K.W. locked out of the house, not wearing shoes, and walking to a gas

station on a busy street because he was hot and thirsty. Id. Upon returning K.W. to Ogden’s house,

the officer heard from one of the other foster siblings that he or she was not actually locked out

and just wanted to get out of the house after being grounded. Id. at 98. The foster sibling told the

officer she was “in charge of [K.W.] and the other children” while Ogden was out of the house.

Id. Based on the report, the Children’s Division did not proceed with an investigation. Id. at 100.

2. Knowledge of Reports Among IEP Team

Hoots was advised of the six mandated reports after the reports were made because she was

the Director of Special Education and the students who were the subject of the reports were all in

the special education program. Doc. 185-1 at 2 (Hoots Affidavit). However, she never filed a

mandated report herself. Id.

II. Legal Standard

Plaintiff brings two claims in this litigation: (1) an appeal from the decision of the AHC

affirming the IEP Team’s decision to place him at Trails West; and (2) a retaliation claim. On

appeal, the decision of the AHC is subject to review under the standard set forth by the IDEA. The

retaliation claim is subject to a summary judgment standard.

A. Standard of Review for Administrative Appeal

In reviewing the determination of a state administrative hearing commission’s resolution

of an IDEA claim, a district court must render an independent decision based on the preponderance

of the evidence in the administrative record. C.B. v. Special School Dist. No. 1, 636 F.3d 981, 988

(8th Cir. 2011); see also § 11:310. Standard of review; deference to administrative findings, 3

Americans with Disab. Pract & Compliance Manual. However, it must also give due weight to the

administrative proceedings and not substitute its own notions of sound educational policy for those

of the school authorities which they review. Bd. of Educ. v. Rowley, 458 U.S. 175, 205-06 (1982);

Strawn v. Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000); T.B. v. St. Joseph Sch. Distr.,

2011 WL 13189762, at *1 (W.D. Mo. Apr. 26, 2011), aff’d, 677 F.3d 844 (8th Cir. 2012). The

Court should give deference to the hearing office who had the opportunity to observe the demeanor

of witnesses and make credibility determinations. Strawn, 210 F.3d at 958. “Judicial review of

administrative proceedings under the IDEA is limited because judges are not trained educators.”

E.S. v. Indep. Sch. Dist. No. 196, 135 F.3d 566, 569 (8th Cir. 1998). The standard of review, then,

falls somewhere between a deferential “substantial evidence” standard often seen when reviewing

agency decisions and a non-deferential de novo standard. See Daniel W. Morton-Bentley, The

Rowley Enigma: How much Weight is Due to IDEA State Administrative Proceedings in Federal

Court?, 36 J. Nat’l Ass’n Admin. L. Judiciary 428 (2016). Any review of an IEP under the IDEA

must turn on whether the IEP is reasonable, not whether the court regards it as ideal. Albright as

Next Friend of Doe v. Mountain Home Sch. Dist., 926 F.3d 942, 948 (8th Cir. 2019) (quoting

Endrew F. ex rel. Joseph F. v. Douglas City. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017)).

B. Standard of Review for Motion for Summary Judgment

“Summary judgment is proper if, after viewing the evidence and drawing all reasonable

inferences in the light most favorable to the nonmovant, no genuine issue of material fact exists

and the movant is entitled to judgment as a matter of law.” Higgins v. Union Pac. R.R. Co., 931

F.3d 664, 669 (8th Cir. 2019) (quotation marks and citation omitted); Fed. R. Civ. P. 56(a). While

the moving party bears the burden of establishing a lack of any genuine issues of material fact,

Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010), the party opposing

summary judgment “must set forth specific facts showing that there is a genuine issue of material

fact for trial.” Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007). The Court must enter

summary judgment “against a party who fails 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. Discussion

A. Motion for Judgment on the Administrative Record on Plaintiff’s IDEA Claim—

Count 1

Plaintiff argues the AHC’s decision affirming the placement decision of the IEP Team must

be overturned because it was not supported by the evidence and was inconsistent with the IDEA

and Missouri law. Specifically, Plaintiff in his Complaint argues the AHC (1) improperly

characterized his due process objection as an objection concerning his proper IEP and placement;

(2) failed to employ the correct legal standard of a free and appropriate public education (“FAPE”)

in light of his progress meeting his IEP goals; (3) improperly found that his placement at Trails

West was “not more restrictive than necessary” since he was making progress at Kentucky Trail;

and (4) erred by deferring to the testimony of District staff. Doc. 173 at 7 (Second Amended

Complaint). He asks the Court to overturn the AHC’s decision on these bases under 20 U.S.C. §

1415(i)(2), which states “Any party aggrieved” by a decision or finding by an AHC under the

IDEA “shall have the right to bring a civil action” in any state court or district court of the United

States. The Supreme Court has limited the district courts’ role in deciding IDEA appeals as

follows:

“[A] court’s inquiry in suits brought under 1415([i])(2) is twofold. First, has

the State complied with the procedures set forth in the Act? And second, is the

individualized educational program developed through the Act’s procedures

reasonably calculated to enable the child to receive educational benefits? If these

requirements are met, the State has complied with the obligations imposed by

Congress and the courts can require no more.”

Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206-

7 (1982). The District argues that it is entitled to judgment on the administrative record because it

and the AHC have complied with the procedures set forth in the IDEA and that its challenged IEP,

which calls for placement at Trails West, is reasonably calculated to enable Plaintiff to receive

educational benefits.

Plaintiff does not lodge a broad objection to the proposed IEP. Rather, the dispute between

the parties is confined to a single issue: whether the decision in the IEP to move Plaintiff from

Kentucky Trail to Trails West was reasonably calculated to enable him to receive educational

benefits appropriate in light of his circumstances and comported with the IDEA. In Plaintiff’s

words, “the parties do not disagree on J.P.’s goals and related services, but rather where the IEP

should be implemented.” Doc. 168 at 11. Plaintiff believes that placement at Trails West is

improper because he is entitled to be placed in the least restrictive environment possible where he

is able to receive a FAPE. Plaintiff argues that this environment is Kentucky Trail, where he was

making progress on or had completed his IEP goals. The District characterizes Plaintiff’s progress

at Kentucky Trail as non-existent or minimal, but in either case insufficient to support his

continued placement there. The District asserts, and the AHC agreed, that Plaintiff would only be

able to receive a FAPE at Trails West.

“To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably

calculated to enable a child to make progress in light of the child’s circumstances.” Endrew F, 137

S. Ct. at 999; Albright., 926 F.3d at 948. Such progress must be more than de minimis. Id. at 1000.

At the administrative hearing, the District asserted that although Plaintiff was receiving the best

instruction Kentucky Trail could provide, the progress was de minimis at best. Doc. 28-2 at 398

(“Student will have no educational benefit or ‘de minimis’ at best if he stays at Kentucky Trail.”).

The AHC further found that Trails West “could immediately pick up Student’s IEP and implement

it, whether other placement options could not.” Id. at 424.

Plaintiff, conversely, asserts he “has achieved or made significant progress on every one

of” his IEP goals at Kentucky Trail and had in fact achieved Goals 1, 3, 5, and 6 “beyond a

reasonable dispute.” Doc. 168 at 7. The Court will first consider whether or not the record supports

the AHC’s finding that Plaintiff was not making more than minimal progress toward his six IEP

goals at Kentucky Trail. It will then consider whether the placement of Plaintiff at Trails West

comports with the IDEA’s presumption in favor of placement in the least restrictive environment.

The Court’s analysis is based on its independent review of the administrative record, although it

has given due weight to the results of the state administrative proceedings. See C.B., 636 F.3d at

988-89.

1. Progress Toward IEP Goals

Plaintiff’s first goal was to increase his functional skills by engaging in certain manual

activities for up to 5 minutes on 4 of 5 trials on 4 of 5 days by the end of the IEP year. Plaintiff

was assessed on this task on five occasions between May and October 2018. On two occasions he

was characterized as making “slow progress” and on three occasions he was characterized as

making “no progress.” Doc. 29-27 at 28. On one “slow progress” occasion, he was not able to

maintain attention for more than 30 seconds. On the other “slow progress” occasion, he maintained

attention to a task for 31.3 seconds, although he continued “to be easily distracted even when

engaged in a preferred activity such as buttons and music.” Based on these measurements, the

AHC found he was far short of achieving the 5-minute benchmark, was not exhibiting a positive

trendline, and had thus not made more than de minimis progress toward this goal. Plaintiff

characterizes his own progress as “significant”, but the Court on this record concurs with the AHC

that his progress toward Goal 1 cannot be characterized as more than de minimis.

Plaintiff’s second goal was to, essentially, feed himself with an eating utensil and thereafter

return the utensil to his food tray on 4 of 5 occasions on 4 of 5 days. Plaintiff was assessed on this

task on five occasions between May and October 2018. On four occasions he was characterized as

making “no progress.” On one occasion he was characterized as making “slow progress.” Doc. 29-

27 at 30. On the “slow progress’ occasion, Plaintiff had a 70% chance of success of taking a bite

of food from a pre-loaded spoon but did not demonstrate an ability to grasp the spoon from the

tray or return it after taking a bite—on most occasions, he would simple drop the spoon after taking

the bite. Id. Based on these assessments, the AHC found that Plaintiff’s progress “went up and

down” but that overall no more than minimal progress has been made. Plaintiff argues he has met

“2/3rds” of this last goal, but the Court on this record sees no evidence of this amount of progress.

Plaintiff at most demonstrated limited progress on 1 of 5 days, and it is far from clear that this day

of limited progress represents sustainable progress toward achieving this goal. On this record, the

Court concurs with the AHC that Plaintiff’s progress toward Goal 2 cannot be characterized as

more than de minimis.

Plaintiff’s third goal was to improve his language skills by using eye gaze or touch to

choose between activities on 2 out of 3 opportunities on 3 consecutive assessment days. Plaintiff

was assessed on this task on three occasions between April and October 2018. Doc. 29-27 at 32.

On the first occasion, he made a choice via eye gaze on one of three opportunities, although it was

“difficult to determine if he [was] making a definite choice.” On the second occasion, he seemed

to make a choice half of the time. On the third occasion, the assessor noted only that his ability to

choose “depends on the day.” They said “[a]t his best, [J.P.] will reach for a preferred activity

consistently. Some days he will refuse to make a choice at all. Most frequently, he will reach for

both items 50% of the time, reach for one 25% of the time, and make a choice with eye gaze 25%

of the time.” Based on these assessments the AHC found Plaintiff made some progress toward this

goal but also could not determine whether that progress was attributable to instruction he received

at school. Although Plaintiff’s progress toward this goal does not seem to be on a linear path and

may indeed be regressing—the assessor, for their part, seems to believe Plaintiff’s performance on

any given day is a matter of pure chance. On this record, the Court finds that Plaintiff is not

progressing toward this goal and that any perceived progress is de minimis.

Plaintiff’s fourth goal was to use switches to ask for more, make choices, and “operate

cause/effect activities” on 2 out of occasions on 3 consecutive assessment days. Plaintiff was

assessed on this task on 3 occasions between April and October 2018. On the first two occasion,

he was not making progress. On the third occasion, he was able to play music on a “Big Mack”

device by applying pressure to a button. According to the assessor, he “loves” the device, and will

independently maintain pressure on it with his hands or chin. Doc. 29-27 at 34. A District staff

member characterized Plaintiff as having “a slightly positive trendline” solely as to his ability to

press a switch to play music, but that the trendline is going down on this goal in other ways. Doc.

28-3 at 96. Based on these assessments, the AHC found Plaintiff was not showing progress because

although he is excited by the music-playing Big Mack device, he is not making the cause/effect

connection that is the essence of this goal. The AHC stated that he was only independently pressing

the button seven percent of the time, which was a regression from earlier reporting periods.

Plaintiff asserts that it is “very likely” that he has achieved Goal 4. The Court on this record finds

no basis for that assertion. Rather, the Court concurs with the AHC that Plaintiff is not making

more than minimal progress toward achieving Goal 4.

Plaintiff’s fifth goal was to be able to sit upright in a chair for five minutes while

performing functional activities and to be able to stand with assistance for two minutes on 2 of 3

occasions for 3 out of 4 consecutive assessment days. He was only assessed twice on this goal,

both times in May 2018. On the first assessment, he was able to sit upright in a classroom chair

for an average of 2 minutes and 15 seconds, sit upright in an adapted chair for 4 minutes, sit upright

in a wheelchair for 10 minutes, and stand with assistance for an average of 1 minute and 40

seconds. On the second assessment, he was able to sit upright in a classroom chair for an average

of 1 minute and 21 seconds, sit upright in a wheelchair for over 10 minutes, and stand with

assistance for an average of 1 minute and 56 seconds. Doc. 28-27 at 36. Based on these two

assessments, the AHC found that he had met this goal but also noted that instructors did not believe

it was due to their instruction so much as natural physical development. The Court concurs with

the District and Plaintiff that he is making progress on Goal 5 but also finds the progress is

unrelated to the instruction he is receiving at Kentucky Trail.

Plaintiff’s sixth and final goal was to demonstrate increased locomotion by walking 50 feet

with a reverse rolling walker while steering around obstacles and without the need for verbal cues

to maintain grip on the walker on 2 out of 3 occasions on 3 of 4 assessment days. He was only

assessed twice on this goal, both times in May 2018. On his first assessment, he could walk an

average of 40 feet with his walker with minimal to moderate assistance but with frequent verbal

and tactile clues to maintain grip on the walker. On the second assessment, he was able to walk

more than 150 feet on two occasions, but still required physical and verbal reminders to keep

gripping his walker. Doc. 29-27. Based on these two assessments, the AHC found that he had

“mastered” this goal. Doc. 28-2 at 402. Plaintiff walks with handheld assistance and no longer

utilizes a wheelchair or walker. Doc. 28-4 at 209.

The AHC also considered other evidence relating to Plaintiff’s progress toward these six

goals at Kentucky Trail. It accounted for testimony from District staff that Plaintiff has in fact

“shown regression in the big picture” over the last three years. Doc. 28-4 at 384. After careful

consideration of the entire record, the Court finds by a preponderance of evidence in the

administrative record that Plaintiff has not made more than minimal progress toward IEP Goals 1,

2, 3, or 4. In addition, although he has made more than minimal progress toward Goal 5 and

mastered Goal 6, this progress is the result of natural maturation and physical development, not

the District’s instruction. Kentucky Trail, despite mustering substantial special education resources

on Plaintiff’s behalf, cannot provide him an environment where he can make more than de minimis

progress toward his remaining IEP goals.

2. Least Restrictive Environment

The District argues that in light of the AHC’s findings as to Plaintiff’s IEP progress,

placement at Trails West was appropriate because he was not making progress toward his IEP

goals at Kentucky Trail. The IDEA provides that children with disabilities must be educated

alongside non-disabled children “to the maximum extent appropriate” and that removal of a child

from a mainstream setting should occur “only when the nature or severity of the disability of a

child is such that an education in regular classes with the use of supplementary aids and services

cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A). A disabled child’s school placement

must be based on their IEP. 34 C.F.R. § 300.114(b)(2). This strong preference in favor of

mainstream schooling is known as the “Least Restrict Environment” presumption. See T.F. v.

Special Sch. Dist. of St. Louis Cnty., 449 F.3d 816, 820 (8th Cir. 2006) (“The statute . . . [reflects]

a strong preference that disabled children attend regular classes with non-disabled children[.]”)

(internal quotations omitted). However, the presumption in favor of mainstream schooling does

not bar the placement of students at schools like Trails West when appropriate. “[T]he appropriate

yardstick is whether the child, with appropriate aids and services, can make progress toward the

IEP’s goals in the regular education setting.” L.H. v. Hamilton Cty. Dep’t of Educ., 2016 WL

6581235, at *1 (E.D. Tenn. Nov. 4, 2016).

In this case, the IEP team decided that placement at Trails West was appropriate given

Plaintiff’s particular cognitive level, needs, and the historical data, all of which led it to believe

that it could not advance Plaintiff’s IEP goals at Kentucky Trail even with appropriate aids and

services on hand. The AHC found that the evidence supported the IEP Team’s decision. Doc. 28-

2 at 424.

Plaintiff asserts that placement at Trails West runs afoul of the IDEA’s LRE presumption.

He cites chiefly to Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983), wherein the Sixth

Circuit held that placement of a disabled child at a separate school is appropriate only when that

student is (1) receiving no benefit from inclusion at their mainstream school; (2) the benefits of

special placement far outweigh the benefits of inclusion; and (3) the student is disruptive in the

mainstream setting. Plaintiff argues that under Roncker, placement at Trails West is categorically

barred because there is no evidence that he is disruptive and strong evidence that he has benefitted

from inclusion at Kentucky Trail.

The Eighth Circuit in Pachl v. Seagren, 453 F.3d 1064 (8th Cir. 2006), found that a student

could be removed from a mainstream setting only when (1) any marginal benefits received from

mainstreaming are far outweighed by the benefits gained from services which could not be

provided in the non-segregated setting; (2) the student would not benefit from mainstreaming; and

(3) the student is a disruptive force in the non-segregated setting. Id. at 1068. However, it also

“emphasized that the statutory language ‘significantly qualifies the mainstreaming requirement by

stating it should be implemented to the maximum extent appropriate’ . . . and that it is inapplicable

where education in a mainstream environment cannot be achieved satisfactorily.” Id. at 1067-68

(citing A.W. v. Northwest R-1 Sch Dist., 813 F.2d 158, 163 (8th Cir. 1987)).

Plaintiff, although at a mainstream school, is already totally segregated from non-disabled

students in that he spends no time with his non-disabled peers outside of incidental interactions in

the hallways and at recess. Even when these glancing interactions do occur, he does not

meaningfully engage with his peers outside of occasional eye contact and a smile. Doc. 28-2 at

421. Testimony from District staff establishes that Plaintiff on a pure sensory level cannot handle

being in the cafeteria or in the regular classroom with other students and that he cannot participate

in music class, art class or assemblies. Doc. 28-3 at 287. When he is around peers in a general

education setting, “he responds by doing things like dropping to the floor,” putting his hands over

his ears, and vocalizing in an unintelligible and uncontrolled manner. Id. at 33. He also frequently

vomits and bites staff, requiring them to wear bite guards. Doc. 28-2 at 401. As such, although he

is not a disruptive force at Kentucky Trail on a day-to-day basis, a preponderance of evidence

suggests this is only because he has no meaningful interaction with or exposure to other students.

Plaintiff points to alleged benefits from his limited interaction with non-disabled peers—

for instance, that at the library a peer saw him and said “I know that kid. He goes to school with

me!”, and in response Plaintiff briefly made eye contact with the student. Doc. 28-3 at 154. Even

assigning this single anecdote (supplied by Plaintiff’s own expert, Dr. Blanck) maximum weight,

there is no evidence in the record that Plaintiff receives any meaningful benefit from his placement

at Kentucky Trail by way of socialization with non-disabled peers. Plaintiff also points to

testimony from Dr. Blanck, who has testified that research shows that students like Plaintiff

generally benefit from being in “integrated” settings with non-disabled peers and suffer when they

are placed in settings with only disabled peers. Doc. 190 at 23-24. However, this ignores that

Plaintiff is by necessity nearly totally segregated from his non-disabled peers in his current setting.

Given the fact of his segregation in his current setting, his placement at a new school set aside for

severely disabled students would not isolate him any further. Rather, to the extent that such

placement could allow Plaintiff to learn alongside other students in some capacity, it would seem

likely to increase, not decrease, his ability to reap the benefits of peer socialization.

A preponderance of the evidence supports the AHC’s finding that the benefits of placement

at Trails West far outweigh whatever benefits he receives from his current placement. District staff

have testified that Kentucky Trail simply cannot provide the distraction-free environment that

Plaintiff requires, even in the special education classroom that he is permanently assigned to. Doc.

28-3 at 110. This is because he must share the special education room with other disabled students

who do not take lessons alongside him but ingress and egress from that classroom throughout the

day, creating an untenable series of distractions. Trails West is a smaller school that is designed to

offer a quieter environment with fewer distractions. It can provide “wrap-around services” for

Plaintiff, where therapy and classroom instruction can be provided in a calmer setting. Trails West

will also allow Plaintiff to actually learn alongside other students, something he is unable to do at

Kentucky Trail. Id. at 111-12. Altogether, a preponderance of the evidence supports the finding

that the benefits of placement at Trails West far exceed the benefit of continued placement at

Kentucky Trail, that Plaintiff would likely be disruptive to other students at Kentucky Trail if he

was ever with those other students, and that he is receiving no benefits of inclusion by virtue of

his placement at Kentucky Trail for the simple reason that he is not in an inclusive setting at

Kentucky Trail. The Paschal factors support the determination of the IEP Team that Kentucky

Trail is not a setting where Plaintiff can make progress toward his IEP goals even given the full

benefit of supplementary aids and services. A preponderance of the evidence supports the

District’s decision that Plaintiff’s educational goals cannot be achieved satisfactorily in a

mainstream environment like Kentucky Trail, and thus placement at Trails West is appropriate and

permitted under 20 U.S.C. § 1412(a)(5)(A).

3. Resources Provided to Plaintiff in His Current Setting

Plaintiff argue in the alternative that even if this Court were to find that he has failed to

make adequate progress toward his IEP Goals at Kentucky Trail, that this failure stems from the

District’s refusal to provide him adequate supplementary services that it must provide “in

conjunction with regular classroom placement.” 34 C.F.R. § 300.115. Plaintiff argues that the

District “can train staff and/or pull J.P. out for instruction in small groups” or use itinerant teachers

and a resource room “to allow such expertise and structure to assist J.P. in general education.” He

cites to two cases, Oberti v. Bd. of Educ., 801 F. Supp 1392 (D. N.J. 1992), and Greer v. Rome

City Sch. Dist. B., 950 F.2d 688 (11th Cir. 1991), in support of the proposition that a school must

attempt to provide itinerant teachers and specialized classrooms to supplement a general education

experience before seeking a more restricting setting for a disabled student. Itinerant teachers are

traveling schoolteachers who are specialized to provide instruction to profoundly disabled

students.

Oberti and Greer confirm that a school must bring to bear its supplemental aids and

services on behalf of a disabled student before shifting them out of a regular classroom

environment. Greer, 950 F.2d at 696 (“[B]efore the school district may conclude that a

handicapped child should be educated outside the regular classroom, it must consider whether

supplemental aids and services would permit satisfactory education in the regular classroom. The

school district must consider the whole range of supplemental aids and services, including resource

rooms and itinerant instruction . . . “); Oberti, 801 F. Supp at 1407 (“It is now time for the School

District . . . to avail itself of the resources that have enabled school districts around the country and

within New Jersey successfully to educate children with moderate to severe disabilities within the

matrices of regular education classes.”).

In Oberti and Greer, the courts found that a student could not be taken out of a regular

classroom before the school district had exhausted its full suite of supplemental aides and services

that might allow the student to remain. Here, Plaintiff has already been fully removed from a

regular classroom environment. Due to Plaintiff’s profound intellectual and physical disabilities

and total inability to interact with peers, his placement. in a regular classroom setting is not a viable

alternative—indeed, nobody in this litigation suggests he be placed in a regular classroom.

Furthermore, although Plaintiff asserts the District must provide him with a resource room

and an itinerant teacher before placing him in a more restrictive environment, the record makes

clear that the District has already provided him full-time one-on-one services from a team of

trained therapists, paraprofessionals, and instructors, advanced assistive technology, and a

specially-designed independent workspace meant to minimize sensory input in the best-resourced

room available. There is no reason to think that layering a new room or a new employee on top of

the aides and services already provided will set Plaintiff’s IEP progress on a different trajectory.

To the extent that Plaintiff is essentially arguing that he is entitled to better special education

services than what he is currently receiving, such services are more likely to be found at a school

dedicated to educating severely disabled students than in a mainstream setting. Trails West is able

to employ teachers who are trained and credentialed specifically to instruct profoundly disabled

students. Doc. 28-2 at 405. Kentucky Trail, by comparison, employs teachers with degrees in

special education but without the same specialization in profound disabilities. Id. at 402 (“While

there is a degree in special education for severe and profound disabilities, it is a very specialized

degree, and Hoots is not sure if in her 20 years in the public school setting she has hired anyone

with that type of degree.”). The Court finds that Plaintiff’s failure to make appropriate progress on

his IEP Goals is not due to the District’s failure to provide supplementary aides and services.

4. Conclusion

For the reasons stated above, a preponderance of the evidence supports the finding that the

State has complied with the procedures set forth in the IDEA and that the challenged IEP—

including its placement of Plaintiff at Trails West—is reasonably calculated to enable the child to

receive educational benefits appropriate in light of the circumstances. Rowley, 458 U.S. at 206-07.

Furthermore, the placement of Plaintiff at Trails West comports with Eighth Circuit precedent

regarding the LRE presumption as set out in Paschal given his particular circumstances and needs.

As such, the District’s Motion for Judgment on the Administrative Record, Doc. 184, is granted.

Plaintiff’s Motion for Judgment on the Administrative Record, Doc. 186, is denied. Count 1 of

Plaintiff’s Second Amended Complaint is dismissed.

B. Motion for Summary Judgment on Plaintiff’s Retaliation Claim—Count II

To establish a prima facie retaliation claim under the ADA or § 504 of the Rehabilitation

Act, Plaintiff must show that (1) he engaged in a statutorily protected activity; (2) an adverse action

was taken against him; and (3) a causal connection between the protected activity and the adverse

action. Bradley ex rel. Bradley v. Ark. Dep’t of Educ., 443 F.3d 965, 976 (8th Cir. 2006); see also

Burgess v. Harris Beach PLLC, 346 F. App’x 658, 660 (2d Cir. 2009) (elements of a retaliation

claim are identical for ADA and § 504 claims). When there is no direct evidence of retaliation, as

is the case here, an inference of retaliation must be created using the McDonnell-Douglas burden-

shifting framework. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 972 (8th Cir. 2014); see

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the Plaintiff first

has the burden of establishing the elements of his claim. Then, the burden of production shifts to

the District to show a legitimate, non-discriminatory reason for their adverse action. Then, the

burden shifts back to the Plaintiff to show the District’s proffered reason was pretextual.

Plaintiff claims the exercise of his procedural safeguards afforded to him under the IDEA

was a statutorily protected activity, that the child abuse reports made by various school district

employees and the school resource officer were adverse actions, and that the reports were caused

by Plaintiff’s invocation of his IDEA rights in the form of filing due process complaints to halt his

placement at Trails West. The District moves for summary judgment on the following bases: (1)

it took no adverse action against Plaintiff; (2) there is no causal connection between the mandated

reports and any protected activity; (3) the reports filed by District employees were legitimate, non-

discriminatory, and mandated under Missouri law; (4) the District is entitled to statutory immunity

in the absence of any evidence of bad faith; and (5) the retaliation claim is not exhausted as required

under the IDEA. For purposes of this Motion only, the Court assumes that the filing of child abuse

reports by District employees against Ogden were adverse actions, that Plaintiff engaged in a

protected activity by invoking his IDEA rights, and that the claim survives the exhaustion

requirements of the IDEA.

1. Causation

A retaliation claim requires a but-for causal connection between a plaintiff’s protected

activity and a defendant’s adverse action. Oehmke v. Medtronic, Inc., 844 F.3d 748, 758 (8th Cir.

2016). Usually, more than a temporal connection between the protected activity and the adverse

action is required to present a genuine factual issue on causation. Peterson v. Scott County, 406

F.3d 515, 524 (8th Cir. 2005). Any inference of causation deriving from temporal proximity

disappears altogether when the time gap between the protected activity and the adverse action is

measured in months. Littleton v. Pilot Travel Ctrs. LLC, 568 F.3d 641, 645 (8th Cir. 2009). Plaintiff

argues that District employees would not have filed child abuse reports against Ogden if Ogden

had not filed due process complaints protesting Plaintiff’s new placement at Trails West. Plaintiff

points to the temporal proximity between her due process complaints and the child abuse reports

as evidence establishing causation.

J.P. began to attend Kentucky Trail in February 2018. Doc. 28-2 at 20-21. In the spring of

2018, the IEP Team began discussing with Ogden a change in placement from Kentucky Trail to

Trails West. Doc. 29-1 at 3. On August 23, 2019, the IEP team formally proposed that change.

Ogden filed due process complaints on October 24, 2018, May 24, 2019, and August 30, 2019.

Doc. 29-1 at 2-3. The AHC issued its decision on January 31, 2020. District employees made child

abuse reports against Ogden on November 14, 2019, January 6, 2020, January 13, 2020, March 4,

2020, and June 9, 2020. Doc. 187-7.

Plaintiff asserts that his due process complaints—filed between October 2018 and August

2019—were the but-for cause of the child abuse reports made between November 2019 and June

2020. There is roughly a two-and-a-half-month gap between Plaintiff’s third Due Process

Complaint (August 30, 2019), and the first child abuse report (November 14, 2019). However, this

November report was made by Officer Rachel Pruitt, who stated that at the time she had no idea

who Plaintiff or Ogden were or that there was an ongoing dispute between Ogden and the school

over his IEP. Doc. 187-6 at 15. As such, there is no possibility that Plaintiff’s complaints were the

but-for cause of Pruitt’s November 2019 report. Likewise, Biondo, who made a January 6, 2020,

report against Ogden concerning one of Plaintiff’s foster siblings, stated that she did not know who

J.P. was or anything about the due process complaints. Doc. 187-8 at 2. For the same reason,

Biondo’s child abuse report could not logically have been motivated by a due process complaint

she was wholly unaware of. Likewise, Gabauer, who made a child abuse report on January 13,

2020, has also stated she had no knowledge of Plaintiff’s due process hearing nor any litigation

involving Plaintiff or Ogden. In light of these uncontroverted statements, not until January 28,

2020—five months after Plaintiff’s final due process complaint, was a child abuse report filed by

any District employee who was potentially aware of the statutorily-protected activity in question.

A five-month temporal gap between a protected activity and an adverse action precludes a

reasonable fact finder from inferring retaliation based on temporal proximity. Littleton, 568 F.3d

at 645; Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1138 (8th Cir. 2006).

As more time passes between the protected conduct and the adverse act, the inference of

retaliation becomes weaker, and the plaintiff must produce stronger alternate evidence of

causation. Sims v. Sauer-Sundstrand Co, 130 F.3d 341, 343 (8th Cir. 1997). In his briefing,

Plaintiff marshals three alternative arguments to establish the causal link between his complaints

and the child abuse reports: (1) the fact that the Children’s Division declined to investigate three

of the District employees’ reports, made no findings of abuse after investigating the other two,

and did not exhibit serious concern for the children in Ogden’s care based on the reports; (2) a

weak factual basis for the report concerning bruises on M.W.’s arm considering her penchant for

self-harm and dearth of evidence that Ogden caused her injuries;2 and (3) the generally adversarial

relationship between Ogden and District employees. Plaintiff argues these facts create a genuine

issue of material fact that precludes summary judgment on the issue of causation.

As a preliminary matter, only two District employees were aware of Plaintiff’s due process

complaints at the time they filed a child abuse report. The first was Hart, who filed a child abuse

report on January 28, 2020. The second was Pruitt, who filed a child abuse report on June 9, 2020.3

2 Plaintiff points to no evidence that Gabauer knew of Plaintiff’s due process hearing nor of any

litigation involving him or Ogden. Therefore, his second argument fails ab initio and will not be

discussed further.

3 Pruitt was not aware of the dispute being Ogden and the IEP Team when she filed her first

report on November 14, 2019. Doc. 187-6 at 15. Therefore the Court only considers her second

report in this context.

Therefore, the Court only considers whether there is evidence from which a reasonable fact finder

could conclude that Hart or Pruitt would not have filed the child abuse or neglect reports but for

Plaintiff’s due process complaint.

As for Plaintiff’s first argument, the fact that the Children’s Division declined to take action

after receiving Hart and Pruitt’s reports does not create an inference that the due process

complaints were the but-for cause of the child abuse reports. Under RSMo. § 210.115.1, any

“teacher, principal or other school official . . . or law enforcement official” with “reasonable cause

to suspect that a child has been or may be subjected to abuse or neglect or observes a child being

subjected to conditions or circumstances which would reasonably result in abuse or neglect . . .

shall immediately report to the division.” The mandatory reporting statue does not suggest that a

District employee must predict the likelihood that the Children’s Division will investigate or act

on the report or consider how previous investigations into a suspected abuser were resolved,

assuming they even had that information. Rather, mandatory reporters are commanded to make a

report whenever they have reasonable cause to suspect child abuse. The fact that Children’s

Division staff may not act on a report does not indicate that the reports were made for an improper

purpose or that the reporters lacked reasonable cause to suspect child abuse. Furthermore, although

the reports did not lead to any findings of abuse, there is no indication they contained false

information, either. Under these facts, no reasonable fact finder could conclude that Pruitt or Hart

lacked reasonable cause to suspect that Plaintiff was being neglected when he came to school with

a soiled diaper and dried feces stuck to his skin or when K.W. was found locked out of his or her

house, not wearing shoes, and walking to a gas station on a busy street because he or she was hot

and thirsty. Absent some evidence that Hart or Pruitt did not have reasonable cause to suspect these

children were neglected, there is insufficient evidence for a reasonable fact finder to conclude that

the filing of the abuse report would not have occurred but for the Plaintiff’s due process

complaints. This ruling is also consistent with the public policy reasons for requiring mandatory

reporting of suspected child abuse or neglect.

Finally, Plaintiff argues that the fact of the adversarial relationship between Ogden and his

IEP Team undermines the District’s claim that its employees actually acted out of concern for her

foster children and in fact supports a finding that they filed the abuse/neglect reports to retaliate

against Ogden. Plaintiff claims that District employees mistreated Ogden and Plaintiff by, for

instance, “[ganging] up” on her in IEP meetings, not providing proper services to Plaintiff,

gossiping about Plaintiff and his siblings, and characterizing Ogden as aggressive, intimidating,

and potentially violent.

As noted above, of the four individuals who made reports, only Hart and Pruitt had

knowledge of the ongoing dispute between Ogden and Plaintiff’s IEP Team at the time they filed

their reports in January 2020 and June 2020, respectively. But even if they were aware of or

participated in the alleged conduct toward Ogden and even if that creates an inference of animus,

Hart and Pruitt still had an obligation to make child abuse reports under RSMo. § 210.135 when

they had reasonable cause to suspect abuse or neglect. In lieu of any evidence that the factually

accurate child abuse reports were not based on reasonable cause, a fact finder could not make the

requisite causal connection between the reports and the Plaintiff’s due process complaints. There

is no genuine dispute that Plaintiff did come to school with dried fecal matter stuck to his skin on

multiple occasions, and that K.W. ran away from home repeatedly and told a school employee

they did not want to go back. In light of these facts, any animus on the part of District employees

toward Ogden or Plaintiff himself cannot be regarded as the but-for cause of the child abuse

reports—instead, the but-for cause of those reports can be found in the plain text of RSMo. §

210.135.

For the reasons stated above, Plaintiff has not created a genuine issue of material fact as to

the existence of the causation element of his retaliation claim. By itself, this is fatal to Plaintiff’s

retaliation claim because he has not made out the elements of his prima facie case. See Hicks, 509

U.S. at 511.

Conclusion

For the reasons stated above, Plaintiff’s Motion for Judgment on the Administrative Record

or, in the Alternative, Summary Judgment on Count 1 of His Second Amended Complaint, Doc.

186, is denied. The District’s Motion for Judgment on the Administrative Record or, in the

Alternative, for Summary Judgment on Count 1 of Plaintiff’s Second Amended Complaint and

Motion for Summary Judgment on Count 2 of Plaintiff’s Second Amended Complaint, Doc. 184,

is granted. The decision of the AHC is affirmed, summary judgment is entered against Plaintiff on

Count 2, and Plaintiff’s Second Amended Complaint is dismissed with prejudice.

The District’s Motion for Judgment on the Pleadings on Count 3 of Plaintiff’s First

Amended Complaint, Doc. 138, Motion for Summary Judgment or Judgment on the

Administrative Record on Count 1 of Plaintiff’s First Amended Complaint, Doc. 149, and Motion

for Summary Judgment on Count 3 of Plaintiff’s First Amended Complaint, Doc. 152, are denied

as moot. Plaintiff’s Motion for Summary Judgment or Judgment on the Administrative Record on

Count 1, Doc. 156, is denied as moot.

IT IS SO ORDERED.

s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: August 13, 2021

Jefferson City, Missouri