The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JACQUELINE N., et al. : CIVIL ACTION
:
v. :
:
THE SCHOOL DISTRICT OF :
PHILADELPHIA, et al. NO. 19-3748
MEMORANDUM
Bartle, J. January 31, 2020
Plaintiffs are: (1) parents who bring this action on
behalf of seven minor children with disabilities (“plaintiff
parents”); and (2) two corporations that provide services to
those children (“plaintiff providers”). Plaintiffs contend that
the defendant the School District of Philadelphia has not paid
amounts due under the written settlement agreements which
resulted from actions against it under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq.
Defendant Kim Harris is the School District’s Director of
Financial Management. Plaintiffs allege claims under the IDEA,
other federal statutes, and Pennsylvania law as a result of
defendants’ violation of the settlement agreements.1
Before the court is the defendants’ motion to dismiss
Counts III, IV, V, and VI of the First Amended Complaint and to
dismiss the claim for attorneys fees in Count I. Defendants
1. The plaintiffs have also named as defendants Does 1-9 at the
same address as defendants the School District and Harris.
maintain that only the breach of contract claims in Counts I and
II remain viable.
I
We accept as true at this state of the action all
well-pleaded facts.
Plaintiffs are the parents of seven disabled minor
children and plaintiff providers Empirical Pediatric Therapy,
Inc. (“Empirical”) and Amy McGinnis Behavioral Consulting, Inc.
(“Behavioral Consulting”) which provide specialized disability
services to the children. The parents of each of the seven
children previously filed complaints with the Office for Dispute
Resolution of the School District of Philadelphia. Plaintiffs
claimed that the School District denied their children a free
appropriate education under Section 504 of the Rehabilitation
Act of 1973. See 42 U.S.C. §§ 12101-213, et seq.
Those complaints resulted in written settlement
agreements between the School District of Philadelphia and each
parent. The School District agreed to pay for a number of hours
of compensatory education for each of the seven children at the
rate of $60 per hour. Each of the parents secured the services
of either Empirical or Behavioral Consulting. The School
District either paid for the services directly or reimbursed the
parents.
After a time, defendant Kim Karris, informed the
plaintiff providers that the School District would begin to
require them to submit certain documentation before making
payments to them under the settlement agreements.2 Specifically,
the School District required descriptive notes of the children’s
therapy sessions as well as the times of those sessions. The
School District also required detailed documentation of all the
services rendered by the parent providers to each child under
the settlement agreements. Plaintiffs state these documents are
not required as a condition of payment under the settlement
agreements, that the plaintiff providers do not take descriptive
notes of therapy sessions, and that requiring them to do so
would increase the cost and reduce the effectiveness of their
services.
Plaintiffs allege that the School District began to
withhold payments under the settlement agreement, including
payments for services already rendered. Plaintiffs allege also
that the School District continues to without payments, and,
2. Empirical provides behavioral services, occupational
therapy, and speech and language therapy to children with
disabilities. Behavioral Consulting conducts evaluations
related to behavioral programming for children with
disabilities. Both are frequently retained by parents to
provide compensatory educational services paid for by the School
District of Philadelphia.
after several inquiries, provides inconsistent and contradictory
reasons for doing so.
II
Defendants argue that plaintiffs have not stated
claims for relief for retaliation and discrimination in
violation of the Americans with Disabilities Act (“ADA”) in
Count III and retaliation and discrimination in violation of
Section 504 of the Rehabilitation Act of 1973 in Count IV.
The ADA provides in relevant part:
[N]o qualified individual with a disability
shall, by reason of such disability, be
excluded from participation in or be denied
the benefits of the services, programs, or
activities of a public entity, or be
subjected to discrimination by any such
entity.
42 U.S.C. § 12132.
Section 504 reads in relevant part:
No otherwise qualified individual with a
disability in the United States . . . shall,
solely by reason of her or his disability,
be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance.
29 U.S.C. § 794(a).
Both the ADA and § 504 contain anti-retaliation
provisions. See 42 U.S.C. § 12203(a); 34 C.F.R. § 100.7(e).
The same standards generally govern the analysis under both
statutes. To establish a claim for retaliation, a plaintiff
must prove: (1) that he or she engaged in protected activity;
(2) that the defendant’s retaliatory conduct would deter a
person of ordinary firmness from exercising his or her rights;
and (3) that there is a causal connection between the
plaintiff’s protected activity and the defendant’s retaliatory
action. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
267 (3d Cir. 2007).
The court further explained the temporal requirement
necessary to satisfy the casual connection:
To establish the requisite causal connection
a plaintiff usually must prove either (1) an
unusually suggestive temporal proximity
between the protected activity and the
allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to
establish a causal link.
Id. at 267.
The Court of Appeals has held that, though not a
bright line rule, a three month gap between the act or event in
question and the retaliation is too long to establish the
temporal proximate for causation. LeBoon v. Lancaster Jewish
Community Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) cert. denied
553 U.S. 1004 (2008). According to the allegations in the
amended complaint, time lapses of at least three months and up
to a year occurred between the filing of the various plaintiffs’
due process complaints and defendants’ stopping the payment of
money allegedly due under the settlement agreements. Moreover,
plaintiffs have not alleged facts which establish a pattern of
antagonism between the time they filed their complaints and when
defendants stopped paying under the settlement agreements.
Plaintiffs thus have not pleaded the facts necessary for a
retaliation claim. Accordingly, such claims asserted in Counts
III and IV under the ADA and § 504 will be dismissed.
Defendants also seek to dismiss plaintiffs’
discrimination claims in Counts III and IV under the ADA and
§ 504. As noted above, both statutes have similar provisions
against discrimination. See 42 U.S.C. § 12132; 29 U.S.C.
§ 794(a). To prove such a claim under either statute, a
plaintiff must demonstrate that: (1) plaintiff children have
disabilities; (2) they were otherwise qualified to participate
in a school program; and (3) they were denied the benefits of
the program or were otherwise subject to discrimination because
of their disability. Chambers ex rel. Chambers v. Sch. Dist. of
Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009). After a
careful review of the amended complaint, we find that plaintiffs
have stated plausible claims for discrimination which have
accrued since the due process complaints were settled. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556-67 (2007).
Defendants further argue that plaintiff parents and
plaintiff providers do not have standing to assert these
discrimination claims. We are not convinced. First, our Court
of Appeals in Doe v. County of Centre, Pa, 242 F.3d 437, 447
(3d Cir. 2001), has recognized that non-disabled persons have a
claim for associational discrimination when they are injured or
harmed because of their association with the disabled person.
These non-disabled persons include parents and those who
provided services for disabled persons. Here, the settlement
agreements with the School District provide that the School
District is obligated to make payments for certain compensatory
services for the disabled children. Direct payments are to be
made “to vendors of items or providers of professional services,
or reimbursement to parent arising from her payment for such
items or professional services.” The agreements further
provide, “Parent hereby agrees to wholly indemnify the District
should claims arise from any third party regarding the subject
matter of this Agreement.” The amended complaint alleges that
defendants have not made payments due under the Settlement
Agreements. Clearly, the plaintiff parents and plaintiff
providers have properly averred they are injured parties and
thus have standing to sue the defendants.3
3. Plaintiffs have stipulated that all references to 20 U.S.C.
§ 1415 and 42 U.S.C. §§ 1983, 1985 and 1988 are stricken from
Counts III and IV of the amended complaint.
III
Defendants also seek to dismiss the claims of the
plaintiff providers in Count V, again on the ground that they
have not stated a claim for relief. These plaintiffs assert
under 42 U.S.C. § 1983 that they have been denied the right to
engage in their chosen profession under the due process and
equal protective clauses of the Fourteenth Amendment because of
defendants’ failure to pay them for their services under the
Settlement Agreements.
The Fourteenth Amendment does protect the right to
engage in one’s chosen profession but it does not protect the
right to pursue a specific job. Mathews v. Eldridge, 424
U.S. 319, 332 (1976); Culinary Services of Del Valley, Inc. v.
Borough of Yardley, 385 Fed. App’x 135, 141 (3d Cir. 2010);
Pieknick v. Comm. of Pa., 36 F.3d 1250, 1259 (3d Cir. 1994).
Plaintiff providers do allege that the failure to obtain money
due from the School District is harming their business.
However, any broader allegations that the defendants’ conduct
interfered with their right to provide services on a broader
scale to disabled children generally are simply conclusions and
are not plausible. See Twombly, 550 U.S. at 556-57.
Defendants are also correct that the plaintiff
providers have not plausibly alleged a constitutional claim of
damage to their reputations because of the defendants’ failure
to make the payments in question. A person’s reputation alone
is not protected by the Due Process Clause of the Fourteenth
Amendment. A person must be able to show a stigma plus, that
is, a harm to his or her reputation which also involves a
deprivation of some additional right or interest. See Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). Even if
the failure of the defendants to pay plaintiff providers what is
due under the Settlement Agreements implicates that additional
right or interest, defendants’ failure to pay cannot be said, by
any stretch of the imagination, to be conduct designed to harm
the reputations of these plaintiffs. The defendants at the very
least must have disseminated a false and defamatory impression
of these defendants to the public in connection with its failure
to pay. The amended complaint is devoid of any such
allegations. Id. What plaintiff providers allege does not give
rise to a Fourteenth Amendment violation.4 See Twombly, 550
U.S. at 557.
IV
Defendants ask the court to dismiss plaintiffs’ claim
for declaratory relief in Count VI. The award of declaratory
4. As a result of our analysis, we need not reach the argument
that plaintiffs have no claim under § 1983 against the defendant
School District under Monell v. Dept. of Soc. Servs., 436 U.S.
658 (1978).
relief is discretionary. State Auto Ins. Co. v. Summy, 234 F.3d
131, 133 (3d Cir. 2002). At the motion to dismiss stage, it is
too early for the court to decide this issue. The motion,
insofar as it seeks to dismiss this form of relief, is denied
without prejudice.
V
Plaintiff parents request attorneys fees in Count I as
part of the relief for “Enforcement of Settlement Agreements
Reached Pursuant to IDEA Resolution Process.”5 Defendants argue
that Count I is a common law breach of contract claim for which
counsel fees are not awarded to the prevailing party under state
law. The plaintiff parents counter that Congress has authorized
the award of counsel fees to them under the IDEA to enforce
settlement agreements.
The IDEA allows for a legally binding written
agreement when “a resolution is reached to resolve the complaint
through the mediation process.” See 20 U.S.C. § 1415(e)(2)(F).
Such an agreement “is enforceable in any State Court of
competent jurisdiction or in a district court of the United
States.” 20 U.S.C. § 1415(e)(2)(F)(iii). Section 1415(i)(3)(A)
5. The defendants cite J.K. v. Council Rock Sch. Dist.,
833 F. Supp. 2d 436, 452 (E.D. Pa. 2011) as “indicat[ing]
attorneys’ fees should not be awarded for the enforcement of a
due process settlement agreement.” J.K. makes no such
indication.
provides that “[t]he district courts of the United States shall
have jurisdiction of actions brought under this section without
regard to the amount in controversy.” Section
1415(i)(3)(B)(i)(I) allows for the award of attorney’s fees “in
an action brought under this section . . . to a prevailing party
who is the parent of a child with a disability.”
Each of the settlement agreements contains language in
the “Claim Released” paragraph that “[i]t is expressly
understood and mutually agreed that this Agreement is intended
to resolve all claims by Parent individually and on behalf of
the Student . . . which arise under and pursuant to the
Individuals with Disabilities Education Act, 20 U.S.C.
§ 1400 et seq. (“IDEA”), its implementing regulation, 34 C.F.R.
Part 300 . . .”
Four of the settlement agreements include an
additional paragraph:
The parties agree that this Agreement is a
written Settlement Agreement reached
pursuant to the Resolution Process under
34 C.F.R. § 300.510, is subject to the
provisions of that regulation and is
enforceable in either the Philadelphia Court
of Common Pleas or the United States
District Court, pursuant to said regulation.
There can be no doubt the settlement agreements have come about
as a result of the resolution process referenced in
§ 1415(e)(2)(F).
We agree that the IDEA authorizes the award of counsel
fees to prevailing parents in an action to enforce the written
settlement agreements involved here. Count I is a claim under
§ 1415. It would be odd indeed for Congress to authorize such
an award for legal work occurring before a written settlement is
signed but not to allow an award thereafter if a breach of the
settlement agreement occurs. It is the practical reality that
in order to be able to enforce the provisions of the IDEA
including any settlement, parents need to be able to secure
counsel fees if they prevail. Without the right to recover
counsel fees, a parent has won only a pyrrhic victory for a
disabled child.