A. M. v. Bridges Public Charter School

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

A.M. et al., §

Plaintiffs, §

v. § Civil Case No. 17-177

BRIDGES PUBLIC CHARTER SCHOOL, §

Defendant. §

)

MEMORANBUM OPINION

This is the second lawsuit Melissa and Matthew McCall have brought alleging Bridges

Public Charter School teachers physically abused their disabled daughter A.M, The tirst, a claim

under the Individuals With Disability Education Act, ended When this Court granted Bridges

summary judgment See Order, A.M. v. Bri'dges Pub. Charter Sch., No. 17-2333 (D.D.C. Mar.

29, 2019), ECF No. 27.

Here, the McCalls bring seven other claims: Three for discrimination_under the

Arnericans With Disabilities Act (ADA), the Rehabilitation Act, and the District of Colurnbia’s

Hulnan Rights Act (DCHRA), respectively And four more for torts_battery, intentional

infliction of emotional distress (IIED), gross negligence, and gross negligent supervisionl See 2d

Am. Compl., ECF No. 10.

Bridges again seeks summary judgment But this time, it falls short. In arguing over the

McCalls’ discrimination claims, neither side foliowed the familiar footwork Jfrom McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (19’73). Yet the Court holds that case’S burden~shifting

‘ The Court previously dismissed three other claims: a constitutional claim under 42 U.S.C. § 1983, a simple

negligence claim, and a simple negligent supervision claim. See Order, ECF No. 35.

scheme keeps the l\/lcCalis’ discrimination claims alive. And given the facts surrounding the

McCalls’ tort claims, the Court finds summary judgment premature there, too. So the Court Will

deny Bridges’s motion

I. Background

A.M. suffers from severe developmental disabilities 'l`hroughout her early childhood,

D.C. Public Schools’ early intervention programs administered support and services, eventually

steering A.M. to Bridges Public Charter School, a school well-versed in special education

But the McCalls were unsatisfied with Bridges. Speciflcally, Melissa was troubled by

reports that A.M. was not napping, and by signs that A.M.’s bibs and diapers were not changed

frequently enough. While visiting Bridges, Melissa also noticed teachers frequently using their

cell phones and yelling at students for minor or involuntary transgressions See Melissa McCall

Dep. Tr. 80:7~81:3, ECF No. 42-2', see also ECF No. 44~3 at 21~22.

A new teacher named Donald Wallace shared similar concerns. Amid escalating

interpersonal difficulties with his Bridges colleagues, Wallace reported teachers jokingly

threatening nonverbal students with sayings like “l’rn going to punch you in the face”

(sometimes including an expletive), “lifting” students_including A.M._“by their shoulders,”

and forcing a sobbing A.M. to lay on her eot during naptirne by pinning her legs under a beanbag

and “putting [their] feet up” on the beanbag for added resistancel ECF No. 44-3 at 26-:9. But

faced with mounting concerns about his job performance, and presented with a choice between

teaching under a probationary arrangement or taking a $13,767 severance package, Wallace

resigned after just two months. See ECF No. 44~3 at 30.

The rest of the record paints a more measured picture. To be sure, one Bridges teacher

acknowledged that communication “barriers” made the classroom “{v]ery chaotic” and that

intrafaculty fighting contributed to a “toxic” environment Shantelle Fuller Dep. Tr. 39:16-

40:15, 49:7-18, ECF No. 44-4. And the use of the beanbag restraint Was confirmed See Kristen

Williams Dep. Tr. 331 17-39:19, ECF No. 44-6. Yet Wallace himself Walked back his

accusations, testifying at his deposition that Bridges teachers “all seemed to be taking

extraordinarily good custodial care in a Way that Would be perfectly, absolutely, one hundred

percent acceptable in, say, a day care environment,” if not a full-service “special education

classroom.” See Donald Wallace Dep. Tr. 103:3~16, ECF No. 44-9. For their part, the McCalls

admit they never saw Bridges employees mistreat A.M. See l\/lelissa McCall Dep. Tr. 81:8-15;

Matthew McCall Dep. Tr. 54:5~13, ECF No. 42-3. And Bridges’s internal investigation

concluded Wallace’s abuse allegations “were unfounded.” Melissa McCall Dep. Tr. 114:20-

115:5. What’s more, a police investigation triggered by Wallace’s report also led to no criminal

charges, see id. at 1531 l-S, but it did reveal that Wallace made similarly unfounded abuse

allegations against other former colleagues at different schools See Donald Wallace Dep. Tr.

59:7-60:5.

Even stillJ the McCalls filed this lawsuit Their disability claims allege Bridges

employees verbally and physically mistreated A.M. because she was nonverbal. Their battery

claim concerns teachers restraining A.M. With the beanbag and their bodyweight. Their IlED

claim argues the beanbag restraint was “extreme and outrageous beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” 2d

Am. Comp. 1[ 69. Their gross negligence claim argues Bridges teachers gravely breached the

Standard of care owed by special-needs teachers And their gross negligent supervision claim

seeks to hold Bridges liable for allegedly failing to supervise A.M.’s teachers

H. Jurisdiction

Because the McCalls sue under two federal statutes_the ADA, 42 U.S.C. §§ 12101~»~

12213, and the Rehabilitation Act, 29 U.S.C. §§ 701-797_this Court has jurisdiction under 28

U.S.C. § 1331. And because their tort claims “derive from a common nucleus of operative fact,”

this Court has supplemental jurisdiction under 28 U.S.C. § 1367. Um`ted Mine Workers ofAm. v.

Gr'bbs, 383 U.S. 715, 725 (1966). D.C. common law governs these claims See McGauglrey v.

Dr`strr'cr ofColumbia, 684 F.Bd 1355, 1357 (D.C. Cir. 2012).

III. Legal Standard

Rule 56(c) compels summary judgment if “there is no genuine issue as to any material

fact” and “the moving party is entitled to judgment as a matter of law.” ln assessing whether

genuine factual issues exist, the Court must “draw all reasonable inferences in favor of the

7

nonmoving party” without “mak[ing] credibility determinations or weigh[ing] the evidence’

indeed, the Court “must disregard all evidence favorable to the moving party that the jury is not

required to believe.” Reeves v. Sanderson Plumbz`ng Pr'ods., Inc_, 530 U.S. 133, 150-51 (2000).

Thus a nonmovant can outlast summary judgment with evidence “allowing a reasonable jury [to]

return a verdict” in its favor. Chenari v. George Washington Um`v., 847 F.3d 740, 744 (D.C. Cir.

2017); See also Fz'rst Nat'l Bank ofAriz. v. Cr`tz`es Serv. Co., 391 U.S. 253, 288-89 (1968) (“[A]ll

that is required [to defeat summary judgment] is that sufficient evidence supporting the claimed

factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the

truth at trial.”).

IV. Discussion

The familiar adage “the best defense is a good offense” helped George Washington win

the Revolution,z lack Dempsey win the heavyweight title,3 and the New England Patriots win six

Super Bowis. But it does not help Bridges win this case at the summary judgment stage. Rather

than argue for judgment as a matter of law, Bridges’s motion assails the credibility of evidence

accusing A.l\/l.’s teachers of misconduct and exposing Bridges to vicarious liability. But

Bridges’s singular aim ignores its own vulnerabilities. For one, Bridges never answers the

McCalls’ prima facie discrimination claim. Nor does Bridges explain how the evidence

supporting the McCalls’ tort claims entitles Bridges to summary judgmentl Simply put, blitzing

the McCalls’ main Witness does nothing to intercept the McCalls’ underlying claims

A. Bridges cannot obtain summary judgment on the discrimination claims because

it fails to rebut the McCalls’ prima facie case.

In the education context, the ADA,4 Rehabilitation Act,5 and DCI-I.`RA6 guarantee

disabled students the chance to receive the same educational benefits as nondisabled students.lr A

plaintiff suing under these statutes can articulate several theories: disparate treatment, disparate

z See Letter from George Washington to lohn Trumbull (lune 25, 1799), https://founders.archives.gov/documents/

Washington/06-04~02~0120 (“[O]ft`ensive operations often times, is the suresr, if not the only (in some cases) means

of defence.”).

3 See 98 Hearst’s lnt’l Combined Cosmopolitan 104 (1935).

4 “[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.

5 “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).

6 “lt is an unlawful discriminatory practice . . . for an educational institution [t]o deny, restrict, or to abridge or

condition the use of, or access to, any of its facilities services, programs or benefits of any program or activity to

any person otherwise qualitied, wholly or partially, for a discriminatory reason, based upon the actual or perceived .

. . disability ofany individual.” D.C. Code § 2-1402.41.

l Because the ADA, Rehabilitation Act, and DCHRA are virtually “interchangeable,” the Court analyzes these

claims together. Am'. Councfl ofthe Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) (internal quotation

marks omitted) (quoting Randolp}i v. Rodgers, 370 F.3d 850, 858 (8th Cir. 1999)); see also Chang v. fnst. for Pub.-

Prr'vate P'ships, Inc., 846 A.Zd 318, 324 (D.C. 2004).

impact, failure to accommodate, retaliation, or creation of a hostile environment See Drasek v.

Bw'well, l21 F. Supp. 3d 143, 153-54 (D.D.C. 2015) (collecting cases). Here, the McCalls allege

disparate treatment, claiming A.M.’s teachers physically mishandled her, but not other students

since her disability rendered her nonverbal and unable to report the abuse. See Compl. j[j[ 41, 48,

97. The McCalls also allege the teachers created a hostile learning environment by physically

mistreating students and by verbally berating both colleagues and students Id. Ultimately,

because the McCalls can establish a prima facie case, and because Bridges lacks a meaningful

response, the McCalls’ claims survive summary judgment

1. The McCalls establish a prima facie disparate treatment case but Bridges

offers no nondiscriminatory justification

To establish disparate treatment under the ADA, Rehabilitation Act, and DCHRA, the

l\/IcCalls must show A.M.’s disability caused the alleged discrimination See supra notes 1_3. In

their papers, Bridges and the McCalls argue over whether expert opinion can sufficiently

constitute direct evidence of causationl

But neither side acknowledges disparate treatment can also be proved circumstantially

through the famous McDonuell Douglas framework See Duncan v. Wash. Metro, Area Transit

Am‘h., 240 F.3d lllO, 1114 (D.C. Cir. 2001) (en banc). lnitially, a disabled student need only

establish a prima facie disparate treatment case: that she is disabled; that teachers excluded ber

participation in school activities or denied her educational benefits; and that teachers did not

exclude or deny students without her disability8 Once she makes a prima facie showing, the

burden shifts to the school to articulate a nondiscriminatory reason for the disparate treatment

And if the school does, the burden shifts back to the student to show the asserted justification

3 The D.C. Circuit has never directly articulated the elements cfa prima facie disparate treatment case in the special~

education contextl 30 the Court borrows this formulation from ludge Sutton’s opinion in Gohl v. Livcnia Pubr‘r`c

Schools School Districf, 836 F.3d 672, 682~83 (6th Cir. 2016).

6

Was pretextual and the actual justification was discriminatory See Gohl, 836 F.3d at 682-83. Yet

at the summary judgment stage, that three-step collapses into one: “a plaintiffs prima facie case,

combined with sufficient evidence to find that the [defendant]’s asserted justification is false,

may permit [a reasonable] trier of fact to conclude that the employer unlawfully discriminated.”

Reeves v. Sandersor.r Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

The McCalls apparently do not realize they can easily clear this hurdle After all, A.M.’s

medical records clearly establish (and Bridges does not contest) that A.M’s conditions meet the

statutory definition of a disability: “a physical or mental impairinth that substantially limits one

or more major life activities of such individual; a record of such an impairment; or being

regarded as having such an impainnent.” See 42 U.S.C. § 12102(1); see also ECF No. 44-3 at 2~

18. To show teachers treated A.M. differently than other students, the McCalls can marshal

evidence describing teachers using a beanbag and their bodyweight to force A.M._but

apparently not other students_to lie still on her cot. See ECF No. 44~3 at 28; Kristen Williams

Dep. Tr. 37:4-40:20. And to show this alleged discrimination denied A.M. educational benefits,

they can cite expert testimony that the treatment “negatively affected her ability to benefit from

an education.” ECF No. 44-8 at 7. Beyond besieging this evidence’s credibility, Bridges does

nothing to identify a nondiscriminatory explanation for the alleged discrimination9 But the Court

cannot disbelieve this evidence at this stage. lt can only--as it does here_conclude it could

allow a reasonable factfinder to find Bridges teachers uniquely subjected A.M. to physical

mishandling because of her disability

9 Ou its own, the Court can find only one potential nondiscriminatory explanation in the record: according to A.M.’s

teachers, Melissa McCall consented to the beanbag restraint See, e.g., Kristin Williarns Dep. Tr. 35:9-19. But

enough other evidence suggests Melissa did not consent, see, e.g., Melissa McCall Dep. Tr. 124:l 1-125:21, that

Sumrnary judgment would still fail, even if Bridges advanced this explanation

7

Since the l\/lcCalls can make out a prima facie disparate treatment case while Bridges

fails to offer any nondiscriminatory justification, the McCalls’ discrimination claims outwit

summary judgment

2. A reasonable factfinder could conclude A.M.’s teachers created a hostile

learning environment

Asserting a hostile learning environment claim involves a different process and different

elements, but the same result To establish a hostile environment, the McCalls must show A.M.

faced “discrirninatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to

alter the conditions of the [classroom] and create an abusive [1earning] environment.” Ayissi»

Etoh v. Fannr.`e Mae, 7l2 F.3d 572, 577 (D.C. Cir. 2013) (internal quotation marks omitted)

(quoting Hm~ris v. Forkhfl Sys., Inc., 510 U.S. 17, 21 (1993)).E0 To determine When a negative

environment turns hostile, the Court “lool<s to the totality of the circumstances, including the

frequency of the discriminatory eonduct, its severity, its offensiveness, and whether it interferes

with [a student’s] performance.” Baloch v. Kempthorne, 550 F.3d ll91, 1201 (D.C. Cir. 2008).

Here, the McCalls meet their burden to produce evidence suggesting Bridges teachers

created a hostile learning environment The record evinces teachers threatening students with

things like “l’m going to punch you in the face” (sometimes adding an expletive), screaming at

students for involuntary bodily functions, and ignoring disabled students’ soiled bibs and diapers.

See ECF No. 44-3 at 21, 27. Bridges responds only by challenging that evidence’s credibility

But the Court cannot yet choose to disbelieve it. Since the record could enable a reasonable

factfinder to conclude Bridges teachers created a hostile learning envirornnent, Bridges’s

summary judgment motion fails.

10 Again, although the D.C. Circuit has never addressed a teacher-created hostile learning environment in the

special-education context, other courts have. See, e.g., Lawton v. Success Acad. Chu'rter Schs., ]nc., 323 F. Supp. 3d

353, 367 (E.D.N.Y. 20l8).

B. The summary judgment record does not entitle Bridges to judgment as a matter

of law on the McCalls’ tort claims.

Bridges takes the same tack to defeat the l\/lcCalls’ battery, llED, gross negligence, and

gross negligent supervision claims. But given its inability to dodge evidence supporting A.M.’s

physical and verbal mistreatment, Bridges fails to justify judgment as a matter of law for any

claim. Each will be discussed in turn.

First, battery. Under D.C. law, battery consists of “an intentional, unpermitted, harmful or

offensive contact with [the plaintiffs] person or something attached to it.” Marshall v. D:`strfct of

Columbia, 391 A.2d 1374, 1380 (D.C. 1978). Given the evidence at this stage_that Bridges

teachers piled bean bags and their bodyweight on top of a sobbing A.M. to force her to stay

still_what entitles Bridges to judgment as a matter of law on battery‘? After all, the Bridges

teachers’ beanbag restraint can certainly constitute an intentional and offensive contact with

A.M.’s person Bridges’s contrary position is even more curious given its failure to meaningfully

explain why this evidence would not enable a reasonable factfinder to conclude Bridges teachers

battered A.M. 11

So too for llED. linder D.C. law, IIED consists of “extreme and outrageous conduct on

the part of the defendant which intentionally or recklessly caused [the plaintiff] severe emotional

distress.” Hill v. Medlantz`c Health Car'e Grp., 933 A.Zd 314, 334 (D.C. 2007) (internal quotation

marks and alterations omitted) (quoting Howard Univ. v. Best, 484 A.Zd 958, 985 (D.C. 1984)).

Though “[t]he requirement of outrageousness is not an easy one to meet,” see id. (internal

" A passing citation to Doe v. Distric! ofColumbia, 796 F.3d 96, 107 (D.C. Cir. 2015) will not do, even ifthat case

actually supports the proposition that D.C. law “provides a government actor with a privilege defense” when he

“believe[s], in good faith, that [his] conduct was lawful,” and “this belief was reasonable.” See Bridges’s Mot.

Sumrn. .l. 15, ECF No. 42. For one, the underlying D.C. cases do not establish this privilege applies to ordinary

battery claims. See Brcrdshmv v. D:'strict ofColnmbia, 43 A.3d 318, 323»24 (D.C. 20i2) (discussirlg a police

ofticer’s privilege against false arrest tort claims), cited fn Doe, 796 F.3d at 107. And more importantly, it is far

from undisputed that such a belief would be reasonable in this case.

9

quotation marks omitted) (quoting Drej,=:a v. Vaccaro, 650 A.Zd l308, 13 l2 (D.C. l994)), this

Court previously held the beanbag restraint, “if true[,] would constitute outrageous behavior,” as

would the “physical[] and verbal[] abuse” A.M. and her classmates allegedly suffered “on a

repeated basis as a result of their disabilities.” Mem. Op. 6, ECF No. 34. And now_drawing all

reasonable inferences in favor of the McCalls and disregarding all favorable evidence a

factfinder would not be required to believe_the Court cannot yet disbelieve the evidence

supporting the beanbag restraint and the alleged verbal and physical abuse. Accordingly, Bridges

cannot obtain summary judgment on the McCalls’ IlED claim.

Finally, gross negligence and gross negligent supervision Under D.C`. law, gross

negligence “requires such an extreme deviation from the ordinary standard of care as to support a

finding of Wanton, willful and reckless disregard or conscious indifference for the rights and

safety of others.” Dz'strict of Colu)nbz`a v. Walker, 689 A.3d 40, 44 (D.C. 1997). Gross negligent

supervision requires an employer to either have known, or to have been similarly careless in not

knowing, that an “employee behaved in a dangerous or otherwise incompetent manner,” and that

“armed with that actual or constructive knowledge,” the employer “failed to adequately

supervise the employee.” Brown v. Argenbright Sec., Inc., 782 A.Zd 752, 760 (D.C. 200l)

(intemal quotation marks omitted) (quoting Giles v. Shell Oil Corp., 487 A.Zd 610, 613 (D.C.

1985)). Bridges concedes the beanbag restraint “could potentially support causes of actions for

gross negligence and gross negligent supervision against Bridges,” but argues “[t]here is,

however, no evidence to support this allegation.” Bridges’s Mot. Sururn. J. 14. On the contrary.

See, e.g., ECF No. 44-3 at 28; Kristen Williams Dep. Tr. 37:4»~40:20. And--for the fourth

time_despite any credibility problems, the Court cannot decide to disbelieve this evidence at the

summary judgment stage. Because the current record does not support judgment as a matter of

10

law, the Court cannot grant Bridges summary judgment on the McCalls’ gross negligence or

gross negligent supervision claims.

V. Conclusion

Because Bridges’s summary judgment motion begins by attacking the credibility of the

l\/lcCalls’ evidence, it ends with the Court’s denial. Since the l\/lcCalls establish a prima facie

case of disability discrimination, and since Bridges does not assert a nondiscriminatory

explanation, Bridges cannot obtain summary judgment on their discrimination claims. And

Bridges’s motion further fails since Bridges cannot justify judgment as a matter of law on the

McCalls’ tort claims A separate order follows.

Maymjw,zore Z,¢,¢c- ,XZ»¢W»‘=

RLf)yce C. Lamberth

United States District .ludge

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