United States District Court, E.D. Kentucky, Central Division, Lexington
H.C. and R.D.C., by and through his next friends, his parents, R.D. and H.C., Plaintiffs,
FLEMING COUNTY KENTUCKY BOARD OF EDUCATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. REEVES, UNITED STATES DISTRICT JUDGE.
matter is pending for consideration of Defendants Fleming
County Kentucky Board of Education, Brian Creasman, Carol
Thompson, and Michele Hawkins' motion for summary
judgment. [Record No. 43] Plaintiff R.D.C. alleges that the
defendants failed to provide him with a free adequate public
education, discriminated against him in violation § 504
of the Rehabilitation Act (“§ 504”), the
Americans with Disabilities Act (“ADA”), and 42
U.S.C. § 1983, and violated his procedural due process
rights under the Fourteenth Amendment. Plaintiffs H.C. and
R.D.C. allege that the defendants retaliated against them in
violation of state and federal law. Finally, the plaintiffs
allege state law claims of negligence, negligent training and
supervision, and intentional infliction of emotional
distress.[1" name="FN1" id=
"FN1">1] For the reasons outlined below, the motion
for summary judgment will be granted in its entirety, and the
plaintiffs' claims will be dismissed.
R.D.C. was a fourth and fifth grade student at Hillsboro
Elementary School (“HES”) during the 2014-15 and
2015-16 school years. He was cited twenty-six times during
that period for various incidents of bullying, harassment,
disrespectful behavior, defiance of authority, and fighting.
[Record 43-2, Attachment L] HES also received at least five
reports from other parents that R.D.C. was bullying his
classmates during this period. [Record No. 43-2, Attachment
I] R.D.C. denied being at fault for most of these incidents.
He claimed that his bus driver, teachers, principal, and
other school personnel made things up to get him in trouble,
and complained that “no one believed him” and he
“[got] blamed for everything.” [Id.]
believed that R.D.C. was being mistreated by the other
students, teachers, and school personnel, and was “very
aggressive in her protection [of] her child . . . .”
[Record No. 1, ¶ 28] According to R.D.C.'s fourth
grade teacher, Angel Hilterbrand, his fifth grade teacher,
Defendant Michele Hawkins, and his principal, Defendant Carol
Thompson, H.C. and R.D.C. claimed numerous times that R.D.C.
was being physically or verbally harassed by his peers, but
these accusations could not be verified following
investigation by his teachers or Principal Thompson. [Record
Nos. 43-3, ¶¶ 5-6; 43-4, ¶ 5; 43-5, ¶ 8]
Each stated that they never personally observed any
mistreatment of R.D.C.
contrary, Hilterbrand reported that during the 2014-15 school
year R.D.C. “displayed bullying behavior toward his
classmates and toward [him], ” and on one occasion told
Hilterbrand that he would “burn in hell.”
[Id. ¶ 12] Principal Thompson referred R.D.C.
to counseling on October 1, 2014, based on the following
observations: “He is disrespectful to staff and
students. States that no one helps him. He wants to stay
home. Picks at other students. Doesn't trust any adult at
school.” [Record No. 43-3, Attachment E] But
R.D.C.'s parents refused the counseling services.
to Defendant Hawkins, during the 2015-16 school year, R.D.C.
“primarily displayed average behaviors in class
compared to his same-age peers, and engaged in misconduct
during unstructured time such as hallway transitions, recess,
and in the cafeteria.” [Record No. 43-4, ¶ 6]
Defendant Hawkins referred R.D.C. to counseling on October 8,
2015, based on her observations that he “shows anger
and opposition when students accuse him of things, and then
is upset when teacher asks him-very defensive. Has lied
multiple times to teacher regarding his behavior, bullies and
name calls other kids. No respect for authority from him or
his mother.” [Record No. 43-4, Attachment A] The school
therapist contacted H.C. about the referral. [Id.]
However, H.C. again refused the services, and the therapist
noted that she was angry to receive the phone call and
threatened her, saying that if she called again “so
help me God, the outcome won't be pretty.”
record is replete with contentious encounters between H.C.
and the HES staff, which H.C. viewed as aggressive protection
of her child, and the HES staff viewed as intimidating,
bullying, and abusive behavior. [See Record Nos.
43-2; 43-3; 43-4; 43-5; 43-6.] Hilterbrand testified that, as
a result of H.C.'s bullying, he “became fearful for
[his] safety, ” “would not walk to [his] car
alone, ” and requested not to meet with H.C. without
being accompanied by another employee. [Id.
¶¶ 4-5, 10-12] Hilterbrand reportedly received
“abusive and intimidating phone calls and text messages
from H.C. at [his] residence and on [his] personal cell phone
in the evenings and on weekends.” [Id. ¶
3] Similarly, Hawkins claims that “H.C. spoke with
[her] in person and by telephone in an abusive, threatening,
and degrading manner, which interfered with [her] performance
of [her] duties” on numerous occasions. [Record No.
43-4, ¶ 11]
teachers reported these incidents to Principal Thompson and
the superintendent, Defendant Creasman. [Record Nos. 43-4,
¶ 13; 43-5, ¶ 4] In response to numerous complaints
from HES personnel about their interactions with H.C. on
their personal phones, Superintendent Creasman sent H.C. a
letter on November 6, 2014, requesting that all future
communication with school staff be through the school office
rather than their personal phones. [Record No. 43-2, ¶
4, Attachment A]
plaintiffs' attorney responded with a letter to
Superintendent Creasman dated November 20, 2015, requesting
“a § 504 hearing due to Fleming County's
failure to identify the child, to provide the child a free
and appropriate education, to educat[e] their child in a safe
environment[, ] and to protect the child from verbal abuse
while attending [HES].” [Record No. 43-2, Attachment B]
R.D.C.'s teachers and principal all claim that, prior to
this date, they were never informed that R.D.C. had any
diagnosis of any disability, and never formed the conclusion
that a referral for a disability evaluation was needed.
[Record No. 43-3, ¶ 16; 43-4, ¶¶ 3, 10; 43-5,
¶¶ 7, 13] R.D.C. did receive speech therapy when he
was younger, but he was released in 2013. [Record No. 57');">57-1]
H.C. also testified that R.D.C. had medical diagnoses of
asthma, allergies, and migraine headaches. [Record No. 60,
Attachment 1, p. 79-81]
incidents occurred shortly thereafter. Principal Thompson
called H.C. after the Thanksgiving break to schedule a
meeting to discuss the § 504 process. [Record No. 43-3,
¶ 8] However, H.C. became angry with Principal Thompson
for calling and told her to contact her attorney instead.
[Id.] H.C. came to the school office on December 9,
2015, and accused Thompson of harassing her family.
[Id. at ¶ 9] Then, R.D.C. received in-class
discipline on December 14, 2015 for being disrespectful to
Defendant Hawkins. [Id. at ¶ 10] H.C. called
Principal Thompson that afternoon and accused her of lying
about the reason for the in-class discipline. [Id.]
R.D.C. allegedly hit a classmate with an oversized pencil on
December 18, 2015, the last day of school before winter
break. [Id. at ¶ 11] He was suspended for three
days as a result. [Record No. 43-3, Attachment A]
Thompson wrote to H.C. over the winter break, requesting that
all future contact with the school be in writing. [Record No.
43-2, ¶ 7, Attachment C] H.C. disregarded this letter
and called Principal Thompson on January 4, 2016 to appeal
R.D.C.'s suspension. [Record No. 43-3, ¶ 13] She
also asked Superintendent Creasman to overturn R.D.C.'s
suspension during a meeting that same day. [Record No. 43-2,
¶ 8] Both Principal Thompson and Superintendent Creasman
declined to modify the suspension.
days after returning to school, R.D.C. reportedly threatened
to shoot another student during an argument. [Record No.
43-3, ¶ 14] He and the other student were each suspended
for three days, from January 11, 2016 to January 13, 2016,
and required to complete a threat assessment before returning
to school. [Id. ¶ 14, Attachment C] The
Kentucky Department of Education contacted Principal Thompson
that same morning and notified her that H.C. had made a
complaint against the school staff. [Id. ¶ 15]
Based on her recent experiences with H.C., this phone call,
and her anticipation of H.C.'s reaction to R.D.C.'s
suspension, Principal Thompson sent Superintendent Creasman a
letter recounting her interactions with H.C. [Record Nos.
43-2, Attachment E; 43-3, ¶ 15] After receiving the
letter, Superintendent Creasman determined that a heightened
response was necessary, and wrote to H.C. on January 12,
2016, directing her not to come onto school property without
his prior permission. [Record No. 43-2, ¶ 10, Attachment
on her past experiences in procuring a threat assessment,
Principal Thompson expected R.D.C. to return to school after
three days, on January 14, 2016 (the same return date as the
other suspended student). [Id. ¶ 14] However,
R.D.C.'s threat assessment was not performed until March
14, 2016. [Record No. 43-2, Attachment J] It was not received
by the school until April 27, 2016, when the parties finally
held a § 504 meeting. [Record Nos. 43-2, ¶ 15;
43-3, ¶ 14] R.D.C. returned to school the following day.
H.C. had previously attempted to bring R.D.C. to school on
March 21, 2016, after the threat assessment was performed,
but before it was provided to HES. However, when she arrived
at school, the school secretary told H.C. that she was
prohibited from entering school property, and notified
Defendants Creasman and Thompson of her presence. [Record No.
43-6, ¶¶ 5-6] Defendant Creasman filed a criminal
trespass complaint against H.C. as a result. [Record 43-2,
further appears that R.D.C.'s sister also did not attend
school while R.D.C. was absent, although no disciplinary
action was taken which would have prevented her from
attending. [Record Nos. 43-2, ¶ 19] As a result, truancy
charges were brought against H.C., based on an affidavit
stating that R.D.C.'s sister had twenty-two unexcused
absences during the school year. [Record No. 57');">57, Exhibit 14]
STANDARD OF REVIEW
judgment is appropriate when there are no genuine disputes
regarding any material facts and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); see
Celotex Corp. v. Catrett, 17');">477 U.S. 317, 322-23 (1986);
Chao v. Hall Holding Co., 15');">285 F.3d 415, 424 (6th
Cir. 2002). A dispute over a material fact is not
“genuine” unless a reasonable jury could return a
verdict for the nonmoving party. That is, the determination
must be “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986); see Harrison v. Ash, 539
F.3d 510, 516 (6th Cir. 2008). In deciding whether to grant
summary judgment, the Court views all the facts and
inferences drawn from the evidence in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 57');">574');">475 U.S. 57');">574, 587 (1986).
The Plaintiffs' Discrimination and Retaliation
Individual Capacity Liability under § 504, the ADA, and
KRS Chapter 344
Sixth Circuit has held that § 504 and the ADA do not
give rise to individual liability. See Lee v. Mich.
Parole Bd., 104 F. App'x 490, 493 (6th Cir. 2004)
(“[N]either the ADA nor the [Rehabilitation Act] impose
liability upon individuals”); see also Williams v.
McLemore, 247 F. App'x 1, 8 (6th Cir. 2007)
(“[T]he ADA does not permit public employees or
supervisors to be sued in their individual
capacities.”) (citing Sullivan v. River Valley Sch.
Dist., 197 F.3d 804');">197 F.3d 804, 808 n. 1 (6th Cir. 1999);
Wathen v. Gen. Elec. Co., 115 F.3d 400');">115 F.3d 400, 404-05 n.6
(6th Cir. 1997); Walker v. Snyder, 13 F.3d 344');">213 F.3d 344, 346
(7th Cir. 2000)). It has also explained that this same
analysis extends to KRS Chapter 344. See Wathen, 115
F.3d at 405. The plaintiffs have neither addressed this issue
nor presented any claim which would warrant departing from
this binding precedent. Accordingly, the plaintiffs'
§ 504, ADA, and KRS Chapter 344 claims against
Defendants Creasman, Thompson, and Hawkins, in their
individual capacities, will be dismissed.
R.D.C.'s Discrimination Claims
Fleming County Kentucky Board of Education (the
“Board”) argues that R.D.C.'s claims that he
was discriminated against, denied educational services, and
subjected to disparate treatment in violation of § 504,
the ADA, and 42 U.S.C. § 1983, should be dismissed
because R.D.C. failed to exhaust his administrative remedies.
The Board contends that, although R.D.C. did not expressly
bring a claim under the Individuals ...