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Clemons v. Shelby County Board of Education

United States District Court, W.D. Kentucky, Louisville Division

March 23, 2018

KESHIA CLEMONS, as Mother and Next Friend of T.W. PLAINTIFF


          Greg N. Stivers, United States District Judge.

         This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (DN 34), and Defendants' Motion for Summary Judgment (DN 35). The motions are ripe for adjudication. For the reasons outlined below, Defendants' motion is GRANTED, and Plaintiff's motion is DENIED.


         Plaintiff Keshia Clemons (“Clemons”) is the mother of T.W., a minor who was an eighth grader and a ninth grader at Martha Layne Collins High School (“MLCHS”) during the 2013-14 and 2014-15 academic years, respectively. Defendant Shelby County Board of Education (“SCBE”) is the governing body overseeing Shelby County Public Schools, which includes MLCHS. Defendant Scott Ricke (“Ricke”) was the MLCHS girls' tennis coach for the 2014 and 2015 seasons. Defendant Dr. James Neihof (“Neihof”) is the Superintendent of SCBE, and for the relevant time period, Defendant John Leeper (“Leeper”) was the Principal at MLCHS.

         At the beginning of the 2013-14 school year, T.W.'s parents noticed that she was experiencing a significant amount of anxiety, which her mother partially attributed to T.W. being overwhelmed by the size and environment of her new school, MLCHS.[1] (Clemons Dep. 55:3-11). In December 2013, T.W.'s parents decided to seek professional assistance from Seven Counties Services, Inc.-Shelby County (n/k/a Cornerstone Kentucky) (“Seven Counties”). (Clemons Dep. 53:5-11, 56:19-57:3). On February 10, 2014, a Seven Counties therapist diagnosed T.W. with Asperger's Syndrome Disorder.[2] (Clemons Dep. 70:13-18; Defs.' Mot. Summ. J. Ex. E, at 1-2, DN 35-6). During that school year, Clemons did not formally request an individualized education plan or any accommodation for T.W. (Clemons Dep. 72:1-3, 128:3-20, 134:12-18).

         T.W. had participated on the girls' tennis team during her sixth and seventh grade years, and she decided to participate on the 2014 girls' tennis team. (T.W. Dep. 24:22-25:1, Dec. 29, 2016, DN 41-1; Clemons Dep. 43:8-18, 46:13-16, 62:20-63:3; Ricke Dep. 8:5-10, Aug. 25, 2016, DN 41-2). While the parties dispute whether there were tryouts that season and the number of team members, the parties agree that at least fourteen girls were on the 2014 girls' tennis team. (Clemons Dep. 65:9-12; Ricke Dep. 49:22-50:9). As Ricke recalled, T.W. was probably the fourth best singles players on the team at the beginning of that season. (Ricke Dep. 12:7-9).

         For the first two months, the team held conditioning and training sessions, and the conditioning included yoga, jumping around, stretching, and running.[3] (Clemons Dep. 63:18-19; T.W. Dep. 30:21-25). During this time while Clemons was seeking a diagnosis from the therapist, T.W. “would come home crying, ” which she attributed to criticism from what appeared to be singling out by Ricke.[4] (T.W. Dep. 30:25-31:16; Clemons Dep. 70:25-14). Ricke recalled T.W. exhibiting “[m]eltdowns that would happen very quickly if she didn't get her way, running away from the situation. If she was uncomfortable with it she would just like run off the court . . . .” (Ricke Dep. 13:25-14:4). Ricke also noted that T.W. had difficulty dealing with any comment that appeared to be critical of her, and Clemons criticized Ricke for failing to give T.W. positive encouragement and ignoring her during practices and matches. (Ricke Dep. 67:22-25; Clemons Dep. 95:15-18, 96:17-24, 98:13-21, 102:19-25).

         Following a bad practice on February 17, 2014, Clemons texted Ricke and disclosed T.W.'s diagnosis of Asperger's Syndrome Disorder. (Clemons Dep. 62:17-19, 74:9-22). Ricke and Clemons then discussed the matter over the telephone and during that conversation Ricke disclosed that he has a son with autism who exhibited similar mannerisms. (Clemons Dep. 74:23-75:3; Ricke Dep. 13:7-15).

         On March 21, 2014, and March 27, 2014, T.W. played her first exhibition match and her first varsity match, respectively. (Defs.' Mot. Summ. J. Ex. H, at 7, DN 35-9). The following month, T.W. continued to participate in singles and doubles matches. (Defs.' Mot. Summ. J. Ex. H, at 9-10).

         At the end of April, Clemons texted Ricke to find out if T.W. would be participating in the regional tournament, but she did not receive a response. (Defs.' Mot. Summ. J. Ex. H, at 12). Two days later, Clemons sent the same text to Ricke, who replied that T.W. had been beaten out by another player-R.S.-for the last spot at regionals based on a challenge match[5] held about a week before regionals. (Defs.' Mot. Summ. J. Ex. H, at 13; Ricke Dep. 15:5-21, 16:15-16, 17:14-18). Clemons was upset because Ricke had told T.W. previously that she would be participating in the regional tournament, and Clemons was critical of Ricke's failure to tell her that this challenge match was being used to determine who would play in the regional tournament-in part because Clemons would have attended that match if she had known its purpose. (Clemons Dep. 106:1-4, 107:25-108:3, 110:10-111:6). Clemons believed that the challenge match was unfair because T.W.'s opponent purportedly made bad calls during the match. (Clemons Dep. 112:14-113:15, 119:23-120:16). Clemons also opined that Ricke's “choice was discriminatory and the reason why he did it is because he was tired of dealing with [T.W.].” (Clemons Dep. 115:20-22). Ricke believed that R.S. had surpassed T.W. “athletically and just ability-wise, ” and they were “the only two players [he] thought that there was a question about who would play in that spot.” (Ricke Dep. 15:6-8, 20:20-22).

         After T.W. learned that she would be an alternate at regionals, she was devastated and texted her mother threatening to commit suicide. (Clemons Dep. 126:3-10). After Clemons received the text, she drove to school and met T.W. and two school officials in the office. (Clemons Dep. 126:11-12). Clemons recalled disclosing at that meeting T.W.'s diagnosis for the first time to school administration. (Clemons Dep. 126:12-16, 127:24-128:5). At that afternoon's practice, T.W. tried to get answers from Ricke about why she was not selected for the regional tournament, but Clemons claimed that he would not talk to T.W.. (Clemons Dep. 130:8-16). Clemons perceived that Ricke was ignoring T.W., and Clemons responded angrily to him. (Clemons Dep. 130:3-16, 131:10-17). Ricke testified that Clemons yelled at him about his decision at the practice following the announcement, and that other parents in attendance expressed some concern about his safety. (Ricke Dep. 24:8-9, 32:3-34:7). As Clemons noted, the day of this “blow-up” was T.W.'s last practice that season. (Clemons Dep. 124:17-22).

         Clemons then withdrew T.W. from MLCHS and decided to homeschool[6] her for the remainder of the school year. (Clemons Dep. 128:19-21; Neihof Dep. 8:3-13, Aug. 25, 2016, DN 35-10). While T.W. was not invited to the end-of-the-year team banquet, she eventually learned about the event and she and Clemons attended anyway. (T.W. Dep. 85:5-17, 85:22-25; Defs.' Mot. Summ. J. Ex. H, at 16). Clemons also felt that Ricke slighted T.W. because she did not receive a bar for her varsity letter at the banquet.[7] (Defs.' Mot. Summ. J. Ex. H, at 16). On June 11, 2014, Clemons wrote a lengthy letter to Neihof raising concerns about Ricke and the girls' tennis team. (Clemons Dep. 66:1-14; Defs.' Mot. Summ. J. Ex. H, at 2-18).

         T.W.'s parents reenrolled her in MLCHS for the 2014-15 school year. (Clemons Dep. 136:8-17). Beginning on October 15, 2014, Clemons held the first of a series of meetings with school officials to discuss T.W.'s eligibility for academic accommodations due to her diagnosis and T.W.'s need for a 504 Individualized Accommodation Plan (“504 Plan”).[8] (Clemons Dep. 138:19-140:17; Defs.' Mot. Summ. J. Ex. K, at 2-5, DN 35-12). During a third meeting on January 27, 2015, Clemons mentioned the need to meet with Ricke before the tennis season started “to begin with a clean state”, but did not request any accommodations relating to the team. (Clemons Dep. 148:8-150:10; Defs.' Mot. Summ. J. Ex. M, at 4, DN 35-14).

         At some point in February 2015, there was a meeting attended by Clemons, Ricke, and other school personnel during which Clemons apologized for what had transpired during the prior season. (Ricke Dep. 43:18-45:23, 46:12-47:10). According to Ricke, that meeting and the events of the prior season-including T.W.'s suicide threat-caused him to decide to exclude T.W. from the 2015 season even before the tryouts began. (Ricke Dep. 57:10-58:4, 59:16-22). He believed it was inadvisable to put T.W. in the same situation that caused her so much anxiety in the prior season.[9] (Ricke Dep. 58:2-4).

         In the interim, the 2015 girls' tennis season began. Ricke distributed a team handbook to the interested students and announced that tryouts would be conducted during the first three days of practice.[10] (Ricke Dep. 49:13-21; Defs.' Mot. Summ. J. Ex. N, at 3, DN 35-15). The handbook also noted that all interested girls may not make the team and that team members would be selected on the following criteria: “ability, coachability, commitment, attitude, team chemistry or future potential for the team.” (Defs.' Mot. Summ. J. Ex. N, at 3).

         Bad weather delayed the start of the season, but on March 9, 2015, Ricke conducted the first day of a two-day tryout inside an auxiliary gymnasium at the school. (Ricke Dep. 51:23-52:10, 60:22-61:1, 113:13-21; Clemons Dep. 166:16-167:4). According to Ricke, the tryouts were necessary to select a smaller team because they would only have one or two courts to use for practice. (Ricke Dep. 50:9-51:7). The tryouts involved an initial warmup, followed by team drills, and then individual evaluations. (Ricke Dep. 55:18-23). In those evaluations, Ricke was looking for skills like coachability, footwork, and athleticism. (Ricke Dep. 55:24-56:3). In Ricke's opinion, T.W. did not perform well in the areas of “[f]orehand, backhand, footwork, . . . [and] volley.” (Ricke Dep. 56:13-16). Besides her performance in the tryouts, Ricke was aware that T.W. had threatened suicide during the prior school year and he was concerned that he was the source of T.W.'s anxiety. (Ricke Dep. 57:12-58:4). Because he felt it was inappropriate to contribute to that anxiety again, Ricke did not select T.W. for the team.[11] (Ricke Dep. 57:12-58:4). A new player had tried out for the 2015 team and Ricke believed the new player would be the number-one seed on the team, making it less likely than the year before that T.W. would qualify for the regional tournament. (Ricke Dep. 66:15-21). When he told T.W. that she did not make the team, she was hysterical and he was unable to finish talking with her about her tryout. (Ricke Dep. 62:20-63:3; T.W. Dep. 51:8-19, 54:10-12). Ricke shared his decision with Clemons following the completion of the tryouts and expressed his concerns about T.W.'s well-being. (Ricke Dep. 63:14-19, 66:4-15).

         On March 20, 2015, Clemons complained about the tryouts and T.W.'s exclusion from the team to MLCHS Principal Leeper. (Clemons Dep. 179:25-180:16). The school then conducted an internal investigation of the tryouts and concluded that the results of the tryouts should be set aside because the tryouts were held in a gymnasium rather than on a tennis court, there was only limited time available for the tryouts, and there were no head-to-head matches. (Clemons Dep. 164:23-165:14, 173:17-174:8; Defs.' Mot. Summ. J. Ex. O, at 2, DN 35-16). The athletic director met with Ricke to discuss the tryouts and directed Ricke to put T.W. on the team. (Ricke Dep. 70:6-17, 70:21-24).

         On Friday, March 27, 2015, the school committee met with Clemons to discuss T.W.'s 504 Plan and, for the first time, Clemons requested accommodations relating to T.W.'s participation on the tennis team. (Clemons Dep. 158:10-160:14; Defs.' Mot. Summ. J. Ex. P, at 2, 5-6, DN 35-17). Clemons' concerns were memorialized as follows:

Mrs. Clemons shared her concerns which include: T.W.'s anxiety and fears with being around coach, focus on negative statements, and social interaction in the team environment. Mrs. Graney shared that she met with T.W. earlier this afternoon. She said that was concerned with negative feelings towards certain people and they were able to discuss this when pulling in Mr. Leeper.
Mrs. Clemons shared that T.W. will be participating in private tennis lessons to help focus. Mrs. Clemons emphasized T.W.'s focus on negativity.
Mrs. Oakley shared some ideas including: Mrs. Graney can focus on working with T.W. on receiving feedback. Mrs. Clemons said that it's better for T.W. [sic] receives constructive feedback such as always starting feedback with a positive statement and then follow with ways to improve. Address how she could get better, not that something was done wrong. Mrs. Oakley also suggested doing role play with in terms of feedback and even going to observe a couple of tennis practices. Written feedback could also be looked into as an option. Peer feedback, worded in a positive way. Mrs. Graney could then provide feedback to the coaches with T.W.'s perception to help that relationship.
In terms of social interactions, Mrs. Clemons shared that a peer or buddy on the tennis team could help her by modeling positive group interactions. Mrs. Clemons was good with this idea and allowing that other student to being aware of T.W.'s needs. In terms of anxiety and fears with interaction with coach, working on receiving meaningful feedback will help improve this relationship.

(Defs.' Mot. Summ. J. Ex. P, at 5). After discussing the accommodations addressed in prior meetings, the group discussed the following additional accommodation for the 504 Plan: “add peer mentor/encourager to 504 Accommodations for social interactions-___? When possible [pair] T.W. with a teammate who will model positive interactions and respond well to T.W. Someone to guide her back to the social interaction. She needs encouraging to interact with others. She responds well to older peers.”[12] (Defs.' Mot. Summ. J. Ex. P, at 6). Finally, the minutes from the meeting noted:

Mom's concerns are with T.W.'s anxiety and fears of being around the coach, her focus on negative statements and how they will not leave her mind, and her social interactions with teammates. At this time, mom felt additions address her concerns. Mom can request a meeting any time to request revisions.

(Defs.' Mot. Summ. J. Ex. P, at 6).

         On Tuesday, March 31, 2015, T.W. participated in an exhibition match in her first activity as a member of the girls' tennis team.[13] (T.W. Dep. 60:21-61:8; Clemons Dep. 183:20-184:12). The next day at practice, T.W. was to play challenge matches against the four ranked singles players on the team.[14] (T.W. Dep. 61:21-62:5; Clemons Dep. 24:12-15, 183:17-186:10, 187:10-188:5, 191:22-192:5, 192:17-21). As T.W. conceded, she had not yet been seeded that season. (T.W. Dep. 62:11-16). T.W. played and lost matches against B.N. and A.Q.-the two top-ranked players. (T.W. Dep. 63:3-7, 64:19-24, 93:10-18; Clemons Dep. 189:5-8). After playing those matches, T.W. informed Ricke that she was too tired to play any further matches that day.[15] (Ricke Dep. 101:16-17, 102:21-103:3, 104:20-22; Clemons Dep. 190:4-9; T.W. Dep. 61:21-62:10, 63:19-64:5, 64:19-25).

         Clemons perceived the challenge matches as a setup because T.W. “had to beat one of the four in order to participate in an actual match.”[16] (Clemons Dep. 186:9-10). She further testified:

With the knowledge that [Ricke] wanted [T.W.] to play the number one, the number two, the number three, and the number four in that order, with knowing [T.W.]'s anxiety, and already having been four weeks into the tennis season without her getting to participate with the girls at all, and having school administration come witness the match, he needed her to act out to prove his point and why he couldn't have her on the team.

         (Clemons Dep. 187:10-18). Ricke testified about those challenge matches as follows:

Q. . . . So your expectation on Wednesday, April 1st when the challenge matches began that TW was to play all of these [top-ranked] players?
A. Pro sets.
Q. Define pro sets for me.
A. Pro set, a normal match you would play first to 6 by 2. Typical matches are going to range, oh, if it's somewhat of a competitive match it might be 20 games total played. Challenge matches with a pro set is you just play to 8, that's it, first 8.
Q. Whoever wins 8-are they sets?
A. Games. So it's a quicker way to try to get an idea of who's better than who.
Q. So your expectation was that TW was going to play 32 games?
A. I didn't really expect her to get through all of them, but that's if we had time through the hour and a half I would have given her the opportunity to play all four.
Q. Okay. You said hour and a half. Why did you say just an hour and a half?
A. That's all our practices last.
Q. So after an hour and a half there were no-you did not have an expectation that any other challenge matches would occur?
A. No. If she was in the middle of a match or something and it was fairly competitive I would let her go. I was usually pretty punctual about ending practice on the hour and a half mark.

(Ricke Dep. 94:12-95:15). Ricke further explained that T.W. was to be given a chance to complete the challenge matches at the next practice. (Ricke Dep. 94:1-11).

         After leaving practice with T.W. on April 1, 2015, Clemons emailed Leeper to inform him that she was withdrawing T.W. from school and explained what had happened during practice. (Clemons Dep. 192:22-193:6; T.W. Dep. 68:6-16; Defs.' Mot. Summ. J. Ex. S, at 2, DN 35-20). The next day, Clemons wrote a letter to Neihof informing him of her decision to homeschool T.W. for the remainder of the school year. (Clemons Dep. 193:6-8; Defs.' Mot. Summ. J. Ex. T, at 2, DN 35-21).

         On June 16, 2015, Plaintiff filed this action asserting claims under Title IX of the Education Amendments of 1972 (“Title IX”), Section 504 of the Rehabilitation Act of 1983, Equal Protection Clause of the Fourteenth Amendment, and the Kentucky Constitution. (Compl. ¶ 12, DN 1). Following the completion of discovery, the parties have filed competing dispositive motions, which are ripe for decision.

         II. ...

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