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E.F. v. Napoleon Community Schools

United States District Court, E.D. Michigan, Southern Division

September 25, 2019

E.F., a minor, by her next friends, Stacy Fry and Brent Fry, Plaintiff,
v.
Napoleon Community Schools, et al., Defendants.

          OPINION & ORDER DENYING SUMMARY JUDGMENT MOTIONS

          Sean F. Cox United States District Court Judge.

         Plaintiff filed this action against Defendants alleging they violated the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) by refusing to allow her, a minor[1] student referred to herein as “E.F., ” to bring her service dog to school with her. Discovery in this longstanding action has closed and both parties filed summary judgment motions, which were heard by the Court on August 29, 2019. Plaintiff’s summary judgment motion asks the Court to rule in her favor as to liability on her intentional discrimination claim, and then schedule a jury trial to determine damages. Defendants filed a summary judgment motion that asks the Court to rule in their favor and dismiss this case. For the reasons set forth below, the Court concludes that neither party is entitled to summary judgment and that Plaintiff’s ADA and Section 504 claims shall proceed to a jury trial.

         BACKGROUND

         A. Procedural Background

         On December 17, 2012, Plaintiff E.F., a minor, by her next friends, Stacy Fry and Brent Fry (“Plaintiff”), filed this action against Defendants: 1) Napoleon Community Schools; 2) Jackson County Intermediate School District; and 3) Pamela Barnes. The action was assigned to the Honorable Lawrence Zatkoff.

         The only claim asserted against Barnes was the third count, brought under Michigan’s Persons with Disabilities Civil Rights Act, but that state-law claim was dismissed without prejudice when Judge Zatkoff declined to exercise supplemental jurisdiction over it. As such, the only remaining Defendants are Napoleon Community Schools and the Jackson Intermediate School District (hereinafter “Defendants”).

         Plaintiff asserts claims against Defendants under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the ADA. Plaintiff claims that Defendants violated both Section 504 and Title II of the ADA by refusing to allow E.F. to bring her service dog to school with her.

         The Complaint alleges that Defendants violated the Rehabilitation Act by “denying [E.F.] equal access” to Ezra Eby Elementary School and limiting her access to the District’s and ISD’s facilities, programs, and services compared to her non-disabled, non-service animal user peers. (ECF No. 1 at ¶ 68). It alleges that Defendants’ “discrimination was intentional as Defendants “knowingly refused to recognize Wonder as a service dog despite having full knowledge that [E.F.] qualified as an individual with disabilities and relied upon Wonder to obtain equal access to the District’s and ISD’s facilities, programs, and services as compared to her non-disabled, non-service animal user peers.” (Id. at ¶ 70).

         The Complaint alleges that Defendants violated the ADA by their “deliberate refusal to recognize Wonder as a service dog and to permit his access in the instructional setting, discriminated against [E.F.] as a person with disabilities who uses a service animal by denying her equal access and otherwise limiting her access to the District’s and ISD’s facilities, programs, and services as compared to her non-disabled, non-service animal user peers.” (Id. at ¶ 82). It alleges that Defendants “illegally discriminated against [E.F.] in their continuing refusal to reasonably accommodate [E.F.] as a person with disabilities who uses a service animal.” (Id. at ¶ 83).

         Plaintiff’s Complaint seeks a declaration that Defendants violated Plaintiff’s rights under Section 504 of the Rehabilitation Act and Title II of the ADA, an award of monetary damages, and an award of attorney fees. (ECF No. 1 at Pg ID 16).

         Defendants filed an Answer and Affirmative Defenses on February 11, 2013 (ECF No. 11) and it included the following as an affirmative defense: “Plaintiffs have failed to exhaust their administrative remedies generally and specifically with the Individuals With Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.” (Id. at Pg ID 73).

         In January of 2014, Judge Zatkoff dismissed this case, concluding that Plaintiff was required to exhaust administrative remedies under the Individuals with Disabilities Education Act (the “IDEA”). The Sixth Circuit agreed with Judge Zatkoff and affirmed his dismissal. The Supreme Court, however, granted certiorari to address confusion as to the IDEA’s exhaustion requirement, vacated the Sixth Circuit’s opinion, and remanded the matter for consideration of the analysis set forth in Fry v. Napoleon Commty. Sch., ___ U.S. ___, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017). After the case was remanded to district court, it was reassigned from Judge Zatkoff to the undersigned.

         Following remand, the parties conducted discovery related to administrative remedies pursued and filed summary judgment motions on Defendants’ affirmative defense. On March 1, 2019, this Court issued an “Opinion & Order Granting Plaintiff’s Partial Summary Judgment Motion And Striking Affirmative Defense Of Failure To Exhaust Administrative Remedies Under The IDEA.” (ECF No. 66).

         Discovery in this case has now closed and both parties filed dispositive motions. Plaintiff filed a summary judgment motion that asks the Court to rule in her favor as to liability on her intentional discrimination claim, and then schedule a jury trial to determine damages. Defendants filed a summary judgment motion that asks the Court to rule in their favor and dismiss this case.

         B. Relevant Factual Background

         E.F. is a minor child with a severe form of cerebral palsy and she is qualified for special education services.

         Before enrolling her in the Ezra Eby Elementary School’s kindergarten program for the 2009-2010 school year, E.F.’s parents informed the school administration that they planned to obtain a service dog for E.F. and expected the animal to attend school with her. Jim Graham, the Superintendent of the Napoleon Community School District, testified that E.F.’s mother informed him of this during some type of program at the school. (Graham Dep. at 12-13). He testified that he walked away without saying anything in response. (Id.).

         Pamela Barnes, the Principal of Ezra Eby Elementary School, testified that she knew that the Frys were in the process of obtaining a service dog for E.F. at the beginning of the school year. (Id. at 24).

         On October 12, 2009, E.F.’s parents wrote a letter to Superintendent Graham, which stated, in pertinent part:

I am writing to inform the school district that my child, [E.F.], will be receiving a certified service dog in October, 2009. The dog is expected to attend school with [E.F.] starting in January, 2010. The dog will be fully trained and certified with full access rights under the federal ADA guidelines as well as under state guidelines. The dog will accompany [E.F.] everywhere she goes.
I am requesting a copy of the district’s Service Assistance Animal Policy be sent to me.
I have had phone conversations about the dog with you, as well as speaking to Mrs. Barnes. I had made you all aware of this situation in March of 2009.
I would like to have a meeting as soon as possible to discuss and set up transitioning the dog into the school, training of the school team, how to prepare the other students and their families, and addressing any concerns.
We will be departing on October 13, 2009 to travel to Ohio for our training with the dog and will return on October 22, 2009 ...
I would appreciate a response as soon as possible, since I have heard nothing back from my earlier contact requesting the Service Animal Policy.
Thank you in advance for addressing this situation.

(ECF No. 80-9).

         Principal Barnes testified as follows regarding her research on the issue of service animals being used in the school:

Q. After you were told by the Frys that they were bringing a service animal home for [E.F.] that they intended to use at the schools, did you do anything to determine what the school’s obligations would be to a student with a service animal?
A. What do you mean obligations?
Q. Your legal obligation under federal or state law.
A. Well, at that time there wasn’t a service law – service dog law for schools.
Q. How did you come to that conclusion?
A. Because I researched it myself.
Q. How did you research it?
A. On the internet.
Q. So you Googled it?
A. Yeah. You know, there wasn’t a law at that time . . .
Q. Aside from doing an internet search, did the Napoleon Community Schools consult with counsel in 2009 regarding its obligations under federal or state law to allow a service animal, to your knowledge?
A. No. Not to my knowledge.

(Barnes Dep. at 32-33).

         The service dog that the Frys obtained for E.F. was a goldendoodle named “Wonder, ” who received his certification as a task-trained service animal by an organization in Xenia, Ohio called 4 Paws for Ability. (ECF No. 80-5). Stacy Fry, E.F.’s mother, also received training there. (ECF No. 80-8).

         Plaintiff contends that Wonder was trained to understand 29 different commands, and was able to accomplish tasks to assist E.F., including retrieval of dropped items, balancing and mobility assistance, toileting assistance, opening and closing doors, removing E.F.’s jacket, turning on and off lights, barking to alert an adult when commanded, retrieving an adult when commanded, and supporting E.F. when she is seated on the floor. (ECF No. 80-7). Defendants dispute that Wonder was able to perform all of those tasks.

         E.F.’s parents provided the Napoleon Community Schools with an October 30, 2009 letter from E.F.’s physician, Dr. Virginia Nelson, M.D., M.P.H., the Chief of Pediatric and Adolescent Services at the University of Michigan Health System. (ECF No. 80-2). In that letter, Dr. Nelson advised Defendants that E.F.’s “spastic quadriplegic cerebral palsy makes it medically necessary that she use a guide/helper dog. It will be necessary for her dog to also be allowed to assist her at school, and will be in school with her for daily activities.” (ECF No. 80-2).

         Stacy Fry testified that, after they returned home with the service dog, E.F. was really excited to bring Wonder to school with her. (Stacy Fry Dep. at 56-57). Stacy testified that she first brought Wonder to school with E.F. on a Friday, walking him in with E.F. in the morning, and then bringing him back with her when she picked E.F. up at the end of the day. (Id.). The following Monday, however, she was told by Barnes to leave the dog at home. (Id.). This was during October of 2009. (Id.).

         It is undisputed that Defendants provided E.F. with a human aide, to accompany her at all times during school hours, and access to a walker and a wheelchair. With that human aide and the walker/wheelchair, E.F. could access the various areas of the school, such as the class room, the media center, the computer lab, and the cafeteria. (Stacy Fry Dep. at 35-36 & 48; Brent Fry Dep. at 14-15).

         Between October of 2009 and April of 2010, Wonder was allowed in the foyer and hallway area of the school, when Mrs. Fry dropped off or picked up E.F. (Barnes Dep. at 30-32). During that time period, the school did not permit Wonder to accompany E.F. in any classrooms, the media center, the cafeteria, or at recess. (Barnes Dep. at 126-127).

         A meeting was held on December 11, 2009, between the Frys and the school administrators during which the service dog was discussed, and a future meeting was then set for January 7, 2010. (Stacy Fry Dep. at 43-44). Stacy testified that during the December 11, 2009 meeting, Richard Rendell (the head of the Jackson County Intermediate School District) stated that the school would not provide a human aide if E.F. had the service dog at school. (Id. at 71). Barnes testified that she does not recall Mr. Rendell saying that. (Barnes Dep. at 51-52).

         Barnes testified that, as to E.F. being accompanied to school with Wonder, she had concerns regarding: 1) children having dog phobias; and 2) other students being distracted by a dog in the classroom. (Barnes Dep. at 53-56). Barnes testified those were the main concerns. (Id.).

         Graham states that “[w]hen parents in the district found out about Wonder, some parents raised concerns about Wonder’s presence at school. Some parents were concerned because their children were very afraid of dogs due to past dog attacks. Some parents raised concerns about allergies, and other parents raised concerns that Wonder would cause a distraction for their children.” (Graham Decl. at ¶ 3).

         Before the next meeting, the Frys sent Superintendent Graham a letter dated December 17, 2019, that was copied to Barnes, that stated:

We are writing to you in regard to the meeting that was held on Friday, December 11, 2009 and the upcoming meeting that was discussed to be set for January 7, 2010. These meetings were/will be held to discuss our daughter, [E.F.’s] service dog Wonder and his attendance with her in school. As you are aware, our daughter has a medical condition that causes her to have the need and right to be accompanied by her service dog in all public buildings, including educational settings, to increase her independence and education.
Per the December 11th meeting we are requesting the concerns, questions, and exactly what will be discussed during this next meeting, set to be held on January 7th, 2010, to be sent to us in writing prior to the meeting so that we may fully prepare for the meeting and be able to answer your questions and concerns to the best of our ability. We are also, again, requesting the written policy on service animals[2] in the school from your district.
From our understanding from the December 11th meeting some of the concerns and comments brought up by you and the administrative staff were our daughter’s age, allergies and fears of dogs, if the dog would potty at school, proof of Wonder’s service dog certification, and our daughter not needing the use of the service dog because she already has an aide. More specifically, I recall Mr. Rendell, from the Intermediate School District, stating that he would not continue to pay for an aide for our daughter if she had the service dog and he would not pay for the aide to handle our daughter’s service dog, so we are assuming there are budgetary concerns as well.
We look forward to communicating further with you in regard to our daughter [E.F.] and her service dog Wonder. His attendance in your school is not only a physical, social, emotional, and educational benefit to [E.F.] but to all the students that attend Ezra Eby Elementary.
Thank you for your time,
Brent and Stacy Fry

(ECF No. 80-13).

         E.F.’s physician, Dr. Nelson, provided Defendants with a letter dated December 31, 2009, that stated:

[E.F.] is a 5-1/2-year-old girl with cerebral palsy. To increase her independence, she now has a service dog which assists her in some of her activities. The dog is not able to assist her in all ways she needs assistance (eg. toileting, assistance at meal times, etc.) and thus she continues to need a paraprofessional to help her, too.
I urge you to allow [E.F.’s] service dog to take part in the school program with her. Other school districts readily permit service dogs to be part of ...

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