United States District Court, E.D. Michigan, Southern Division
E.F., a minor, by her next friends, Stacy Fry and Brent Fry, Plaintiff,
Napoleon Community Schools, et al., Defendants.
OPINION & ORDER DENYING SUMMARY JUDGMENT
F. Cox United States District Court Judge.
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 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.
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
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
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.
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).
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).
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).
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).
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.
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).
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.
Relevant Factual Background
a minor child with a severe form of cerebral palsy and she is
qualified for special education services.
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.).
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).
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,
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).
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
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).
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).
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.
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).
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.).
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).
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).
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).
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.).
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).
the next meeting, the Frys sent Superintendent Graham a
letter dated December 17, 2019, that was copied to Barnes,
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
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 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).
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 ...