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Held v. Northshore School District

United States District Court, W.D. Washington, Seattle

November 17, 2014

JONATHAN HELD, et. al., Plaintiffs,


MARSHA J. PECHMAN, District Judge.

THIS MATTER comes before the Court on Defendant Northshore School District's ("Defendant") Motion for Summary Judgment (Dkt. No. 27), Defendant's First Motion to Strike (Dkt. No. 41) and Defendant's Second Motion to Strike (Dkt. No. 48). The Court reviewed the motions and all related pleadings and documents. The Court GRANTS in part and DENIES in part Defendant's First Motion to Strike, GRANTS Defendant's Second Motion to Strike, GRANTS in part Defendant's Motion for Summary Judgment, and DISMISSES Plaintiffs' state law claims without prejudice.


Plaintiffs Jonathan and Lisa Held bring suit on behalf of themselves and their minor child, J.H., (collectively, "Plaintiffs") against Defendant. (Dkt. No. 1.) Plaintiffs allege claims for (1) violations of Section 504 of the Rehabilitation Act of 1973; (2) discrimination based disability, sex, and religion in violation of the Washington Law Against Discrimination; (3) violations of Title II of the Americans with Disabilities Act ("ADA"); (4) negligence; and (5) intentional infliction of emotional distress. (Id. at 16-19.)

J.H., a minor, attended Leota Junior High School in Northshore School District at all times relevant to Plaintiffs' complaint. (Dkt. No. 1 at 2.) In 2011, Plaintiffs presented Defendant with information that J.H. had been diagnosed with Attention Deficit Disorder ("ADD"). (Dkt. No. 39-10.) Defendant and Mr. and Mrs. Held worked together to prepare J.H.'s Section 504 plan. (Dkt. No. 33 at 2.) J.H.'s Section 504 plan was revised four times during J.H.'s seventh and eighth grade years. (Id. at 3.) At various times, J.H.'s Section 504 plan stated that J.H. should be provided the following accommodations, among others: (1) a system for J.H. to work with his teachers to identify missing assignments; (2) additional days to complete missing assignments and receive full credit; (3) breaking up of large projects into smaller tasks; (4) additional time for tests and quizzes; and (5) teachers providing prompting cues when J.H. was not paying attention. (Id.)

Plaintiffs allege that J.H.'s Section 504 plan was deficient in several iterations and that teachers routinely failed to implement the Section 504 plan or implemented it inconsistently. (Dkt. No. 1 at 12.)

Plaintiffs also allege that staff at Leota Junior High School discriminated against J.H. on the basis of his disabilities. (Dkt. No. 1 at 4-5.) Plaintiffs contend the following incidents of discrimination occurred, among others: (1) a teacher used foul language with J.H.; (2) another teacher took a paper out of J.H.'s hands and said he doesn't need it because "all he'll do is waste it;" (3) two teachers muttered the word "stupid" when walking away from students they have difficulty dealing with. (Id. at 8-10.)

Plaintiffs assert that J.H. was treated in a manner disparate from his peers without disabilities when he was disciplined for incidents in which other students were also involved. (Id. at 8, 10.) Plaintiffs allege that J.H. was inappropriately disciplined when he received a detention for urinating on the floor of the Wellington Elementary School bathroom. (Id. at 10.)

Plaintiffs contend that they notified Defendant of the alleged incidents of discrimination by an email sent on June 15, 2012, but that Defendant failed to promptly investigate these incidents until Plaintiffs retained legal counsel in December 2012. (Id. at 5.) They also allege that they notified Defendant of additional incidents of harassment, including bullying by another student, in April of 2013 and that Defendant failed to take any action in response. (Id. at 6.)

Plaintiffs further allege that Defendant also discriminated against J.H. on the basis of sex and religion. (Id. at 16.) Plaintiffs assert that when they told the vice principal that J.H. could not serve Saturday school detentions because they observe Sabbath, the assistant principal told Plaintiffs "he didn't care." (Id. at 11.) Plaintiffs allege that J.H.'s physical education teacher, Ms. Barnum, regularly treated the girls in the class better than the boys and discriminated against J.H. on the basis of his sex. (Id. at 7.)

Plaintiffs contend that these incidents created a hostile educational environment for J.H. (Id. at 11.) They assert that these events caused Mr. and Mrs. Held severe distress. (Id. at 14-15.) Plaintiffs seek compensatory damages "inclusive of compensatory education, lost wages, and related consequential damages... for harm suffered, opportunities denied, and deprivation of rights..." (Id. at 19.)

Defendant rebuts all of Plaintiffs' factual allegations and moves for summary judgment on all of Plaintiffs' claims. (Dkt. No. 27.)


I. Defendant's First Motion to Strike

Plaintiffs' response to Defendant's motion for summary judgment was due on August 25, 2014. LCR 7(d)(3). Plaintiffs' filed their response three days late, on August 28, 2014. (Dkt. No. 39.) On August 29, 2014, Defendant filed its reply and a motion to strike Plaintiffs' response as separate filings in violation of the local rules. (Dkt. Nos. 41 and 43); see also LCR 7(g). Because both parties violated the local rules, the Court considers both Plaintiffs' response and Defendant's First Motion to Strike.

Defendant makes four arguments in its First Motion to Strike: (1) the Court should strike Plaintiffs' response as untimely under Local Rule 7; (2) the Court should strike the exhibits supporting Plaintiffs' response because they are unauthenticated and therefore constitute hearsay; (3) the Court should strike Plaintiffs' exhibits because they identify minors by their first and last names in violation of Federal Rule of Civil Procedure 5.2(a); and (4) the Court should strike the declaration of Plaintiff Jonathan Held because it is conclusory and lacks foundation. (Dkt. No. 41 at 1-2.)

Defendant first argues that it has been prejudiced by Plaintiffs' untimely response because: (1) it has had less time to consider the response and prepare its reply; and (2) it has not been able to obtain additional declarations from witnesses to address the issues raised by Plaintiffs' response brief. (Id. at 3.) Defendant does not identify the arguments or issues that it has been unable to address as a result of Plaintiffs' belated response. (Id.) Defendant filed an amended reply brief on September 19, 2014. (Dkt. No. 47.) Defendant appears to have filed the amended reply brief under the assumption that it was allowed to by the Court's order renoting Defendant's Motion for Summary Judgment to September 19, 2014. (Dkt. No. 45.) In order to alleviate any prejudice to Defendant caused by Plaintiffs' belated filing, the Court considers Defendant's amended reply brief.

Defendant also moves to strike the Declaration of Plaintiff Jonathan Held and all of the exhibits Plaintiffs have filed in support of their response brief. (Dkt. No. 41 at 3-5.) Defendant argues "exhibits must be authenticated to be considered in opposing a summary judgment" and that the exhibits "are therefore essentially hearsay." (Id. at 3-4.) Defendant does not challenge the authenticity of any particular exhibit nor does Defendant explain why a particular exhibit is hearsay. (Id.)

When ruling on a motion for summary judgment, "a trial court can only consider admissible evidence." Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). "Authentication is a condition precedent to admissibility and this condition is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." Id . The Ninth Circuit has "repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment." Id . "In a summary judgment motion, documents authenticated through personal knowledge must be attached to an affidavit that meets the requirements of Fed.R.Civ.P. 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Id. at 773-4. "However a proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902." Id. at 774.

Plaintiffs filed nineteen exhibits in support of their response and did not file a declaration to authenticate the exhibits. (Dkt. No. 39.) The Court must determine whether some basis for authentication exists under Federal Rule of Evidence 901(b) or 902. Orr, 285 F.3d at 774. Federal Rule of Evidence 901(b) describes ten ways in which documents can be authenticated. Fed.R.Evid. 901(b). One way is if "the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" suggest that the document is what the proponent claims it is. Fed.R.Evid. 901(b)(4). Federal Rule of Evidence 902 describes categories of self-authenticating documents. Fed.R.Evid. 902. The Court also considers whether any of the exhibits are hearsay. See In re Sunset Bay Assocs., 944 F.2d 1503, 1514 (9th Cir.1991) (hearsay statements are inadmissible at summary judgment).

Exhibit 1

Exhibit 1 is an investigative report regarding J.H. that was completed by Kathleen Haggard, an attorney at Porter, Foster, Rorick, LLP, for Carolyn O'Keeffe, the assistant superintendent of secondary education at Northshore School District. (Dkt. No. 39-1.) The report has been signed by Kathleen Haggard and is printed on letterhead from Porter, Foster, Rorick, LLP. (Id.) The pages of the document are numbered consecutively. (Id.) Plaintiffs have also filed as an exhibit an email from Carolyn O'Keeffe forwarding this report to Mr. Held. (Dkt. No. 39-2.) The report can be authenticated under Federal Rule of Evidence 901(b)(4). The factual findings of the report fall under the hearsay exception for "factual findings from a legally authorized investigation." Fed.R.Evid. 803(8)(A)(iii). Because Defendant presented the report to Plaintiffs as its official statement regarding Plaintiffs' allegations of discrimination and because Plaintiffs are now offering the report as evidence, the Court finds that the contents of the report also fall under the hearsay exception for statements of an opposing party. Fed.R.Evid. 801(d)(2). The Court DENIES Defendant's First Motion to Strike as to Exhibit 1.

Exhibit 2 and 9

Exhibits 2 and 9 appear to be emails from Carolyn O'Keeffe, the assistant superintendent of secondary education of Northshore School District, to Mr. Held. (Dkt. Nos. 39-2 and 39-9.) Both emails mention J.H. and discuss the factual allegations that form the basis of Plaintiffs' claims in this lawsuit. (Id.) Because Plaintiffs are offering these exhibits, there is no question as to whether Plaintiffs in fact received these emails, and the emails can be authenticated under Federal Rule of Evidence 901(b)(4). Because Plaintiffs are offering these emails, the emails fall under the ...

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