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Wong v. Seattle School District

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

June 7, 2019





         On May 20, 2015, Plaintiffs Jennifer and Eugene Wong filed a Complaint against Defendant, Seattle School District No.1 on behalf of their son, J.W., a minor. Dkt. # 1. The Court heard this matter in a bench trial that began on October 23, 2018 and concluded on October 31, 2018. Dkt. ## 91-97. After stipulations and orders on motions in limine and a motion for partial summary judgment, the only issues remaining for trial was whether the School District discriminated against Plaintiff J.W. in violation of Section 504 of the Rehabilitation Act and the Americans With Disabilities Act (“ADA”), and whether J.W. suffered any emotional damage as a result of the District's actions. The trial included the testimony of several witnesses and the admission of various exhibits into evidence. The parties also submitted proposed findings of fact and conclusions of law. Dkt. ## 88, 89.

         Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following findings of fact and conclusions of law. For purposes of organization and clarity, the Court has included some subsidiary conclusions of law with its findings of fact, and vice versa. For the following reasons, the Court finds that Plaintiff failed to prove that the District violated Section 504 and the ADA with respect to J.W. by discriminating against J.W. either intentionally or with deliberate indifference. Plaintiff also failed to provide adequate evidence of J.W.'s emotional distress as caused by the District's alleged discrimination. Finally, Plaintiff has failed to establish a necessary basis for declaratory or injunctive relief. The Court finds for Defendant on all claims.


         1) Defendant Seattle School District No. 1 (the “District”) is the public school district for the city of Seattle. The District is a local educational agency (“LEA”) within the meaning of the Individual with Disabilities in Education Act, 20 U.S.C. §1400, et seq. (“IDEA”) and Section 504 of the Rehabilitation Act. As such, the District receives federal funds for educating children with disabilities within its boundaries. The District is also a "public entity" as defined by Title II of the ADA, 42 U.S.C. § 12131(1).

         2) Plaintiff J.W. is a student with disabilities, who is diagnosed with autism, dysgraphia, language and communication disabilities (both auditory and recall), and a generalized anxiety disorder. He was found to be eligible for services by the District in the areas of Social/Emotional development, Adaptive Behavior, Communication Skills and Motor Skills. Ex. 259.

         3) Plaintiffs Eugene and Jennifer Wong, J.W.'s parents, brought this suit on J.W.'s behalf. Dkt. # 1.

         4) In 2009, at the age of four, J.W. was qualified as an individual with a disability under the IDEA under the category of autism. Dkt. # 60, Stip. Fact A.

         5) In addition to autism, J.W. also has challenges with auditory processing, communication, word retrieval, and has a diagnosis of Dysgraphia, an impairment in writing. Dkt. # 91 at 77:19-78:16.

         6) In 2009, at the age of four, J.W. enrolled in the District and qualified for special education and related services under the IDEA. J.W. attended West Seattle Elementary School in the Developmental Preschool within the District. Dkt. # 91 at 45:9-46:5. J.W. also attended “The Neighborhood Preschool, ” a private school, because the District's developmental preschool wasn't available full-time. Id. at 48:10-18.

         7) The District had developed an Individualized Education plan (“IEP”) for J.W. beginning in preschool and continuing to 2014. Dkt. # 91 at 45:20-25. Every IEP adopted for J.W. during the period of time that he attended Schmitz Park, from kindergarten through third grade, had annual goals that addressed his anxiety issues. Dkt. # 92 at 106:22-108:4; Ex. 259 at 6.

         8) In the summer before kindergarten, J.W. received a private psychological evaluation at the CARE Clinic at the University of Washington. Dkt. # 91 at 50:16-25, 55:13-22; Ex. 93. The CARE Clinic diagnosed J.W. with Asperger's Disorder (DSM-IV Code: 299.80), a form of autism. Dkt. # 91 at 54:2-5; Ex. 93. The CARE Clinic evaluation also used the BASC-II assessment for J.W. Based on this assessment completed as part of the CARE Clinic evaluation, J.W. was determined to be in the at-risk range for hyperactivity, depression, and adaptability and as having clinically significant difficulties in the areas of aggression, anxiety, atypical behavior, and withdrawal. Ex. 93 at 6.

         9) The professionals who evaluated J.W. also found that he was a “twice exceptional” child who was extremely bright but faced challenges with social functioning and distractibility. Dkt. # 91 at 61:3-13; Ex. 93.

         10) After attending preschool in the District in 2009, J.W. started kindergarten in 2010 at Holy Rosary School, a private sectarian school in the parish where his mother worked. Dkt. # 91 at 65:20-66:4.

         11) J.W. exhibited some behavioral issues at Holy Rosary. Dkt. # 92 at 115:9-21. Based on these issues, the Wongs began taking J.W. to a counselor. Id. at 113:16-22; Ex. 267. Within a month or two of his enrollment at Holy Rosary, the school informed the Wongs that J.W. could no longer attend school there. Id. at 112:8-113:4.

         12) Upon leaving Holy Rosary, the Wongs enrolled J.W. in the District and he began attending in the fall of 2010 at Schmitz Park Elementary School (“Schmitz Park”). Dkt. # 91 at 69:8-20.

         13) The District developed an annual individualized education program (“IEP”) for J.W. in or about September 2013. Dkt. # 60, Stip. Fact D.

         14) J.W.'s third grade general education teacher was Dorothy Wells. Prior to teaching general education, Ms. Wells was a special education teacher in the District for 12 years. She had experience teaching students with autism, and is the mother of two autistic children. Dkt. # 92 at 130:25-131:3; Dkt. # 94 at 7:4-14.

         15) J.W.'s IEP for the 2013-2014 school year, when he was in third grade, was developed on September 23, 2013 by his IEP team, which included Mr. and Ms. Wong. The IEP states that the Parents were concerned about J.W.'s social skills, including self-regulation, cooperation with peers, and empathy. Ex. 259 at 2. The IEP contained several social and behavioral goals directed toward improving J.W.'s peer interactions and anxiety management abilities, such as J.W.'s lack of understanding regarding personal space and other non-verbal social behaviors. Id. at 6. The IEP further provided J.W. with breaks when his frustration level rose, positive encouragement related to behavior and performance, and communication of clear behavior expectations. Id. at 8. It also provided J.W. with 150 weekly minutes of specially designed instruction in the area of Adaptive/Life Skills and 60 minutes per week of specially designed instruction in the area of Social/Behavior. Id. at 11.

         16) J.W. began receiving counseling from Dr. Erin Milhem, Psy.D., through her private practice in July 2013. Dr. Milhelm was on staff and part of the team that assisted at the CARE Clinic with Jensen's clinical diagnosis in 2010. She was his first assigned clinician after the 2010 clinical diagnosis. J.W. received counseling from Dr. Wilhelm in 2010 and 2011. Dkt. # 60, Stip. Fact I.

         17) In October 2013, another student in J.W.'s classroom informed Ms. Wells of the existence of a “master plan” to get J.W. in trouble, involving several students in Ms. Wells' class as well as other third-grade students at the school. Ex. 41 at 2; Dkt. # 94 at 13:11-19, 42:8-43:20. The “plan” was to involve provoking J.W. in various ways in an effort to make him react badly so that he would get in trouble. Ex. 41 at 2. Ms. Wells told the student that the plan was not okay and held a meeting with J.W.'s class to help his classmates better understand his needs and to identify ways to address J.W. when he became dysregulated. Dkt. # 94 at 13:11-19; 42:8-22; Ex. 41. After the class meeting, J.W.'s classmates reported to Ms. Wells that they were having more successful interactions with J.W. at recess and they wanted to help J.W. stay regulated and be part of the class. Id. at 42:25-43:14. J.W. was not aware of the existence of the “plan.” Dkt. # 94 at 13:20-22.

         18) The District has a policy prohibiting harassment, intimidation, and bullying among students, employees, parents/legal guardians, volunteers, and patrons of District schools. Ex. 287. This policy was known as the “HIB” Policy.

         19) Between November 7, 2013 and February 6, 2014, the parents of another student (“R.P.”), the Pontrellis, filed eight HIB complaints with the District regarding J.W.'s conduct. Dkt. # 60, Stip. Fact O. Mr. Kischner performed the fact-finding investigations in relation to the HIB complaints. Dkt. # 94 at 65:16-66:6. He recorded his investigatory notes in PowerSchool, a new software program the District began using that school year. Id. at 66:24-68:8. Due to the manner in which Mr. Kischner saved his investigation notes in PowerSchool, any attempt to print them resulted in the notes printing on a template entitled “Notice of Disciplinary Action.” Id. at 68:9-69:20.

         20) The first alleged incident took place on November 7, 2013. Ex. 276. Mr. Pontrelli filed the incident report on November 14, along with the second, third, and fourth incident reports. In the report, Mr. Pontrelli alleges that two other students held R.P. while J.W. kicked her. Id.; Ex. 41 at 2. At trial, Ms. Wells testified that she did not believe that J.W. had kicked R.P., and that she believed R.P. occasionally was “picking and prodding” at J.W. Dkt. # 94 at 16:15, 17:8-15. An investigation by school staff did not substantiate the details of this alleged incident. Ex. 219 at 4.

         21) The second alleged incident took place on November 8, 2013, during a class field trip to the Burke Museum at the University of Washington. Ex. 87 at 25; Ex. 219 at 1; Ex. 277. Mr. Pontrelli was present on the trip as a chaperone. Ex.87 at 25. Mr. Pontrelli alleged that J.W. assaulted R.P. twice during the trip, and threatened her life. The first alleged altercation was on the bus at the beginning of the trip. Ex. 4. J.W. allegedly pinched R.P. on the arm when she leaned over him from another seat. Ex. 4; Ex. 277 at 2. Mr. Pontrelli did not observe the pinch himself, but was told about it by R.P. Ex. 87 at 2, 26. Mr. Kischner entered the details of the alleged event into the school's PowerSchool student information system, which generated a “Notice of Disciplinary Action” that went into J.W.'s academic file. Ex. 5.

         22) Mr. Pontrelli claimed the third alleged incident took place on November 13, 2013. Ex. 278. In this alleged incident, District Physical Education teacher Carole Sealy stopped J.W. from “looming” over R.P. after she noticed R.P. making eye contact with J.W. Ex. 239. Mr. Pontrelli claims that J.W. spoke the word “dead” to her, but Ms. Sealy has stated that she did not hear this. Ex. 87 at 30; Ex. 218 at 3. Ms. Wells, J.W.'s and R.P.'s teacher, talked with R.P. after the incident and reminded her that not everyone has the same social skills and that R.P. can't be friends with everyone. Ex. 239. Ms. Wells noted that R.P. agreed to leave J.W. alone in the future. Id. Mr. Kischner entered the details of the alleged event into PowerSchool, which generated a “Notice of Disciplinary Action” that went into J.W.'s academic file. Ex. 17.

         23) Mr. Pontrelli claimed the fourth alleged incident took place on November 15, 2013. Ex. 279. Another student allegedly lured R.P. behind a portable classroom, saying “J.W. wants you.” Ex. 218 at 3. R.P. went to J.W., who allegedly said “You're dead.” Id. When Principal Kischner interviewed R.P. about the incident on the evening of the 15th, she told him that “she quickly forgot that it had happened.” Ex. 205 at 1. Mr. Kischner entered the details of the alleged event into PowerSchool, which generated a “Notice of Disciplinary Action” that went into J.W.'s academic file. Ex. 10.

         24) Mr. Pontrelli claimed the fifth alleged incident took place on November 18. Ex. 280. J.W. allegedly approached R.P. from behind, turned her around with his hands on her shoulders, pushed her, and said “I will kill you.” Ex. 13. Ms. Wells, J.W.'s and R.P.'s teacher, stated in an email that she couldn't see “how he managed to sneak that one in, ” because very little time had elapsed between when she was working directly with J.W. and when R.P. reported the alleged threat. Ex. 42 at 1. The District told the Pontrellis that the incident had been substantiated, but Principal Kischner later noted that the action had not in fact been corroborated by any witnesses. Ex. 13; Ex. 219 at 4. Mr. Kischner entered the details of the alleged event into PowerSchool, which generated a “Notice of Disciplinary Action” that went into J.W.'s academic file. Ex. 15.

         25) On November 17, 2013, Mr. Kischner contacted the Wongs to discuss the HIB complaints. Ex. 206. He informed them that the Pontrellis were demanding that J.W. be suspended from school, but that he refused to do so. Id.; Dkt. # 94 at 132:11-15. On the same day, Mr. Kischner also informed the Pontrellis that he would not allow their “presence as classroom or school volunteers because that could interfere with the safety and privacy of [J.W.]” and that he would have them removed from the school premises if they attempted to interfere in J.W.'s education program. Id. at 130:12-131:13; Ex. 205.

         26) After these initial HIB reports were filed, Ms. Wells asked Mr. Kischner for an emergency instructional assistant to be assigned to act as an additional adult to ascertain whether the alleged behavior of R.P. was occurring. Dkt. # 94 at 19:5-14. Mr. Kischner and Ms. Wells then informed an instructional assistant who monitored recess, Craig Garretson, of the concerns regarding R.P. and J.W. and asked that he closely monitor their interactions. Id. at 21:1-4, 37:25-38:5; Ex. 114. Mr. Garretson had previous experience working in an autism program in another school district and, in addition to monitoring recess, provided J.W. with one-to-one assistance in the academic area of writing. Dkt. # 94 at 38:23-39:11.

         27) Mr. Kischner also requested additional funding for an emergency instructional assistant from the District's central office to deal with the developing situation between the Pontrellis and J.W. Dkt. # 94 at 145:17-146:22. On or about January 2014, the District assigned J.W. with a one-to-one emergency instructional assistant. Dkt. # 60, Stip. Fact N.

         28) Mr. Kischner sent the Wongs an email on Monday November 18, 2013 which stated that Sylvia Johnson, one of J.W.'s special education teachers, was working closely with J.W. to identify behaviors that were “against the law, ” and that the school team needed to continue working with J.W. “on the way he appears to be using his body to intimidate others.” Ex. 206; Dkt. # 94 at 133:8-25. He explained that Ms. Johnson had named this behavior “looming” and that he had personally witnessed J.W. looming over another student that morning. Ex. 206. He further explained that some students may find the looming behavior scary. In addition, Mr. Kischner informed the Wongs of the HIB complaint R.P.'s parents filed on November 18, 2013. Id.

         29) The District developed a Targeted Student Support Plan for J.W. in November 2013. Dkt. # 60, Stip. Fact. M. On November 25, 2013, J.W.'s IEP team met and developed a new functional behavioral assessment (“FBA”) and Behavioral Intervention Plan (“BIP”) to address his behavioral challenges. Exs. 50, 257, 258. This BIP addressed negative self-talk, work refusal and elopement. Id.

         30) The behavior identification method that Ms. Johnson developed for J.W. was a five-point scale to address his behavioral challenges. Ex. 1. The scale identified J.W.'s threatening language and looming behavior as level five behavior that was “against the law.” Id. Ms. Wells believed that phrase was appropriate because J.W. was very literal and this was the type of language he used. Dkt. # 94 at 24:2-14; see also Dkt. # 92 at 109:20-22; 125:19-126:8. The five-point scale also provided for J.W. to complete a self- reflection sheet once he was calm after a “level five” incident, and provided him with the option of going to the principal's office because it was a quiet space where he could further calm down. Ex. 1; Dkt. # 94 at 34:23-35:3; 36:6-12.

         31) Also on November 25, 2013, Ms. Wells spoke with the Wongs regarding ways to help J.W. regulate his behavior without him needing to leave the general education classroom. Ex. 211. The Wongs recommended having him listen to classical music when he experienced stress. Ms. Wells agreed with the strategy and coordinated with Ms. Johnson to provide that accommodation to J.W. Id.

         32) Ms. Wong sent the new FBA and BIP to Dr. Milhem, who reviewed the documents and discussed them with Ms. Johnson. Ex. 212. Dr. Milhem reported to Ms. Wong on December 11, 2013 that Ms. Johnson was great and open to her suggestions. Id. She further reported that the she liked the BIP, that “things look really good, ” and that she and Ms. Johnson added the consequence of requiring ...

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