JENKINS v. BUTTS COUNTY SCHOOL DISTRICT

Filing 23

ORDER GRANTING 16 Motion for Judgment as a Matter of Law. Jenkins's claims are DISMISSED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/24/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PREMESSA JENKINS, by and for
TAMIA JENKINS,
Plaintiffs,
v.
BUTTS COUNTY SCHOOL DISTRICT,

Defendant.

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CIVIL ACTION NO. 5:15-CV-30 (MTT)

ORDER
Defendant Butts County School District has moved for judgment on the record.
(Doc. 16). For the following reasons, the Defendant’s motion is GRANTED.
I.

PROCEDURAL BACKGROUND

Plaintiff Premessa Jenkins (“Jenkins”) alleges the Defendant failed to provide her
disabled child, Tamia Jenkins (“T.J.”), with a free and appropriate public education
(“FAPE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400,1 and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. (Doc. 5 at 6).
Jenkins also alleges that the District retaliated against T.J. by “making false reports to
the Department of Family and Children Services [(‘DFCS’)]” and by “disrob[ing] T.J. to
examine her from head to to[e], [ ] diagramm[ing] any alleged marks, scars and/or
injuries, and further present[ing] those items to the ALJ, making private information

1

“Congress generally amended IDEA by enacting the Individuals with Disabilities Education Improvement
Act of 2004, Pub.L. No. 108–446, 118 Stat. 2647 (‘IDEIA’), which took effect on July 1, 2005. The
statutory citations in this Order refer to IDEA as recodified by IDEIA.” G.J. ex rel. E.J. v. Muscogee Cty.
Sch. Dist., 704 F. Supp. 2d 1299, 1302 n.1 (M.D. Ga. 2010).

readily available for public consumption, violating the Plaintiff[’]s right to privacy 5
U.S.C. [§] 552a.” (Id. at 3-4).
Jenkins first alleged the Defendant failed to provide T.J. with a FAPE in a suit
filed on September 1, 2011. Jenkins v. Butts County, No. 5:11-cv-350 (MTT). The
Court dismissed the complaint without prejudice because Jenkins failed to request a
due process hearing pursuant to the administrative requirements of IDEA. Jenkins, No.
5:11-cv-350 (MTT), Doc. 19; see also 20 U.S.C. §§ 1415(i)(2)(A), 1415(l). After Jenkins
filed a pro se due process complaint against the Defendant, and an Administrative Law
Judge (“ALJ”) dismissed her complaint, Jenkins filed another suit with this Court on
February 7, 2013. Jenkins v. Butts Cty. Sch. Dist., 984 F. Supp. 2d 1368, 1372 (M.D.
Ga. 2013). The Court denied the Defendant’s motion to dismiss and remanded
Jenkins’s claims to the ALJ to analyze when Jenkins’s claims accrued and whether any
tolling exception applied. Id. at 1378-79, 1381.
Jenkins filed a second due process hearing request on October 3, 2014, alleging
the Defendant retaliated against T.J. (Doc. 19-2 at 128, 133-40). After consolidating
the remanded case and second due process hearing request, the ALJ conducted a
hearing on November 6, 2014 regarding the statute of limitations and then a second
hearing on December 2, 2014 regarding the merits of the FAPE and retaliation claims.
(Docs. 19 at 1; 19-1 at 13; 19-2 at 127). Jenkins brings the instant suit as “an appeal” of
the ALJ’s decisions. (Doc. 5 at 1). Along with her complaint, Jenkins has submitted a
copy of the ALJ’s January 22, 2015 Final Decision, which denies her request for relief
under IDEA. (Doc. 1-1). The Defendant has moved for judgment on the record,

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contending the ALJ’s decision should be upheld and the appeal dismissed. (Doc. 17 at
6).
II.

THE ALJ’S FINAL DECISIONS

Because the ALJ bifurcated the issues into two separate hearings, the ALJ
issued two opinions with separate findings of fact and conclusions of law. (Docs. 1-1 at
2-13; 19-1 at 164-75).
A. The ALJ’s Decision on the Statute of Limitations
After the statute of limitations hearing, the ALJ made the following findings of
fact. Jenkins’s daughter T.J. has a “profound intellectual disability, a speech and
language disorder, and a seizure disorder.” (Docs. 19-1 at 165 ¶ 2; 19 at 17:17-18:6,
63:18-20, 93:12-15). T.J. is nonverbal, has difficulty communicating, is not toilettrained, and can be “aggressive and dangerous to herself and others.” (Docs. 19-1 at
165, ¶ 2; 19 at 18:3-19, 91:19-93:9, 98:1). When she was three years old, T.J. began
attending school in Butts County and received special education services pursuant to
IDEA. (Docs. 19-1 at 165 ¶ 1; 19 at 17:6-12). Jenkins “was a member of [T.J.’s]
individualized education program (‘IEP’) team and participated in the development of
her IEPs.” (Docs. 19-1 at 165 ¶ 1; 19 at 40:16-43:16; 19-6 at 10-69). When T.J began
her schooling, she was placed in a “self-contained special education classroom for
profoundly intellectually disabled (‘PID’) students.” (Docs. 19-1 at 165 ¶ 3; 19-6 at 2627). But in 2007, T.J.’s seizures increased as well as her aggressive behavior, which
escalated to a degree that she was often placed in a restraint chair while other children
were around. (Docs. 19-1 at 165 ¶ 3; 19-6 at 29).

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In an IEP meeting on January 17, 2008, the IEP team determined that the PID
classroom was no longer appropriate for T.J. because of the severity of her seizures
and aggressive behavior. (Docs. 19-1 at 166 ¶ 4; 19 at 23:18-23; 19-6 at 29, 33). She
was then provided home-based services that consisted of one hour of instruction each
day at her aunt’s house. (Docs. 19-1 at 166 ¶ 4; 19 at 24:12-14; 19-6 at 29, 33).
However, on September 2, 2008, the IEP team determined that T.J. had made “minimal
progress” toward her IEP goals in this home-based setting. (Docs. 19-1 at 166 ¶ 5; 196 at 33). The team then placed her in a modified-day program which included private
instruction from 3:15 p.m. to 4:45 p.m. with a special education teacher and a
paraprofessional. (Docs. 19-1 at 166 ¶ 5; 19 at 25:10-26:13). After an IEP meeting on
May 27, 2009, the team extended this placement through the end of the 2009-2010
school year. (Docs. 19-1 at 166 ¶ 5; 19 at 26:14-20; 19-6 at 43-48).
In June 2010, because T.J.’s progress was only “marginal” in the modified-day
program, the IEP team increased her instruction to 3.25 hours per day for the 2010-11
school year. (Docs. 19-1 at 166 ¶ 6; 19-6 at 50-55). However, in August or September
2010, Jenkins requested that T.J. attend school for the full day. (Doc. 19-1 at 167 ¶ 6;
19 at 28:2-5). T.J.’s IEP was then amended on October 7, 2010 to allow her to attend
school from 8:00 a.m. to 2:00 p.m. each day. (Docs. 19-1; 19 at 26:19-27:7; 19-6 at
57).
From November 2006 through April 2014, Jenkins participated at each IEP
meeting, was informed about T.J.’s educational placement and services, and was
provided a copy of each IEP as well as updated written explanations of her rights as a
parent of a child with a disability. (Docs. 19-1 at 168 ¶ 12; 19 at 43:13-48:2, 56:17-60:3,

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69:9-17, 74:4-75:15, 78:2-8, 87:5-88:7, 93:24-95:9, 99:8-100:5; 19-6 at 16-17, 27, 36;
19-7 at 18-72, 19-12 at 1-15). This parental rights notification included those rights
enumerated in 20 U.S.C. § 1415(d), including the rights to examine educational records,
to have T.J. educated in the least restrictive environment, to present a complaint by
filing a due process hearing request or formal written complaint, and to have the
Georgia Department of Education conduct an investigation. (Docs. 19-1 at 168-69 ¶ 12;
19-6 at 16-17, 27, 36; 19-7 at 18-72; 19-12 at 1-15). Finally, Jenkins was provided with
contact information for resources that could help her understand her rights. (Docs. 19-1
at 169 ¶ 12; 19-7 at 38, 71-72). Jenkins did not ask questions about her rights or
express dissatisfaction with the Defendant’s services until 2010. (Docs. 19-1 at 169 ¶
13; 19 at 88:21-89:2, 101:21-22, 104:25-105:3). T.J. still receives special education
services from the Defendant consisting of a “self-contained PID classroom with a
special education teacher, two paraprofessionals, and two other children.” (Docs. 19-1
at 168 ¶ 11; 19 at 38:3-15; 19-7 at 16). Jenkins is satisfied with these services. (Docs.
19-1 at 168 ¶ 11; 19 at 38:12-15).
Because Jenkins was dissatisfied with the instruction T.J. had received, she
submitted a formal state complaint against the Defendant to the Georgia Department of
Education in May 2011. (Docs. 19-1 at 167 ¶ 9; 19 at 48:3-8). After investigating the
complaint, the Department of Education informed Jenkins in a letter that the Defendant
had complied with IDEA. (Docs. 19-1 at 167 ¶ 9; 19 at 48:20-25; 19-7 at 84-86; 19-8 at
1). The Department of Education also told Jenkins that “[a]ll decisions arising from the
complaint are final. There is no appeal or reconsideration process.” (Docs. 19-1 at 167

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¶ 9; 19 at 50:1-7; 19-8 at 1). On August 10, 2012, Jenkins filed the due process
complaint. (Docs. 19-1 at 186 ¶ 10; 19-3 at 89-99).
Based on these findings, the ALJ concluded that Jenkins failed to demonstrate
by a preponderance of the evidence that her FAPE claims based on events before
August 10, 2010 were not barred by the statute of limitations or that a statutory tolling
exception applied. (Doc. 19-1 at 171-75).
B. The ALJ’s Decision on the FAPE and Retaliation Claims
After the second hearing, the ALJ incorporated the findings of fact from the order
on the statute of limitations and added the following findings relevant to the FAPE claim
and retaliation claims. (Doc. 1-1 at 4 ¶ 1). As to the FAPE claim, the ALJ found that
Jenkins is satisfied with the in-school special education services T.J. has received since
August 10, 2010. (Id. at 5 ¶ 2; Doc. 19-1 at 58:17-59:12).
As to the retaliation claims, on Friday, September 5, 2014, T.J.’s teacher Amy
Clyburn discovered two bugs on T.J.’s jeans and diaper area, reported this to the school
nurse and the principal, and left Jenkins a voicemail. (Docs. 1-1 at 5 ¶ 3; 19-1 at 107:718). That following Monday, Clyburn discovered more bugs inside T.J.’s diaper. (Docs.
1-1 at 5 ¶ 4; 19-1 at 107:22-24). Clyburn and the principal again left Jenkins a
voicemail. (Docs. 1-1 at 5 ¶ 4; 19-1 at 108:1-4). After not hearing from Jenkins, the
principal called the head nurse in the district, and they agreed to follow the district’s
head lice policy, which was the only policy about bugs. (Doc. 1-1 at 6 ¶ 5; 19-1 at
91:24-92:6, 92:21-23, 94:9-19). This policy stated that infested children will be sent
home with a letter and that “[c]hildren cannot return to school until treatment has been

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completed and a letter of clearance from the Butts County Health Department is
provided to the school.” (Docs. 1-1 at 6 ¶ 6; 19-11 at 147-48).
The letter sent home with T.J. stated that she could not return to school until she
provided a clearance letter from a private physician. (Docs. 1-1 at 6 ¶ 5; 19-11 at 111).
Because the head lice policy stated that the clearance letter is to be from the health
department, Jenkins took issue with the fact she was required to provide a letter from a
private physician. (Docs. 1-1 at 6 ¶ 6; 19-1 at 62:7-19). However, the principal testified
that a letter from either a private physician or the health department would be sufficient
under the policy, and she would have followed a similar protocol for other students.
(Docs. 1-1 at 6 ¶ 6; 19-1 at 97:19-20, 99:2-8). The ALJ found the principal’s testimony
credible. (Doc. 1-1 at 6 ¶ 6). T.J. missed one day of school before returning to school
with a clearance letter from her physician. (Docs. 1-1 at 6-7 ¶ 7; 19-1 at 83:3-4, 95:2596:2).
Clyburn, being a mandatory reporter in Georgia, filed a DFCS report because
she was concerned about T.J.’s welfare after finding the bugs. (Docs. 1-1 at 7 ¶ 8; 19-1
at 111:17-22; 19-11 at 106-110). The report detailed the information about the bugs
and also provided that T.J. and Jenkins were consistently well-dressed and groomed
and that Jenkins “is always open to communications and welcoming of teacher’s
concerns.” (Docs. 1-1 at 7 ¶ 8; 19-11 at 106-110).
A week before the bug incident, Clyburn filed a DFCS report after T.J. expressed
unusual behavior. (Docs. 1-1 at 7 ¶ 9; 19-1 at 110:6-9; 19-11 at 101-104). Specifically,
T.J. pulled at her pants, said “Stop boy,” and appeared to be shooing something away.
(Docs. 1-1 at 7 ¶ 9; 19-1 at 110:11-17; 19-11 at 103). Given that T.J. was practically

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nonverbal and had never made these vocalizations or behaviors before, Clyburn was
concerned about potential abuse. (Docs. 1-1 at 7 ¶ 9; 19-1 at 110:15-111:2, 129:19-24;
19-11 at 101-104). This report also included the same positive observations about
Jenkins and her daughter as in the bug report. (Docs. 1-1 at 7 ¶ 9; 19-11 at 104).
Clyburn also began documenting T.J.’s marks and injuries in an outline of the
human body. (Docs. 1-1 at 8 ¶ 10 & n.6; 19-1 at 123:1-12; 19-10 at 51-69). Interpreting
this practice as a suggestion of abuse, Jenkins believed that the diagramming began in
May 2014 and was retaliatory for her filing a complaint. (Docs. 1-1 at 7 ¶ 10; 19-1 at
74:1-23, 123:13-16). However, Clyburn actually began outlining T.J.’s injuries in August
2013, and the Defendant had been documenting T.J.’s marks, injuries, and behaviors
for years. (Docs. 1-1 at 8 ¶ 10 & n.6; 19-1 at 123:1-12; 19-8 at 47-101; 19-9 at 1-143;
19-10 at 1-33). Clyburn testified that she documented the injuries she saw in regular
observation during a diaper or shirt change and did so to keep track of T.J.’s selfinjurious behavior. (Docs. 1-1 at 8 ¶ 10; 19-1 at 112:16-113:14). Specifically, Clyburn
documented T.J.’s injuries to determine which had occurred before and during the
school day. (Docs. 1-1 at 8 ¶ 10; 19-1 at 112:18-25). Clyburn further testified that she
kept individualized, daily reports of all of her students. (Docs. 1-1 at 8 ¶ 10; 19-1 at
124:3-20). The ALJ found her testimony credible. (Doc. 1-1 at 8 ¶ 10).
After the second hearing, the ALJ concluded that Jenkins failed to show by a
preponderance of the evidence that the Defendant did not provide T.J. a free and
appropriate public education after August 10, 2010 or that the Defendant retaliated
against Jenkins or T.J. for exercising her rights under IDEA. (Doc. 1-1 at 10-11).

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III.

DISCUSSION

A. Standard of Review
Pursuant to IDEA, the Court must “receive the records of the administrative
proceedings,” hear additional evidence if a party requests it, and base “its decision on
the preponderance of the evidence.” 20 U.S.C. § 1415(i)(2)(C). “After reviewing all the
evidence, the District Court may grant relief without a trial by issuing what [the Eleventh
Circuit has] called a judgment on the record.” R.L. v. Miami–Dade Cty. Sch. Bd., 757
F.3d 1173, 1178 (11th Cir. 2014) (internal quotation marks omitted). The Court “may
issue a judgment on the record based on the preponderance of the evidence, even
when facts are in dispute.” Id. (internal quotation marks and citation omitted).
Determining whether an educational program provides a free and appropriate
public education as required by IDEA “is a mixed question of law and fact.” Draper v.
Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1284 (11th Cir. 2008). Questions of law
involving “the interpretation of a federal statute” are subject to de novo review. Id.
When reviewing the facts, the Court must give “due weight to the ALJ decision, and
must be careful not to substitute its judgment for that of the state educational
authorities.” R.L., 757 F.3d at 1178 (internal quotation marks omitted). The Court “is
free to accept the ALJ’s conclusions that are supported by the record and reject those
that are not,” and if the Court rejects the ALJ’s conclusions, it must explain why. Id.
B. Analysis
The Defendant contends the ALJ’s decisions should be upheld because the ALJ
correctly ruled that Jenkins’s claims based on events before August 10, 2010 are barred
by the statute of limitations and that Jenkins failed to prove her FAPE and retaliation
claims by a preponderance of the evidence. The Defendant further argues that Jenkins
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failed to establish a breach of a right to privacy claim or a claim under section 504 of the
Rehabilitation Act2 and that Jenkins is not entitled to the requested monetary relief.
1. Whether Jenkins’s Claims Based on Events before August 10,
2010 are Time-Barred
IDEA sets a timeline for filing a due process complaint:
A parent or agency shall request an impartial due process hearing
within [two] years of the date the parent or agency knew or should
have known about the alleged action that forms the basis of the
complaint, or, if the State has an explicit time limitation for
requesting such a hearing under this subchapter, in such time as
the State law allows.
20 U.S.C. § 1415(f)(3)(C). Georgia law provides the same two-year statute of
limitations. Ga Comp. R. & Regs. 160–4–7–.12(3)(a). The IDEA and the corresponding
Georgia regulation also provide two exceptions to this statute of limitations. The
timeline does not apply to a parent if:
[T]he parent was prevented from requesting the hearing due to—(i)
specific misrepresentations by the local educational agency that it had
resolved the problem forming the basis of the complaint; or (ii) the local
educational agency’s withholding of information from the parent that was
required under this subchapter to be provided to the parent.
20 U.S.C. § 1415(f)(3)(D); accord Ga Comp. R. & Regs. 160–4–7–.12(3)(a).
Jenkins contends the ALJ did not give “due consideration” to this Court’s remand
order because in that order the Court “affirmed that the claims of the Plaintiff were not
time barred.” (Doc. 5 at 3). That is not what this Court did. The Court remanded the
case because the ALJ had not analyzed when Jenkins’s claims accrued and particularly
whether either of the tolling exceptions to the statute of limitations applied. Jenkins, 984

2

The Defendant also contends that Jenkins’s ADA claim premised upon the FAPE claim fails. However,
Jenkins has not asserted such an ADA claim, but even if she had, the claim would be dismissed for the
same reasons the section 504 claim is dismissed. See Ortega v. Bibb Cty. Sch. Dist., 431 F. Supp. 2d
1296, 1298-1301 (M.D. Ga. 2006) (discussing the “substantially similar language” between the two
claims).

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F. Supp. 2d at 1378-79. Notably, the Court stated the order did “not mean that a more
developed record will not establish that Jenkins’s claims are barred by the statute of
limitations.” Id. at 1379 n.15. On remand, the ALJ, with a more developed record,
concluded that Jenkins’s “IDEA claims relating to events that occurred prior to August
10, 2010, are barred by the two-year statute of limitations” because Jenkins “was at all
times fully aware of the location, duration, and content of the educational services
provided to her daughter” and was unable to demonstrate that an exception to the
limitations period applied. (Doc. 19-1 at 170-71, 175).
An IDEA claim accrues when “the parent or agency knew or should have known
about the alleged action that forms the basis of the complaint.” 20 U.S.C. §
1415(f)(3)(C). Here, since November 2006, Jenkins has participated in every IEP
meeting and received a copy of each IEP. (Docs. 19 at 43:13-48:2, 56:17-60:3, 69:917, 74:4-75:15, 78:2-8, 87:5-88:7, 93:24-95:9, 99:8-100:5; 19-6 at 16-17, 27, 36; 19-7 at
18-72; 19-12 at 1-15). These IEPs “contain[ed] a detailed discussion of T.J.’s
disabilities, her goals and objectives, her current level of academic and developmental
functioning (including issues with her behavior), her educational placement and services
provided, and the results of … evaluations or assessments.” (Docs. 19-1 at 170 n.4;
19-6 at 16-17, 27, 36; 19-7 at 18-72; 19-12 at 1-15). Jenkins’s testimony at the statute
of limitations hearing also demonstrates that she was aware of the Defendant’s actions
underlying her claims as the Defendant was committing them. (Doc. 19 at 43:13-48:2).
And there is no evidence Jenkins lacked the necessary information to determine
whether her daughter had been injured by the Defendant’s actions. Given this record,

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the Court accepts the ALJ’s conclusion that Jenkins’s FAPE claims based on events
before August 10, 2010 are time-barred, unless a tolling exception applies.
For the exception based on specific misrepresentations to apply, Jenkins must
demonstrate the Defendant, as the local educational agency, specifically
misrepresented “that it had resolved the problem forming the basis of the complaint”
and that such a misrepresentation prevented Jenkins from requesting a due process
hearing. 20 U.S.C. § 1415(f)(3)(D)(i). The ALJ concluded this exception did not toll the
limitations period because “there is no evidence that the [Defendant] made any
misrepresentations” and “there is no evidence that any misrepresentations … prevented
[Jenkins] from filing a due process complaint.” (Doc. 19-1 at 171).
Here, the evidence shows only one possible misrepresentation made to Jenkins.
A representative from the Georgia Department of Education, the state educational
agency, informed Jenkins that “[a]ll decisions arising from the complaint are final. There
is no appeal or reconsideration process.” (Doc. 19-8 at 1). However, IDEA provides
that misrepresentations by the local educational agency—Defendant Butts County
School District—may toll the limitations period. 20 U.S.C. § 1415(f)(3)(D); 34 C.F.R.
§ 300.511(f)(1). Jenkins has presented no evidence that the Defendant made a
misrepresentation that prevented her from requesting a due process hearing.
Accordingly, the Court accepts the ALJ’s conclusion that this tolling exception does not
apply.
For the exception based on withholding information to apply, Jenkins must
demonstrate that she was prevented from requesting a due process hearing because
the Defendant withheld IDEA-mandated disclosures, such as “written notice[s],

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explanation, or form specifically required by the IDEA statutes and regulations.” D.K. v.
Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012); see also 20 U.S.C. §
1415(f)(3)(D)(ii). In her amended complaint, Jenkins alleged the Defendant “never gave
[her] a list of sources she could contact to obtain assistance in understanding the
provisions of the IDEA” or a procedural safeguard notice as required by IDEA. (Doc.
19-3 at 101, 104). However, after reviewing the evidence, the ALJ concluded “the
evidence showed that the [Defendant] provided [Jenkins] with … the IDEA-mandated
disclosures.” (Doc. 19-1 at 173).
The evidence in the record belies Jenkins’s allegations and supports the ALJ’s
conclusion. Jenkins was informed of resources she could contact for assistance in
understanding her parental rights. (Doc. 19-7 at 38, 71-72). The Court agrees this
complied with IDEA. See 20 U.S.C. § 1415(c)(1)(D). The Court also agrees that
Jenkins was provided notice of her parental rights and the required procedural
safeguards notice and that these notices complied with IDEA. (Docs. 19-6 at 16-17, 27,
36; 19-7 at 18-72; 19-12 at 1-15). These notices explained that parents may file due
process complaints, as well as the rights enumerated in 20 U.S.C. § 1415(d). (Docs.
19-7 at 19-20, 30-34, 47-50, 61-65). Also, multiple witnesses who were present at the
IEP meetings testified that Jenkins received the requisite notices at the meetings. (Doc.
19 at 56:17-60:3, 69:9-17, 74:4-75:15, 78:2-8, 87:5-88:7, 93:24-95:9, 99:8-100:5). At
the statute of limitations hearing, Jenkins questioned the Defendant’s witnesses
regarding the fact that no one asked her if she was dissatisfied with the educational
services or wanted to file a due process complaint. (Doc. 19 at 88:13-89:6, 95:18-96:3,
100:25-102:6). However, that is not required under IDEA. See 20 U.S.C. § 1415(d)(2).

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Accordingly, the Court accepts the ALJ’s conclusion that there is no evidence the
Defendant failed to provide Jenkins with the IDEA-mandated disclosures.
In sum, because Jenkins failed to show by a preponderance of the evidence that
her FAPE claims based on events before August 10, 2010 were timely or that a tolling
exception applied, the Court accepts the ALJ’s conclusion that these claims are barred
by the statute of limitations.
2. Whether Jenkins Has Demonstrated Her FAPE and Retaliation
Claims
a. The FAPE claim
The ALJ concluded that Jenkins failed to show by a preponderance of the
evidence that the Defendant did not “provide T.J. with a free appropriate public
education from August 10, 2010 to the present.” (Doc. 1-1 at 10). As discussed, the
ALJ bifurcated the evidentiary hearings to address the statute of limitations issue first.
The purpose of this was to determine which evidence could be presented and which
should be excluded at the second hearing regarding the merits of Jenkins’s claims.
(Doc. 19 at 115:18-116:2). On this issue, the Court notes the Eleventh Circuit’s recent
decision in Phyllene W. v. Huntsville City Board of Education, ___F. App’x___, 2015 WL
6575727 (11th Cir.). There, the Eleventh Circuit held it was error for the “Hearing
Officer” not to consider relevant evidence outside the statute of limitations. Id. at *8.
The Court reasoned that “[s]tatutes of limitations operate to bar claims that mature
outside the applicable limitations period.” Id. Thus, “evidence that is relevant to
establish claims maturing within this limitations period is admissible.” Id. (citing Draper,
518 F.3d at 1287-88).

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However, it is apparent Jenkins’s FAPE claim is based on the Defendant’s
conduct prior to August 10, 2010. Indeed, at the second hearing, Jenkins testified that
she had “nothing … to say” if her claims based on the Defendant’s conduct prior to
August 10, 2010 are time-barred. (Doc. 19-1 at 60:11-12). Further, in October 2010,
TJ. was placed in a regular school hours program to the satisfaction of Jenkins. (Id. at
58:17-59:12; Doc. 19-6 at 57-58). At the second hearing, Jenkins testified that she did
not feel the Defendant had done wrong since her daughter returned to the regular fullday program. (Doc. 19-1 at 58:17-59:12). She also affirmed that she did not “have any
complaints about anything that happened in 2011.” (Id. at 43:7-9).
In sum, Jenkins did not argue or present any evidence to demonstrate that the
Defendant’s conduct after August 10, 2010 established a FAPE claim at either hearing.
(See Docs. 19; 19-1). Thus, the ALJ did not improperly exclude relevant evidence from
outside the limitations period when Jenkins did not pursue a FAPE claim based on the
Defendant’s conduct within the limitations period. And because Jenkins did not present
evidence to support a FAPE claim, the Court accepts the ALJ’s conclusion that Jenkins
failed to prove by a preponderance of the evidence that the Defendant did not “provide
[her daughter] with a free appropriate public education from August 10, 2010, to the
present.” (Doc. 1-1 at 10).
Jenkins also conclusorily alleged that the Defendant’s conduct underlying her
FAPE claim violated section 504 of the Rehabilitation Act.3 (Doc. 19-3 at 100, 103).
To make a claim under section 504 in the education context, something
more than an IDEA violation for failure to provide a FAPE in the least

3

The factual basis for this claim is identical to the factual basis for the FAPE claim adjudicated by the
ALJ. However, the ALJ did not explicitly address Jenkins’s section 504 claim in her final decision.
Nevertheless, the Court has jurisdiction over the claim pursuant to 28 U.S.C. § 1331. See N.L. ex rel.
Mrs. C. v. Knox Cty. Schs., 315 F.3d 688, 689 (6th Cir. 2003).

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restrictive environment must be shown. A plaintiff must also demonstrate
some bad faith or gross misjudgment by the school or that he was
discriminated against solely because of his disability.
W.C. ex rel. Sue C. v. Cobb Cty. Sch. Dist., 407 F. Supp. 2d 1351, 1363-64 (N.D. Ga.
2005); see also Andrew M. v. Del. Cty. Office of Mental Health and Mental Retardation,
490 F.3d 337, 349 (3d Cir. 2007) (“[A] party may use the same conduct as the basis for
claims under both the IDEA and [section 504]. … Congress specifically intended that
[Education of the Handicapped Act, the predecessor to the IDEA,] violations could be
redressed by § 504 ... as the legislative history reveals.” (third alteration in original)
(internal quotation marks and citation omitted)); N.L., 315 F.3d at 695. Having failed to
establish her FAPE claim, Jenkins has also failed to establish a claim pursuant to
section 504 of the Rehabilitation Act premised upon the same conduct. In any event,
there is simply no evidence of bad faith, gross misjudgment, or discrimination because
of T.J.’s disability by the Defendant.
b. The retaliation claims
Jenkins contends the Defendant retaliated against T.J. by failing to follow school
protocol when bugs were discovered on her, by filing DFCS reports regarding the bug
incidents and regarding T.J.’s “‘unusual behavior’ that was described as sexual in
nature,” and by diagramming “any alleged marks, scars[,] and/or injuries.” (Doc. 5 at 4).
Jenkins also argues the Defendant violated the American with Disabilities Act (“ADA”)
and section 504 of the Rehabilitation Act by these actions. (Id.; Doc. 19-2 at 138).
The Eleventh Circuit has recognized an implicit authorization of retaliation claims
under IDEA. See M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1158-59 (11th Cir.
2006). Further, “IDEA allows plaintiffs to seek ‘remedies available under the

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Constitution, [the ADA, Section 504], or other Federal laws protecting the rights of
children with disabilities.” Id. at 1157-58 (alteration in original) (quoting 20 U.S.C. §
1415(l)). The ADA and section 504 of the Rehabilitation Act provide for retaliation
claims, which are analyzed under the McDonnell-Douglas framework in Title VII cases.
Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001); Cash v. Smith, 231
F.3d 1301, 1305 & n.2 (11th Cir. 2000) (“Discrimination claims under the Rehabilitation
Act are governed by the same standards used in ADA cases” and “[c]ases decided
under the Rehabilitation Act are precedent for cases under the ADA, and vice-versa”);
Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997); Albra v. City of
Fort Lauderdale, 232 F. App’x 885, 891 (11th Cir. 2007). “To establish a prima facie
case of retaliation, [Jenkins] must establish (1) a statutorily protected expression; (2)
adverse action; and (3) a causal link between the protected expression and the adverse
action.” Lewellyn v. Sarasota Cty. Sch. Bd., 2009 WL 5214983, at *12 (S.D. Fla.) (citing
Goldsmith v. City Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)). If the prima facie
case is established, “the [D]efendant may come forward with legitimate reasons for the
[challenged] action to negate the inference of retaliation.” Goldsmith, 996 F.2d at 1163.
If the Defendant meets this burden, Jenkins “then bears the burden of proving by a
preponderance of the evidence that the reasons offered by the [D]efendant are
pretexual.” Id.
It appears the ALJ assumed arguendo that Jenkins established a prima facie
case and concluded that Jenkins failed to prove by a preponderance of the evidence
that the Defendant’s legitimate, non-retaliatory reasons for its actions were pretextual.
(Doc. 1-1 at 10-11).

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As to the bug incidents, Jenkins contends the Defendant retaliated against T.J.
by not following school protocol and by filing a DFCS report about the bugs. (Doc. 19-1
at 62:11-19). The Defendant proffered a legitimate and non-retaliatory reason that it
simply used the head lice policy when T.J., after her teacher Amy Clyburn found bugs
on her, was prevented from returning to school until a private physician diagnosed the
nature of the possible “bug infestation” and provided a clearance letter to return to
school. (Id. at 94:9-19; Doc. 19-11 at 111). The head lice policy was the only one
regarding bugs. (Doc. 19-1 at 91:24-92:6, 92:21-23). Because this policy stated that
the health department is to provide the clearance letter, Jenkins felt it retaliatory that the
Defendant told her to get a letter from a private physician. (Docs. 19-1 at 62:7-19; 1911 at 147-48). However, the principal testified that she understood the policy to allow
for a clearance letter from either a private physician or the health department and that
she would have followed the same method for any student. (Doc. 19-1 at 97:19-20,
99:2-8). The ALJ found this testimony credible, as does the Court. (Doc. 1-1 at 6).
Further, Jenkins presented no evidence beyond conclusory allegations and testimony
that the Defendant’s reasons for its actions were pretext for retaliation. Given this
record, the Court accepts the ALJ’s conclusion that Jenkins failed to demonstrate a
retaliation claim based on this conduct.
Regarding the DFCS report about the bug incidents, the Defendant proffered a
legitimate and non-retaliatory reason that Clyburn filed the report because she “was
concerned about possible harm to [T.J.]” after finding bugs on her clothing and diaper
area and thus was obligated as a mandatory reporter to inform DFCS about her
concerns of abuse. (Docs. 19-1 at 111:17-22; 19-11 at 106-108). See O.C.G.A. § 19-7-

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5(c)(1)(H) and (c)(2). Jenkins offered no evidence beyond conclusory allegations and
testimony to demonstrate that the Defendant’s reasons for its actions were pretext for
retaliation. Given this record, the Court accepts the ALJ’s conclusion that Jenkins failed
to demonstrate a retaliation claim based on this conduct.
As to the DFCS report about T.J.’s behavior appearing sexual in nature, the
Defendant proffered a legitimate and non-retaliatory reason that Clyburn filed the report
because she had reasonable cause to suspect child abuse and thus was required to file
a report as a mandatory reporter in Georgia. The ALJ found Clyburn had reasonable
cause to suspect child abuse, and the Court agrees. (Doc. 1-1 at 7, 11). T.J., who is
usually non-verbal, said “Stop boy” as she pulled at her pants to stop an “imaginary
force [from] trying to pull them down,” appeared to be “shooing something away,” and
said “Baby, Baby, Baby” in an intimate tone. (Docs. 19-1 at 110:11-17; 19-11 at 103).
Clyburn was reasonably concerned about possible abuse, given T.J.’s new behaviors,
severe disabilities, and inability to communicate. (Docs. 19-1 at 110:15-111:2, 129:1924; 19-11 at 101-104). Jenkins offered no evidence beyond conclusory allegations and
testimony to demonstrate that the Defendant’s reasons for its actions were pretext for
retaliation. Given this record, the Court accepts the ALJ’s conclusion that Jenkins failed
to demonstrate a retaliation claim based on this conduct.
As to diagramming T.J.’s marks and injuries, the Defendant proffered a legitimate
and non-retaliatory reason that Clyburn made these diagrams out of concern for T.J.’s
welfare because of her self-injurious behavior. (Docs. 19-1 at 112:18-25; 19-10 at 5169). Clyburn testified that she made the diagrams to determine which injuries occurred
before and during school and that she marked only those injuries that were observable

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during changing time. (Doc. 19-1 at 112:18-25, 113:1-14). She further testified that she
kept daily, individualized reports on all of her students. (Doc. 19-1 at 124:3-20). At the
second hearing, Jenkins took issue with the fact that Clyburn did not begin diagramming
T.J.’s marks and injuries until August 2013 at the earliest, but Jenkins offered no
evidence beyond conclusory allegations and testimony that the reasons for the
diagrams were pretext for retaliation. (Doc. 19-1 at 74:1-23, 123:13-16). In any event,
Jenkins acknowledged that the Defendant had been documenting T.J.’s marks, injuries,
and behavior for years. (Docs. 19-1 at 77:3-81:25, 123:1-12; 19-8 at 47-101; 19-9 at 1143; 19-10 at 1-33). Given this record, the Court accepts the ALJ’s conclusion that
Jenkins failed to demonstrate a retaliation claim based on this conduct.4
In sum, Jenkins has failed to demonstrate by the preponderance of the evidence
that the Defendant did not provide T.J. a free and appropriate public education since
August 10, 2010 or that the Defendant retaliated against Jenkins or T.J.5 Jenkins’s

4

In filing this appeal of the ALJ’s decision, Jenkins also alleged that the Defendant “violat[ed] the
Plaintiff[’]s right to privacy 5 U.S.C. [§] 552a” by presenting the diagrams of T.J.’s marks and injuries to
the ALJ. (Doc. 5 at 2). However, the parties jointly stipulated that these exhibits may be tendered at the
hearing. (Docs. 19-1 at 14; 19-2 at 53-57). In any event, as the Court stated in a previous order
regarding this same claim, Jenkins’s claim pursuant to 5 U.S.C. § 552a fails because the Privacy Act
provision pertaining to disclosure of individuals’ records deals with the conduct of federal agencies.
Jenkins v. Smith Welch Webb & White, et al., No. 5:15-CV-97 (MTT), Doc. 4 at 5-6 (citing Schwier v. Cox,
340 F.3d 1284, 1287-88 (11th Cir. 2003)). Accordingly, Jenkins’s claim is without merit.

5
At the second hearing, in her response brief to the Defendant’s motion for judgment on the record, and
in her due process hearing request, Jenkins conclusorily asserted that the Defendant discriminated
against T.J. as well. (Docs. 19-1 at 62:7-19; 19-2 at 138; 21 at 3 ¶ 18). Section 504 of the Rehabilitation
Act and the ADA provide for discrimination claims which are analyzed under the same McDonnellDouglas framework as the retaliation claims. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155
(11th Cir. 2002); Wascura, 257 F.3d at 1242. Thus, the discrimination claims fail for the same reason the
retaliation claims fail: Jenkins has not provided sufficient evidence that the Defendant’s legitimate, nondiscriminatory reasons for its actions were pretextual.

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section 504 claim based on the same facts as the FAPE claim also fails on the merits.
Accordingly, Jenkins’s claims for monetary relief are moot.6
IV.

CONCLUSION

For the foregoing reasons, the Defendant’s motion for judgment on the record is
GRANTED. (Doc. 16). Jenkins’s claims are DISMISSED.
SO ORDERED, this 24th day of February, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT

6

The Defendant also requests that the Court reconsider its previous ruling that Jenkins’s prior motion for
reconsideration before the ALJ tolled the 90-day appeal period. (Doc. 17 at 24-25). The Court declines
to reconsider its ruling, as the issue is now moot.

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