Kailin et al v. Metcalf et al

Filing 77

OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court grants the Village's motion for summary judgment 57 . The Court enters judgment for the Village on Steven's ADA claim (Count III) and terminates this case. The clerk is directed to mail the ILND 450. Civil case terminated. Signed by the Honorable Sara L. Ellis on 1/10/2022. Mailed notice(rj, )

Case: 1:19-cv-04703 Document #: 77 Filed: 01/10/22 Page 1 of 7 PageID #:420

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN KAILIN, as parent and next
friend of ETHAN KAILIN, a minor,
Plaintiff,
v.
CITY OF GURNEE,
Defendant.

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No. 19 C 4703
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Steven Kailin (“Steven”), as parent and next friend of Ethan Kailin (“Ethan”), a
minor, filed a complaint against Defendant the Village of Gurnee (the “Village”), after School
Resource Officer Jack Metcalf ordered Ethan to perform community service at his high school. 1
Steven contends that the Village failed to reasonably accommodate Ethan’s autism in violation
of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The
Village now moves for summary judgment on the ADA claim. Because the record does not
allow for the inference that the Village denied Ethan a reasonable accommodation, the Court
grants the Village’s motion and enters judgment for it on the ADA claim.
BACKGROUND 2
Ethan, an autistic student, attended Warren Township High School (“Warren Township”)
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Steven improperly named the Village of Gurnee as the City of Gurnee.

The Court derives the facts set forth in this section from the Village’s Local Rule 56.1 Statement of
Undisputed Material Facts. Steven failed to participate in the drafting of a joint statement of undisputed
facts, as required by the Court’s summary judgment procedures, and the Court previously found that
Steven waived any response to the Village’s statement of undisputed facts, Doc. 64; see also Kreg
Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 411 (7th Cir. 2019) (“According to well-established
Seventh Circuit law, that noncompliance [with the court’s summary judgment procedures] meant that the
district court could exercise its discretion to accept Kreg’s statements of fact as undisputed.”). The Court
takes the Village’s facts in the light most favorable to Steven, the non-movant.
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in Gurnee, Illinois. On September 13, 2017, during a passing period, Ethan inserted himself into
an ongoing argument and slapped a student who had stated that Ethan was gay. Ethan then
proceeded to his homeroom, at which time he became increasingly frustrated and angry. His
behavior in homeroom, in addition to his slapping the student in the hallway, resulted in a threeday school suspension.
Warren Township Dean Ritcher brought the September 13 incident to the attention of
Metcalf, a police officer with the Gurnee Police Department who worked as the School Resource
Officer at Warren Township. Ritcher also played Metcalf a video of the slapping incident.
Ritcher relayed that the parents of the student Ethan slapped were upset, which prompted
Metcalf to contact the student’s father. The father indicated that his son and Ethan had ongoing
problems and that he wanted to pursue charges against Ethan. Metcalf also interviewed the
student Ethan slapped and spoke with Ethan’s case manager about the incident. The case
manager knew Ethan and the contents of his individualized educational plan (“IEP”). The case
manager told Metcalf that Ethan understood the difference between right and wrong and could
perform community service, such as sweeping or picking up trash.
Considering the totality of the circumstances, including Ethan’s autism and the
conversation Metcalf had with Ethan’s case manager, Metcalf determined that instead of
arresting and charging Ethan with battery for slapping the other student, Ethan should participate
in a diversionary program and perform community service. Metcalf then contacted Ethan’s
parents, suggesting that Ethan perform community service with his family at the Village’s
“Clean the Trails” event. Because the Kailins could not participate in that event, Metcalf
suggested that Ethan pick up garbage around the Warren Township football field and parking lot
and sweep the walkway leading to the football field. The Kailins agreed to this proposal,

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bringing him to Warren Township during school hours on September 19. Ethan performed the
required community service for two hours under Metcalf’s supervision. During this time,
Ethan’s case manager was available onsite in case Ethan had an outburst.
LEGAL STANDARD
Summary judgment obviates the need for a trial where “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). To determine whether a genuine dispute of material fact exists, the Court must pierce the
pleadings and assess the proof as presented in depositions, documents, answers to
interrogatories, admissions, stipulations, and affidavits or declarations that are part of the record.
Fed. R. Civ. P. 56(c)(1); A.V. Consultants, Inc. v. Barnes, 978 F.2d 996, 999 (7th Cir. 1992).
The party seeking summary judgment bears the initial burden of demonstrating that no genuine
dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Bunn v. Fed.
Deposit Ins. Corp. for Valley Bank Ill., 908 F.3d 290, 295 (7th Cir. 2018). In response, the nonmoving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above
to identify specific material facts that demonstrate a genuine dispute for trial. Fed. R. Civ. P.
56(c)(1); Celotex, 477 U.S. at 324; Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627
(7th Cir. 2014). The Court must construe all facts in the light most favorable to the non-moving
party and draw all reasonable inferences in that party’s favor. Wehrle v. Cincinnati Ins. Co., 719
F.3d 840, 842 (7th Cir. 2013). However, a bare contention by the non-moving party that an issue
of fact exists does not create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th
Cir. 2000), and the non-moving party is “only entitled to the benefit of inferences supported by
admissible evidence, not those ‘supported by only speculation or conjecture,’” Grant v. Trs. of
Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (citation omitted).

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ANALYSIS
To succeed on a claim under Title II of the ADA, Steven must establish that: (1) Ethan is
a “qualified individual with a disability;” (2) the Village denied Ethan “the benefits of the
services, programs, or activities of a public entity” or “otherwise subjected [him] to
discrimination by such an entity;” and (3) Ethan was discriminated against “by reason of” his
disability. Hildreth v. Butler, 960 F.3d 420, 430 (7th Cir. 2020) (quoting Wagoner v. Lemmon,
778 F.3d 586, 592 (7th Cir. 2015)). Steven may establish discrimination in one of three ways:
“(1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to
provide a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled
people.” Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999).
Steven’s ADA claim also requires him to demonstrate but for causation. See Wis. Cmty. Servs.,
Inc. v. City of Milwaukee, 465 F.3d 737, 754 (7th Cir. 2006) (“[T]he ADA regulation . . . asks
whether a modification is ‘necessary to avoid discrimination on the basis of disability.’ Framed
by our cases as a causation inquiry, the element is satisfied only when the plaintiff shows that,
‘but for’ his disability, he would have been able to access the services or benefits desired.”
(citations omitted)).
Steven claims that the Village did not reasonably accommodate Ethan’s disability
because Metcalf did not allow Ethan’s parents to be present while he performed community
service at Warren Township. 3 The Village, on the other hand, argues that no evidence supports
this contention given that Metcalf accommodated Ethan’s disability by requiring him to perform
community service in lieu of charging and arresting him for battery, and the ADA does not
Steven testified that Metcalf refused the Kailins’ request to be present while Ethan performed
community service and that Ethan’s IEP required Ethan to have a shadow while at school. But because
Steven failed to comply with the Court’s summary judgment procedures, as the Court previously noted,
he waived his ability to present these facts to the Court. See Doc. 64.
3

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require anything more. The Village contends that Metcalf properly considered Ethan’s autism
and provided a reasonable accommodation to him because of it: providing the alternative of
performing community service instead of being arrested and charged with battery. Steven does
not point to any evidence in the record or even provide any argument that would support a
finding that the Village did not reasonably accommodate Ethan’s disability by allowing Ethan to
perform community service in lieu of being charged and arrested for battery. Cf. Ravenna v. Vill.
of Skokie, 388 F. Supp. 3d 999, 1009 (N.D. Ill. 2019) (“[A] reasonable jury could find that
Skokie’s policy requiring arrests for misdemeanor offenses, as applied to the misdemeanor
disorderly conduct complaint against Ravenna, exhibits deliberate indifference to Ravenna’s
disability. This case likely would have been avoided if Skokie had issued a summons rather than
subjecting her to the alleged violence and indignity of arrest.”).
Instead, the evidence only supports a conclusion that Metcalf did accommodate Ethan’s
disability in determining the proper course of action in response to the slapping incident and the
other parents’ desire to press charges. When the Kailins could not participate in the first
community service option Metcalf suggested, Metcalf offered an alternative option at the school,
to which the Kailins agreed. Metcalf personally oversaw Ethan performing the community
service, and he ensured that Ethan’s case manager was available onsite in case Ethan had any
outbursts. While the Kailins may have preferred additional accommodations, such as being
present while Ethan performed the community service, “[t]he question is not whether other
modifications could have been made, . . . but whether the accommodations made were
reasonable.” Hildreth, 960 F.3d at 431; see also Murphy v. Kamphuis, 858 F. App’x 939, 941
(7th Cir. 2021) (“But failing to provide reasonable accommodations constitutes disability
discrimination only if those accommodations were necessary to obtain access to the service or

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program. While he undoubtedly expressed his desire for more library time, Murphy has not
introduced any evidence that he needed that time to prepare legal documents.”). Because Steven
has not pointed to any evidence suggesting that the Village did not make reasonable
accommodations in determining how to address the appropriate punishment for Ethan slapping
another student, Steven cannot prevail on his ADA claim.
Although this resolves the only pending claim, Steven requests that, if the Court finds
that he cannot prevail on his ADA claim, that the Court provide him leave to amend his
complaint to add a claim for violation of the Rehabilitation Act. Steven contends that a
Rehabilitation Act claim would not be futile because it does not require but for causation. This,
however, incorrectly states the law: both the ADA and Rehabilitation Act require proof of but for
causation. See A.H. by Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 593 (7th Cir. 2018)
(requiring proof of but for causation for both ADA and Rehabilitation Act claims). Further,
Steven’s request to amend his complaint comes much too late. Steven failed to amend his
complaint within the time provided by the Court and never requested an extension of that time,
the parties completed discovery in June 2021, Steven should have known of the basis for a
Rehabilitation Act claim from the initiation of the case, and his request appears calculated to
avoid the consequences of an adverse judgment. See Kleinhans v. Lisle Sav. Profit Sharing Tr.,
810 F.2d 618, 625–26 (7th Cir. 1987) (denying leave to amend where the plaintiff requested
leave to amend after the defendants moved for summary judgment, the proposed amendment was
based on information known to the plaintiff at the time he filed his original complaint, discovery
had closed, and it appeared that the plaintiff sought leave to amend “to avoid the effect of
summary judgment”). Therefore, the Court denies Steven’s request for leave to amend, bringing
a close to this case.

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CONCLUSION
For the foregoing reasons, the Court grants the Village’s motion for summary judgment
[57]. The Court enters judgment for the Village on Steven’s ADA claim (Count III) and
terminates this case.

Dated: January 10, 2022

______________________
SARA L. ELLIS
United States District Judge

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