H.C. et al v. Board of Education of Fleming County Kentucky et al
MEMORANDUM OPINION & ORDER: 1. Defendants Fleming County Kentucky Board of Education, Brian Creasman, Carol Thompson, and Michelle Hawkins' motion for summary judgment 43 is GRANTED. 2. Plaintiffs H.C. and R.D.C.'s claims against Defenda nts Fleming County Kentucky Board of Education, Brian Creasman, Carol Thompson, and Michelle Hawkins are DISMISSED, with prejudice, in their entirety. 3. The trial of this matter, previously scheduled to commence on October 3, 2017, is CANCELED. 4. A corresponding Judgment will be entered this date. Signed by Judge Danny C. Reeves on 9/25/2017.(STC)cc: COR,D,JC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
H.C. and R.D.C., by and through his next
friends, his parents, R.D. and H.C.,
FLEMING COUNTY KENTUCKY
BOARD OF EDUCATION, et al.,
Civil Action No. 5: 16-235-DCR
This matter is pending for consideration of Defendants Fleming County Kentucky
Board of Education, Brian Creasman, Carol Thompson, and Michele Hawkins’ motion for
summary judgment. [Record No. 43] Plaintiff R.D.C. alleges that the defendants failed to
provide him with a free adequate public education, discriminated against him in violation §
504 of the Rehabilitation Act (“§ 504”), the Americans with Disabilities Act (“ADA”), and 42
U.S.C. § 1983, and violated his procedural due process rights under the Fourteenth
Amendment. Plaintiffs H.C. and R.D.C. allege that the defendants retaliated against them in
violation of state and federal law. Finally, the plaintiffs allege state law claims of negligence,
negligent training and supervision, and intentional infliction of emotional distress.1 For the
The plaintiffs also contend that Defendant Hawkins violated R.D.C.’s right to confidentiality
under the Family Educational Rights and Privacy Act (“FERPA”). [Record No. 1, ¶¶ 60-63]
However, they now concede that there is no private right of action under FERPA. See Gonzaga
Univ. v. Doe, 536 U.S. 273 (2002). Accordingly, that count will be dismissed as well.
reasons outlined below, the motion for summary judgment will be granted in its entirety, and
the plaintiffs’ claims will be dismissed.
Plaintiff R.D.C. was a fourth and fifth grade student at Hillsboro Elementary School
(“HES”) during the 2014-15 and 2015-16 school years. He was cited twenty-six times during
that period for various incidents of bullying, harassment, disrespectful behavior, defiance of
authority, and fighting. [Record 43-2, Attachment L] HES also received at least five reports
from other parents that R.D.C. was bullying his classmates during this period. [Record No.
43-2, Attachment I] R.D.C. denied being at fault for most of these incidents. He claimed that
his bus driver, teachers, principal, and other school personnel made things up to get him in
trouble, and complained that “no one believed him” and he “[got] blamed for everything.”
H.C. believed that R.D.C. was being mistreated by the other students, teachers, and
school personnel, and was “very aggressive in her protection [of] her child . . . .” [Record No.
1, ¶ 28] According to R.D.C.’s fourth grade teacher, Angel Hilterbrand, his fifth grade teacher,
Defendant Michele Hawkins, and his principal, Defendant Carol Thompson, H.C. and R.D.C.
claimed numerous times that R.D.C. was being physically or verbally harassed by his peers,
but these accusations could not be verified following investigation by his teachers or Principal
Thompson. [Record Nos. 43-3, ¶¶ 5-6; 43-4, ¶ 5; 43-5, ¶ 8] Each stated that they never
personally observed any mistreatment of R.D.C.
To the contrary, Hilterbrand reported that during the 2014-15 school year R.D.C.
“displayed bullying behavior toward his classmates and toward [him],” and on one occasion
told Hilterbrand that he would “burn in hell.” [Id. ¶ 12] Principal Thompson referred R.D.C.
to counseling on October 1, 2014, based on the following observations: “He is disrespectful to
staff and students. States that no one helps him. He wants to stay home. Picks at other
students. Doesn’t trust any adult at school.” [Record No. 43-3, Attachment E] But R.D.C.’s
parents refused the counseling services. [Id.]
According to Defendant Hawkins, during the 2015-16 school year, R.D.C. “primarily
displayed average behaviors in class compared to his same-age peers, and engaged in
misconduct during unstructured time such as hallway transitions, recess, and in the cafeteria.”
[Record No. 43-4, ¶ 6] Defendant Hawkins referred R.D.C. to counseling on October 8, 2015,
based on her observations that he “shows anger and opposition when students accuse him of
things, and then is upset when teacher asks him—very defensive. Has lied multiple times to
teacher regarding his behavior, bullies and name calls other kids. No respect for authority
from him or his mother.” [Record No. 43-4, Attachment A] The school therapist contacted
H.C. about the referral. [Id.] However, H.C. again refused the services, and the therapist noted
that she was angry to receive the phone call and threatened her, saying that if she called again
“so help me God, the outcome won’t be pretty.” [Id.]
The record is replete with contentious encounters between H.C. and the HES staff,
which H.C. viewed as aggressive protection of her child, and the HES staff viewed as
intimidating, bullying, and abusive behavior. [See Record Nos. 43-2; 43-3; 43-4; 43-5; 43-6.]
Hilterbrand testified that, as a result of H.C.’s bullying, he “became fearful for [his] safety,”
“would not walk to [his] car alone,” and requested not to meet with H.C. without being
accompanied by another employee. [Id. ¶¶ 4-5, 10-12] Hilterbrand reportedly received
“abusive and intimidating phone calls and text messages from H.C. at [his] residence and on
[his] personal cell phone in the evenings and on weekends.” [Id. ¶ 3] Similarly, Hawkins
claims that “H.C. spoke with [her] in person and by telephone in an abusive, threatening, and
degrading manner, which interfered with [her] performance of [her] duties” on numerous
occasions. [Record No. 43-4, ¶ 11]
Both teachers reported these incidents to Principal Thompson and the superintendent,
Defendant Creasman. [Record Nos. 43-4, ¶ 13; 43-5, ¶ 4] In response to numerous complaints
from HES personnel about their interactions with H.C. on their personal phones,
Superintendent Creasman sent H.C. a letter on November 6, 2014, requesting that all future
communication with school staff be through the school office rather than their personal phones.
[Record No. 43-2, ¶ 4, Attachment A]
The plaintiffs’ attorney responded with a letter to Superintendent Creasman dated
November 20, 2015, requesting “a § 504 hearing due to Fleming County’s failure to identify
the child, to provide the child a free and appropriate education, to educat[e] their child in a safe
environment[,] and to protect the child from verbal abuse while attending [HES].” [Record
No. 43-2, Attachment B] R.D.C.’s teachers and principal all claim that, prior to this date, they
were never informed that R.D.C. had any diagnosis of any disability, and never formed the
conclusion that a referral for a disability evaluation was needed. [Record No. 43-3, ¶ 16; 434, ¶¶ 3, 10; 43-5, ¶¶ 7, 13] R.D.C. did receive speech therapy when he was younger, but he
was released in 2013. [Record No. 57-1] H.C. also testified that R.D.C. had medical diagnoses
of asthma, allergies, and migraine headaches. [Record No. 60, Attachment 1, p. 79-81]
Several incidents occurred shortly thereafter. Principal Thompson called H.C. after the
Thanksgiving break to schedule a meeting to discuss the § 504 process. [Record No. 43-3, ¶
8] However, H.C. became angry with Principal Thompson for calling and told her to contact
her attorney instead. [Id.] H.C. came to the school office on December 9, 2015, and accused
Thompson of harassing her family. [Id. at ¶ 9] Then, R.D.C. received in-class discipline on
December 14, 2015 for being disrespectful to Defendant Hawkins. [Id. at ¶ 10] H.C. called
Principal Thompson that afternoon and accused her of lying about the reason for the in-class
discipline. [Id.] R.D.C. allegedly hit a classmate with an oversized pencil on December 18,
2015, the last day of school before winter break. [Id. at ¶ 11] He was suspended for three days
as a result. [Record No. 43-3, Attachment A]
Principal Thompson wrote to H.C. over the winter break, requesting that all future
contact with the school be in writing. [Record No. 43-2, ¶ 7, Attachment C] H.C. disregarded
this letter and called Principal Thompson on January 4, 2016 to appeal R.D.C.’s suspension.
[Record No. 43-3, ¶ 13] She also asked Superintendent Creasman to overturn R.D.C.’s
suspension during a meeting that same day. [Record No. 43-2, ¶ 8] Both Principal Thompson
and Superintendent Creasman declined to modify the suspension.
Two days after returning to school, R.D.C. reportedly threatened to shoot another
student during an argument. [Record No. 43-3, ¶ 14] He and the other student were each
suspended for three days, from January 11, 2016 to January 13, 2016, and required to complete
a threat assessment before returning to school. [Id. ¶ 14, Attachment C] The Kentucky
Department of Education contacted Principal Thompson that same morning and notified her
that H.C. had made a complaint against the school staff. [Id. ¶ 15] Based on her recent
experiences with H.C., this phone call, and her anticipation of H.C.’s reaction to R.D.C.’s
suspension, Principal Thompson sent Superintendent Creasman a letter recounting her
interactions with H.C. [Record Nos. 43-2, Attachment E; 43-3, ¶ 15] After receiving the letter,
Superintendent Creasman determined that a heightened response was necessary, and wrote to
H.C. on January 12, 2016, directing her not to come onto school property without his prior
permission. [Record No. 43-2, ¶ 10, Attachment F]
Based on her past experiences in procuring a threat assessment, Principal Thompson
expected R.D.C. to return to school after three days, on January 14, 2016 (the same return date
as the other suspended student). [Id. ¶ 14] However, R.D.C.’s threat assessment was not
performed until March 14, 2016. [Record No. 43-2, Attachment J] It was not received by the
school until April 27, 2016, when the parties finally held a § 504 meeting. [Record Nos. 432, ¶ 15; 43-3, ¶ 14]
R.D.C. returned to school the following day. H.C. had previously
attempted to bring R.D.C. to school on March 21, 2016, after the threat assessment was
performed, but before it was provided to HES. However, when she arrived at school, the
school secretary told H.C. that she was prohibited from entering school property, and notified
Defendants Creasman and Thompson of her presence. [Record No. 43-6, ¶¶ 5-6] Defendant
Creasman filed a criminal trespass complaint against H.C. as a result.
It further appears that R.D.C.’s sister also did not attend school while R.D.C. was
absent, although no disciplinary action was taken which would have prevented her from
attending. [Record Nos. 43-2, ¶ 19] As a result, truancy charges were brought against H.C.,
based on an affidavit stating that R.D.C.’s sister had twenty-two unexcused absences during
the school year. [Record No. 57, Exhibit 14]
STANDARD OF REVIEW
Summary judgment is appropriate when there are no genuine disputes regarding any
material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Chao v. Hall Holding Co., 285
F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a
reasonable jury could return a verdict for the nonmoving party. That is, the determination must
be “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986); see Harrison v. Ash, 539 F.3d 510, 516 (6th Cir.
2008). In deciding whether to grant summary judgment, the Court views all the facts and
inferences drawn from the evidence in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. The Plaintiffs’ Discrimination and Retaliation Claims
1. Individual Capacity Liability under § 504, the ADA, and KRS Chapter 344
The Sixth Circuit has held that § 504 and the ADA do not give rise to individual
liability. See Lee v. Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004) (“[N]either the
ADA nor the [Rehabilitation Act] impose liability upon individuals”); see also Williams v.
McLemore, 247 F. App’x 1, 8 (6th Cir. 2007) (“[T]he ADA does not permit public employees
or supervisors to be sued in their individual capacities.”) (citing Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 808 n. 1 (6th Cir. 1999); Wathen v. Gen. Elec. Co., 115 F.3d 400, 404-05
n.6 (6th Cir. 1997); Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000)). It has also explained
that this same analysis extends to KRS Chapter 344. See Wathen, 115 F.3d at 405. The
plaintiffs have neither addressed this issue nor presented any claim which would warrant
departing from this binding precedent. Accordingly, the plaintiffs’ § 504, ADA, and KRS
Chapter 344 claims against Defendants Creasman, Thompson, and Hawkins, in their individual
capacities, will be dismissed.2
2. R.D.C.’s Discrimination Claims
Defendant Fleming County Kentucky Board of Education (the “Board”) argues that
R.D.C.’s claims that he was discriminated against, denied educational services, and subjected
to disparate treatment in violation of § 504, the ADA, and 42 U.S.C. § 1983, should be
dismissed because R.D.C. failed to exhaust his administrative remedies. The Board contends
that, although R.D.C. did not expressly bring a claim under the Individuals with Disabilities
Education Act (“IDEA”), he was required to comply with the IDEA’s exhaustion
The IDEA requires recipients of federal funds to furnish a free appropriate public
education (“FAPE”) to children with disabilities. See 20 U.S.C. § 1412(a)(1) (2012). This
guarantee is protected with certain procedural safeguards. Id. § 1415. Parties may present a
complaint concerning the provision of FAPE, id. § 1415(a)(6), and may be entitled to a “due
process hearing” before an impartial hearing officer. Id. § 1415(f). A party aggrieved by the
result of an IDEA due process hearing may appeal the result to the state educational agency.
Official capacity claims are essentially claims against the entity itself. See Brandon v. Holt,
469 U.S. 464, 471, 105 S. Ct. 873, 878, 83 L. Ed. 2d 878 (1985); Soper v. Hoben, 195 F.3d
845, 856 (6th Cir. 1999) (“[T]here is no longer a need to bring official-capacity actions against
local government officials, for local government units can be sued directly for damages and
injunctive or declaratory relief.”) (ellipses omitted) (quoting Kentucky v. Graham, 473 U.S.
159, 167 n.14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)). Because the Fleming County
Kentucky Board of Education is named as a defendant in this litigation, the official capacity
claims against Defendants Creasman, Thompson, and Hawkins, will be treated as claims
against that entity. Accordingly, the only remaining defendant regarding the plaintiffs’
discrimination and retaliation claims is the Fleming County Kentucky Board of Education.
Id. § 1415(g). The outcome of the administrative review hearing may then be challenged in
district court. Id. § 1415(i)(2).
These exhaustion requirements also apply to claims brought under other federal laws
such as the Constitution, the ADA, and § 504, when they seek “relief that is also available
under [the IDEA].” 20 U.S.C. § 1415(l). The United States Supreme Court recently explained
that whether claims brought under other federal laws must comply with the IDEA’s exhaustion
requirements “hinges on whether [the] lawsuit seeks relief for the denial of a free appropriate
public education.” Fry v. Napoleon Cmty. Sch., --- U.S. ---, 137 S. Ct. 743, 754, 197 L. Ed.
2d 46, 60-61 (2017) (citing 20 U.S.C. § 1415(l)).
In determining whether a lawsuit seeks relief for the denial of a FAPE, a court “should
look to the substance, or gravamen, of the plaintiff’s complaint.” Id. at 752, 197 L. Ed. 2d at
59. If the plaintiff alleges the denial of a FAPE, “the plaintiff cannot escape § 1415(l) merely
by bringing her suit under a statute other than the IDEA . . . .” Id. at 754, 197 L. Ed. 2d at 60.
“But if, in a suit brought under a different statute, the remedy sought is not for the denial of a
FAPE, then exhaustion of the IDEA’s procedures is not required.” Id., 197 L. Ed. 2d at 60.
To assess the gravamen of the complaint, “a court should attend to the diverse means and ends
of the statutes covering persons with disabilities—the IDEA on the one hand, the ADA and
Rehabilitation Act (most notably) on the other.” Id. at 755, 197 L. Ed. 2d at 62. “[T]he IDEA
guarantees individually tailored educational services, while Title II and § 504 promise nondiscriminatory access to public institutions.” Id. at 756, 197 L. Ed. 2d at 62.
Accordingly, the Court is advised to consider two hypothetical questions: (i) whether
the plaintiff could have brought essentially the same claim if the alleged conduct had occurred
at a public facility that was not a school, and (ii) whether an adult at the school could have
pressed essentially the same grievance. Id. at 756, 197 L. Ed. 2d at 62-63. For example, a
discrimination suit against a school for failing to provide wheelchair access ramps would not
be subject to the IDEA’s exhaustion requirements, because it could be brought against any
public facility that lacked access ramps, and could be brought against the school by an adult.
Id., 197 L. Ed. 2d at 63. However, a claim against a school for failing to provide remedial
mathematics tutoring to a student with a disability could not be brought against another public
facility, and it could not be brought by an adult at the school, so it would be subject to
exhaustion. Id. at 757, 197 L. Ed. 2d at 63.
Construed in the light most favorable to the plaintiff, the Complaint alleges that Board
violated § 504, the ADA, and 42 U.S.C. § 1983 for two distinct reasons. First, the plaintiff
alleges that the Board failed to identify R.D.C.’s disability, develop an education plan, and
provide R.D.C. with a FAPE. [See Record No. 1, ¶ 11.] (“[R.D.C.] alleges that he is a child
with a disability that was known to the [d]efendant, but [the defendant] failed to provide a free
appropriate education . . . .”); [id. ¶ 48] (“The [d]efendants have failed to identify evaluate or
develop an education plan that would allow the child to receive a free and appropriate
education . . . .”); [id. ¶ 50] (“As a result of being denied a Free and Appropriate Education,
he has suffered harm, for which he demands compensation.”); [id. ¶ 55] (contesting the
“deprivation of [R.D.C.’s] right to an appropriate education”); [see also Record No. 57-12]
(alleging that the defendant failed “to identify the child, to provide the child a free and
appropriate education, to educat[e] [the] child in a safe environment and to protect the child
from verbal abuse . . . .”). These claims seek relief for the denial of a free appropriate public
education. They could not be brought if the alleged conduct occurred at a public facility that
was not a school, and an adult at the school could not have pressed essentially the same
grievances. See Fry, 137 S. Ct. at 756, 197 L. Ed. 2d at 62-63. As a result, they are subject to
the IDEA’s exhaustion requirements.
The second class of claims under § 504, the ADA, and 42 U.S.C. § 1983 allege that the
Board discriminated against R.D.C. by imposing harsher discipline and declining to provide
educational services to him because of his alleged disability. [See Record No. 1, ¶ 58.] (“The
[d]efendant has discriminated against the [p]laintiff by singling him out for disparate treatment
in the terms and [sic] discipline and services.”); [id. ¶ 1 of the ad damnum clause] (“[T]he
[p]laintiff . . . was a victim of disparate treatment due to his disability.”); [see also Record No.
57, p. 3-4] (arguing that Principal Thompson subjected R.D.C. “disparate discipline” by
referring him to Fleming Juvenile Court for being beyond control).
This set of claims is also subject to the IDEA’s exhaustion requirements. [See Record
No. 43-1, p. 12.] Because of the “close relationship between the use of discipline and in-class
instruction in providing a child with a ‘free appropriate public education,’” Hayes ex rel. Hayes
v. Unified Sch. Dist. No. 377, 877 F.2d 809 (10th Cir. 1989), courts have held that
“[c]omplaints concerning the general disciplinary practices of a school district . . . relate to the
way that the district provides education and ‘thus necessarily come within the scope of the
IDEA.’” S.S. ex rel. Stutts v. Eastern Kentucky Univ., 307 F. Supp. 2d 853, 857-58 (E.D. Ky.
2004) (quoting Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 916 (6th Cir. 2000)).
However, after Fry, courts are directed to look at the “substance, not surface” of the
complaint to determine whether the “gravamen of [the] complaint seeks redress for a school’s
failure to provide a FAPE.” Fry, 137 S. Ct. at 755, 197 L. Ed. 2d at 61-62. Depending on the
nature of the case, some challenges to disciplinary practices may be subject to the IDEA’s
exhaustion requirements, while others may not. Compare J.M. v. Francis Howell Sch. Dist.,
850 F.3d 944, 949-50 (8th Cir. 2017) (holding that the plaintiff’s claim that the school district
imposed discipline prohibited by his individualized education program was subject to the
IDEA’s exhaustion requirements), with K.G. v. Sergeant Bluff-Luton Cmty. Sch. Dist., --- F.
Supp. 3d ---, 2017 WL 1098829, *11 (N.D. Iowa, March 23, 2017) (holding that exhaustion
was not required when the plaintiff’s claim sought relief for a teacher’s unreasonable use of
force, and not the denial of a FAPE).
The thrust of R.D.C.’s claim is that he was kept out of school—i.e., denied a FAPE—
because of his disability, and that he did not receive adequate educational services during this
period. [See Record No. 1, ¶ 36.] (“[R.D.C.] did not receive educational instruction until he
began receiving home school services on or about February 21, 2016.”); [id. ¶ 49] (“The
[d]efendants failed to provide the [p]laintiff with appropriate educational services from
December 18, 2015 to April 28, 2016 . . . .”); [id. ¶ 50] (“As a result of the child being denied
a Free and Appropriate Education, he has suffered harm, for which he demands
compensation.”); [id. ¶ 55] (“As a result of the [d]efendant [sic] deprivation of his right to an
appropriate education, the [p]laintiff has been harmed which demands compensation.”).
Unlike a claim that the school building lacked access ramps, a claim that a child was
kept out of school and deprived of adequate educational services could not be brought against
another public facility. See Fry, 137 S. Ct. at 756, 197 L. Ed. 2d at 62. An adult at the school
could not bring essentially this same grievance. Id., 197 L. Ed. 2d at 63. As a result, the
plaintiff’s second set of claims are also subject to the IDEA’s exhaustion requirements.
R.D.C. contends that he should not be required to exhaust his administrative remedies
because his Complaint seeks a remedy which is not available under the IDEA; that is, money
damages. However, the Sixth Circuit has held that the fact that a plaintiff seeks such relief,
rather than an injunction, “does not in itself excuse the exhaustion requirement.” Fry v.
Napoleon Cmty. Sch., 788 F.3d 622 (6th Cir. 2015), rev’d on other grounds, 137 S. Ct. 743
(2017) (citing F.H. ex rel. Hall v. Memphis City Sch., 764 F.3d 638, 643 (6th Cir. 2014);
Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 916 (6th Cir. 2000)). Otherwise, the court
has explained, “plaintiffs could evade the exhaustion requirement simply by ‘appending a
claim for damages.’” Id. (quoting F.H., 205 F.3d at 917).
R.D.C. also asserts that he should not be required to exhaust administrative remedies
because the IDEA does not provide a private right of action. But this contention is simply
inaccurate. The IDEA does provide for a private right of action. It simply requires plaintiffs
to exhaust their administrative remedies first. 20 U.S.C. § 1415(i); see also N.S. v. Tenn. Dep’t
of Educ., No. 3:16–cv–0610, 2016 WL 3763264, *10 (M.D. Tenn. July 14, 2016) (“While the
IDEA provides for a private right of action, it requires that plaintiffs first exhaust the
administrative procedures.”). Accordingly, R.D.C.’s claims that he was subjected to disparate
treatment in violation of § 504, the ADA, and 42 U.S.C. § 1983, will be dismissed for failure
to exhaust administrative remedies.
3. R.D.C. and H.C.’s Retaliation Claims
Plaintiffs R.D.C. and H.C. allege that the Board responded to H.C.’s complaints that
R.D.C. was being mistreated at HES, and the § 504 hearing request filed on R.D.C.’s behalf,
by suspending R.D.C. twice, banning H.C. from school property, and prosecuting H.C. for
criminal trespass and truancy. They seek relief for retaliation under § 504 and KRS Chapter
344.3 See 29 C.F.R. 33.13 (2017); Ky. Rev. Stat. Ann. (“KRS”) § 344.280.
Consistent with Sixth Circuit and Kentucky practice, the claims arising under § 504 and KRS
Chapter 344 will be analyzed together. See Wathen v. Gen. Elec. Co., 115 F.3d 400, 404 n.5
Because the plaintiffs do not present any direct evidence of retaliation, their claims are
evaluated under the McDonnell Douglas burden-shifting approach. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The plaintiffs bear the initial
burden under this approach of presenting a prima facie case of retaliation. A.C. ex rel. J.C. v.
Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (2013) (citing DiCarlo v. Potter, 358 F.3d 408,
414 (6th Cir. 2004)). To present a prima facie case, the plaintiffs must establishing that: (i)
they were engaged in a protected activity; (ii) the defendant knew of this protected activity;
(iii) the defendant took an adverse action against the plaintiffs; and (iv) there was a causal
connection between the protected activity and the adverse action. Id. (citing Gribcheck v.
Runyon, 245 F.3d 547, 550 (6th Cir. 2001)). “The burden of establishing a prima facie case
in a retaliation action is not onerous, but one easily met.” Id. (citing Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).
If the plaintiffs successfully present a prima facie case of retaliation, the burden shifts
to the defendant to show by a preponderance of the evidence that there was a legitimate, nondiscriminatory reason for the adverse action. DiCarlo, 358 F.3d at 414-15; see also Nixon v.
Greenup Cnty. Sch. Dist., 890 F. Supp. 2d 753, 759-60 (E.D. Ky. 2012). And if they make
such a showing, the burden then shifts back to the plaintiffs to establish that the defendant’s
proffered reason for the adverse action was merely pretextual. DiCarlo, 358 F.3d at 414-15.
(6th Cir. 1997) (“[I]t is common practice to look to the federal counterpart in construing KRS
Chapter 344.”) (citing Palmer v. Int’l Ass’n of Machinists, 882 S.W.2d 117, 119 (Ky. 1994)).
Although Defendant Fleming County Kentucky Board of Education argues that it is not subject
to KRS Chapter 344, the Court will assume arguendo that KRS Chapter 344 applies, and
evaluate the claims under § 504 and KRS Chapter 344 in tandem.
The plaintiffs claim that the Board retaliated against them because of H.C.’s repeated
complaints that R.D.C. was being mistreated by his peers and HES employees. [Record No.
1, ¶¶ 66, 92-95] They argue that H.C.’s complaints constitute protected activity because they
were “protected” by a provision of the 2016-17 school handbook ensuring that parents have a
right to “[a]ddress a question concerning their child to the proper authority and receive a reply
in a reasonable time period.” [Record No. 57, p. 12; Record Nos. 57-11; 57-12] They also
note that harassment was prohibited by the school handbook.4 However, the fact that a student
handbook provides a “right” to a certain activity, does not entail that it is a “protected activity”
under § 504 or KRS Chapter 344. Those provisions protect individuals from suffering adverse
consequences as a result of asserting their statutory rights. See 29 C.F.R. 33.13; KRS §
344.280. They do not guarantee “rights” conferred by a student handbook.
H.C.’s complaints were based on allegations that R.D.C. was being bullied and harassed
at HES. There is no evidence that any of her complaints were in any way related to any alleged
disability of R.D.C., or that she was asserting R.D.C.’s statutory rights. As a result, the
plaintiffs failed to present a prima facie case that the defendants retaliated against them, in
violation of § 504 or KRS Chapter 344, in response to H.C.’s complaints to HES. However,
there is no dispute that the § 504 hearing request filed on R.D.C.’s behalf does constitute
“protected activity.” See 29 C.F.R. § 33.13 (prohibiting retaliating against an individual
because they filed a complaint under § 504). And there is also no dispute that the Board was
The 2016-17 handbook did not take effect until after the allegedly retaliatory conduct took
place. There is no evidence in the record that the applicable school handbooks contained
provisions similar to the ones H.C. cites.
aware of this request. The inquiry thus turns to whether the Board took an “adverse action”
against the plaintiffs in response to this request.
To be adverse, “a retaliatory action must be enough to dissuade a reasonable person
from engaging in the protected activity; ‘petty slights or minor annoyances’ cannot qualify.”
A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d at 698 (quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2406, 165 L. Ed. 2d 345 (2006)). The actions
alleged by plaintiffs clear this hurdle. Suspending a student, banning a parent from school
property,5 and causing criminal trespass and truancy charges to be instituted are “adverse
actions” which would dissuade a reasonable person from engaging in conduct likely to solicit
those consequences. See, e.g., Gribcheck, 245 F.3d at 550 (6th Cir. 2001) (finding that a
fourteen day employment suspension was an adverse action).
The last element of the prima facie case is whether there is a causal connection between
the § 504 hearing request and the adverse actions. The plaintiffs address this point by
providing the following timeline: the plaintiffs requested a § 504 hearing on November 20,
2015; R.D.C. was suspended once on December 18, 2015, and then again on January 8, 2016;
Defendant Creasman banned H.C. from HES property on January 12, 2016; H.C. was
summoned to Fleming County District Court for truancy on April 12, 2016; and H.C. was
summoned to Fleming County District Court for criminal trespass on May 14, 2016. The
plaintiffs contend that this timeline of events establishes a causal connection because “[a]ll of
A school may prevent a parent from coming to school to avoid disruption. See Frost v.
Hawkins Cnty. Bd. of Educ., 851 F.2d 822, 827 (6th Cir. 1988). However, if it does so for a
retaliatory purpose, it may be an adverse action.
the events obviously occurred after the [p]laintiff filed her request for a § 504 hearing . . . .”
[Record No. 57, p. 15]
Temporal proximity is a relevant consideration in determining whether there is a causal
connection between protected activity and an adverse action. See Mickey v. Zeidler Tool &
Die Co., 516 F.3d 516, 523-28 (6th Cir. 2008). While temporal proximity alone will suffice
only in “rare cases,” id. at 525, the Sixth Circuit has held that, “where the adverse action comes
‘very close in time’ after the exercise of protected activity, ‘such temporal proximity is
significant enough’ to meet the burden alone.” A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ.,
711 F.3d at 699 (quoting Mickey, 516 F.3d at 525). Although it remains unclear exactly how
close the adverse action must be to the protected activity to trigger this rule, the Court will
assume arguendo that the plaintiffs have cleared the “minimal burden,” id. at 701, of
presenting enough evidence of causation to establish a prima facie case. See Mickey, 516 F.3d
at 528 (explaining that a temporal proximity of closer than four months can raise an inference
of retaliation); McNett v. Hardin Cmty. Fed. Credit Union, 118 F. App’x 960, 965 (6th Cir.
2004) (finding causation when “only 13 days” separated the protected activity from the adverse
action); Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (finding that a
temporal proximity of four months was insufficient); see also Ramirez v. Oklahoma Dept. of
Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) (holding that a one and one-half month
period between protected activity and adverse action may, by itself, establish causation);
Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding that a three-month
period, standing alone, is insufficient to establish causation).
Based on that assumption, the plaintiffs have established a prima facie case of
retaliation. As a result, the burden shifts to the Board to show by a preponderance of the
evidence that there was a legitimate, non-discriminatory reason for the adverse actions.
DiCarlo, 358 F.3d at 414-15. The Board has easily carried that burden. It contends that R.D.C.
was suspended on December 18, 2015, for hitting another student with an oversized pencil,
and on January 8, 2016, for threatening to shoot another student. Principal Thompson’s
testimony and the notices of disciplinary action addressed to R.D.C.’s parents support the
Board’s explanations. [Record No. 43-3, ¶¶ 11, 14, Attachments A, C] Additionally, HES
received two complaints from parents regarding the incident on December 18, 2015, which
also support the Board’s claim. [Record No. 43-2, Attachment I]
The Board argues that the January 12, 2016 letter directing H.C. not to come onto
school property without Superintendent Creasman’s prior permission was not in retaliation for
filing a request for a § 504 hearing, but instead was in response to Principal Thompson’s
January 8, 2016 letter recounting her experiences with H.C., and “due to H.C.’s failure to
follow previous requests regarding the manner in which she behaved toward personnel at the
school . . . .” [Record No. 43-2, ¶¶ 9-10, Attachments E, F] There is no dispute that H.C. was
“very aggressive in her protection [of] her child . . . .” [Record No. 1, ¶ 28] The Board’s
explanation is supported by extensive record evidence of unpleasant encounters between H.C.
and HES personnel. [See Record Nos. 43-2, 43-3, 43-4, 43-5, 43-6.]
The Board contends that the criminal trespass complaint filed against H.C. resulted
from her decision to disregard Defendant Creasman’s letter, not from her decision to file a
request for a § 504 hearing on R.D.C.’s behalf. This claim is supported by the testimony of
the HES secretary, Pam Trent, who informed Defendants Thompson and Creasman that H.C.
had come onto school property without permission. [Record No. 43-6, ¶¶ 5-6] It is also
supported by Defendant Creasman’s testimony that he acted to “enforce the letter [he] had
written H.C. directing her to stay off school property without [his] prior permission,” and his
affidavit in the criminal complaint. [Record No. 43-2, ¶ 16, Attachment K] Similarly, the
affidavit provided in the truancy complaint against R.D.C. supports the Board’s assertion that
the charges were not brought because of the § 504 hearing request, but instead because of
R.D.C.’s sisters’ twenty-two unexcused absences. [See Record No. 57, Exhibit 14.]
Because the Board has established a legitimate, non-discriminatory reason for the
adverse actions taken against H.C. and R.D.C., the burden shifts back to the plaintiffs to
establish that the Board’s proffered reasons for the adverse actions are merely pretextual.
DiCarlo, 358 F.3d at 414-15. To prove that the proffered reasons are pretextual, “[t]he
‘plaintiff must produce sufficient evidence from which the jury could reasonably reject [the
defendant’s] explanation and infer that the defendants did not honestly believe in the proffered
nondiscriminatory reason[s] for its adverse . . . action[s].’” See Mickey v. Zeidler Tool & Die
Co., 516 F.3d 516, 526 (6th Cir. 2008) (quoting Braithwaite v. Timken Co., 258 F.3d 488, 49394 (6th Cir. 2001)) (alterations omitted and added). A plaintiff can accomplish this by showing
that the proffered reasons: (i) have no basis in fact, (ii) did not actually motivate the defendant’s
challenged conduct, or (iii) were insufficient to warrant the challenged conduct. Id. (citing
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).
The plaintiffs have failed to carry this burden. There is extensive evidence in the record
demonstrating a factual basis for believing that R.D.C. engaged in conduct which warranted
two suspensions, and that H.C. engaged in conduct which warranted her being banned from
school property and served with criminal complaints for trespass and truancy. [See Record
Nos. 43-2, 43-3, 43-4, 43-5, 43-6.] Conversely, the plaintiffs have not provided any evidence
from which a reasonable jury could infer that the Board did not honestly believe in the
proffered nondiscriminatory reasons for its adverse actions. See Mickey, 516 F.3d at 526.
Accordingly, the plaintiffs’ retaliation claims under § 504 and KRS Chapter 344 will be
B. R.D.C.’s Procedural Due Process Claim
R.D.C. contends that his January 11, 2016 suspension violated his due process rights
under the Fourteenth Amendment and 42 U.S.C. § 1983. Specifically, he claims that the Board
suspended him for more than ten days without providing adequate due process. The Board
responds by noting that: (i) R.D.C. was only suspended for three days; (ii) R.D.C. completed
regular schoolwork during his suspension; and (iii) the process that the Board provided was
To make out a claim for a violation of procedural due process, the plaintiff has
the burden of showing that: (1) he had a life, liberty, or property interest
protected by the Due Process Clause; (2) he was deprived of this protected
interest; and (3) the state did not afford him adequate procedural rights prior to
depriving him of the property interest.
EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012). R.D.C. has cleared
the first two hurdles. Kentucky citizens have a fundamental right to a public education. Rose
v. Council for Better Educ., Inc., 790 S.W.2d 186, 201 (Ky. 1989). The right to a public
education is a property right protected by the Fourteenth Amendment. Laney v. Farley, 501
F.3d 577, 580–81 (6th Cir. 2007). Accordingly, suspending a student from a public school
deprives him of a property interest protected by the Fourteenth Amendment. Goss v. Lopez,
419 U.S. 565, 580–82, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975).
However, the plaintiff has failed to demonstrate a genuine dispute of material fact
regarding the third hurdle: whether he was afforded adequate procedural rights. R.D.C. has
not provided any description of the process by which he was suspended.
Complaint contains a conclusory allegation that the defendants suspended him “without
providing the [p]laintiff minimal due process.” [Record No. 1, ¶ 53] The defendants’ motion
pointed out that “[to the extent that R.D.C.] was entitled to an explanation of the evidence
against him and an opportunity to speak in his own defense before having a short term
suspension imposed, consistent with Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 42 L. Ed. 2d 725
(1975), there is no record evidence that this opportunity was denied to him.” [Record No. 431, p. 22] The plaintiff’s only response was to re-allege that R.D.C. was suspended from school
with “the bare minimum due process.” [Record No. 57, p. 12]
The only evidence in the record regarding the process that R.D.C. received consists of
a notice of disciplinary action from HES, addressed to R.D.C.’s parents, which describes the
basis for the suspension, the names of the individuals that investigated the incident, and the
length of the suspension. [Record No. 43-3, Attachment C] Although H.C. appealed R.D.C.’s
December 18, 2015 suspension in a phone call with Principal Thompson and a thirty minute
meeting with Superintendent Creasman, there is no evidence of any appeal of his January 11,
2016 suspension, nor is there any evidence that R.D.C. was denied the opportunity to appeal.
[Record Nos. 43-2, ¶ 8, Attachment D; 43-3, ¶¶ 11, 13, Attachment A]
Without evidence regarding the “minimal due process” R.D.C. was provided, there is
no basis for a jury to determine whether or not that process was adequate.6 [Record No. 1, ¶
The parties dispute whether HES provided R.D.C. with sufficient alternative education during
the period of his suspension to prevent him from bringing a due process claim. See Buchanan
v. City of Bolivar, 99 F.3d 1352, 1359 (6th Cir. 1996); S.B. ex rel. Brown v. Ballard Cnty. Bd.
of Educ., 780 F. Supp. 2d 560, 566-68 (W.D. Ky. 2011). They also dispute whether HES
suspended R.D.C. for three days, requiring only the due process requirements specified in Goss
v. Lopez, 419 U.S. at 581, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975), or functionally suspended
him for seventy-five days, requiring “more formal procedures,” id. at 584, 95 S. Ct. 729. The
outcome of these disputes is immaterial. Without some evidence of the process R.D.C.
53] R.D.C. has thus failed to raise any factual dispute regarding the adequacy of the process
that he received. Accordingly, his procedural due process claim will be dismissed. See Celotex
Corp., 477 U.S. at 322 (“Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.”).
C. H.C. and R.D.C.’s State Law Claims
1. Defendant Fleming County Kentucky Board of Education’s Governmental
Under Kentucky law, “a state agency is entitled to immunity from tort liability to the
extent that it is performing a governmental, as opposed to a proprietary, function.” Yanero v.
Davis, 65 S.W.3d 510, 519 (Ky. 2001). A local board of education is an agency of state
government. Id. at 526, 527; see also Clevinger v. Bd. of Educ. of Pike Cnty., 789 S.W.2d 5,
10-11 (Ky. 1990) (citing Rose v. The Council for Better Education, Inc., 190 S.W.2d 186 (Ky.
1989)). “[L]ocal school boards fulfill a governmental function of state government by
providing public education within a particular geographical area.” Yanero, 65 S.W.2d at 526
(quoting Cullinan v. Jefferson Cnty., 418 S.W.2d 407 (Ky. 1967)) (internal quotation marks
and alterations omitted). The plaintiffs have not addressed this issue, or presented any
argument to the contrary.
Accordingly, the plaintiffs’ state law claims for negligence,
negligent training and supervision, and intentional infliction of emotional distress, against
Defending Fleming County Kentucky Board of Education, will be dismissed.
received, a reasonable jury could not conclude that the defendants failed to provide the process
required under any procedural due process standard, regardless of which standard applies.
2. Defendants Creasman, Thompson, and Hawkins’ Qualified Immunity
The United States Supreme Court has explained that “[i]n resolving questions of
qualified immunity, courts are required to resolve a threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1774, 167 L.
Ed. 2d 686 (2007). The plaintiffs bear the burden of proof on this issue. Ashcroft v. al-Kidd,
563 U.S. 731, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (“Qualified immunity shields federal
and state officials from money damages unless a plaintiff pleads facts showing: (1) that the
official violated a statutory or constitutional right, and (2) that the right was “clearly
established” at the time of the challenged conduct.”) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)).
The plaintiffs’ argument that the defendants are not entitled to qualified immunity
hinges on the assertion that they violated R.D.C.’s due process rights by suspending him for
more than ten days without adequate due process. Because R.D.C.’s procedural due process
claim has been dismissed, he has failed to show that the defendants violated a clearly
established constitutional right. Accordingly, the plaintiffs’ state law claims for negligence,
negligent training and supervision, and intentional infliction of emotional distress, against
Defendants Creasman, Thompson, and Hawkins in their individual capacities, will be
dismissed. See S.S. v. Eastern Kentucky Univ., 532 F.3d 445, 459 (6th Cir. 2008) (finding that
there was “no reason to discuss the availability of qualified immunity” after summary
judgment was granted as to the plaintiff’s underlying constitutional claim).
For the reasons set out above, it is hereby
ORDERD as follows:
Defendants Fleming County Kentucky Board of Education, Brian Creasman,
Carol Thompson, and Michelle Hawkins’ motion for summary judgment [Record No. 43] is
Plaintiffs H.C. and R.D.C.’s claims against Defendants Fleming County
Kentucky Board of Education, Brian Creasman, Carol Thompson, and Michelle Hawkins are
DISMISSED, with prejudice, in their entirety.
The trial of this matter, previously scheduled to commence on October 3, 2017,
A corresponding Judgment will be entered this date.
This 25th day of September, 2017.
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