K. v. NORTH ALLEGHENY SCHOOL DISTRICT
OPINION setting forth the reasons the motion for summary judgment filed on behalf of defendant North Allegheny School District will be DENIED 61 and the motion for summary judgment filed on behalf of plaintiff K.K. will be DENIED 65 . Signed by Chief Judge Joy Flowers Conti on 6/27/17. (bfm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NORTH ALLEGHENY SCHOOL
CONTI, Chief District Judge
Pending before the court are the cross-motions for summary judgment filed by plaintiff
K.K. (“K.K.”) (ECF No. 65) and defendant North Allegheny School District (the “District”)
(ECF No. 61).
In her amended complaint, K.K. alleges that the District discriminated against her in
violation of her rights under section 504 of the Rehabilitation Act of 1973 (“section 504”), 29
U.S.C. § 794, Chapter 15 of the Pennsylvania Code (“Chapter 15”), 22 Pa. Cons. Stat. § 15, and
Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12132. See Am.
Compl. (ECF No. 47). She asserts that the District, beginning in 2012, and continuing through
the 2013-2014 school year, refused to modify its transportation program to reasonably
accommodate her need for transportation services between her severely disabled son’s school
and day care facility. Id., ¶¶ 39, 44, and 48. Under that program, the District transported
students between schools and day care centers located within its attendance boundaries. Id.,
¶ 20. K.K. had requested that the District transport her son, S.K., between school and his day
care center, which was located outside the District’s attendance boundaries because none of the
day care centers located within the District’s attendance boundaries could accommodate S.K.’s
special medical needs. Id., ¶¶ 19 and 21. The District refused because the day care facility was
located outside the District’s attendance boundaries. Id., ¶ 25.
K.K. seeks summary judgment on all her claims. She filed a brief in support of her
motion (ECF No. 66), a concise statement of material facts (ECF No. 67), an appendix with
exhibits (ECF No. 68), a redacted appendix with exhibits (ECF Nos. 71-74), and a reply
memorandum of law in support of her motion (ECF No. 83). In response to K.K.’s motion, the
District filed a brief in opposition (ECF Nos. 76 and 84) and a reply to plaintiff’s concise
statement of material facts (ECF No. 75).
The District also seeks summary judgment on K.K.’s claims against it, arguing that K.K.
is barred from recovery because there is no evidence from which a reasonable juror could
conclude that it discriminated against K.K. based upon her association with S.K. The District
filed a brief in support of its motion, (ECF No. 62), a concise statement of material facts (ECF
No. 63), an appendix with exhibits (ECF No. 64), and a reply brief in support of its motion (ECF
No. 85). In response to the District’s motion, K.K. filed a response in opposition (ECF No. 77), a
brief in opposition (ECF No. 78), and a response to the District’s statement of material facts
(ECF No. 79).
Together the parties also filed a joint statement of material undisputed and disputed facts
(ECF No. 86).
This matter is fully briefed and ripe for disposition. As more fully explained below, both
motions for summary judgment will be denied.
I. Standard of Review.
Summary judgment is appropriate when “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); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective
positions by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed.R.Civ.P. 56(c)(1)(A). In other words, summary judgment may be granted only
if there exists no genuine issue of material fact that would permit a reasonable jury to find for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “When
confronted with cross-motions for summary judgment, the ‘”court must rule on each party's
motion on an individual and separate basis, determining, for each side, whether a judgment may
be entered in accordance with the Rule 56 standard”.'” Anderson v. Franklin Institute, 185 F.
Supp. 3d 628, 635 (E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N. America, 269
F.Supp.2d 612, 615 n. 1 (E.D. Pa. 2003); Charles A. Wright, Arthur R. Miller et al., 10A Fed.
Prac. and Proc. § 2720 (3d ed. 1998)).
In reviewing the evidence, the court draws all reasonable inferences in favor of the
nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v.
Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is
not the court’s role to weigh the disputed evidence and decide which is more probative, or to
make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998). “Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An
issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor with regard
to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier of fact
to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at
587; Huston, 568 F.3d at 104.
II. Relevant Facts.
This section reviews the facts relevant to the parties’ cross-motions for summary
judgment. If the parties agree on a fact, the court will cite to the relevant page and paragraph in
the parties’ joint statement of material undisputed and disputed facts (ECF No. 86). If a party
disputes a fact alleged by the other party, the court will cite to the specific evidence of record
that supports the fact in question.
S.K., K.K.’s son, was born in 2006. ECF No. 86 at 16, ¶ 1. K.K. and S.K. resided in the
District during the 2012-2013 and 2013-2014 school years and S.K. was initially enrolled in the
District in March 2012 to attend kindergarten in the 2012-2013 school year. Id. at 1, ¶ 2; 17, ¶ 7.
S.K. has been diagnosed with Cornelia de Lange Syndrome. Id. at 16, ¶ 2. S.K. is blind, deaf,
and incapable of basic self-care such as feeding and toileting. Id. at 2, ¶ 4. S.K. also has
significant speech and language delays, cognitive impairments, social interaction skills deficits,
attentional deficits, gross and fine motor delays, and other adaptive needs. Id.
Child’s Way is a day care center for children with special medical needs and has a staff
of registered nurses and child care associates. Id. at 3, ¶ 7; 17, ¶ 11. S.K. initially began
attending Child’s Way in 2011 so that K.K. could work and support their family by working the
day time shift at Home Depot twenty-five to thirty-five hours per week. Id. at 3, ¶ 7; 17, ¶ 10;
18, ¶¶ 14-16. Prior to 2011, K.K. had been working a maximum of twenty hours per week at
night and S.K. did not attend day care. Id. at 17, ¶¶ 8-9. Child's Way is located 9.7 miles
outside the District's attendance boundaries. Id. at 19, ¶ 19.
Prior to S.K. attending Child’s Way, in 2010, K.K. and her ex-husband compiled a list of
all the day care centers within the District and called them to see if they would accept S.K. Tr.
of K.K. Dep. (ECF No. 73) at 38-39. K.K. and her ex-husband were told that none of the day
care centers would accept S.K. Id. at 38-40. One reason given for not accepting S.K. was that
the day care center did not have the licensing to care for a child with medical or special needs.
Id. at 40. Another reason given was that the day care center was unable to provide S.K. with a
one-to-one child to teacher ratio which S.K. required. Id. at 40-41. A third reason provided was
that the day care center was not staffed to meet S.K’s medical needs. Id. at 41.
K.K. contacted all the day care centers located in the District again in 2012, 2013, and
2014. Each time, she was given the same reasons by these day care centers about why S.K.
could not attend the day care centers in the District. Id. at 42-43.
K.K. first requested transportation between Child’s Way and the School for the Deaf1
(where S.K. was attending an ESY (extended school year) program for the summer of 2011). Id.
at 50. Initially, the District agreed and provided the requested transportation for the summer of
2011, acknowledging that K.K. “was in a difficult situation.” ECF No. 86 at 4, ¶ 12. The
District made K.K. aware at this time, however, that it would not continue transporting S.K.
between Child’s Way and his school throughout the school year because Child’s Way was not
The parties state that the District agreed to transport S.K. between Child’s Way and the Western Pennsylvania
School for Blind Children for the summer of 2011. A review of K.K.’s deposition testimony, which the parties cite
to as support for this premise, revealed, however, that K.K. testified that during that time period the District
provided transportation to S.K. between Child’s Way and the School for the Deaf, where S.K. was attending an ESY
program. See ECF No. 73 at 50.
located within the District’s boundaries and the District did not want to set a precedent. ECF No.
73 at 63.
K.K. provided the District with a letter dated July 28, 2011, from Dr. Brian Kilpela, M.D.
(“Dr. Kilpela”), S.K.’s doctor. ECF No. 86 at 5, ¶ 13. In the letter, Dr. Kilpela stated,
Due to [S.K.’s] hearing deficit and problems with speech and motor skills, he is
not able to attend a “regular” daycare. There were no daycare centers in his
school district that either had openings or were able to meet his needs. He is
currently attending Child’s Way on Penn Avenue. This facility is a Pediatric
Extended Care Center. It specializes in offering care to kids with special needs.
[S.K.] has a nurse one-on-one. This type [of] care is medically necessary due to
As his physician, I would like to offer that this type of setting and care for [S.K.]
July 28, 2011 Dr. Kilpela Letter, ECF No. 71-3.
K.K. again reached out to the District in May 2012 and requested that transportation be
provided by the District for S.K. between the Western Pennsylvania School for Blind Children
(“WPSB”), where S.K would be attending kindergarten during the 2012-2013 school year, and
Child’s Way. ECF No. 86 at 4, ¶ 11. K.K. also suggested that the District could accommodate
her transportation request by making “arrangements with a neighboring school district that does
pick up students from Child’s Way and transports them to the WPSB, and pay the neighboring
school district for the additional transportation costs.” Id. at 5, ¶ 15. K.K. had heard from other
parents of students who attended Child’s Way and the WPSB that several other school districts
provided transportation. ECF No. 73 at 30. At one point, one of those school districts, Shaler
Area School District (“Shaler”), offered to contract with the District to bus S.K. between Child’s
Way and the WPSB. Id. at 85.
Between May 8, 2012, and May 14, 2012, K.K. and Dr. John DeMann (“Dr. DeMann”), a
school psychologist for the District, exchanged a number of emails about K.K.’s transportation
request. ECF No. 74-1 at 2-4. The email exchange culminated in Dr. DeMann stating to K.K.
that he would be providing Dr. Arlene Wheat (“Dr. Wheat”), the District’s Assistant Director of
Special Education, with all the relevant information and that Dr. Wheat would then reach out to
K.K. about the issue. Id. at 4.
On May 14, 2012, Dr. DeMann and Dr. Wheat exchanged a series of emails concerning
K.K.’s request for transportation for S.K. in the mornings from Child’s Way to the WPSB. Id. at
2-3. Dr. DeMann explained to Dr. Wheat that he had been told by Donna Liberto (“Ms.
Liberto”) of the District’s transportation department, “that the district’s policy prohibits
transportation from daycare providers that are outside the district” and that he had told K.K.
about this decision. Id. at 3. Dr. DeMann also explained to Dr. Wheat that Brenda from the
WPSB had reported to him, “that several other school districts are providing transportation from
this daycare (Childs Way) to WPSBC, and suggested that NA could partner with one of them to
transport [S.K.]” and that “another district (I think Shaler) has room on their bus to take students
from this daycare to WPSBC.” Id. at 2-3. Dr. Wheat asked Dr. DeMann to gather information
for her to review and inquired, “What are we currently doing, what is the cost, etc.” Id. at 2. Dr.
DeMann agreed to gather the information for Dr. Wheat and stated, “I don’t think we are
currently providing any transportation.” Id.
In a May 15, 2012 (1:50 P.M.) email from Dr. DeMann to Dr. Wheat (with a “cc” to Ms.
Liberto), Dr. DeMann noted in pertinent part:
I spoke with [S.K.’s] mother and Brenda at WPSBC and copied below (italicized)
the proposed plan for his transportation needs. Since we currently transport
several NA students to/from WPSBC, the only difference would be the
transportation from Child’s Way to WPSBC rather than picking him up at his
home each morning. There are other students from other districts that transport
their students from Child’s way to WPSBC, and Brenda suggested working with
one of them to coordinate if this is a possibility.
Id. at 1-2. The italicized plan referenced in the email was:
[K.K.] would like to continue to drop [S.K.] off at Child’s Way every morning
(Monday through Friday) between 6:30 – 7 am. At this time, transportation
taking him to WPSB can pick him up when needed and take him to school. At the
close of the school day, [K.K.] would like [S.K.] to be transported to my Home in
the North Allegheny district at [K.K.’s home address]. There are multiple
children transported from Child’s Way to WPSB every morning, and there are
also children transported from WPSB back to their homes located with the North
Allegheny school district.
Id. at 2.
In a subsequent May 15, 2012 (3:24 P.M.) email from Dr. Wheat to Dr. McMann (with a
“cc” to Mr. Roger Botti,2 Ms. Liberto, and Mr. Bob Wagner), Dr. Wheat asked, “Donna, Can we
do this? Will it cost anything extra?” Id. at 1. Mr. Wagner emailed (3:27 P.M.) Ms. Liberto and
stated, “[w]hat part of ‘NO’ is getting lost in the shuffle here? Do I need to get Roger involved
before someone in the District ends up making promises that are not approved of difficult to
retract?” Id. at 6.
In a May 16, 2012 (6:33 A.M.) email from Ms. Liberto to Mr. Wagner, Ms. Liberto
stated, “I know…this is gonna open a whole new can of worms … and I think roger [sic] is
already involved….” Id. at 5.
In a subsequent May 16, 2012 (11:09 A.M.) email exchange between Mr. Wagner and
Mr. Botti, Mr. Botti asked Mr. Wagner where the day care center was located. Id. at 5. Mr.
Wagner responded that he thought it was “downtown near Consol.” Id.
Roger Botti (“Mr. Botti”) was the District’s Director of Transportation. Suppl. Unsworn Decl. of Guinevere E.
Maximo (ECF No. 75-2), ¶ 6. Guinevere Maximo’s original and supplemental unsworn declarations, submitted by
the District, were executed “under perjury” and substantially in the form required by 28 U.S.C. § 1746. See 28
U.S.C. § 1746 (unsworn declarations may substitute for sworn affidavits where they are made under penalty of
perjury and otherwise comply with the requirements of 28 U.S.C. § 1746). Therefore, Ms. Maximo’s declarations
can be considered as evidence by the court in deciding the pending cross-motions for summary judgment.
In another May 16, 2012 (2:12 P.M.) email from Mr. Botti to Dr. Wheat (with a “cc” to
Dr. DeMann and Ms. Liberto), Mr. Botti stated:
We told this parent no last summer. I am going to take the same positon this
Our recommendation for her was if other Districts were providing the service
from daycare to school then she should be able to coordinate with the schools to
have the service provided. It is an inconvenience for others on the bus to have to
go out of the way to accommodate her.
I also believe we checked with the solicitor and [redacted].
Id. at 1.
In a May 17, 2012 email from Dr. Wheat to Mr. Botti and Dr. DeMann, Dr. Wheat told
Dr. DeMann, “John, you have your answer but do not forward this email. Tell [K.K.] the District
does not provide that service for anyone and we are unable to do so.” Id.
In a May 21, 2012 email from Dr. DeMann to K.K., Dr. DeMann told K.K. that he had
spoken to Dr. Wheat. Id. at 8. “Unfortunately the information I gave you a few weeks ago still
stands. I was told that the district does not provide this service for any student, and is unable to
provide this service at this time.” Id.
A series of emails then took place between K.K. and Dr. DeMann between late May 2012
and August 20, 2012, concerning K.K.’s continuing transportation request and S.K.’s
Individualized Education Program (“IEP”). Id. at 7-11 and 14-15. In an email sent on July 8,
2012, from K.K. to Dr. DeMann, K.K. stated she is “a single mom with zero external support”
and “Child’s Way is [her] ONLY option for daycare.” ECF No. 86 at 7, ¶ 20. In an email on
July 9, 2012, Dr. DeMann told K.K. that he had spoken to Dr. Wheat and “it appears the same
decision still stands. The district is responsible for providing transportation for [S.K.] [to/from]
WPSBC from/to your home, however, is unable to provide transportation from his daycare
provider.” ECF No. 74-1 at 9-10. In an email on July 24, 2012, Dr. DeMann told K.K.: “[a]s I
mentioned in my email to you on 7/9/12. The district is responsible for providing transportation
for [S.K.] to/from WPSBC from/to your residence, however is unable to provide transportation
from his daycare provider (Child’s Way).” Id. at 14.
On July 26, 2012, the District issued its proposed IEP for S.K. ECF No. 86 at 2, ¶ 5. It
found S.K. eligible for special education, that he required full-time blind or visually impaired
and deaf or hearing impaired support, and determined the appropriate placement for S.K. was the
WPSB. Id. at 2, ¶¶ 5-6. S.K.'s attendance at Child's Way or any other daycare facility was not
required by S.K.'s IEP. Id. at 19, ¶ 20. K.K. did not challenge the validity or appropriateness of
S.K.'s IEP. Id. at 19, ¶ 21.
In an email from Dr. DeMann to K.K. dated August 15, 2012, Dr. DeMann told K.K.:
“[u]nfortunately there is nothing else I can do or any other avenues to explore at this point. I
would encourage you to complete the NOREP3 and return to us indicating your request for a due
process if you feel third party involvement would better represent the issue and provide a
recommendation.” ECF No. 74-1 at 15.
K.K. provided the District with correspondence dated August 24, 2012, from Erin Colvin
(“Ms. Colvin”), RN, MSN, PNP-BC, the Clinical Director of Child’s Way. ECF No. 86 at 8,
¶ 23. In the letter, Ms. Colvin explained that Child’s Way is a good option for many medically
fragile children “due to their consistent nursing care, whereas there is a risk of call-offs and
inconsistent schedules with home nursing care” and that other parents in the District “can rely on
before and after care facilities for their children when they work. We ask that [S.K.] and his
The court understands that “NOREP” is an acronym for “Notice of Recommended Educational Placement.”
mother be afforded the same opportunity, but in a setting where nurses can give [S.K.] the
medical care that he requires.” Id.
At some point prior to the start of the 2012-2013 school year, Mr. Botti contacted Shaler
about providing transportation for S.K. between Child’s Way and the WPSB. ECF No. 75-2 at
2, ¶ 6. He was advised by Shaler that the cost to the District to transport S.K. as requested by
K.K. would have been approximately $70-$72 per day. Id.
On October 26, 2012, Dr. Wheat forwarded to Dr. Malcom Conner (“Dr. Conner”), a
Pennsylvania Department of Education employee, an email exchange that had occurred between
Dr. Wheat and Dr. Reeves of the WPSB regarding “Transportation To/From Child’s Way.” ECF
No. 74-1 at 17-18; ECF No. 71-5 at 3. On October 23, 2012, Dr. Wheat had emailed Dr. Reeves
[S.K.] attends Child Way and his mother has requested a special transportation
arrangement to transport [S.K.] to WPSBC but the NA District does not transport
students to/from daycare facilities that are outside the District. In addition, it
would lengthen the ride for the other students on the van and may cause concern
for the parents. I understand you have a van and was wondering if you ever
considered transporting children from Child’s Way to the WPSBC?
ECF No. 74-1 at 18. Dr. Reeves responded to Dr. Wheat with an email that explained why the
WPSB was not considering such a plan and stated, “I imagine you’ve already determined that
collaborating with another district that currently transports from Child’s Way to WPSBC is not
viable?” Id. at 17-18.
The District created a document titled “Capsule Pieces Regarding [S.K.]” (ECF No. 715). The first entry was dated June 6, 2012, was titled “Student Transportation Issue,” and
provided in relevant part:
Furthermore, [S.K.’s] mother has requested that the District’s transportation pick
him up in the morning at his daycare program, Child’s Way, and transport him to
the WPSB for the 2012-2013 school year. . . . In the afternoon, [S.K.] would
be transported from the WPSB to his home in North Allegheny. As you are
aware, the District has several children who are enrolled at the WPSB and are
transported to and from the program.
When [S.K.’s] mother first called the District asking that [S.K.] be transported
from his daycare program to school, Dr. Wheat explained that while the District
has the obligation to transport students to and from an educational program, it has
no obligation to transport children to/from daycare programs based on a parent’s
work schedule. Because [S.K.’s] mother was in a difficult situation for the
summer, Dr. Wheat agreed to work with transportation and have special
arrangements made just for the summer. Dr. Wheat was clear to [S.K.’s] mother
that she would have to work something else out for the school year and would
have ample time to do so. [S.K.’s] mother agreed. In the fall, [S.K.’s] mother
called the District once again asking for special transportation to and from the
daycare. When the District refused, she enrolled him full-time at Child's Way and
removed him from an educational pre-school program.
Now that [S.K.] will be transitioning to a school-age program, his mother has
once again requested special transportation in the morning. When told that the
District does not transport children to and from daycare programs, [S.K.’s] mother
became threatening and disrespectful. She has threatened to contact the news
media if she does not get the transportation she has requested. Dr. Wheat has
contacted Attorney Michael Brungo, and in a conversation with Mr. Brungo and
Mr. Lucas [redacted]. Dr. Wheat has also contacted Mr. Botti who is reluctant to
approve transportation arrangements to/from daycare programs as many requests
are made yearly for such arrangements. Further, Mr. Botti is concerned that by
allowing special transportation arrangements in this case, it will open the District
to providing these arrangements to any parent who requests such an
[S.K’s] mother has further requested that the District make arrangements with a
neighboring school district that does pick up students from Child's Way and
transports them to the WPSB, and pay the neighboring school district for
the additional transportation costs. It is important to note that yearly tuition to
the WPSB is $34,311.28 and represents 40% of the total cost of the tuition. The
other $51,000 of the tuition is paid by the State.
ECF No. 71-5 at 1-2. The second entry was dated September 26, 2012, was titled “Response to
Parent Letter,” and provided in relevant part:
Dr. Wheat, Ms. Maximo,4 and Dr. DeMann have been attempting to bring
resolution to the concerns of [K.K.] regarding her son, [S.K.]. As you are aware,
[S.K.] has multiple disabilities and the NASD has recommended the Western
Pennsylvania School for Blind Children (WPSB) . . . . Although [K.K.] continues
to vilify the Special Education Department, the major issue has nothing to do with
[S.K.’s] recommended educational program. The major concern is transportation
to/from the specialized daycare. In fact, [K.K.] has stated that the reason [S.K.]
needs to attend this specialized daycare as referenced in the letter from Dr.
Kilpela is to accommodate her work schedule. Dr. Wheat has explained to [K.K.]
that the NASD is responsible for transporting her son to/from his home and
to/from his school. The District does not transport students to/from daycare
facilities that are located outside the school district. In addition, [S.K.’s] request to
have her son picked up at Child’s Way disregards the impact of the length of the
transportation ride of all the other students currently on the same van. [K.K.’s]
solution is for the NASD to pay the Shaler School District, who does send a van
to/from Child’s Way, to transport [S.K.].
. . . If the District were to provide transportation for [S.K.] to/from a daycare that
is outside the District borders, then in all fairness to those parents who have
children in daycare programs outside the district borders, their children should
also be afforded this transportation option. If this were to occur, Mr. Botti is
concerned that this would significantly increase transportation costs for the
. . . Until the issue of transportation is resolved either by agreement or through a
due process hearing, [S.K.] will remain within the early intervention program for
his educational services.
Id. at 2-3. The third entry was dated October 17, 2012, was titled “Special Transportation
Request,” and provided:
As you are aware, [K.K.] has requested that special transportation be provided to
take her son from Child's Way, a specialized daycare provider, to the Western
Pennsylvania School for the Blind. At an IEP meeting to discuss this issue, [K.K.]
requested a due process hearing. However [K.K.] has not, to date, filed the
required paperwork with the Office of Dispute Resolution to initiate the process.
For the school year 2012-2013, Guinevere Maximo (“Ms. Maximo”) was the District’s Supervisor of Special
Education. ECF No. 64-3, ¶ 2.
Last week, Dr. Wheat sent a letter to [K.K.] stating that if she did not file the
paperwork, the District was obligated to do on her behalf. Instead of contacting
the Office of Dispute Resolution, [K.K.] contacted the Pennsylvania Department
of Education to file a complaint against the District. Dr. Wheat was contacted by
Dr. Malcolm Connor from PDE to discuss the complaint. Dr. Wheat explained to
Dr. Connor that the District was aware of its obligation to provide transportation
to [S.K.] to/from his home and to/from the Western Pennsylvania School for the
Blind. However, [K.K.] was requesting that the District provide transportation
to/from Child's Way, a daycare facility which was not the District's obligation. As
a note, [K.K.] told Dr. Connor that Child’s Way was not a daycare. Dr. Connor
looked on the Child's Way website where the program was described as a daycare
facility. Dr. Connor understood and agreed with the District's position and
obligation to provide transportation. Dr. Wheat explained that adding another
stop along the way would also increase the time that the other students were on
the bus, which may trigger complaints from other parents due to the additional
length of the ride. Dr. Connor was sending an email to [K.K.] regarding his
conversation with me, and to reiterate the District's position and obligation. In
addition, Dr. Connor was going to remind [K.K.] that she has an obligation to file
for the due process hearing.
Id. at 3. The fourth entry was dated November 28, 2012, was titled “[K.] Mediation,” and
provided in relevant part:
On November 19, 2012, the Mediation Hearing was held for [S.K.] . . .
(mother) was accompanied by two educational advocates although one participated
We were not able to reach Resolution as it is the District's position that it is not the
District's responsibility to transport students to/from daycare unless the daycare is
within the District borders. The parent raised an interesting point that this policy may
be a violation of the Americans' with Disabilities Act (ADA) since the daycare
facilities within the District borders do not take children with extensive medical
needs as [S.K.]. However, the District has not talked with each of the daycare
facilities, but the parent is willing to get rejection letters from each one. Gwynn
Maximo does know of one daycare that takes students with disabilities but [it] closed
its doors last year. Dr. Wheat has requested additional information from Mr. Botti
regarding the daycares that the District does provide transportation to and from.
There is past practice regarding transportation to daycares within the District
boundaries. However, Dr. Wheat believes the parent will argue her case for
transportation based on this discrimination claim. It is unknown how a hearing
officer will interpret this specific case. However, if the District wins the due process
then past practice will be upheld regarding transportation to daycare facilities and
if it loses, transportation arrangements for [S.K.] would only be specific to the order
delivered by the Hearing Office. This would eliminate the concern of providing
transportation to any daycare facility for any child upon request of a family, which
would be a costly endeavor and is Mr. Botti's concern.
Dr. Wheat and Ms. Maximo believe that [K.K.] will now file for a Due Process
Hearing. . . .
Id. at 4. The fifth and final entry was dated April 17, 2013, was titled “Office of Civil Rights
Complaint,” and provided in relevant part:
On April 11, 2013, the District received a letter from Attorney Jeffery J. Ruder,
Ruder Law, filing a complaint with the Office for Civil Rights. . . .
In 2011, the student began attending Child's Way, a day care for medically fragile
children operated by the Children's Home and Lemieux Family Center due to
medical necessity while the mother attended work. In July of 2012, the District
conducted a re-evaluation to determine the student's needs for programming since
he was transitioning from early intervention services to school age programs. At
the IEP meeting held on July 26, 201, the District recommended educational
placement at the Western Pennsylvania School for Blind (WPSB). The mother
agreed to the educational placement, but requested transportation services to and
from Child's Way, this District denied this request. In a legal opinion provided by
Mr. Michael Brungo on July 31, 2012 [redacted].
The twist in this issue is that the parents are requesting that the District not
transport the child from home, but rather transport the child from a day care
center located outside of the district boundaries. This has been the District's
position. In the present case, the transportation requested is neither necessary to
some integral part of the student's special education needs or reasonably
calculated to advance the goals of the student's IEP, but requested solely to
accommodate the needs of parents. The child does not need to attend the day care
facility as part of his IEP.
The District conducted a second re-evaluation to determine the need for extended
school day services. The Re[e]valuation Report dated November 7, 2012,
concluded that these service recommendations can be provided within the typical
school day and do not necessitate an extended school-day program.
Id. at 4-6.
Due to the lack of transportation from Child’s Way to the WPSB, and K.K.’s inability to
arrange for private transportation of S.K. to the WPSB, S.K. did not attend school for the 20122013 or the 2013-2014 school years. ECF No. 86 at 11, ¶ 33.
For the 2012-2013 school year, the District transported both disabled and nondisabled
children to and from day care facilities located inside the District's boundaries. ECF No. 64-3 at
1, ¶ 3. For the 2012-2013 school year, no District students, either disabled or nondisabled, were
transported to day care facilities outside of the District under any circumstances. Id. at 1, ¶ 4.
For the 2012-2013 school year, two students were transported by the District to the
WPSB. ECF No. 86 at 11, ¶ 32. Child’s Way is located 1.69 to 1.78 miles from the WPSB. Id.
Both students (students A and B) have or had significant medical histories requiring the support
of a nurse to ride the bus. ECF No. 75-2 at 2, ¶ 3. Student A’s medical history is significant for
the amputation of her right leg above the knee and mild lupus. Id. at 2, ¶ 4. Student A had a
tracheostomy and g-tube and utilized a ventilator. Id. Student A is followed by a neurologist,
who describes the condition as “either thalamic storms in the area of the brain that was injured”
or seizures. Id. Student A required ongoing monitoring of the heart rate and oxygen levels. Id.
Student A’s communication is limited. Id.
Student B’s medical history is significant for seizures. Id. at 2, ¶ 5. Student B’s
diagnosis included intractable seizures, hypotponia, cortical visual impairment, microcephaly,
server intellectual disability, and optic atrophy. Id. Student B’s medical history is also
significant for esophageal reflux, constipation, eczema, failure to thrive, global developmental
delays, and multiple hospitalizations mostly due to seizure activity and feeding problems. Id.
Student B required constant care and medical attention. Id.
In the 2012-2013 school year, the District’s van route for the WPSB carrying students A
and B took the van onto Interstate 279 to Interstate 376, Forbes Avenue and North Bellefield
Avenue. Id. at 1, ¶ 1. If the District’s WPSB bus route were to service Child’s Way day care
facility on Penn Avenue while maintaining this regular main route, the bus would need to travel
another 1.7 miles past the WPSB and then return. Id. This round trip would be approximately
3.5 miles and would take a minimum of twenty-five minutes due to traffic in that area during
morning rush hour. Id.
To service Child’s Way directly, the District would need to change the District’s route
described above. Id. at 1, ¶ 2. It would have re-routed the van to travel on Route 8 to Route 28,
across the 40th Street bridge to Penn Avenue, where Child’s Way is located, and from Child’s
Way to the WPSB. This way is approximately one mile longer in distance. Id. During the
2012-2013 school year, the time for the bus to travel this route would have been significantly
longer due to the construction on Route 28 and the traffic from the day care facility to the
WPSB. Id. at 1-2, ¶ 2. Similarly, the route time for pickup would have been earlier due to the
construction and added time from the day care facility to the WPSB. Id. at 2, ¶ 2.
In deciding to refuse K.K.’s request for transportation for S.K., the District considered the
amount of time it would take for the District’s van to service Child’s Way to and from the
WPSB, the medical histories of Students A and B who would have been on the bus with S.K, and
the cost to the District to have S.K. transported on Shaler’s bus. ECF No. 75-2 at 2, ¶ 7.
K.K. is not aware of another situation for which the District provided the same
transportation that she requested. ECF No. 86 at 19, ¶ 24.
As a result of the District’s refusal to transport S.K. between Child’s Way and the WPSB,
“it was very stressful [for K.K.] at the time, causing anxiety, not able to sleep;” “just a lot of
anxiety.” ECF No. 73 at 89. K.K. sought therapy and psychiatric services to treat her anxiety.
ECF No. 86 at 12, ¶ 37. Prior to this time, K.K. had seen a therapist and psychiatrist for
depression related to marital issues. ECF No. 73 at 93.
The District is a recipient of federal financial assistance and is subject to the
requirements of section 504 of the Rehabilitation Act, Title II of the ADA, and Chapter 15 of the
Pennsylvania Code. ECF No. 86 at 2, ¶ 3.
A. Applicable Law.
Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a
disability in the United States, ... shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance....” 29 U.S.C. § 794. A recipient of
federal funds that operates a public elementary or secondary education program “shall provide
non-academic and extracurricular services and activities in such manner as is necessary to afford
handicapped students an equal opportunity for participation in such services and activities.” 34
C.F.R. § 104.37(a)(1). “Nonacademic and extracurricular services and activities may include
counseling services, physical recreational athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which
provide assistance to handicapped persons, and employment of students, including both
employment by the recipient and assistance in making available outside employment.” Id. at
§ 104.37(a)(2) (emphasis added). Accordingly, a school district may not discriminate against a
disabled student in the provision of transportation with respect to nonacademic services, meaning
the school district must afford disabled and nondisabled students an equal opportunity to receive
transportation for nonacademic purposes.
“Pennsylvania has ‘implement[ed] the statutory and regulatory requirements of § 504’ at
the state level through the enactment of Chapter 15.” K.K. ex rel. L.K. v. Pittsburgh Pub. Sch.,
590 F. App'x 148, 153 n.3 (3d Cir. 2014) (quoting 22 Pa.Code § 15.1). “Because Chapter 15
does not preempt or expand the rights and liabilities under Section 504, the court will treat
Chapter 15 as coextensive with Section 504.” A.W. ex rel. H.W. v. Middletown Area Sch. Dist.,
Civ. Action No. 13-2379, 2015 WL 390864, at *15 (M.D. Pa. Jan. 28, 2015); see K.K., 590 F.
App’x at 153 n.3.
Title II of the Americans with Disabilities Act provides: “[N]o qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. Under Title II of the ADA, a public
entity has an affirmative duty to make reasonable modifications in its policies and programs to
avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(7). Section 35.130(b)(7)
(7) A public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the
basis of disability, unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service, program, or
Id. “‘[T]he substantive standards for determining liability under the Rehabilitation Act and the
ADA are the same’.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014)
(quoting Ridley Sch. Dist. v. M.R., 680 F.3d 260, 283 (3d Cir. 2012)).
In Alexander v. Choate, 469 U.S. 287 (1985), a decision interpreting section 504 of the
Rehabilitation Act, the Supreme Court explained, “while a [recipient of federal funds] need not
be required to make ‘fundamental’ or ‘substantial’ modifications to accommodate the
handicapped, it may be required to make ‘reasonable’ ones” so to give “meaningful access” to
the service, program, or activity in question. Alexander, 469 U.S. at 301 (citing Southeastern
Comm. College v. Davis, 442 U.S. 397 (1979). The regulations applicable to Title II of the
ADA similarly require that “[a] public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid discrimination on the
basis of disability, unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. §35.130(b)(7)(i).
As explained by the appellate court in Muhammad v. Court of Common Pleas of
Allegheny Cty, Pa., 483 F. App’x 759 (3d Cir. 2012):
A plaintiff can assert a failure to accommodate as an independent basis for
liability under the ADA and RA. See Wis. Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 751 (7th Cir.2006) (en banc). To make out such a
claim, a plaintiff must show that the accommodation he seeks is reasonable, see
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th
Cir.2002), i.e., that it is “necessary to avoid discrimination on the basis of
disability.” 28 C.F.R. § 35.130(b)(7).
Muhammad, 483 F. App’x at 763. “[T]he plaintiff first bears the burden of articulating a
reasonable accommodation. The burden of proof then shifts to the defendant, who must establish
that the requested relief would require an unduly burdensome or fundamental alteration of state
policy. . . .” Frederick L. v. Dep't of Pub. Welfare of Com. of Pa., 364 F.3d 487, 492 (3d Cir.
2004). “The test to determine the reasonableness of a modification is whether it alters the
essential nature of the program or imposes an undue burden or hardship in light of the overall
program.” Easley by Easley v. Snider, 36 F.3d 297, 305 (3d Cir. 1994); see also Crowder v.
Kitagawa, 81 F.3d 1480, 1485 (9th Cir.1996) (holding in a Title II ADA case that whether a
proposed accommodation is “reasonable” is a question of fact)); Anderson v. Franklin Institute,
185 F.Supp.3d 628, 650 (E.D. Pa. 2016) (“‘the determination of whether a particular
modification is “reasonable” involves a fact-specific, case-by-case inquiry that considers, among
other factors, the effectiveness of the modification in light of the nature of the disability in
question and the cost to the organization that would implement it’”) (quoting Staron v.
McDonald’s Corp., 51 F3d. 353 (1995); Alboniga v. School Bd. of Broward County Fla., 87
F.Supp.3d 1319 (S.D. Fl. 2015) (“The analysis, under Title II of the ADA as under the FHA,
must focus only on whether the requested accommodation is reasonable under the specific
circumstances particular to the individual in question.”) (citing Terrell v. USAir, 132 F.3d 621,
626 (11th Cir.1998) (“Whether an accommodation is reasonable depends on specific
circumstances.”). In Strathie v. Department of Transportation, 716 F.2d 227 (3d Cir.1983), a
decision involving section 504 of the Rehabilitation Act, the court concluded that “[a]
handicapped individual who cannot meet all of the program's requirements is not otherwise
qualified if there is a factual basis in the record reasonably demonstrating that accommodating
that individual would require either a modification of the essential nature of the program, or
impose an undue burden on the recipient of federal funds.” Strathie, 716 F.3d at 231.
As explained in the court’s opinion that addressed K.K.’s motion for leave to file an
A right to relief under the Rehabilitation Act and the ADA is not limited to
disabled persons. “It is widely accepted that under both the RA and ADA, nondisabled individuals have standing to bring claims when they are injured because
of their association with a disabled person.” McCullum v. Orlando Regional
Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014) (citing Addiction
Specialists, Inc. v. The Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005)); Doe v.
Cnty. of Centre PA, 242 F.3d 437, 447 (3d Cir. 2001) (“The protections of the
ADA extend to ‘qualified individuals' who are discriminated against because of
their relationship or association with individuals who have a known disability.”).
A plaintiff asserting an associational discrimination claim under the
Rehabilitation Act and Title II of the ADA must [establish]:
(1) a logical and significant association with an individual with
disabilities; (2) that a public entity knew of that association; (3) that the
public entity discriminated against them because of that association; and
(4) they suffered a direct injury as a result of the discrimination.
Schneider v. Cnty. of Will, 190 F.Supp.2d 1082, 1091 (N.D. Ill. 2002) (citing 28
C.F.R. § 35.130(g)).
A parent may be regarded as having the kind of relationship to his or her disabled
child that permits him or her to assert an associational discrimination claim under
the ADA. See e.g., Doe, 242 F.3d at 446–47 (permitting associational
discrimination claims under Title II of the ADA by parents of an adopted child
who was HIV-positive and noting “the protections found in the ADA and in the
Rehabilitation Act are interpreted similarly, and, in this case, are identical.”). A
parent may, therefore, assert an associational discrimination claim against a
school district if the school district discriminates against him or her because of his
or her association with a disabled child. See e.g., Eskenazi–McGibney v.
Connetquot Ctr. Sch. Dist., 84 F.Supp.3d 221, 230 (E.D.N.Y. 2015) (denying
defendant's motion to dismiss because “the amended complaint alleges that RM
and JM were denied access to Celaberti and to the school grounds based on their
association with JEM, their son with a disability”).
S.K. v. N. Allegheny Sch. Dist., 146 F. Supp.3d 700, 711–12 (W.D. Pa. 2015) (footnote
B. Legal Analysis of the District’s Motion for Summary Judgment.
In support of its motion for summary judgment, the District contends that summary
judgment must be granted in its favor because there is no evidence from which a reasonable juror
could conclude that it discriminated against K.K. based upon her association with S.K., as
required to establish the third element of K.K.’s associational discrimination claims. Def.’s Br.
in Supp. of its Mot. for Summ. J. at 5, ECF 62 at 5. In support, the District posits that it is
undisputed that: (1) K.K. was treated in the same manner as all parents residing in the District
with either disabled or nondisabled children; i.e. the District only transported students, both
disabled and nondisabled, to day care facilities located within the District’s boundaries, and did
not transport any students, disabled or nondisabled, to day care facilities located outside the
District’s boundaries; and (2) the basis for the denial of transportation for S.K. was because
Child’s Way was located outside the boundaries of the District. Id. at 5. The District concludes
that because “there is no evidence of record that the association of Plaintiff with S.K. had any
involvement in the decision of the District to deny Plaintiff’s request to transport S.K. to a
daycare facility outside of the boundaries of the District,” summary judgment must be granted in
its favor. Id. at 6.
In response to the District’s motion for summary judgment, K.K. contends that the
undisputed evidence of record establishes that the District discriminated against her based upon
her association with her son, S.K. in two ways: (1) by failing to conduct an individualized
inquiry into whether K.K. could access the benefit of the District’s transportation policy if it
provided her with a reasonable accommodation; and (2) by failing to provide a reasonable
accommodation to its transportation policy. Pl.’s Mem. of Law in Op. to Def.’s Mot. for Summ.
J. at 3, ECF No. 78 at 3.
In reply to those arguments by K.K., the District reiterates the arguments it made in its
original supporting brief. Def.’s Reply Br. in Supp. of its Mot. for Summ. J. at 2, ECF No. 85 at
2. Additionally it argues that it was not required to provide a modification to its transportation
policy because K.K. did not establish that it was medically necessary for S.K. to attend a day
care facility outside the District’s boundaries. Id. at 2-3. It contends that there is evidence of
record to support its decision to deny K.K.’s transportation request. The District asserts that
determination was the result of a meaningful, individualized inquiry undertaken by the District
because it considered the additional time that the other medically fragile children on the bus
would have to spend on the bus and that Shaler could transport S.K. at a cost of approximately
$70-$72 per day. Id. at 3-4. The District argues that the accommodation requested would have
resulted in an undue burden and a fundamental alteration of the practice of not transporting
students to day care facilities outside the District’s boundaries. Specifically, the accommodation
would have resulted in an additional cost to the District or an inconvenience to the already existing
transportation of students. Id. at 5-7 (citing Timothy H. v. Cedar Rapids Community Sch. Dist.,
178 F.3d 968 (8th Cir. 1999)), ECF No. 85 at 5-7.
In granting K.K.’s motion for leave to amend the complaint to state her own claims
against the District, the court held in relevant part:
With respect to the third element [of K.K.’s associational discrimination claim],
i.e., the District discriminated against her because of her association with S.K.,
K.K. plausibly alleged that the District discriminated against her based upon
S.K.'s disabilities by refusing to make a reasonable modification in the
transportation service to transport S.K. between Child's Way—which was outside
the school's attendance boundaries—and the WPSB. As discussed above, under
Title II of the ADA, a public entity has an affirmative duty to make reasonable
modifications in its policies and programs to avoid discrimination on the basis of
disability. 28 C.F.R. § 35.130(b)(7). The allegations in the amended complaint
and the reasonable inferences drawn therefrom plausibly show that the District
knew K.K. could not participate in the transportation program because of S.K.'s
disabilities but refused to make a reasonable modification in its program to afford
K.K. access to the program equal to that of parents with nondisabled children.
(ECF No. 34-1 ¶¶ 18-19, 22-25.) Under those circumstances, K.K. set forth
factual allegations in the amended complaint to plausibly show that the District
discriminated against her because of her association with S.K.
S.K., 146 F. Supp.3d at 717–18 (emphasis in original); see id. at 715 (“[t]he foregoing
allegations and the reasonable inferences drawn therefrom plausibly show that the District
knew K.K. could not participate in the transportation program because of S.K.’s disabilities but
refused to make a reasonable modification in its program to afford K.K. access to the program
equal to that of parents with nondisabled children. In other words, the allegations in the proposed
amended complaint show that the District invaded K.K.’s legally protected interest not to be
discriminated against based upon S.K.’s disabilities by refusing to reasonably modify the
transportation program to give her full and equal access to the transportation program.”).
Given S.K.’s inability to attend a day care center within the District’s attendance
boundaries, if the District refused when requested by K.K. to make a reasonable modification to
its transportation program to afford K.K. access to the program equal to that of parents with
nondisabled children, then a reasonable jury could find that the District discriminated against
K.K. due to her association with S.K. in violation of section 504 of the Rehabilitation Act,
Chapter 15, and Title II of the ADA. See Smith v. Twp. of Warren, No. CV 14-7178, 2016 WL
7409952, at *11 (D.N.J. Dec. 22, 2016) (concluding that “[e]ven a facially neutral policy may
violate the Rehabilitation Act, if the agency instituting that policy fails to make a ‘reasonable
accommodation to the “known physical or mental limitations” of otherwise qualified
individuals’. Therefore, . . . Plaintiff may satisfy the causation element of the Rehabilitation Act
by alleging that William and Mary Smith were excluded from full use of these shelters because
they were unable to access and/or utilize them solely due to their respective disabilities. ”)
(quoting Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1384 (3d Cir. 1991);
AP ex rel. Peterson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 538 F.Supp.2d 1125, 1140 (D.
Minn. 2008) (holding “[t]he failure to provide reasonable accommodations—including the
failure to provide a reasonable accommodation by modifying a disability-neutral policy—can
indeed constitute disability discrimination in violation of the ADA, the Rehabilitation Act, and
the [Minnesota Human Rights Act]”).
Turning to the evidence of record viewed in a light most favorable to K.K. as the
nonmoving party, the court concludes that there are numerous genuine issues of material fact that
preclude the District’s motion for summary judgment being granted. Considering Dr. Kilpela’s
letter is in its entirety, as well as K.K.’s testimony at her deposition with respect to the varied
reasons for why she and her ex-husband were told that none of the day care facilities within the
District’s boundaries were able to accommodate S.K.’s needs, there is sufficient evidence of
record to allow a reasonable factfinder to find that it was medically necessary for S.K. to attend a
day care facility outside the District’s boundaries. See ECF No. 71-3 and ECF No. 73 at 38-43.
It is not disputed that if a plaintiff has requested a modification of a program as required
by Title II of the ADA and the RA, then an “individualized inquiry” must be made by the
defendant “to determine whether a specific modification for a particular person’s disability
would be reasonable under the circumstances as well as necessary for that person, and yet at the
same time not work a fundamental alteration.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 688
(2001); School Bd. of Nassau Cty, Fl. v. Arline, 480 U.S. 273, 287 (1987). In light of the email
exchange that took place between various persons employed by the District and the capsule
document authored by a District employee, there is a genuine issue of material fact concerning
whether the District conducted a meaningful individualized inquiry into K.K.’s requested
modification of its transportation program. A reasonable factfinder could conclude that the
District’s focus was on cost and not setting a precedent for having to transport students to and
from day care facilities outside the District, and did not consider if there was any way it could
reasonably accommodate K.K.’s need for transportation for S.K..
A reasonable factfinder also could conclude that the requested modification in the
transportation service, transporting S.K. between Child's Way—which was outside the school's
attendance boundaries—and the WPSB, would not have resulted in an undue burden or a
fundamental alteration of the practice of not transporting students to day cares outside the
District’s boundaries. A reasonable factfinder could conclude that requiring the District to
transport S.K. to and from Child’s Way to the WPSB is not a fundamental alternation to the
nature of the District’s program because the program at issue is designed to provide
transportation between the school and a day care program as needed by working parents such as
K.K. A reasonable factfinder also could conclude that paying Shaler $70-$72 a day to have S.K.
transported on the Shaler bus or requiring students A and B to travel the additional time and
distance between Child’s Way and the WPSB daily would not result in an undue financial or
administrative burden to the District.
For all the reasons stated above, it will be for a reasonable factfinder to determine
whether the District’s refusal to make a modification to its transportation program given S.K.’s
inability to attend a day care facility within the District’s boundaries and transport S.K. between
Child’s Way and the WPSB was reasonable. Defendant’s motion for summary judgment with
respect to K.K.’s section 504 of the Rehabilitation Act, Chapter 15, and Title II ADA claims
against it will be denied.
C. Legal Analysis of K.K.’s Motion for Summary Judgment.
K.K. argues that summary judgment should be granted in her favor on all her
discrimination claims against the District. Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ.
J. at 5, ECF No. 66 at 5. K.K. first contends that the record establishes that she is a protected
individual under section 504 of the Rehabilitation Act (and by implication Chapter 15) and Title
II of the ADA based upon her logical and significant relationship with her son, S.K. Plaintiff’s
Supporting Brief at 6-7, ECF No. 66 at 6-7. Second, K.K. argues that the record establishes that
the District discriminated against her because of her association with S.K. in that it failed to
conduct an individualized inquiry into whether she could have accessed the transportation had it
offered a reasonable modification to its policy. Id. at 8-11 (citing Singh v. George Washington
U. School of Med. and Health Sciences, 508 F.3d 1097, 1105 (D.C. Cir. 2007); Wagner v. Fair
Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cr. 1995)). Third, K.K. argues that the record
establishes that she suffered concrete emotional and economic harm as a result of the District’s
failure to transport S.K. between Child’s Way and the WPSB for two school years. That harm
from the denial of access to the transportation service equal to that of parents with nondisabled
children, was that she suffered emotional distress, and required extensive therapy to address the
stress and hardship caused by the District’s unlawful actions. Id. at 11-12. Fourth, K.K. argues
that the District acted with deliberate indifference when it discriminated against her, and
therefore, she is entitled to recover compensatory damages for both economic and noneconomic
harms caused by the District and to equitable relief in the form of compensatory education. Id. at
In response to K.K.’s motion for summary judgment, the District makes numerous
arguments. It contends that K.K.’s motion should be denied because the evidence of record does
not establish that it was medically necessary for S.K. to attend Child’s Way, and absent such
evidence, it was not required to provide a modification of its transportation policy to transport
S.K. between the day care center and his school. Def.’s Br. in Opp’n to Pl.’s Mot. for Summ. J.
at 3-4, ECF No. 84 at 3-4. In support of this position, the District argues that there is no
evidence that K.K. submitted any applications to day care facilities inside the District’s
boundaries, Ms. Colvin of Child’s Way stated that home nursing care was an option for S.K.,
although Child’s Way was a better option, Dr. Kilpela indicated in his letter that there were not
any day care facilities in the District that either had openings or were able to meet S.K. needs,
and that it is undisputed that K.K. wanted S.K. to attend Child’s way “merely as a convenience”
to K.K. because of a change in her employment schedule. Id.
Defendant argues that even if it was required pursuant to 28 C.F.R. § 35.130(b)(7) to
provide a modification of its transportation policy, the evidence of record shows that
modification would have placed an undue financial burden on the District and fundamentally
altered the nature of its transportation program. Id. at 4. Therefore, it did not have to modify the
program to transport S.K. between Child’s Way and the WPSB. Id. at 5. In support of this
argument, the District cites to Ms. Maximo’s Supplemental Unsworn Declaration wherein she
stated: (1) the District would have incurred additional time and expense for the additional
twenty-five minutes it would have taken to transport S.K. between Child’s Way and the WPSB;
(2) medically fragile students A and B (and their respective nurse and aide) would have been in
the van additional time; and (3) the cost to the District for Shaler to transport S.K. as requested
by K.K. would have been an additional $70-$72 a day. Id. at 4-5 (citing Supp. Unsworn Decl. of
Ms. Maximo, ECF No. 75-2).5
The District contends that it did not have to provide K.K. with the reasons for its decision
not to modify the policy to transport S.K. between Child’s Way and the WPSB. Id. at 4. “[I]t is
only relevant that such considerations were given by the District in making its decision” and Ms.
Maximo’s Supplemental Unsworn Declaration support that such considerations were given. Id.
Finally, the District argues with respect to K.K.’s claims for damages: (1) the court
should follow the line of cases that hold that damages for emotional distress are not available for
violations of the Rehabilitation Act or ADA; (2) K.K. failed to establish that the District
deliberately failed to satisfy its duty to act in response to her modification request, and therefore,
cannot prove that it acted with deliberate indifference as required to recover compensatory
damages; and (3) K.K. lacks standing to be awarded equitable relief in the form of compensatory
education for S.K.. Id. at 5-7.
In reply, K.K. argues that the District cannot have made a meaningful individualized
inquiry into her requested modification of its transportation policy since it did not engage in a
On November 16, 2016, K.K. filed a motion to exclude the supplemental unsworn declaration. ECF No. 81. On
December 13, 2016, K.K. withdrew her motion to exclude. ECF No. 91.
dialogue with her concerning possible accommodations. Pl.’s Reply Mem. of Law in Supp. of
Pl.’s Mot. for Summ. J. at 2 (citing Wagner, 49 F.3d at 1009), ECF No. 83 at 2. “Even if the
statements contained in Ms. Maximo’s Declaration are true, the record is still devoid of any
indication that the District engaged in a meaningful dialogue with K.K.” Id. Therefore, “[t]he
District’s failure to discuss possible accommodations with K.K. is discrimination.” Id.
K.K. replies that summary judgment should be granted in her favor because: (1) the
District failed to demonstrate why paying Shaler seventy dollars a day would amount to an
undue financial burden or why an additional twenty-five minutes of travel time per day would
have been unduly burdensome; and (2) the District cannot argue that an accommodation would
fundamentally alter the nature of its transportation program where the program is intended to
assist parents by transporting students between school and day care facilities. Id. at 3. K.K.
concludes, “[i]n the alternative, if the statements contained within the Maximo Declaration are
taken as true, they do not alone establish that a reasonable accommodation would have posed an
undue financial or administrative burden. At best, this would create a triable issue of fact.” Id.
Contrary to the District’s contention, there is no genuine issue of material fact with
respect to whether it was medically necessary for S.K. to attend a day care facility outside the
District’s boundaries. The evidence of record includes: (1) Ms. Colvin’s statement that home
care was an option for S.K. although Child’s Way was a better option; (2) Dr. Kilpela’s letter
explaining how Child’s Way was able to provide S.K. the medical care he needed; and (3) K.K.’s
testimony at her deposition about the phone calls she and her ex-husband made to day care
centers in the District and the varied reasons for why they were told no day care facilities within
the District’s boundaries were able to accommodate S.K.’s needs, none of which was that
although the day care was able to care for S.K. from a medical standpoint, that it did not have
any openings. Viewing that evidence in a light most favorable to the District as the nonmoving
party, a reasonable factfinder could only conclude that it was medically necessary for S.K. to
attend a day care facility outside the District’s boundaries. See ECF No. 71-3 and ECF No. 73 at
Turning to the District’s conduct that K.K. states to be discriminatory, while it is a close
call, the court finds that a reasonable jury could find that the District engaged in an adequate
individualized inquiry of K.K.’s request for a modification of the District’s transportation policy
when, after K.K. made her request, the District inquired into: (1) the time it would take to
transport S.K. between Child’s Way and the WPSB on a District vehicle and the effect of this
additional time on the two medically fragile students who would be on the vehicle with S.K.; and
(2) having Shaler provide the transportation requested, which was an option, at a cost of $70-$72
a day. 6
As stated supra, the Third Circuit Court of Appeals has explained that a public entity
need not accommodate one's disabilities if such accommodation imposes an “undue burden” or
requires a “fundamental modification” of the entity's program. Easley, 36 F.3d at 30. If,
however, “there is no factual basis in the record demonstrating that accommodating the
individual would require a fundamental modification or undue burden,” then a public entity's
While K.K. does not use the term “interactive process,” to the extent that her argument is that the District was
required to, and did not, engage in an interactive process with her concerning possible modifications to its
transportation policy, the court did not find case law that supports this contention. See Clemons v. Dart, 168
F.Supp.3d 1060, 1071 (N.D. Ill. 2016), remanded on other grounds by No. 16-3452 (7th Cir. Feb. 9, 2017)
(“[plaintiff’s] claim is governed by Title II of the ADA, which contains no ‘interactive process’ requirement”)
(citing 42 U.S.C. § 12132); Meeks v. Schofield, 10 F.Supp.3d 774, 791 (M.D. Tenn. 2014), aff'd, 625 F. App'x 697
(6th Cir. 2015) (explaining “the interactive process pertains to employment-related ADA claims, not to Title II ADA
failure to reasonably accommodate an individual's disability violates the ADA. Id.; Wagner, 49
F.3d at 1009. Given the evidence adduced about the burden on the other medically fragile
students involved if the District transported S.K. between Child’s Way and the WPSB in a
District vehicle with these students, as well as the $70-$72 daily cost to the District to have
Shaler transport S.K. between the day care facility and school, the court cannot say that as a
matter of law a reasonable jury would find that K.K.’s proposal would not require a fundamental
modification or cause an undue burden on the District. For these reasons, K.K.’s motion for
summary judgment with respect to liability also will be denied.
Concerning damages, K.K. contends that the District discriminated against her with
deliberate indifference such that she is entitled to an award of compensatory damages. K.K. can
only recover compensatory damages if she can prove that the District’s discrimination was
intentional. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 262 (3d Cir. 2013);
Henry for M.H. v. Lane, Civ. No. 16-1239, 2017 WL 1179012, at *7 (W.D. Pa. Mar. 30, 2017).
A showing of deliberate indifference satisfies the intentional discrimination standard, and to
satisfy this standard, a plaintiff must prove: “(1) knowledge that a federally protected right is
substantially likely to be violated ..., and (2) failure to act despite that knowledge.” D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 269 (3d Cir. 2014) (citations omitted). The defendant must
have acted with “deliberate choice, rather than negligence or bureaucratic inaction,” but “a
showing of personal ill will or animosity toward the disabled person” is not required. Id.
(citations omitted). Viewing the record evidence as a whole, the court concludes that a
reasonable jury could find that the District’s conduct with respect to K.K.’s request that it modify
its transportation program and transport S.K. between Child’s Way and the WPSB was not
deliberately indifferent, but instead was the result of “negligence or bureaucratic inaction.” Id.
K.K.’s motion for summary judgment with respect to compensatory damages, therefore, is
denied.7 This issue will be able to be raised at trial.
K.K. also seeks equitable relief in the form of compensatory education for S.K. ECF No.
66 at 18. K.K. does not cite, however, and the court could not locate, any decisions in which
compensatory education was awarded in an associational discrimination case. The equitable
remedy of compensatory education is designed to provide relief where a defendant’s action has
caused a student to be deprived of his or her right to a free appropriate education, i.e. it requires a
school district to pay educational expenses it should have paid in the first place. M.C. on behalf
of J.C. v. Central Regional School Dist., 81 F.3d 389, 395 (3d Cir. 1996). At no time in this case
did the District refuse to educate S.K. Therefore, awarding K.K. compensatory education for
S.K. is not an appropriate remedy for the District’s discriminatory actions against K.K. K.K.’s
motion for summary judgment for an award of compensatory education for S.K. is denied.
For the reasons set forth above, the District’s motion for summary judgment (ECF No.
61) and K.K.’s motion for summary judgment (ECF No. 65) will be denied.
An appropriate order follows.
By the court:
s/Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
Dated: June 27, 2017
In light of this conclusion, it is not necessary to address the legal issue of whether under Title II of the ADA and
section 504 of the Rehabilitation Act, a plaintiff is entitled to noneconomic compensatory damages for any
emotional distress suffered as a result of a defendant’s intentional discriminatory conduct.
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