W. et al v. THE ELLIS SCHOOL

Filing 22

MEMORANDUM ORDER. For the reasons stated in the filing at this docket entry, Defendant's Motion to Dismiss (Doc. 14 ) is GRANTED in part as to limitations on available damages and DENIED as to all other arguments. Signed by Judge Cathy Bissoon on 11/13/18. (rdl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
K.W., a minor by parent and natural
guardian NICHOLAS WISER; and
NICHOLAS WISER, in his own right,
Plaintiffs,
v.
THE ELLIS SCHOOL,
Defendant.

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Civil Action No. 17-1189
Judge Cathy Bissoon

MEMORANDUM ORDER
Pending before the Court is a Motion to Dismiss filed by The Ellis School (“Ellis”). 1
(Doc. 14.) For the reasons that follow, Ellis’s Motion will be granted in part and denied in part.
BACKGROUND
Plaintiffs bring this action claiming a violation of Title III of the Americans with
Disabilities Act of 1990 (“Title III”), a violation of the Rehabilitation Act of 1973
(“Rehabilitation Act”), and a breach of contract claim against Ellis. (Complaint, Doc. 1.)
Plaintiff K.W. suffers from an anxiety disorder and ADHD. (Id. at ¶ 1.) She was a
student at Ellis from elementary school through the fifth grade. (Id. at ¶ 5.) On July 7, 2016, her
father, Plaintiff Nicholas Wiser, provided Ellis with an evaluation report confirming a
preliminary diagnosis of ADHD. (Id. at ¶ 6.) The evaluation recommended that K.W. receive
coaching of verbal mediation strategies, be provided with a written checklist for steps to
complete a task, receive assistance with structure planning including the use of a planning guide,

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In Ellis’s reply brief, Ellis withdrew its argument concerning failure to exhaust administrative
remedies. (Doc. 21 at 2 n.2.)
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have large assignments broken down into smaller steps, have a teacher review her assignment
planner with her, and have her be provided with to-do lists and be given other assistance in
initiating her work. (Id.) Ellis agreed to provide all of these accommodations. (Id. at ¶¶ 7, 9.)
On March 7, 2017, Mr. Wiser gave a letter from K.W.’s social worker to Ellis that
confirmed K.W.’s diagnosis of ADHD, diagnosed her with an anxiety disorder and made various
requests for modified accommodations. (Id. at ¶ 8.) Specifically, the social worker
recommended extra time on tests, extra instructional time as needed, support in transitions
throughout the day, check-ins throughout the day regarding mood and stress levels, a regular
meeting with a support teacher to verify understanding of basic organizational and test
preparation skills, and preferential seating in classes away from typical distractions. (Id.)
Despite agreeing to implement all of the requested school-based accommodations, Ellis only
occasionally implemented one—it sometimes provided K.W. with extra time on tests. (Id. at
¶ 9.)
At the end of the 2016-17 school year, K.W. ran for sixth grade president and won. (Id.
at ¶¶ 10, 13.) Her campaign platform emphasized the need for greater inclusivity, a support
group for bullying victims, the end of stealing, better organization, and changes to school
lunches and school activities. (Id. at ¶ 11.) Concerned by two of the issues set forth in her
platform, teachers at Ellis asked her to clarify her comments about disorganization and stealing.
(Id. at ¶ 12.) They also informed her that the current class president’s feelings had been hurt by
what she had said in her campaign speech. (Id. at ¶ 14.)
In order to prepare for her term as president, K.W. distributed a class survey. (Id. at
¶ 14.) After seeing a student with the survey, one of the teachers took it and threw it away in
front of K.W. (Id. at ¶ 15.) K.W. began to become stressed and felt “like trash.” (Id. at ¶ 17.)

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And, unfortunately, according to her medical records, K.W.’s disabilities are exasperated by her
mood and stress levels. (Id.)
In preparation for the 2017-18 school year, Mr. Wiser executed a contract with Ellis that
included the following provision:
I (we) and my (our) daughter agree to comply with and be subject to the Schools’
rules and policies as set forth, including but not limited to, the Family Handbook,
as amended from time to time. The School believes positive and constructive
working relationships between the School, the student, and the student’s parent(s)
(or guardian(s)) are essential to the fulfilment of the School’s mission. Thus, the
School reserves the right to discontinue enrollment or decline re-enrollment of
the student if the School concludes the actions of a parent (or guardian) makes
such a positive and constructive relationship impossible or seriously interfere
with the School’s accomplishment of its educational purposes, or if Ellis
concludes that the needs or demands made by or on behalf of the student place an
undue or unreasonable burden on Ellis’ resources. Ellis further reserves the right
to remove a student at any time if, at its sole discretion, it concludes that the
student’s industry, progress, conduct, or influence on or off campus are not
keeping with Ellis’ standards. The decision of the School in these regards shall be
final.
(Id. at ¶ 19 (emphasis added).)
On June 1, 2017, the Head of K.W.’s middle school, Michelle Rust, emailed Mr. Wiser
explaining that some of K.W.’s classmates’ feelings were hurt by her campaign speech, and that
prior to distributing any future surveys, she should get them approved first. (Id. at ¶ 20.) Later
that same day, Mr. Wiser sent a four-page response to Head Rust and included the other parents
and guardians in the fifth grade class as recipients. (Id. at ¶ 21; see Exhibit B to Defendant’s
Brief Supporting its Motion to Dismiss, hereinafter “Mr. Wiser’s Email,” Doc. 15-2. 2). He

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Matters of public record and “document[s] integral to or explicitly relied upon in the complaint
may be considered without converting the motion to dismiss into one for summary judgment.”
See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). Ellis attached Mr. Wiser’s June 1, 2017
email, which is explicitly relied on in the Complaint. The Court thus takes notice of Mr. Wiser’s
Email and may consider its contents without converting the motion to dismiss into one for
summary judgment.
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explained that K.W. regularly came home from school devastated by how she had been treated
by students and faculty alike and that he was concerned for her wellbeing. (Complaint ¶ 21; Mr.
Wiser’s Email.) He tried to clarify why he believed some of her words and actions had been
misinterpreted and emphasized that the last minute nature of some of Ellis’s activities created
problems for her and presumably for some of the other students. (Complaint ¶ 21; Mr. Wiser’s
Email.) Finally, he advocated for a more inclusive environment at Ellis. (Complaint ¶ 21; Mr.
Wiser’s Email.)
In the years since K.W. started attending Ellis, Mr. Wiser has had numerous discussions
and sent numerous emails to Ellis regarding K.W.’s symptoms and behaviors. (Complaint ¶ 22.)
These meetings and emails related to the issues raised in Mr. Wiser’s Email. (Id.)
On June 29, 2017, Mr. Wiser learned that Ellis had decided to discontinue K.W.’s
enrollment. (Id. at ¶ 23.) Ellis explained that Mr. Wiser had exercised “poor judgment” in
sending the June 1, 2017 email to all parents and guardians of fifth grade students; that the email
contained “a number of unfounded statements about Ellis, the Middle School administration,
faculty, families, and students”; that Mr. Wiser had a low regard for the interests of Ellis, its
students, and their families; and that Ellis was exercising its discretion to discontinue K.W.’s
enrollment based on its determination that Mr. Wiser’s actions made a positive and constructive
relationship impossible, or seriously interfered with the school’s accomplishment of its
educational purpose. (Id.) Ellis refunded K.W.’s tuition for the 2017-18 year but failed to
refund $175 in prepaid fees. (Id. at ¶ 24.) K.W. is presently enrolled at St. Edmund’s Academy,
and the tuition there is $5,146.71 more than at Ellis. (Id. at ¶ 26.)

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ANALYSIS
I.

Motion to Dismiss Count III pursuant to Rule 12(b)(1) for Lack of Standing
Ellis argues that Plaintiffs’ Title III claims should be dismissed because Plaintiffs lack

standing, as K.W. is not a student at Ellis and is unlikely to ever acquire standing in the future as
reinstatement is not an available remedy for any of Plaintiffs’ causes of action. (Defendant’s
Brief Supporting its Motion to Dismiss, hereinafter “MTD Brief,” 17-18, 23-24 Doc. 15.)
The only disputed element of standing is redressability. Here, given Ellis’s past conduct,
Plaintiffs aver that this element is satisfied. Specifically, if K.W. is re-enrolled at Ellis pursuant
to Plaintiffs’ viable Rehabilitation Act claim, there remains a very real risk that K.W. will
continue to be targeted and harmed by Ellis’s unlawful refusal to grant K.W. equal access to
Ellis’s educational programs and extracurricular activities. 3 (Complaint, at ¶¶ 44-53; Plaintiffs’
Response Brief, at 6-7).
To show redressability, plaintiffs must allege facts showing that “it [is] ‘likely,’ as
opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The lone remedy available in a Title
III case is injunctive relief. Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 538 (W.D. Pa.
2013). To establish standing in an action for injunctive relief, a plaintiff must show that he or
she is likely to suffer future injury from the defendant’s illegal conduct.” Doe v. Nat’l Bd. of
Med. Examiners, 210 F. App’x 157, 159-60 (3d Cir. 2006) (citation omitted). “Past illegal

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In addition to reinstatement at Ellis, Plaintiffs request the following prospective relief for K.W.:
the same “level of financial aid [as before,] her title of class president, and also to provide
reasonable accommodations, including but not limited to extra instructional time as needed,
support in transitions throughout the day, check-ins regarding stress and mood levels, a regular
meeting with a support teacher to verify understanding of basic skills for organization, test
preparations and prioritizing, preferential seating in classes away from typical distractions, and
additional time on tests.” (Complaint ¶ 77(a).)
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conduct is insufficient to warrant injunctive relief unless it is accompanied by ‘continuing,
present adverse effects.’” Id. at 159-60 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983)). Although in its MTD Brief, Ellis initially asserted that reinstatement is not possible
based upon Plaintiffs having failed to administratively exhaust their claims, (MTD Brief 19),
Ellis has since withdrawn that argument in its reply, (Defendant’s Reply Brief 1 n.2, Doc. 21).
Ellis’s lone basis for challenging redressability is that K.W. cannot be reinstated given
the fact that the Wisers’ contract with Ellis was a personal service contract and personal service
contracts do not afford parties the right to reinstatement. As set forth below, the contract
between Ellis and Mr. Wiser is not a personal service contract and, as a result, K.W. may yet be
reinstated at Ellis. Furthermore, Plaintiffs have requested injunctive relief after K.W. is
reinstated, that is, that K.W. be granted equal access to Ellis’s educational programs and
extracurricular activities; at this juncture, the Court cannot say Plaintiffs will be unable to prevail
on their claim for injunctive relief. As a result, the Court concludes that Plaintiffs have
sufficiently pleaded redressability and Plaintiffs have standing to pursue their Title III claim.
II.

Motion to Dismiss under Rule 12(b)(6) 4
A. Prima facie case of Retaliation
Ellis argues that Counts I and II of Plaintiffs’ Complaint, which allege retaliation, must

be dismissed for failure to sufficiently plead a protected activity and causation. (MTD Brief 12.)
To establish a prima facie case of retaliation under the ADA and Rehabilitation Act, a plaintiff

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When faced with a
motion to dismiss, a court “must accept all of the complaint’s well-pleaded facts as true, but may
disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.
2009).
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must show (1) a protected activity, (2) adverse action, and (3) a causal connection between the
protected activity and the adverse action. EEOC v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir.
2015) (ADA); Lauren W. ex rel. Jean W. v. Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007)
(Rehabilitation Act). A person engages in protected activity where the person opposes “‘any act
or practice made unlawful [by the ADA] or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing’ under [the
ADA].” Allstate Ins. Co., 778 F.3d at 449 (quoting 42 U.S.C. § 12203(a)). A good faith request
for an accommodation is protected activity. Shellenberger v. Summit Bancorp, Inc., 318 F.3d
183, 191 (3d Cir. 2003).
At this juncture, Ellis does not contest that Mr. Wiser’s emails to the school dated July 7,
2016 and March 7, 2017, explaining K.W.’s disabilities and requesting accommodations for her,
were protected activities within the meaning of the ADA and Rehabilitation Act. (MTD Brief
15.) Rather, Ellis argues that Mr. Wiser’s Email on June 1, 2017 was not a protected activity.
(Id. at 13-15.) Viewing the Complaint and the email in the light most favorable to the
nonmoving party, there are aspects of the June 1, 2017 email that plausibly amount to protected
activity given that Ellis was intimately aware of K.W.’s disabilities and her triggers. For
example, Mr. Wiser reiterated in the June 1, 2017 email K.W.’s need for organization and how
Ellis was, in his view, coming up short in accommodating her needs in that respect. (Mr.
Wiser’s Email (“[s]uch disorganization spans the school year . . . . many of us, [K.W.] included,
hope it doesn’t go like that again in sixth grade.”).) Mr. Wiser also requested, both implicitly
and explicitly, that the school take steps to minimize its role in elevating her stress levels, which
were being elevated due to the manner in which the school was handling their response to
K.W.’s campaign and presidency. (Id. (“[K.W.] has been singled out and even harassed

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multiple times over the past few weeks by teachers. . . . In light of reassurances from having
discussed this before, I’ve tried to be patient . . . but after these past two weeks, I cannot sit idly
by while my child is vilified and made to feel she did anything wrong by finally standing up for
herself and others in bringing this up.”).) As described above, Ellis was aware that both
disorganization and stress exacerbated K.W.’s disabilities. Thus, viewed in the light most
favorable to Plaintiffs, Mr. Wiser’s June 1, 2017 email requests that Ellis promptly implement
appropriate school-based accommodations in response to the events described in the email.
The Third Circuit has not addressed whether the “but for” causation standard laid out in
University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), for Title VII
claims is applicable in the context of ADA or Rehabilitation Act cases. Proudfoot v. Arnold
Logistics, LLC, 629 F. App’x 303, 308 n.5 (3d Cir. 2015) (declining to address whether the “but
for” causation standard also applies to retaliation claims under the ADA). But see Rocco v.
Gordon Food Serv., 2017 WL 1355434, at *9 (W.D. Pa. Apr. 13, 2017) (applying the “but for”
causation standard in a Rehabilitation Act case). As Plaintiffs’ allegations suffice at this juncture
under the more stringent “but for” causation standard, the Court need not decide whether a more
lenient causation standard applies. Thus, the Court applies the following standard:
To establish the requisite causal connection a plaintiff usually must prove either
(1) an unusually suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing
to establish a causal link. . . . In the absence of that proof the plaintiff must show
that from the ‘evidence gleaned from the record as a whole’ the trier of the fact
should infer causation.
Lauren W. ex rel. Jean W., 480 F.3d at 267 (citation omitted). A causal connection between the
protected activity and the alleged retaliatory conduct may exist where the plaintiff engages in
both protected and unprotected activity. P.N. v. Greco, 282 F. Supp. 2d 221, 242 (D.N.J. 2003).

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The parties agree for the purpose of this motion that Ellis’s decision to discontinue
K.W.’s enrollment was an adverse action. Ellis argues that Plaintiffs have insufficiently pleaded
a causal connection. (MTD Brief 17.) Viewing the facts in the light most favorable to Plaintiffs,
Mr. Wiser requested or renewed his request for accommodations for his daughter at least three
times in a one-year period: July 7, 2016, March 7, 2017, and June 1, 2017. Ellis largely ignored
his requests and then discontinued K.W.’s enrollment shortly after Mr. Wiser’s June 1, 2017
email, attributing its decision to the content of the email. As stated above, while there are clearly
aspects of that email that do not fall under the purview of the retaliation provision, other aspects
plausibly amount to protected activity when read in the light most favorable to the Plaintiffs.
Thus, Plaintiffs have plausibly stated a prima facie case for retaliation and Ellis’s motion to
dismiss as to this argument will be denied.
B. Damages
Ellis also argues correctly that not all of the damages Plaintiffs have pleaded are available
for every count. (MTD Brief at 19.) Punitive damages and compensatory damages are
unavailable under the ADA’s retaliation statute. See Sabbrese v. Lowe’s Home Ctrs., Inc., 320
F. Supp. 2d 311, 332 (W.D. Pa. 2004). Similarly, punitive damages are not available under
§ 504 of the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 185, 189 (2002). Only
prospective injunctive relief is available in Title III cases; monetary damages are not available.
Anderson, 943 F. Supp. 2d at 538. Therefore, Ellis’s motion will be granted with respect to
dismissal of claims to the extent that those claims request unavailable damages.

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C. Pennsylvania Breach of Contract Claim5
Ellis argues that K.W.’s reinstatement or reenrollment is not possible because she was a
student pursuant to a personal service contract and specific performance is not an available
remedy for personal service contracts. (MTD Brief 21.) “[T]he relationship between a private
educational institution and an enrolled student is contractual in nature; therefore, a student can
bring a cause of action against said institution for breach of contract where the institution ignores
or violates portions of the written contract.” J.K. v. The Hill Sch., 2017 WL 1407438, at *4 (Pa.
Super. Ct. Apr. 20, 2017) (quoting Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. 1999)).
Contracts between an educational institution are reviewed like “any other agreement between
two private parties.” Reardon v. Allegheny Coll., 926 A.2d 477, 480 (Pa. Super. Ct. 2001)).
Curiously, while both parties agree Plaintiffs’ contract with Ellis is a personal service
contract, neither party cites any Pennsylvania case law concerning private schools in support of
their legal conclusions. A personal service contract is one that has a personal and non-delegable
character. 12 Corbin on Contracts § 65.25 (2018). Traditionally, equitable relief is not available
pursuant to a personal service contract because such relief might violate the Thirteenth
Amendment, or advance involuntary personal servitude. Id. A contract with a private institution
as opposed to a private party does not raise such a concern. Indeed, a contract with a private
school is more akin to a building contract that can be performed by multiple individuals.
Carlock v. LaSalle Extension Univ., 185 F.2d 594, 595 (Pa. 1950). Recently, the Superior Court
of Pennsylvania addressed whether a former student of a private school was entitled to a
preliminary injunction, a form of equitable relief; instead of deciding that equitable relief would

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This Court retains supplemental jurisdiction over Plaintiffs’ breach of contract claim. 28
U.S.C. §§ 1367(a), (c).
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be unavailable because the contract was a personal service contract, the court addressed the case
on the merits. 6 The Hill Sch., 2017 WL 1407438, at *2-*3. Ellis’s argument is unfounded
because specific performance—in this case, reinstatement—is available as a remedy.
Accordingly, Ellis’s motion to dismiss will be denied as to this count.
*

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For the reasons above, Defendant’s Motion to Dismiss (Doc. 14) is GRANTED in part as
to limitations on available damages and DENIED as to all other arguments.

November 13, 2018

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All counsel of record

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Hanover Assocs. v. Twp. of Hanover, 707 A.2d 1178, 1181 (Pa. Commw. Ct. 1998) (a
preliminary injunction is a form of equitable relief).
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