Aponte-Vazquez et al v. Commonwealth of Puerto Rico et al

Filing 40

MEMORANDUM AND ORDER re 2 Motion for Preliminary Injunction and Motion for Permanent Injunction: GRANTED; re 14 Motion to Dismiss for Failure to State a Claim: MOOT; and re 37 Motion submitting: NOTED. The Court ORDERS the Department of Education to hold a COMPU meeting on December 4, 2014, at 1:00 p.m. at Gerardo Selles Sola School to resolve the pending matters concerning DSA's compensatory time for the 2014-2015 school year. The Court GRANTS plaintiffs' request to DISMISS WITH PREJUDICE plaintiffs' retaliation claim. Signed by Judge Francisco A. Besosa on 12/02/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MADELINE APONTE-VAZQUEZ,
GABRIEL SANTIAGO-BIBILONI,
D.S.A. (MINOR),
Plaintiffs,
Civil No. 14-1762 (FAB)

v.
COMMONWEALTH OF PUERTO RICO,
DEPARTMENT OF EDUCATION OF
PUERTO RICO,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
To ensure that children with disabilities have access to a
free

and

appropriate

public

education,

the

Individuals

with

Disabilities Education Act (“IDEA”) directs the child’s parents,
teachers, and other professionals (the “IEP Team”) to develop for
each special education student an Individualized Education Plan
(“IEP”) that sets forth the required instructions and services
designed to meet the particular child’s unique needs.
U.S.C. § 1414(d).

See 20

Once the IEP is developed, the school system

must provide an appropriate placement that meets those needs and,
if an appropriate public placement is unavailable, the school
system must provide an appropriate private placement or make
available

educational-related

services

provided

organizations to supplement a public placement.
§

1412(a)(10);

34

C.F.R.

§§

by

private

See 20 U.S.C.

300.349, 300.400-402.

The IDEA

Civil No. 14-1762 (FAB)

2

requires that an IEP be in effect at the beginning of the school
year

for

each

child

with

a

disability.

See

20

U.S.C.

§ 1414(d)(2)(A).
Plaintiffs

Madeline

Aponte-Vazquez

and

Gabriel

Santiago-Bibiloni are the parents of DSA, who is duly registered
with the Department of Education of Puerto Rico (“DOE”) as a
student with disabilities.
diagnosed

with

Attention

(Docket No. 1 at ¶ 10.)
Deficit

Disorder

in

DSA has been

its

hyperactive

modality (inattentive type) and with learning problems such as
dyscalculia, dysgraphia, and dyslexia.
educational

services

at

the

Paula

Id. ¶ 8.
Mojica

DSA received

School

until

the

conclusion of the 2013-2014 academic year, when he graduated from
sixth grade.

Id. at ¶ 19.

On August 11, 2014, DSA began middle

school in the seventh grade at Gerardo Selles Sola School.

Id. at

¶¶ 20, 23.
Pursuant to DSA’s IEP for the 2014-2015 school year, he is to
receive the services of a Resource Classroom Teacher or Special
Education Teacher five times a week.

(Docket No. 1 at ¶ 21.)

Furthermore,

receive

DSA

is

supposed

to

the

following

accommodations pursuant to his IEP: (1) having exams and quizzes
read aloud to him; (2) being able to answer exams and quizzes in a
fragmented manner, meaning that the questions are separated into
discrete pages; (3) additional time to answer exams and quizzes;
(4) individual assistance; (5) notes, summaries, and photocopied

Civil No. 14-1762 (FAB)

3

instructions; (6) an assigned seat located away from distractions;
(7) assistance from a reader; (8) a reader; and (9) fifty minutes
of regular classroom and twenty-five minutes in resource classroom,
in Math and Spanish exams and quizzes.

Id. at ¶ 22.

Although classes began at DSA’s school on August 11, 2014, the
DOE had not assigned a Resource Classroom Teacher to DSA’s seventh
grade classroom at Gerardo Selles Sola School.
¶ 23.)

(Docket No. 1 at

Due to the absence of a Resource Classroom Teacher, DSA was

not receiving any of the accommodations provided in his 2014-2015
IEP to deal with his special education needs as required by the
IDEA.

Id. at ¶ 24.

On August 13, 2014, plaintiffs filed administrative complaint
number 2014-013-029 against the DOE requesting the appointment of
a Special Education Teacher to provide DSA the services to which he
is entitled pursuant to his IEP.

(Docket No. 1 at ¶ 25.)

On

September 26, 2014, the Administrative Law Judge (“ALJ”) held a
hearing and, on that same date, issued a Resolution granting
plaintiffs’ claim for relief and ordering that, on or before
October 3, 2014, the DOE appoint the Resource Classroom Teacher
assigned to DSA’s seventh grade classroom.

Id. at ¶ 26.

In his

Resolution, the ALJ highlighted that Mr. Eli Encarnacion-Lopez, the
School Director at Gerardo Selles Sola School, corroborated “that
the special education teacher who would attend the student had not

Civil No. 14-1762 (FAB)

4

been appointed yet and indicated that this student’s education []
in the seventh grade, ha[d] been affected by this situation.”
Motions for reconsideration of the Resolution were to be filed
within twenty days from September 26, 2014, and the DOE did not
move for reconsideration.

Requests for review of the Resolution

before the Court of Appeals were to be filed within thirty days
from September 26, 2014, and the DOE did not appeal the ALJ’s
Resolution.

Accordingly, the ALJ Resolution became final and

unappealable.
On

October

15,

2014,

plaintiffs

filed

this

action

for

injunctive relief requesting that the Court order the DOE to comply
with the ALJ Resolution and appoint a Special Education Teacher to
DSA’s seventh grade classroom.

(Docket Nos. 1, 2.)

Plaintiffs

also requested that the Court find that the DOE violated the IDEA
and that the Court award costs, expenses, and attorneys’ fees as
authorized by the IDEA.

(Docket Nos. 1, 2.)

The Court scheduled a hearing on the petition for injunctive
relief for November 7, 2014.

(Docket No. 7.)

On October 31, 2014, defendant DOE filed a Motion to Dismiss,
arguing that plaintiffs’ petition was moot because a Special
Education Teacher, Ms. Brendaliz Jimenez-Cotto (“Ms. Jimenez”), had
been assigned to Gerardo Selles Sola School on October 22, 2014.
(Docket No.

14.)

Plaintiffs responded

by filing

an

Amended

Complaint alleging that, as of November 4, 2014, DSA had not

Civil No. 14-1762 (FAB)

5

received the accommodations to which he was entitled from the
Special Education Teacher. (Docket No. 17.) Plaintiffs also added
a retaliation claim predicated on the School Director’s alleged
expressions towards plaintiff Aponte for having filed this lawsuit.
Id.
The parties appeared before the Court with their witnesses and
evidence at the hearing on November 7, 2014.

After an exchange

with the Court, the parties informed the Court that they were
willing to explore reaching a stipulation of all pending matters
without the need for the hearing.

The Court asked plaintiffs

Aponte and Santiago, who were present, if they understood and were
in agreement, and the plaintiffs responded in the affirmative. The
Court then granted the parties until November 13, 2014, to submit
their proposed draft of the injunction to be entered by the Court
in the event they reached a stipulation, or else the hearing would
be continued to November 17, 2014, to address any remaining issues
or claims.1
claim

The Court stressed its concern with the retaliation

raised

injunction

by

had

plaintiffs

to

be

and

narrowly

warned
drafted

the
so

parties
that

it

that

the

would

not

undermine or limit the prerogatives ascribed by the IDEA to School
Directors in the administration of students’ IEPs.

1

An extension of one week was granted and the hearing
rescheduled for November 24, 2014. (Docket No. 29.)

was

Civil No. 14-1762 (FAB)

6

On November 21, 2014, the parties filed a Joint Motion in
Compliance, informing the Court of the stipulation for permanent
injunction to be entered.

(Docket No. 32.)

Their stipulation

addressed plaintiffs’ claims regarding an award of compensatory
time to DSA to make up for the services he did not receive during
the time that a Special Education Teacher had not been appointed.
The parties also informed the Court that they had not reached an
agreement on the retaliation claim. Accordingly, the Court ordered
the parties to appear on November 24, 2014, prepared to present
evidence related to the retaliation claim.

(Docket No. 33.)

At

the beginning of the November 24 hearing, however, the parties
informed the Court that they had reached an agreement on the
retaliation claim. Plaintiffs requested a voluntary dismissal with
prejudice of their retaliation claim.
On November 26, 2014, the parties filed their stipulations and
a proposed draft injunction.

(Docket No. 37.)

The parties

indicated that they reached an agreement on all issues.
First,

the

parties

agree

that

all

matters

regarding

compensatory time for DSA will be addressed at a COMPU (Spanish
acronym for “Comité de Planificación y Ubicación” or “Planning and
Placement Committee”) meeting.

The COMPU meeting will be held on

December 4, 2014, at 1:00 p.m. at Gerardo Selles Sola School.
During that COMPU meeting, the Special Education Teacher will
certify the times she has given services to DSA.

That will serve

Civil No. 14-1762 (FAB)

7

as the basis to calculate the compensatory time that will be
awarded to DSA for the time he did not receive special education
services from the beginning of the school year.
Second, the parties agree that they will meet with ample time
before the beginning of the next school year (2015-2016) to prepare
DSA’s IEP for that school year.

Such a meeting will be held on a

yearly basis for the prupose of designing and approving DSA’s IEP
for each coming school year.

The COMPU meeting for the 2015-2016

school year will take place no later than May 2015.

Thereafter, a

COMPU meeting will take place each May for each subsequent school
year.
Third, the parties agree that plaintiffs are not entitled to
reimbursement of attorneys’ fees for the administrative proceeding
because the plaintiffs were not represented by any attorney during
that proceeding.

Plaintiffs claim that they are entitled to

reimbursement of costs and attorneys’ fees for this case.

The

parties cannot agree upon a specific amount because the case is
still pending its resolution.

The parties agree to submit the

issue for the Court’s resolution after the December 4, 2014, COMPU
meeting.
The Court has taken into consideration the ample participation
of the parties in the process to negotiate a stipulated solution.
At both hearings, the Court invited the plaintiffs and personnel
from the DOE to participate.

The Court has carefully considered

Civil No. 14-1762 (FAB)
the

parties

8

stipulations

and

resolution for all involved.

agreements

to

provide

a

fair

Accordingly, the Court ORDERS as

follows:
I.

COMPU Meeting
The

Court

ORDERS

the

DOE

to

hold

a

COMPU

meeting

on

December 4, 2014, at 1:00 p.m. at Gerardo Selles Sola School to
resolve the pending matters concerning DSA’s compensatory time for
the 2014-2015 school year.

The compensatory time services should

commence no later than the first day of classes in January 2015,
and should fully compensate for the services that DSA did not
receive from August 11, 2014, until the date that the Special
Education Teacher began to provide DSA his IEP accommodations. Any
matter concerning the receipt of these compensatory time services
or any other related item provided in DSA’s IEP shall be discussed
at the COMPU meeting.
The Court ORDERS the following individuals to be present at
the meeting:

(1) plaintiffs, Ms. Aponte or Mr. Santiago, parents

of DSA; (2) Mr. Encarnacion, the School Director; (3) the Math
Teacher; (4) Ms. Jimenez, the Special Education Teacher; (5) the
Social Worker; (6) the School Counselor; and (7) the Special
Education Supervisor.

The attorneys for the parties may attend.

If during the COMPU meeting the parties understand that they need
the assistance of another DOE official, they may summon that
official to facilitate and assist in the process.

Civil No. 14-1762 (FAB)

9

The Court further ORDERS the parties to inform the Court of
the agreements

reached

on

or

before

five

working

days

after

conclusion of the meeting, or by December 11, 2014.
II.

DSA’s IEP Accommodations
The

Court

accommodations

ORDERS
to

the

DSA,

DOE

pursuant

to
to

provide
DSA’s

the

IEP,

following

through

the

involvement of the Special Education Teacher appointed to the
seventh grade resource classroom at Gerardo Selles Sola School:
(1) read exams and quizzes aloud to DSA; (2) allow DSA to answer
exams

and

questions

quizzes
are

in

a

separated

fragmented
into

manner,

discrete

meaning

pages;

(3)

that

the

allow

DSA

additional time to answer exams and quizzes; (4) provide individual
assistance to DSA; (5) provide notes, summaries, and photocopied
instructions to DSA; (6) locate DSA’s assigned seat away from
distractions; (7) provide DSA with assistance from a reader;
(8) provide a reader for DSA; and (9) provide DSA fifty minutes of
regular classroom and twenty-five minutes in resource classroom, in
Math and Spanish exams and quizzes.
III. Certification of Services
The Court ORDERS the DOE to certify to the Court all dates in
which Ms. Jimenez has provided services to DSA after her assignment
to the seventh grade at Gerardo Selles Sola School.
further

ORDERS

the

DOE

to

consider

this

The Court

information

at

the

Civil No. 14-1762 (FAB)

10

December 4, 2014, COMPU meeting when designing the form and extent
of compensatory time to provide DSA.
IV.

Notification of this Order
The Court ORDERS the DOE to provide a copy of this Order

within

forty-eight

hours

to

the

following

individuals:

(1) Mr. Encarnacion, the School Director; (2) Ms. Jimenez, the
Special Education Teacher; (3) the Associate Secretary for Special
Education; and (4) the Secretary of the DOE.
V.

Annual COMPU Meeting
The Court ORDERS the DOE to summon a COMPU meeting and approve

DSA’s IEP each May, on a yearly basis, with sufficient time to put
the IEP in full effect by the beginning of each school year.
VI.

Costs and Attorneys’ Fees
The Court ORDERS plaintiffs to submit their petition for

reimbursement of costs, litigation expenses, and attorneys’ fees no
later than ten days after conclusion of the December 4, 2014, COMPU
meeting.

The Court will determine the amount to be reimbursed.

VII. Retaliation Claim
The Court GRANTS plaintiffs’ request to DISMISS WITH PREJUDICE
plaintiffs’ retaliation claim.

This dismissal applies only to the

events alleged in the Amended Complaint, (Docket No. 17), and not
to any future retaliation event.

Civil No. 14-1762 (FAB)

11

IT IS SO ORDERED.
San Juan, Puerto Rico, December 2, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE