ERIE – The mother of an Erie High School student who claims the district committed egregious discrimination against her emotionally disabled and autistic son and then unsafely ejected him from school, argues the district brought the lawsuit on itself through its actions.
Lacy Swogger of Erie County first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 27, versus the Erie School District, also of Erie.
On March 5, Swogger’s minor son, P.W., was a 17 year-old student at Erie High School. P.W. has a primary disability of emotional disturbance and a secondary disability of Autism Spectrum Disorder.
“To assist P.W. with his education, he had an individual education plan. An IEP is a written plan developed to ensure that a child with an identified disability who is attending an elementary or secondary educational institution receives the necessary specialized instruction and related services,” the suit stated.
“One of the accommodations of P.W.’s IEP was a ‘break card,’ which permitted him to: Transition from his classes early, eat lunch in the office, be dismissed early to get on the bus at the end of the school day, go to the emotional support classrooms when he felt a break was needed or to the office of the principal, Principal Donald Orlando.”
During a meeting with the school’s behavior specialist Matt Jones on March 5, P.W. was attempting to describe how he had been picked on by another student.
“During the meeting, P.W. became upset as he tried to explain what had happened, felt that he was being falsely accused, and that he was not being given an opportunity to tell his side of the story. P.W. became frustrated, overwhelmed and started to ‘melt down’ and began swearing,” the suit stated.
“Once P.W. begins to enter ‘meltdown’ mode, it is difficult to calm down without removing himself from the situation and engaging in a calming activity. All of this information about P.W. was known and understood by Orlando and other members of P.W.’s IEP team.”
As directed by his IEP, Swogger said P.W. began walking to Orlando’s office. At that time, P.W. was allegedly surrounded by Jones, Assistant Principal Maurice Troop.
Then and without warning, P.W. had a pen he was holding in his hand knocked out of it by one of the administrators and was restrained by being pushed up against the wall, being released only when Orlando approached. P.W. was then directed to walk down the hall, with the three administrators and two police officers following behind him.
After unsuccessfully attempting to make contact with his mother, the plaintiff, P.W. was then ejected from school property just before 9:45 a.m. without having transportation secured for to go home. Such transportation is another requirement of both his IEP and PBSP (positive behavior support plan).
Orlando was alleged to have called Swogger at 9:47 a.m. and left her a voicemail message explaining that P.W. was on his way home and to give her a call, but did not explain that transportation was not provided for him.
On March 5 and 6, Swogger called the school 13 times, trying to learn what happened to her child.
“Ms. Swogger never received any explanation of what P.W. is alleged to have done that required him to be kicked off of school property and left in the City of Erie unattended, far from his home, and without any plan for how to get home. To date, Ms. Swogger has not been informed by anyone at the Erie School District that P.W. had misbehaved on March 5, or that he was or is being disciplined in any way,” the suit stated.
“P.W. was overwhelmed with the sense of betrayal by Principal Orlando and the other employees or representatives of the Erie School District, was afraid about ever returning to Erie High, refused to return and is adamant about never returning. P.W. is now a student of PA Cyber. P.W. will most likely never be physically or emotionally able to attend a public high and will forever lose out on all of the attendant benefits thereby irreparable harming his personal and educational growth and development.”
Erie School District filed a motion to dismiss the complaint on Aug. 27, arguing the plaintiff shouldn’t be able to seek punitive or emotional damages in contract actions.
“The Third Circuit has yet to rule on the availability of emotional distress damages in ADA and Section 504 cases. However, the School District contends those line of cases precluding recovery of emotional distress damages are more in line with the Supreme Court’s decision in Barnes v. Gorman. The School District believes this Court should follow the Supreme Court’s guidance in Barnes and the Fifth Circuit’s decision in Cummings by following traditional contract principles of foreseeability and certainty,” per the School District’s motion.
“And under those principles, neither punitive damages nor emotional injuries are recoverable in contract actions and, thus, neither should be recoverable under the ADA or Section 504. Therefore, the School District requests that the Court dismiss plaintiff’s claimed to the extent they seek monetary compensation for emotional distress.”
UPDATE
Swogger’s counsel filed a brief opposing the School District’s dismissal motion on Sept. 16.
“In its brief, the Erie School District admits that the Third Circuit has never ruled that the Americans with Disabilities Act and Rehabilitation Act do not permit compensation for emotional damages. However, it requests that this Court ignore the plain meaning of the ADA and RA and follow the Fifth Circuit Court of Appeals, which is in the extreme minority of courts which have ruled on the issue,” the brief stated, in part.
“The plain language of the ADA and RA permits P.W. to recover for the emotional and psychological harm caused by the Erie School District. Consistent with the text of the ADA and RA, all but two of the federal courts across the country who have addressed the issue have 1 concluded that emotional harm is recoverable under the ADA and RA. Based on the plain language of the ADA and RA, the Erie School District’s motion to dismiss should be denied.”
The plaintiff said the suit resulted from trouble of the defendant’s own creation.
“The Erie School District’s solution has been to ask this Court to ignore the text of the ADA and RA, and create new law in the Third Circuit. The Erie School District should not be permitted to hide behind a disfavored minority position, which is contrary to the text of the relevant statutes and is based on an inapplicable Supreme Court ruling on punitive – not emotional – damages,” the brief said.
“School administrators have caused serious harm to P.W. because of their deliberate indifference to his disability, and the ADA and RA were passed into law by Congress precisely to ensure that persons like P.W. had an adequate remedy for the resultant harm they endure.”
For counts of violating the Rehabilitation Act and Americans with Disabilities Act of 1990, the plaintiff is seeking damages in excess of $75,000, plus attorney fees and all other relief permitted by law.
The plaintiff is represented by John Mizner of the Mizner Firm, in Erie.
The defendant are represented by Michael J. Musone and Neal R. Devlin of Knox McLaughlin Gornall & Sennett, also in Erie.
U.S. District Court for the Western District of Pennsylvania case 1:20-cv-00128
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com