ERIE – A federal judge has rejected the Erie School District’s attempt to dismiss a lawsuit filed against it by the mother of an emotionally disabled and autistic male student, one who the suit says was discriminated against and then unsafely ejected from school.
Lacy Swogger first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 27, versus the Erie School District. Both parties are of Erie.
On March 5, 2020, 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.
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, per U.S. Supreme Court precedent in Barnes v. Gorman.
UPDATE
U.S. District Court Judge Susan Paradise Baxter found that “under well-established principles of contract law, emotional distress damages are available when the nature of the contract is such that a breach will foreseeably result in significant emotional harm to the non-breaching party.”
“In this Court’s view, it seems entirely foreseeable that, when disabled individuals are denied the benefits of programs or services by a public entity or a recipient of federal funds, the aggrieved individual will often sustain emotionally harm,” Baxter said.
“In Barnes, the Supreme Court also expressed concern about the ‘indeterminate’ nature of punitive damages, noting that ‘the scope of potential damages liability is one of the most significant factors a school would consider in deciding whether to receive federal funds.’ But unlike punitive damages, emotional distress damages ‘bear a significant and altogether determinable relationship to events in which the defendant entity participated and could have foreseen.”
Baxter said the Court “is of the view that public entities and federal funding recipients have fair notice of their potential liability for resulting emotional harm when they intentionally violate the provisions of the Americans with Disabilities Act or the Rehabilitation Act” and permitting recovery for emotional harm in such situations is “fully consistent with the Supreme Court’s Title VI jurisprudence, including the principles discussed in Barnes.”
“Accordingly, this Court holds that Title II of the ADA and Section 504 of the RA allow plaintiffs to recover damages for emotional harm where there is evidence of intentional discrimination. Because the facts alleged in the complaint could plausibly support a claim of intentional discrimination under Title II of the ADA and Section 504 of the RA, plaintiff has stated a plausible basis for the recovery of non-economic damages,” Baxter said.
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