ERIE – The mother of an emotionally disabled and autistic male student, who claimed her son was discriminated against and then unsafely ejected from school, has settled her litigation with the Erie School District.
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
In a Feb. 19 answer to the complaint, counsel for the district argued that P.W. left school voluntarily and in accordance with plaintiff’s verbal instructions to the District.
“By way of further response, at P.W.’s annual IEP meeting on Jan. 31, 2020, plaintiff told P.W.’s IEP team that if a situation arose that could result in criminal charges against P.W, that P.W. should be allowed to leave school,” the answer stated, in part.
“Plaintiff and Principal Orlando agreed that if P.W. left school under such circumstances, he would call plaintiff to let her know that P.W. was leaving school. Principal Orlando also confirmed with plaintiff that P.W. had contact phone numbers in his cell phone and that P.W. knew how to have someone pick him up if he left school.”
Among other affirmative defenses, the District countered that the plaintiff failed to state a claim or cause of action against the defendant; that the plaintiff’s claims are barred, in whole or in part, based upon the plaintiff’s failure to exhaust administrative remedies; that the defendant’s conduct did constitute intentional or bad faith actions; and the plaintiff’s claims are barred, in whole or in part, based upon the unavailability of emotional distress damages.
After a mediation session held on May 25, a filing on the case docket dated three days later indicated that the litigation had been resolved. However, terms of the settlement were not disclosed.
U.S. District Court for the Western District of Pennsylvania Judge Susan Paradise Baxter ruled on May 28 that both parties are directed to file a stipulation of settlement and dismissal on or before Aug. 2.
The Pennsylvania Record contacted counsel for both parties in the action for further information, but members of counsel stated they could not offer comment at this time. However, plaintiff counsel explained the settlement will be discussed in detail during an upcoming session of the Erie School District Board on June 16.
Prior to settlement and 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 was represented by John F. Mizner of the Mizner Firm, in Erie.
The defendant were 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