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Pangerl v. Peoria Unified School District

United States District Court, D. Arizona

February 15, 2017

Regina Pangerl, Plaintiff,
v.
Peoria Unified School District, Defendant.

          ORDER

          HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE

         At issue is an administrative law judge's (“ALJ”) denial of Plaintiffs' Due Process Complaint under the Individuals with Disabilities Education Act (“IDEA”). Plaintiff Regina Pangerl filed a First Amended Complaint (Doc. 40, FAC) with this Court seeking judicial review of that denial, and the Court now considers Plaintiff's Trial Brief (Doc. 72, Pl.'s Br.), Defendant Peoria Unified School District #11's (“the District”) Opening Brief (Doc. 73, Def.'s Br.), Plaintiff's Response Brief (Doc. 74, Pl.'s Resp.), and Defendant's Response Brief (Doc. 75, Def.'s Resp.). The Court finds this matter appropriate for decision without oral argument. See LRCiv 7.2(f).

         I. BACKGROUND

         Plaintiff first filed a Complaint (Doc. 1) in this action on April 21, 2014, raising a claim against Defendant to appeal the ALJ's denial of certain aspects of her Due Process Complaint[1], and the Court set a briefing schedule on October 27, 2014 (Doc. 19). On January 26, 2015, Plaintiff filed a Motion to Amend the Complaint (Doc. 29), requesting leave to add claims against Defendant under the Rehabilitation Act (Count 2), the Americans with Disabilities Act (Count 3), and Arizona law (Count 4), thus changing the complexion of this case from the appeal of an administrative decision under IDEA to one that includes federal and state law claims to be resolved for the first time by the Court. While granting the Motion to Amend, the Court concluded that it would resolve the appeal (Count 1) before addressing the new claims. (Docs. 35, 38, 39.) Having received the parties' briefs, the Court now resolves Count 1.

         In the first cause of action of the FAC, the operative pleading, Plaintiff raises a claim against the District on behalf of herself and her incapacitated daughter, T.P. (“Student”)[2], to appeal an administrative decision under IDEA, 20 U.S.C. § 1415(i)(2). (Doc. 40, FAC ¶¶ 1, 66-68.) Plaintiff alleges Student has learning disabilities and the District failed to provide her with a Free Appropriate Public Education (“FAPE”) from 2010 to 2013, as required under IDEA, by among other things failing to properly develop and design an Individualized Education Program (“IEP”), failing to provide the requisite speech and math services, failing to provide an appropriate plan to allow Student to transition out of high school, and failing to provide Extended School Year (“ESY”) services. (FAC ¶¶ 14-19, 23, 67.) On January 13, 2013, Plaintiff filed a Due Process Complaint with the Arizona Department of Education, Exceptional Student Services, Dispute Resolution Unit. (FAC ¶ 20.) ALJ Eric A. Bryant held hearings on the Due Process Complaint between September 3, 2013, and October 8, 2013, and issued a Decision on March 18, 2014, ordering the District to provide Student with an additional 40 hours of special education math instruction but denying all other requested relief. (FAC ¶¶ 21, 25, 27-28.)

         Plaintiff alleges the ALJ erred by, among other things, considering irrelevant or extrinsic evidence and disregarding relevant evidence, finding the transition plan in the IEPs to be appropriate, finding the District properly implemented most aspects of the IEPs, finding that the District did not significantly impede parental participation in the IEP by continuing an IEP meeting after the departure of Plaintiff and her husband (“Parents”), and finding the District provided Student with a FAPE over the relevant period with the exception of math instruction. (FAC ¶ 68.) Plaintiff requests that the Court vacate the ALJ's March 18, 2014 Decision, find that the District denied Student a FAPE, award compensatory education services and transition services for the 2011-2013 school years, and award Plaintiff her expenses, attorneys' fees, and costs in enforcing Student's special education rights. (FAC at 22-23.)

         The ALJ Decision in this case is a 42-page order setting forth the witnesses, evidence, and issues at the hearing along with detailed findings of fact. (Doc. 40-1, Ex. E, ALJ Decision (“ALJ”) at 1-42.) The ALJ states he considered the entire record, including all the testimony and every exhibit. Because the Court finds the ALJ was thorough and careful in his findings, the Court concludes they are entitled to significant weight. JG v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008).

         Plaintiff does not dispute the factual findings of the ALJ, but rather, only disputes the ALJ's conclusions of law. (Pl.'s Resp. at 7.) Therefore, the Court only briefly summarizes the relevant facts for context and disjointly calls out only the facts directly addressed by either Plaintiff or Defendant.

         In January 2011, Student attended New Way Academy (“NWA”), a school for students with learning disabilities, because of her speech/language impairments and learning disabilities in the areas of listening comprehension, reading comprehension, reading fluency, math calculation, and math reasoning. (ALJ at 6 ¶ 1.) The District created IEP plans for each academic year from 2010 to 2013, which contained prescribed minutes per month of specialized instruction. (ALJ at 7-23 ¶¶ 2-38.) Plaintiff's issues with the District first arose in February 2011 when Parents ceased speech therapy for Student after Student developed issues with the District's two speech therapists. (ALJ at 12 ¶¶ 12-13.) At the end of December 2011, the IEP team changed Student's placement from NWA to a public high school within the District. (ALJ at 17 ¶ 21.) Upon switching schools, Student's new schedule deprived her of 90 minutes per day of special education instruction in math for one semester as required by her existing IEP. (ALJ at 17 ¶ 22.) During the course of the twelve-day hearing, the ALJ heard testimony from eight expert witnesses. (ALJ at 25 ¶ 40.) Specifically, in regards to the adequacy of the speech and language services, the ALJ heard from Ms. Carahaly, a witness for Plaintiff, as well as three speech pathologists who testified on behalf of the District. (ALJ at 25-26 ¶¶ 41- 42.)

         Ultimately, the ALJ rejected all ten of Plaintiff's claims as follows: 1) Student's 2010, 2011, and 2012 IEPs did not fail to provide a FAPE; 2) the District did not fail to implement's Student's 2010 and 2011 IEPs by failing to implement her transition plan; 3) Student's 2010, 2011, and 2012 IEPs had measurable speech goals; 4) the District did not violate IDEA by not providing an alternate speech therapist in 2011 as requested by Parents; 5) Student's 2011 IEP provided adequate speech therapy minutes; 6) Plaintiff failed to prove that the amount of speech services provided by Student in the 2010 and 2011 IEPs was determined without meaningful participation of Parents; 7) the District did not materially fail to provide speech services to the Student when it failed to provide 7% of the promised speech services; 8) the District did not fail to provide Student with the amount of reading and writing instruction required by the 2011 IEP; 9) the District did not violate IDEA by continuing an IEP planning meeting in November 2012 after Parents left the meeting early; and 10) the District did not err in determining that Student did not qualify for ESY services in Summer 2013. (ALJ at 33-39.) The ALJ found only one violation of IDEA-the District failed to provide required math instruction in Fall 2012-and concluded that 40 hours of one-on-one math instruction was adequate to compensate Student for that loss. (ALJ at 40-41.)

         A dispute between the parties centers around the events of an IEP planning meeting that took place in November 2012, when Student's IEP team met to formulate the 2013 IEP. (ALJ at 18-19 ¶ 26.) The District scheduled the meeting for two hours. (ALJ at 18-19 ¶ 26.) Plaintiff and her two advocates, including an educational consultant, attended the meeting, which also included Student for part of the meeting and the District's special education representatives. (ALJ at 18-19 ¶ 26.) At the beginning of the meeting, Plaintiff's educational consultant stated that she could only stay for the allotted two hours. (ALJ at 19 ¶ 27.) After two hours passed, Plaintiff's educational consultant suggested reconvening the meeting at a later point to continue the ongoing discussion. (ALJ at 19 ¶ 27.) The District representative stated that the IEP team would be reconvening at a later time to make addenda to the IEP, but that the IEP team would finish the IEP during the current meeting. (ALJ at 19-20 ¶ 27.) Parents and their two advocates left the meeting, while the remainder of the District IEP team completed the IEP. (ALJ at 20 ¶ 28.) According to the testimony of the District representative, the IEP team needed to complete the IEP that day because the previous IEP would expire in a few days. (ALJ at 20 ¶ 28.) The District representative testified that the District IEP team planned to reconvene to re-address any ongoing concerns and to amend the IEP. (ALJ at 20 ¶ 28.) The IEP team including Parents met again in January and February 2013, during which time the team made changes to the 2013 IEP. (ALJ at 21-23 ¶¶ 33-34, 36.)

         Another point of issue between the parties pertains to the testimony about transition services given by an expert for Plaintiff and an expert for the District. Gary Green, Ph.D., testified on behalf of Plaintiff and Rick Dunn testified on behalf of the District. (ALJ at 26 ¶ 43.) The ALJ found both witnesses to be credible but gave more weight to the testimony of Mr. Dunn. (ALJ at 26 ¶ 43.) The ALJ reasoned that Dr. Green had previously testified that Student's 2010 and 2011 transition plans in the IEPs were inadequate but subsequently backed away from this assertion upon cross-examination when he reviewed evidence of the content of the courses that Student took. (ALJ at 27 ¶ 44.) On the other hand, the ALJ found Mr. Dunn to be “more familiar with the coursework and the process that Respondent School District uses to provide transition services.” (ALJ at 27 ¶ 45.) After recounting the testimony of both experts on transition planning, the ALJ concluded that the “IEPs were poorly written, ” but that nevertheless, “transition assessments were given prior to and throughout the period at issue . . . .” (ALJ at 28 ¶ 47.)

         In the FAC, Plaintiff asserts that the ALJ committed twenty-five errors. (FAC at 19-22.) In her Opening Brief, however, Plaintiff presents and addresses only six questions for judicial review. (Pl.'s Br. at 10-25.) Any errors listed in the FAC but not raised in Plaintiff's Opening Brief are deemed abandoned and waived for failure to brief the arguments. See M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 861 (9th Cir. 2014), as amended (Oct. 1, 2014) (“The parents fail to brief the stayed Department of Education investigation theory, and it is therefore waived.”); United States v. Williamson, 439 F.3d 1125, 1137-38 (9th Cir. 2006) (holding that issues raised in an appellate brief but not supported by argument are abandoned).

         II. LEGAL STANDARD

         Under IDEA, any aggrieved party may bring a civil action in federal district court after receiving the final decision of an ALJ. 20 U.S.C. § 1415(i)(2)(A). The moving party bears the burden of proving the ALJ's decision was not met by a preponderance of the evidence. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908-10 (9th Cir. 2008). The district court “shall receive the records of the administrative proceedings, ” can under certain circumstances hear additional evidence, and “basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C).

         In a judicial proceeding under IDEA, the Court reviews de novo the question whether a school district's proposed IEP provided a FAPE, but reviews the ALJ's findings of fact only for clear error. Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1118 (9th Cir. 2016). Mixed questions of law and fact are reviewed de novo, unless the question is primarily factual. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). Courts must not “substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). However, it is a matter of district court discretion to decide the degree of deference to give the ALJ's determination. Ojai Unified Sch. Dist. v. Jackson,4 F.3d 1467, 1474 (9th Cir. 1993). When reviewing the ...


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