C. v. CHELTENHAM TOWNSHIP SCHOOL DISTRICT, No. 2:2007cv02930 - Document 10 (E.D. Pa. 2010)
Court Description: MEMORANDUM AND OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/5/10. 3/8/10 ENTERED AND COPIES MAILED, E-MAILED, FAXED BY CHAMBERS.(fdc)
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IN TIm UNITED STATES DlSTRlCT COURT FOR TIIE EASTERN DlSTlliCT OF PENNSYLVANIA KAITLIN C 1 a minor, by her mother and natural guardinn, SHANNON M., Plaintiff, CIVIL ACTION v NO, 07-2930 CHELTENHAM TOWNSHIP SCHOOL DlSTRlCT, Defendant. MICHA~~ ", I(Ui~Z, eler!( b!,_._~._"::~,) ";l_,,; MARCH SURRICK, J. S, uno MEMORANDUM Presently before the Court is Defendanl Cheltenham Township School Dislrlct's Motion to Dismiss Pursuant tu FRCP 12(b)(6), (Doc, No, 5,) for the following reasons, the District's Motion will be granted. I. IIACKGROUl'iD PJaintlff, Kaitlin c., is' a minor who resides in thi:,'. Cheltenham Township of Perulsylvania with her mother and natural guardian, Shannon M, (Compl. ~ 1.) Defendant Cheltenham Township Sehool District is an entity organized pursuant to the Public School Code of 1949, 24 Pa. Cons. Stat. § 1-101, et seq, (ld. ~ 2,) The District reecives federal funds and has been rJesjgnaroo hy Pennsylvania law and the Pennsylvania Departmenl of Education to provide educationa\ services to the residents of Cheltenham Township, (Id ~ 5,) At tht~ age of ten, Plaintiffw3s diagnosed 'With Turner Syndrome, a ge,nctic disorder occurring only in females, (ld. ~ 6.) Plaintiff wa~ subsequently diagnosed with other medical conditions, including osteoporosis and Crohn > s Disease, both of which commonly occur in individuals with Turner Syndrcme, (lei.) Beginning in September 2001 and continuing through the filing of the Complaint, Plaintiff's mother "provided the Dislriet with currenl medical lnfonnatiun pertaining to PlainliiI's medical conditions, limitations, and re:;metions:' (Id.1; 7.) Near the beginning of Plaintiff's freshman year at Cheltenham High School in 2005, the District was made aware that P]ajntiff's medical c-Onditions made it dangerous for her to participate in ::;ome physical activities, particularly those involving high impact to her bones and joints. (Id. ~ 8.) PlaintiWs freshman roster included Physical Education, which, in the fall of 2005. involved playing baskelball (Id n 9-1 0.) Plaintiff told her teacher that she eould not participate, and the teacher, who was not aware of Plaintiff ,\;\ physical limitations, ridicnled her in front of her classmates. (ld. ~ 10.) In rC!)ponse to this incident, PlaintitT's mother requested that the District make reasonahle accommodations for Plaintiff hy exempting her from participation in physical activities. (lei. ~ 1L) The District grailted the requests and placed Plaintiff in a class called Fitness for Life in:::;tead of Physical Education. (ld ~ 12.) In Ncvember 2005, the District implemented a comprehensive Individualized Education Program {"1EP") for Plaintiff, whkh addressed both her physical and mental needs. (ld. , 13; see also Compl. Ex. A) The rEP included an exemption for Plaintiff from Physical Educatiun cJass. (CompL ~ 14.) Plaintiff was again enrolled in Filness fur Life instead of Physical Education when she began her sophomore ycar in September 2006. (Id.' J5-16.) On September 1~), 2006, the District administered a physical fitness tcst to the stuik:nts in the Fitness [or Life class. (It/. 4 17) During the teslr Plaintiffperformcd a "shuttle run" and, during thc course of the run, Plaintiff fell and sevcrcJy injured her TJght ankle. (Id. Phtintiff in the hospitaL (Id. ~ 18.) On September 21, 2006, Plaintiff s Fitness for Life teacher visited 1! 19.) While there, the teacher admitted to PlaIntiff's mnther thal she 2 was not aware of Plaintiff's physical Hmitatiollli or hcr exemption from physical activities, (ld) Plaintiff's mother was later informed by Plaintifrs guidance counselor and Plaintiff's Vice Principal that they were not aware that the Fitness for Life class included physical aetivilies. (ld ~ 20.) II. LEGALSTA:liDARJ) Federal Rule of Civil Procedure 12{b)(6) provides that a complaint may he dismissed lor "failure to stale a claim upon which relief (.-.an be granted," Fed. R. eiv. P. J2(b)(6). ''To survive a motion to di::.miss, a complaint must contain sufficient factual matter, accepted as true) to 'state a clajm to relief that is plaub-iblc on its face."~ Ashcrojt v, lqbal, 129 S, Ct, 1937, 1949 (2009) (quoting Bell JW. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In lqbal, the Supreme Cnurt set forth a two· part analysis that district courts must conduct when reviewing a eumplaint challenged under Rule 12(b)(6). See Fowler v. UPMC ShadYSide, 578 FJd 203, 210-11 (3d CiL 2009) (desctibing Iqbal's two-step inquiry)" The district court must first separate "the factual and legal elements of a c1aim/' accepling all of the complaint' s well-pleaded facts os true but rejecting legal conclusions. Id at 210 (citing lqoal, 129 S. CL", 1949); see also lqbal, 129 S. CL at 1949-50 ("Threadbare recilals of the elements uf a cause of action, supported by mere conclusory statements, do noL suffice fto stnte a claim]:'). Under this analysis, well-pleaded wctual allegations are to be given a presumption of veracity. lqhai, 129 S, ct. at 1950. The district court must then "detemline whether the facls alleged in the complaint are sutficlent to show that lhe plaintiff has a 'plausible claim for relief,'" Fowler, 57!S E3d at 211 (quoting Iqbal, 129 !:L Ct. at 1950). A complainllhat merely aJleges entitlement LQ relief, without alleging facts that show entitlement, must be dismissed. ld By contrast; a compJaint that demonstrates entidement to reliefthrotlgh wcH-pleaded facts will survive a motion to dismiss. See id. Given the nature of the two-part analysis, '" [d]elcrmining whether a complaint stales a 3 plausible claim for relief will .. , be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense,'" See .\kTernan v, City olrork, 577 F,3d 521,530 (3d elr. 2009) (quoting Iqbal, 129 S. Cl. at 1950). III, LEGAl, ANALYSIS Plaintiff's one-cuunl complaint seeks money damages under § 504 of the Rehabilitation Act of 1973. 29 US.C. § 701. et seq, The Rehabilitation Act prohibits recipients of federal funding, including schools, from discriminating on the bash; of disability. Section 504 of the Act mandates that [n]o otherwise qualified individual with a disability. ,. ~hall. solely by reason of her or his di!:;l1bility. be eXl:,ludcd from the participation in, be denied the benefits oft or he subjected to discrimination under any program or activity receiving }-'ederal financial assistance or under any program or activity conducted by any Executive agency Or by the United States Postal Service. 29 U.S.C § 794, A plaintiff asserting a violation of § 504 mu~t prove four elements: (1) that she is "disabled" Q.<; defined by !.he Rehabilitation Act; (2) that she is other.vise qualified to participate in school activities; (3) that the school or ~chOQI board receives federal financial asslstzlnce; and (4) that she was excluded from partieipaliun in. denied the henefits of, ur subjcct to discrimination at the, ,ehoo!. Ridgewood Bd. o/Educ. v. N Ii. ex rei. ME., 172 F.3d 238, 253 (3d Cir. 1999) (citing WB. ,.. Matula, 67 F.3d 484, 492 (3d Cir. 1995), abrogated on other ground, by A.W v. Jersey City Pub. Sehs., 486 ,3d 791, 803-04, 806 (3d Cir. 200T»; see also Andrew M. V. Del County Office 0/ Health & Meotal Retardalion, 490 F.3d 337, 350 (3d Cir. 2007); Nathanson,.. Med Coif. o/Pa., 926 F.2d 1368, 1380 (3d Cir. 1991). The Complaint properly alleges facts sufficient to establish the first three elements of a § 504 \rioJation. Plaintiff is disabled under the Act, see 29 U.S.c. § 705(20){D); she i:> otherwise qualified 4 to participate in school activities: and the Distri'-"i receives federal funding. In addition, the Complaint alleges that District knew of Plaintiffs disabilities. Thus, the sole issue now be10rc us is whether the Complaint adequately alleges the fourth clement of a § 504 violation. The Complaint alleges that "[b]y administering a physical fitness test to [PlajnliffJ . , .: [the] District failed to accommodat~ her dIsability and violated her rights under § 504 ...." (CompL, 26.) The regulations implementing § 504 require recipients: of federal funding to "make rca-sonaMe accommodation to lhc known physical or mcnt.allimitations of an otherwise qualified handicapped applicant or employee unless the tecipient can demonstralc that the accommodation would hnpose an undue hardship on the operat.ion of Its program or activity.') 45 C.F.R § 84,12{a). As an inilialmatter, Plaintiff's decision to frame the District's conduct as a failure to accommodate is interesting since thcrc is no dispute here that the District provided Plalotiffwith an IEP. (See CompL Ex. A) Moreover, there is no dispute ahout the adequacy of the rEP as it i~ structured. Rather, the dispute is over how the District and teachers at Cheltenham High School implemented the IEP. Nunnally, federal funding refuses (If failure~to-aceorrunodate claims are brought because a recipient of fails to provide reasonable accommodations to disnbled persons. For example, in Nathanson v. :Medical College ofPennsylvania, the plaintitTbrought suit against the defendant*sehool for it.. refusal to provide her with special seating and parking arrangements to aceommodntt~ her disability. 926 F .2d at 1377, The court observed that ifthe defendant's "failure to provide a sui:able seating arrangement makes its program effectively unavailable to a student with a baek injury, then that f.;lilurc could con!;titute the type of ;'benign neglect' rderred to in Alexander [v. Choate, 469 U.S. 287,295 (I985)]lI1ld a viQlation ofthe RchabiliMion Act." ld Whil. a plaintjff could conceivably state § 504 claim arising out of the implementation of an IEP, in the instant case, 5 the observation is pertinent because the District's eonduet, m; alleged in the ComplaInt, does not appear to have excluded Plainti1f from participation, denied her" benefit, subjected her to discrimination, or rCltlScd her a reasonable accommodation. See 29 l),S.C § 794. To the contrary, the District acknowledged Plaintiffs dhmbiiity and developed an IEP that aecommodated it by excusing her from Physical Edueation class, Even when viewed in the light most favorable to Plaintiff, the conduct does not appear to he a failure to accommodate. The operative fact}! in the Complaint establish that school officials were unaware that the fitness for Life cla.:;s included some physkal activities like the fitness test that resulted in Plaintiff's injury, (See CompL ~ 20.) Thus, the Complaint appears to be an attempt to cast a negligence eiaim as a § 504 violation, I The harm that Plaintiff alleges supports this i,;onelusion. The Complaint slates that she "has f;uffcred severe and pennanent physical injuries and aggravation of her existing physical impainnenlB. < ¢ [as well as] emotional distress, pain, loss oflife'N pleasures, and damage to hi!r earning cnpacity." (Jd., 27.) However, we need fillt address the specific question of whether the negligent implementation ('If an IEP can form the ba..'lis of a § 504 claim because Plaintiff's damages allegations highlight a defect in the Complaint that precludes PlaintitT irom proceeding with this A negligence claim against the school district would be prohlematic under the Pennsylvania Political Subdivlsion Tort Claims Act. 42 Pa. Cons. Stat. § 8541 itl seq. Under me act, toeaJ agendes, such as scbool districts, are immune from liability "for any damages on account of any injury to 8 person or property caused hyany act of the local agency or an employcc tJlcreof or any other person." 4:2 Pa. Cons. Stat. § 8541; see also Taclrett v. Pine Richland Sch Disl., 793 A.2d 1022, 1025 (Pa. Comrnw. Ct. 20(2) (affirming lower court's granf of summaf) judgment in ElVor of school district where the "alleged acts of negligence relate only to [a teacher's J failure to properly supervise the studcnts or the classroom activity"). This grant of immunity is waived for a subset of negligence actions. 42 Pa. Cons. Slat § 8542. That subset does not indude tbe type of negligcnL supervision alleged in the Complaint. See id. (exchlding (l) the operation of motor vehicles, (2) the care, custody or control of personal property, (3) the care, custody or conlrol of real property, (4) trees, traffic controls and street Jighting. (5) utility service facilities. (6) streets, (7) sidewalks. and (8) the care, custody or control of animals). j 6 actiun,? Plaintiffs seeking compensatory damage" arising from it § 504 violation must allege that the conduct was intentional. See. e.g., Delano-Pyle v. Victoria County, 302 F,3d 567,574 {5th CiT. 2002). Plaintiff argues that she does not need to aUege intent, citing the Third Circuit's decis;ion in Ridgewood Board a/Education v. NE., 172 F.3d 238 (3d Cir. 1999). In Ridgewood, the court did indeed Slate that "9 plaintiff' need not prove that defendants' discrimination was intentional" in order to state a § 504 claim. Id at 253; see a/so Nathanson, 926 F.ld at 1384; ;VAACP v. Med. Ctr" Inc., 657 F.2d 1322, 1331-32 (3d Cir. 1981). But Ridgewood is unavailing. Section 504 covers a wide range of condne! and offers many remedies. There js no indication that the court's statement in RidKeltoodwa.'i intended to apply to § 504 claims seeking compensatory datnages. J The We note that the Spending Clause considerations that we discuss at greater length infra eOUIL'ie! against penniHing the negligent implementation of 3nlEP to serve as the basis of a § 504 claim. q: Davis v..Monroe County Bel. o/Educ, 526 U,S. 629, 642 (1999)(noting Ihat the Supreme Court has "declined the invitation 10 impose [Tide IX] liability Wlder whal amount[s J to a negligenc" standard"); Barnes v. Gorman, 536 U.S. J HJ, 186 (2002) ("[AJ reeipicnt may be held liable to thlrd-party beneficiaries for intentional conduct that violates thc elear ten11~ of the relevant ~tatutc ... but nul lor its failure to comply with vague language describing the objectives of the statute ... ; and, ifthe statute implies that only violations bco\lght to the attention of an official with powcr to correct them are :actionable, not for eonduct unknown to any such oHlcial . . , .") (cilalions omitted); liradley ex rei. Bradley v. Ark. Dep '/ 0/ Educ., 301 f.3d 952, 956 (8th Cir. 2002) ("'A11egations of negligence do not clear the hurdle set by the explicit language of section 504. ") (citation and in1ermtl quotation marks omitted). 2 , The Third Circuit has acknowledged the existence of the issue in the context of Title IX claitllii, whose remedies, like the Rehabilitation Aet remedie~> are infonned by Title VI. See I~fetlfer v, Afarinn Or. Area SelL Dist., 917 F.2d 779, 787-89 (3d Cir. 1990), overruled hy Fitzgerald\'. Barnstable Sch. Comm., 129 S. Ct. 788 (2009). In ['foiffer, the court conclnded Ihat it need not decide whether discriminatory intent was necestiary to an award of compensatory damages because the plaintiff had clearly set forth a claim ofintentionai djscriminatlon, Id at 788. As noted infra, the Supreme CO\lrt resolved the issue in the context ofTit1c IX cases in (Tern.ver, 524 U.S, 274, and Davis, 526 U.S. 629, holding thal intent-which can be satisfied by a showing of deliberate indifference- -~is an essential element of claims: seeking compensatory damages. 7 Rehabilitation Act's remedies provision and Supreme Court precedent support this reading of Ridgewood, The rcmedie,; provision of the Rehabilitation Act provides thal "[ tJhe remedies, procedures. and rights set forth in [TJitle VI of the Civil Rights Acl of 1964 , .. shall he available lO any person aggrieved by uny Clct or failure to act by any recipient of Fedcral assistance or Federal provider of sucn assistance under section 504 ...." 2911.8.C. § 794a(a)(2); see also Barnes. 536 atl85 ("[T]he remedies for violations of .. , § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI ...."), Under Title VI, private individuals may only reeovcr compensatory damage::; wherc they can show that the defendant's discriminatory conduJ.:t was intentional. Guardians A.r,f 'n ~'. Civil Servo Comm 'n ofthe City ofN Y., 463 U.S. 582, 584 (198)) (opinion of the Court by White, .I.); Alexander v. Sandoval, 532 U.S. 275, 282·83 (20011. In Guardians, Justice White explains why J.:ompcnsatory damages are available only for intentional diserimination. Noting that Title VI invoke" Congress· s Spending-Clause power to place conditions on the granl offcdernl funds, Justice While observes that the Supreme Court nas "indicated that 'make whole' remedies are nOl ordinarily appropriate in private actions seeking relief for violations of statutes passed hy Congress pursuant to its: 'power under the Spending Clnuse to place conditions on the grant of feder-a] funds. '" Guardians, 463 U.S. at 597 (quoting Permhurst Stale Sen. & Hasp. v. HaldemulfI, 451 1,;,5, I, 15 (1981 ). He explains that [tJhis is because the receipt of federal funds under typical Spending Clause legislation is a consensual malleT; the State or other grantee weighs the benefits and nurdens before accepting the funds and agreeing to comply with the conditions attached ttl their receipt. Typically. before funds are advanced, the appropriate federal offidal wilt determine whether the grantee's plan. proposal, or program will ~atisfy the condition:; of the grant Qr other extcnsion offederal funds. and the grantee will have in mind what its obligations will be. \'o'ben in a later privatc suit brought 8 by those tor whose benefit the federal money was intended to be used it is detennincd, contrary to the State~s position, thallhc conditions attached to the fund... are not being eomplied with, it may be that the reeipient would rather terminate its receipt offedera\ money than assume the unantieipated burdens. Id.; see al50 Franklin l'. Gwinnet! County Pub. SeilS.. 50J V.S. 60, 74 (1992) (White, J.) (1 itle IX) ("rhc point or not pennitting monetary damages for an unintentional vio1ation is that the receiving enlilY of federal funds lacks notice that it will be liable for a monetary aware:') (eitation omiltcd).l lustice White observes that "[s]ince the private cause of action under Title VI is one implied by the judiciary rather than expre&sly created hy Congress, [couns] should ... take eare in derming the Hmits of this cause of action and the remedies available thereunder" and concludes th.at ·'the relief in private actions shoulJ be limited to declaratory and injuIKtivc relief ... {and] relief in the fonn of money Or othc-rwise based un past unLntentional vio1ations shouJd be \·...ithhcld." Guardians, 463 l:.s. at 597. In Barnes v, Gorman. the Supreme Court applied the same reasoning to RehabHitation A!,;t claims in the context oi'punitlve damages. 536 G,S. at J 85. The Court nott·d that "[a] funding n,,"'Cipient i:; generaHy on notice that it is subject not only to those remedies explicitly provided in the relevant legisJaHon, but also to those remedies traditionally available in suits Lor breach of contract." Id at 188. It went on to hold that since punitive damages are not generally available for breach of 4 q Gerbser v. Lago Viwa Indep. Srh. Disf., 524 U.S. 274. 283-90 (1998) (explaining that "Iblecfluse the private right of action under Title IX 15 judicially impJied, [the Supreme Court has I a mea,;;ure of latitude to shape a sensible remedial scheme that best eomports with the statute," and. that "[aJs a general matter, it does not appear that Congress eontemplated unlimited recovery in damages against a funding recipient where the recipient is una ware of discrimination in its programs",: Davi.'j, 526 U.S, at 642 (stating that in Gerbser the Court "concluded that the [school I district eould be liable for damages only where the district it."reJf intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher~student harassment of whieb it had actual knowledge"). 9 contract and sbce Title VI makes no mention of remedies, punitive damages are unavailable for § 504 violations. Jd at 187~88. While the Court conceded that compensatory damagcs are generally available for breach of contract. id, at 187, it did not elaborate. leaving no room for the c.oncession to serve as a basi~ tor circumventing the Court's prior holding that "private individuals feannot] recover compensatory damages under Title VI except for intentional discrimination." see Sandoval. 532 U.S. When read together, Guardians, Sandoval, and Barnes make it dear that intentional discrimination is a neces6ary element of a § 504 claim for compensatory damages. This conclusion is supported by a number of circuit Court deeisions that have determined that compensatory damages are an appropriate remedy of a § 504 violation only upon a showing of intentional djserimination. Q ~ In Barnes. the Kansas City Police Department arrested the plaintiff, who was paraplegic, and transported him in a vehicle that was not equipped to safely aeeommodate people in wheel chairs. 528 (;.8. at 183~ 184, The plaintiff suffered a number of seriuus injuries on the way to lhe Jhllke station. Id. at l84. After a trial. a jury awarded him $1 rnHlion in compensatory damages, ld The Court's recitation of the faets makes no mention of an intent requirement, ami neither do the upinions ofthe appellate or distriet courts. See generally id; see a/so Gorman )', Easley, 257 F.3d 738 (8th Cir. 2001); Gorman v. Ilarlch. 152 F.3d 907 (8th Cir. (998); Gorman v. Easley. No. 95-0475, 1999U.S. Dist. LEXIS 2357 (W.D. Mo. Oct. 28,1999); Gorman v. Barich. 925 F. Stipp. 653 (W.D. Mo. \996); Gormany. Bishop, 919 F. Supp. 326 (W.D. !vlo. 1996). We note, however, thal the narrow issue before the Court was the availability of punitive damages, The issue of the intent requirement does not appear to have been rais!"xj in the trlal court, the appellate oourt~ or tht' Supreme Court, , Set', e.g., Mark H v. Lemahieu. 51 J F.3d 922. 938 (9th Cir. 20U8) ("[Pllaintiff' must prove a m(!.m; rea of 'intentional dbcrimination,' to prevaiJ on a § 504 claim ...."); Nieves-Marquez v. Puerto Rico, 353 F.3d 108. 126 (bl Cir. 2003) ("[PJrivate indiviuuals may recover compensatory damages under § 504 and Title 11 only for intentional discrimination."); Delano-Pyre, 302 P,3d at 574 ("A plaintiff asserting a private cause of action for violations of the ... [Rehabilitation Act] may only recovcr compensatory damages upon a showing of intentional discriminatlon:l (citing Carler Ii. Orleans Parish Pub. Sch. 725 f.2d 26t, 264 (5th Clr. 1984)))~ Powers v. MJB Acquisition Corp., 1841'Jd 1147, 1/53 (10th Cir. 1999) ("[E]nlitlement to compensatory damages under section 504 of the Rehabilitation Act requires proof the defendant has intentionally discriminated against the plaintiff."); Wood v. President & Trs, o/Spring HfII 10 By contrast, we have been unable to find any deeisions that have explicitly allowed a plaintilr to obtain compensatory damages for a § 504 violation in the absence of a showing of intentional discrimination. The Third Cin;;uit's decision in Ridg(..:nNood do.;:;; not alter this analysis. The court's statement that "a plaintiff need not prove that [aJ defendants' discrimination lis] intentional" does not contradict of even consider the rule that a plaintiff seeking compensaJ.ory damages must allege intentional dlst:riminarion. ,)eft 172 F.3d at 253. Compensatory damages and their relationship to intentional discrimination wen: not at iS5ue in Ridgv.'oQd. Moreover. they were not directly at issue in the cases upon which the court in Ridgewood relied. See id {dling WB. v. ¢Hatula, 67 FJd 484, 492 (3d Cir, 1995)); see also Nathanson, 926 F,2d at 1380; Choa'", 469 V,S, at 295, The genesis of the court's statement appears to have been the Supreme Court's observation in Alexander v. Ch()ate that ",djiscriJuination against the bandicapped wa=:; perecjved by Congress to be most. often the product, not ofinvidious animus. but rather of thoughtlessness and indifference -ofbcnign neglect." 469 U,S, at 295; see "/'0 NOlhanwn, 926 F.2d aL 1380 (quoting Choate, 469 LX at 295), Wc are aware of no court that MS interprete-d the language in Cflnale as altering the discriminatory intent requirement for plaintiffs seeking compensatory damages. HaVing determined that allegations of discriminatory intent are nel.~essary to § 504 claims CulL, 978 f,2d 1214, 1219-20 (lIth Cir, 1992) ("[Clomrolling precedent on Title VI remedies, made applit".able to section 504 actions under the Rehabilitation Act, indicates that compensatory damages are precluded in cases of unintentional discrimination, but are permissible on a showing of intentional dis:crlmination."). See a!.sv L. T. v. A!amfield Twp, Sch Dis!., No, 04~ 1381,2009 US Dist.I.EX1S 21737, at *19 (D,N.J, Mar, 17,2009) nl]n orderto obtain compcnsalory damages: for a ... Rehabilitntion Act violation, a plaintiff mn5t demonstrate intentional discriminalion."} (citations omitted). For a thorough exploratiuu of the Suprerlle Court's 504 damages jurisprudence, sec Sheely v, MR! Radiology Ne/work" 505 f.3d 1173, 1190·98 (11th Cir,2007). * 11 seeking comp("nsatory damages, we note that courts are split on what a plaintiff mu:si show to meet the intent requjremcnt. Some courts have adopted a de1iberate indifference standard while Other courts have adopted a gross misjudgment or bad faith standard, Compare Lemahieu~ 513 FJd at 938 (deliberate indifference), with Bradley, 301 F.3d 956 (bad faith and gross misjudgment), and Saltzman v, Bd. of Camm 'rs o{lhe N Broward llosp. Dis/" 239 F. App'x 484, 487 (11 tn Cir, 2007) (non~preccdcntjal) (noting that the Eleventh Circuit has not "not detennined whether' intentional discrimination' should be evaluated under the 'deliberate indifference' standard, or under a more stringent standard, such as 'discriminatory animus"'), But t.J Gerbser, 524lLR at 290 (imposing delibera.te indifference standard in Title IX cases arising from allegations of sexual harassment by a school employee), We need not nuw address the issue of what conduct is sufUcienll.o satisfy the intent requirement because Plaintiff's Complaint is devoid of allcgation;s regarding intent of any sort. Since there nre: no such allegations, the Complaint fails to state a claim nnd must ~ dismissed. IV. CONCLUSION For lhc foregoing reasons, the District's Motion to Dismi&i wiH be granted. An appropriate Order foHows. BY THE COURT: , /;::-;::----;,;e:;=:*-:-.f--.-~---,! . 12
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