Case 5

Court Document #5

This lawsuit was filed in federal court in Wichita, Kansas on August 15, 2007 to try and get money down to the classroom level where it is needed. This matter had gone on for several years, with the Derby Unified School System (#260) refusing to give a child what he needs to succeed under Section 504 of the Rehabilitation Act of 1973. Our opinion is that if school systems receive money for each child that is on medication, a better alternative is to spend $$ on para-professionals to assist and encourage children in the classrooms. It follows that a lot of kids wouldn’t need to be on medicine. Many parents don’t realize that if their child is ADHD, they can be put on a 504 plan that puts the burden on the school system to give a child what they need to succeed. Since Kansas receives no federal funding for this, the schools try to convince parents to put their child on an SIP/IEP and give them medicine. We think there are too many children unnecessarily on drugs, with teachers taking drugs to deal with them. Our C.E.O. tried numerous times to resolve this matter with Derby USD 260 prior to litigation; however, they refused. They chose instead to cause a child emotional distress over a period of four years, and this continues. Once again, it’s all about the money…

A.   COMPLAINT

COMES NOW the plaintiffs, Joan E. Heffington, individually, pro se, and on behalf of her minor son, G. H., and files this complaint against the defendant as follows:

B.     PARTIES 

1. Plaintiff, Joan E. Heffington, individually and on behalf of minor son, G. H., is an individual representing herself pro se with residence located at 7145 Blueberry Lane, Derby, Kansas 67037. Plaintiff, Joan E. Heffington is hereinafter referred to as “Joan Heffington” and/or “Mrs. Heffington.”

2. Plaintiff, G. H., is the 13-year old minor son of plaintiff, Joan E. Heffington and her husband, Mark Heffington (deceased). Plaintiff, G. H., is hereinafter referred to as “G. H.”

3. Defendant, Derby Unified School District (USD) 260, is a school district comprised of a superintendent, board of education members, and various local and state actors and entities engaged in authoritative control and governance of the school district, as well as teachers, administrators and other school officials in the Derby school system. Defendant, Derby Unified School District (USD) 260, is a corporate entity with principle offices located 221 E. Madison, Derby, Kansas 67037. Derby Unified School District (USD) 260 may be served by and through their administrative officer, Vicki Frazier, 120 E. Washington, Derby, Kansas 67037. Derby Unified School District (USD) 260 is hereinafter referred to as the same, the “Derby school system,” “the school,” “the school system,” or “Derby USD 260.”

FACTS PERTAINING TO THE PARTIES

4. Plaintiff Joan E. Heffington is a United States citizen and a resident of the state of Kansas. She is the natural mother of G. H. He is the third of four children in the Heffington family.

5. G. H., is the 13-year old minor son of Joan Heffington and her husband, Mark, who died unexpectedly in March, 2006. G. H. is a United States citizen and a resident of the state of Kansas.

6. Joan Heffington and her minor son, G. H., reside at 7145 Blueberry Lane, Derby, Kansas, which is located in Sedgwick County, Kansas. They have lived there for 13 years.

7. G. H. has attended school in the Derby school system since he was in kindergarten.

8. Joan Heffington is unemployed, but does volunteer work out of her home. She is the C.E.O. and founder (in 2003) of the Association for Honest Attorneys (A.H.A!), a non-profit organization dedicated to discouraging litigation, improving the legal system and seeking justice for all. The A.H.A! and its quarterly newsletter are well-known on the local, state and national level.

9. The defendant is comprised of teachers, school administrators, school officials, government actors and/or entities of the United States, engaged in the business of governing the school system. The defendant has had full knowledge of this matter for the past four years, and was involved in the intentional emotional distress toward plaintiffs in this matter.

D. FACTS PERTAINING TO THE CASE

10. Joan Heffington is the natural mother of G. H., who was born on September 12, 1993 to Mark and Joan Heffington. G. H. is the third of four children in the Heffington family.

11. Mrs. Heffington had experienced problems during her pregnancy with G. H., and after his birth, a blood clot was found in the placenta.

12. From the time he was small, his parents observed that G. H. had to be reminded 4-5 times when asked to do something.

13. When G. H. was three years old, he began acting up at daycare. He was diagnosed with Attention Deficit Hyperactive Disorder (ADHD) and was prescribed Ritalin.

14. Mrs. Heffington had just begun to work overtime at her job at Boeing. When G. H. began exhibiting “zombie-like” behavior from taking Ritalin, Mrs. Heffington took him off of it after two months. instead, she stopped working overtime, gave him extra attention, and G. H. had been fine ever since.

15. In the fall of 2003, G. H. was a fourth grader at Pleasantview Elementary School in Derby, located in Sedgwick County, Kansas.

16. On or about October 23, 2003 during conferences, G. H.’s teacher told Mrs. Heffington that he was having trouble with his grades. She said she didn’t think he would make it to the fifth grade, and blamed the No Child Left Behind Act.

17. G. H.’s teacher was unaware that he had ADHD, even though Mrs. Heffington had filled this out on school forms. Irregardless, the teacher told Mrs. Heffington that she was putting G. H. on a Student Improvement Plan so he could improve.

18. Mrs. Heffington and her husband were distressed. They decided they needed to go to school with G. H., to try and figure out why he was having difficulty. They didn’t want him to fail in school.

19. On or about October 26, 2003, Mrs. Heffington began coming to school twice a week and G. H.’s father came once a week. They sat next to G. H. during math.

20. During the first week, Mrs. Heffington discovered that G. H. needed specific, one-on-one reminders when instructions were given for an assignment or tests.

21. She asked his teacher if she (the teacher) could give him reminders, but she refused. The teacher told Mrs. Heffington that she could not give G. H. specific reminders unless he was on an Individual Education Plan (hereinafter referred to as IEP).

22. At that time, Mrs. Heffington did not know what an IEP was. The teacher explained the meaning of an IEP, but Mr. Heffington did not want G. H. to be on this. He feared he would be labeled.

23. On or about October 28, 2003, another teacher told Mrs. Heffington that G. H. could be put on something called a 504-plan which would give him the little extra help he needed. Mrs. Heffington asked the school principal if he could be put on this.

24. At this time, Mrs. Heffington didn’t realize that a 504-plan pertained to a law, Section 504 of the Rehabilitation Act of 1973 (hereinafter referred to as “Section 504” or “504 plan.”) This was not explained to her by the school system.

25. The principal reluctantly agreed to begin testing G. H. for a 504-plan. She told Mrs. Heffington it was going to take several months to determine whether he could qualify.

26. From October to late December, 2003, Mrs. Heffington came to school twice a week and G. H.’s father came once a week. They sat next to G. H. during math, gave him the reminders he needed when the teacher gave instructions for assignments and/or tests, and encouraged him.

27. G. H.’s grades improved during the time his parents sat with him in the classroom.

28. In January, 2004, Mr. and Mrs. Heffington stopped coming to school with G. H. He had been progressing, and they trusted that his 504 plan testing would be completed soon.

29. During conferences in February, 2004, G. H.’s teacher told Mrs. Heffington he was doing well.

30. On or about April 18, 2004, G. H. flunked a science project that both of his parents had helped him with. He couldn’t remember to follow the instructions in a little green book the teacher had given out during conferences in February.

31. The teacher had periodically told the class to follow the instructions in the little green book; however, she never gave G. H. a specific reminder, one-on-one, so that he would remember.

32. It was at this time that the school told Mrs. Heffington that they had stopped testing G.H. for a 504 plan several months earlier, but she had never been advised. At this time, that the principal told Mrs. Heffington that she had to put a request for 504 testing for G. H. in writing.

33. Mrs. Heffington was distraught that the school had never told her this back in October when they first began testing G.H. She asked the school principal for a copy of any paperwork pertaining to what a 504 plan was, and the principal said she didn’t have anything. She told her she could contact administration and maybe they had this.

34. On or about April 21, 2004, Mrs. Heffington submitted a written request to Derby USD 260 to ask that G. H. be put on a 504 plan. She had also submitted a report from their family doctor which stated that G.H. was ADHD and had a processing disorder.

35. The school then intentionally prolonged the process out further, by telling Mrs. Heffington they would have to wait until the beginning of the next school year in August, 2004 to make a determination.

36. Mrs. Heffington visited with school administration in April, 2004, who gave her a copy of Section 504 (EXHIBIT A). Mrs. Heffington tried calling the phone number listed for the Office of Civil Rights several times, but it was incorrect. A recording continued to state that the number was no longer in service.

37. This form was updated a year later by the Derby school system to correct the phone numbers for the Office of Civil Rights, and to add the fact that a written notice of appeal must be filed within 30 days to challenge the school committee’s actions on your child’s 504-plan.

38. Mrs. Heffington later learned that per 34 CFR Section 104, the school system had procedurally violated Section 504, since they failed in their duty to explain or provide a copy of Section 504 rights to Mrs. Heffington in October, 2003 when they began testing G. H.

39. Mrs. Heffington realized that in October, 2003, the school system had no employee to coordinate compliance with Section 504 (34 CFR Section 104.7a), nor did they have grievance procedures to resolve complaints of discrimination (34 CFR 104.7b). These were implemented in August, 2005 when the school system updated their form (EXHIBIT B.)

40. In early 2004, a psychologist who was treating Mrs. Heffington’s older son suspected that G. H. might have Asperger’s Syndrome. Mrs. Heffington advised Derby school administration about this in approximately May, 2004.

41. At a school administration meeting in April/May, 2004, an administrative official agreed that the school had probably engaged in procedural violations by not informing Mrs. Heffington of her rights under Section 504. He told her that it only took about three days to get a student on a 504-plan. Mrs. Heffington wondered why they had been dragging this matter out intentionally.

42. The defendants and others had advised Mrs. Heffington that there was no federal funding for a 504 plan, and this was the reason the school system did not want to put G. H. on one.

43. In April, 2004, the school system told Mrs. Heffington that G. H. should be further tested for Asperger’s Syndrome, as justification for putting him on a 504-plan. Mrs. Heffington found out that Heartspring was the only medical facility in the Wichita area that could test a child for Asperger’s Syndrome. They said it would be nine months before G. H. could be tested, and she so advised Derby USD 260.

44. Mrs. Heffington told the school administrator that doctors advised there was no medicine that can be given to a child with Asperger’s Syndrome.

45. The school administrator wanted her to try G. H. on strattera anyway, which is a medicine that is given to children who are ADHD. Mrs. Heffington didn’t feel it was needed, but gave this medicine to G. H. for a period of 4-5 months in 2004. It caused him to become subdued, so she discontinued it.

46. In May, 2004, Mrs. Heffington visited the legislature in Topeka, Kansas on another matter. During that time, she was told by a state legislator that out of approx. $9340 allocated per child in the state of Kansas for education, less than 60 cents reached the classroom level.

47. Mrs. Heffington was outraged, and didn’t realize at the time that Derby USD 260 was one of the litigants involved in the big education finance lawsuit against the state.

48. On or about August 18, 2004, the school called a meeting with Mrs. Heffington to review the need for G. H. to be on a 504-plan. School had barely started, and the principal, teachers, and school psychologist all agreed in the meeting that G. H. didn’t need to be on a 504 plan.

49. Mrs. Heffington was further distressed that G.H.’s need for para assistance had already been proven. She told them he qualified as an individual with a disability under Section 504 because he had a mental impairment which limited the major life activity of learning due to his ADHD and possibly Asperger’s Syndrome.

50. The school ignored this, and refused to put G. H. on a 504-plan. Mrs. Heffington suffered more emotional distress and mental anguish.

51. The school principal continued to cause emotional distress to Mrs. Heffington. In early December, 2004, Mrs. Heffington faxed the school system and threatened litigation for their refusal to put G.H. on a 504-plan.

52. Shortly thereafter, Derby USD 260 finally agreed that G. H. would be placed on a 504-plan. The school had an additional teacher/aid in G. H.’s fifth grade class who was aware of his special needs. Both of his teachers tried to assist in giving G. H. the reminders he needed to succeed.

53. G. H. did well through the end of May, 2005. Mrs. Heffington remained involved with his class to ensure that this happened. 54. In August, 2005, G. H. entered the Derby Sixth Grade Center. Mrs. Heffington knew there would be problems with numerous teachers who, either out of negligence or arrogance, might fail to give him the reminders he needed to succeed in his classes.

55. On December 6, 2005, Mr. and Mrs. Heffington met with the principal and several of G. H.’s teachers to discuss his 504-plan. Mrs. Heffington insisted in writing that he needed a paraprofessional to give G.H. specific reminders in his classes, in case his teachers failed to do this.

56. On December 6, 2005, the school system refused to modify G.H.’s 504 plan to include the para assistance he needed. Mrs. Heffington was not aware that the computer teacher and the science teacher were missing from this meeting, and G.H.’s grades later dropped in both of these classes.

57. Mrs. Heffington could see that the 504 plan as written was not working, and asked that it be modified to include para assistance when G.H.’s grades dropped. The Derby school system refused.

58. On December 12, 2005, Mrs. Heffington spoke at the Derby B.O.E. meeting about ways to ensure that education money gets down to the classroom level for the needs of the children. She presented a letter she had written to 12+ Kansas school districts (EXHIBIT C).

59. Derby USD 260 was the only district to respond; however, they ignored her requests.

60. G. H. was later diagnosed by Heartspring with a mild case of Asperger’s Syndrome. The Derby school system never asked Mrs. Heffington for this documentation.

61. During the 2005-2006 school year, G. H. was flunking his computer class, and Mrs. Heffington came to school to try and encourage him in this class. The teacher had been unaware that G.H. needed specific reminders under his 504 plan. His grade in science also fell for the same reason, and G. H. was greatly distressed when he didn’t think he would pass his computer class.

62. During this time, G. H. made frequent remarks to his mother that he hated school, and wished he didn’t have to go.

63. On or about August 16, 2006, G. H. began the seventh grade at Derby Middle School. Mrs. Heffington again met with his teachers and school administrators to discuss G.H.’s 504 plan. 64. Derby Middle School teachers wanted to try numerous ideas in an effort to help G. H. achieve success in his classes without modifying his 504-plan to include para assistance. They all failed to work for any length of time, and G. H. still struggled.

65. Since G. H. was getting older, Mrs. Heffington did not want to embarrass him by continuing to come to school to sit with him and give him the specific reminders he needed. She was also experiencing more severe health problems during this time.

66. Mrs. Heffington sent e-mails and other correspondence to the defendants, and filed an OCR complaint to try and get G.H. the para assistance he needed in school.

67. On October 16, 2006, Mrs. Heffington filed a grievance against the school system challenging their actions of the school system for failure to modify G.H.’s 504 plan to include para assistance.

68. On October 19, 2006, Mrs. Heffington attended school conferences with Guy and his teachers. The school system had been trying to get other children to assist G.H. in class, but their efforts had failed (EXHIBIT D.)

69. On November 9, 2006, the school system denied Mrs. Heffington’s notice of appeal to modify G.H.’s 504 plan to include para assistance. Mrs. Heffington spoke with school administration on November 13, 2006, and told them she didn’t think she was going to pursue this any further, due to the overwhelming stress affecting her existing health problems. At this time, she thought the school was trying to give G. H. what he needed.

70. On or about December 1, 2006, the school called Mrs. Heffington to demand that she come in for another meeting on G. H.’s 504 plan. They wanted her to sign that she agreed with the 504 plan that was in place; however, she refused.

71. Fully aware that Mrs. Heffington was facing the stress of major (colon) surgery in a few days, a school counselor in this meeting threatened to take G. H. off his 504 plan completely (EXHIBIT E).

72. Mrs. Heffington had been suffering heart problems, including mitrol valve prolapse, and experienced acute anxiety that afternoon as a result of this stressful meeting.

73. Mrs. Heffington then informed the principal she did not want to attend any more meetings of this nature. She told him she preferred these to be done over the phone, and the principal agreed to accommodate her in this regard.

74. On February 1, 2007, the OCR complaint filed by Mrs. Heffington was denied.

75. During the 2006-2007 school year, G. H. had to go to individual tutoring in the mornings two- four times a week, and again after school on Tuesday and Thursday when after-school tutoring was offered. He had to do this to keep from flunking several classes, including English and Math.

76. G. H. was greatly distressed, because he couldn’t remember which classroom he was supposed to go to or when he needed to be there, and he was continually stopped in the halls by teachers. This went on for several months.

77. The defendants were fully aware of that Mr. Heffington had passed away, and Mrs. Heffington’s health problems were severe, including four surgeries in five months (October, 2006 to March, 2007). They knew by her correspondence that there were periods she couldn’t drive and would have to make special arrangements for G.H.’s tutoring because he rode the bus. They didn’t care, and continued to inflict emotional distress on the plaintiffs.

78. G. H. continued to mention to his mother and others that he hated school. He suffered low self- esteem due to the emotional distress caused by the defendant (EXHIBITS D & E.)

79. On or about May 22, 2007, G. H.’s science teacher accused G. H. of tearing down decorations in his classroom. After berating G. H. in front of his classmates, he called Mrs. Heffington and told her he was not going to allow G. H. to turn in his final paper that he had forgotten to bring to class.

80. This was yet another discriminatory act, because if G. H. had been given the appropriate accommodations he needed under Section 504, this incident would not have occurred.

81. This accusation was later found to be false and unwarranted. A neighbor’s daughter later commented to Mrs. Heffington that even she had heard about the science teacher yelling at G. H., as it had gotten around school.

82. The teacher’s verbal and mental abuse toward G. H. was outrageous, and he refused to apologize. Mrs. Heffington deemed this to be yet another example of non-compliance with federal law by the Derby school system, and inappropriate education.

83. On or about May 23, 2007, Mrs. Heffington called Derby USD 260 school officials, e-mailed the principal of Derby Middle School and called their counsel. She threatened litigation again, asking that G. H.’s 504 plan be modified so he could be given para assistance for the upcoming school year (2007-2008). She did not want to have to go through this same issue with the school system for the next five years until G. H. graduated.

84. The defendants failed to respond, and made no effort to contact Mrs. Heffington from May 24, 2007 through early August, 2007. 85. On or about August 6, 2007, Mrs. Heffington called Derby USD 260 to inquire as to whether they were going to give G. H. the para assistance he needed in school.

86. The defendants continued their arrogance and failed to timely respond. 87. From December 6, 2005 until the present, Mrs. Heffington has continued to try and work with Derby USD 260 to modify G. H.’s 504-plan to give him para assistance in the classroom if his grades began to drop. They have refused, choosing instead to cause plaintiffs continued emotional distress.

88. The school education funding lawsuit was settled in 2005, and Derby USD 260 gave teachers a raise and reduced classroom sizes for their benefit.. However, the defendants have still failed to distribute funds down to the classroom level to meet the needs of G. H. and other children.

89. Because the defendants refused to provide G. H. with the para assistance he needed, they violated his guarantee of a free appropriate education, and were non-compliant with Section 504 of the Rehabilitation Act of 1973. 90. The school system discriminated against G. H. because they are a recipient of federal funds, and they denied G. H. the opportunity to participate in or benefit from an aid, benefit or service (para assistance) which is afforded students with disabilities and/or equal to that afforded others. 91. Mrs. Heffington had spoken to the B.O.E. and advised Derby USD 260 on several occasions that December, 2006, she had read in a book by Kevin Trudeau that school systems are given $500 for each child that is on medication.

92. By denying and/or failing to hire paraprofessionals to assist G. H. in classes as needed, the defendants failed to adequately distribute education dollars down to the classroom level for the benefit of G.H. and other children with special needs, thereby denying them a “free appropriate education” and violating Section 504 of the Rehabilitation Act of 1973.

E.   LAW AND ANALYSIS

Defendant, Derby Unified School District (USD)260  violated laws, statutes, ordinances and regulations, including but not limited to:  Section 504 of the Rehabilitation Act of 1973 (hereinafter called “Section 504”), and plaintiffs’ guaranteed right to a free appropriate education under the law (Section 504/IDEA).  The defendants acts and failures to act, denied G. H. a free and appropriate education, and denied his rights under Section 504, and caused emotional distress to the plaintiffs. Plaintiffs are justified in alleging each of the following claims against the defendants.

F. CAUSES OF ACTION

1. Section 504 of the Rehabilitation Act of 1973

93. Plaintiffs incorporate by reference paragraphs 1 through 92 of this Petition.

94. The conduct of the defendants in communicating, corresponding and meeting together to deny G. H. reasonable accommodations under Section 504 to convince Mrs. Heffington that G. H. did not have a right to para assistance under Section 504 constitutes a violation of Section 504.

95. The conduct of the defendants in corresponding and meeting together to try and convince Mrs. Heffington that G. H. was being given a free appropriate and/or suitable education without the para assistance he needed, and their deliberate failure to modify his 504-plan to include para assistance constitutes a violation of Section 504.

96. By participating in the above communications and meetings for almost two years and refusing to provide para assistance and modify G. H.’s 504 plan, the defendants acted with the intent to deny G. H. his rights under Section 504 and his right to a free appropriate education, having full knowledge that such acts were substantially certain to result in injury and detriment to the plaintiffs.

97. The conduct of the defendants constitutes a violation of Section 504 of the Rehabilitation Act of 1973 and G. H.’s right to a free appropriate education.

98. As a result of the defendant’s aforementioned violations, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post- judgment interest; (iii) costs, including reasonable attorney fees, for this action; and (iv) any other relief deemed just and equitable by the court.

2.   Emotional Distress

99. Plaintiffs incorporate by reference paragraphs 1 through 98 of this Petition.

100. The conduct of the defendants in corresponding and meeting together to convince Mrs. Heffington that G. H. didn’t need para assistance, when in reality then didn’t want to accommodate him in this regard because there was no federal funding for 504 plans, constitutes emotional distress

101. The conduct of the defendants to drag this matter out unnecessarily, all the while knowing that Mrs. Heffington had become a widow, was incurring health problems, undergoing numerous operations, and trying to care for three children, constitutes emotional distress.

102. The conduct of the defendants to drag this matter out unnecessarily to cause G. H. to become distraught, to lower his self-esteem, and to hate school constitutes emotional distress.

103. At all relevant times, the defendant’s participation in communications and meetings to deny G.H. para assistance to help him succeed was willful, and with full knowledge that such conduct was substantially certain to result in injury and emotional distress to Mrs. Heffington and G. H.

104. The conduct of the above named defendants to conceal information concerning a 504 plan, and then their refusal to comply with federal law and accommodate G. H. with the para assistance he needed represents a knowing misrepresentation of the truth and concealment of material facts to induce Mrs. Heffington and G. H. to act to their detriment.

105. The conduct of the above named defendants constitutes emotional distress.

106. As a result of the defendants’ intent to cause emotional distress, plaintiffs have been damaged in excess of $250,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre-and post- judgment interest; (iii) costs, including reasonable attorney fees, for this action; and (iv) any other relief deemed just and equitable by the court.

Respectfully submitted,

By:_______________________________
JOAN E. HEFFINGTON, Individually, pro se
   and On Behalf of Minor Son, G. H. 
7145 Blueberry Lane
Derby, Kansas  67037
Ph:  (316) 788-0901
Fx:  (316) 788-7990

DEMAND FOR JURY TRIAL

Plaintiff respectfully requests that the issues in this matter be heard by a jury.

Respectfully submitted,

By:_______________________________
JOAN E. HEFFINGTON, Individually, pro se
   and On Behalf of Minor Son, G. H. 
7145 Blueberry Lane
Derby, Kansas  67037
Ph:  (316) 788-0901
Fx:  (316) 788-7990