Published in cooperation with the University of Pittsburgh s Tri-State Area School Study Council Volume XXV Number

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1 EDUCATION LAW REPORT Published in cooperation with the University of Pittsburgh s Tri-State Area School Study Council Volume XXV Number IN THIS ISSUE Coaches Alleged Disregard of Athlete s Head Injury Leads to Claim Commonwealth Court Holds that School District has a Duty to Transport Student To and From a Father and Mother s Separate Residences Located Within the School District Employer Cannot Overrule Doctor s Return to Work Recommendation Under FMLA Public Records Requests Only Valid When Addressed to Agency s Open Records Officer Tucker Arensberg PC 1500 One PPG Place Pittsburgh, PA Lemoyne Drive Suite 200 Lemoyne, PA tuckerlaw.com COACHES ALLEGED DISREGARD OF ATHLETE S HEAD INJURY LEADS TO CLAIM Mann v. Palmerton Area School District, 114 LRP (M.D. Pa. 2014). A Pennsylvania federal court refused to dismiss a student athlete s claim that he suffered permanent brain injury when allegedly was forced to continue participation in practices. SUMMARY AND FACTUAL BACKGROUND Sheldon Mann was a student at Palmerton Area High School and participated in the school s football program beginning in July of While participating in football practice, Mann was hit by a teammate running full speed towards him. After the hit, Mann reported to the coaching staff feelings of numbness and disorientation and allegedly displayed erratic behavior. Upon briefly attending to the student, the coaches reportedly told him to continue to participate in the practice. According to the student, the coaches did not perform any medical evaluation or concussion testing or refer him to the athletic trainer for an assessment. Later in the practice, Mann was hit a second time by a teammate running at full speed. After the second hit, Mann was confused, dazed and experienced physical manifestations of his injury such as dry heaving. Based upon the observations of others, the student s behavior was erratic and he was taken to the school trainer. At that time, Mann was unable to provide complete information to the trainer regarding the two hits he sustained and the trainer was not informed by the coaching staff that Mann had been involved in two violent collisions. The student and his parents filed a lawsuit in federal district court against the school district and the football coaching staff. The complaint alleges that Mann suffered serious and permanent effects of a traumatic brain injury, including slowed motor activity, altered sleep patterns, recurrent headaches, nausea, dizziness, balance problems, poor short-term memory, hypersensitivity to light, impaired peripheral vision and overall moderate cognitive dysfunction. The suit presents a claim for violation of the student s rights to due process under the Fourteenth Amendment on the premise that the student s injury was the result of a state created danger. Copyright All rights reserved. 1 continued

2 EDUCATION LAW REPORT The school district and coaches filed a motion to dismiss the student s complaint, contending that it failed to state a cognizable claim. The federal court rejected to school district s and coaches motion, allowing the student s claim to proceed. DISCUSSION Generally, the due process clause of the Fourteenth Amendment does not impose an affirmative duty on government entities or officials to protect citizens from harms caused by other private citizens. However, an exception to this general rule exists that is known as the state-created danger theory. To prevail on a state-created danger claim, a claimant must show that: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship existed between the government entity or official such that the claimant was a foreseeable victim of their actions; and (4) a government official affirmatively used his authority in a way that created a danger to the claimant or that rendered the claimant more vulnerable to danger than had the government actor not acted at all. greater harm and led to his suffering a significant brain injury. Having observed the athlete absorbing a violent hit and the exhibiting symptoms of a concussion, the coaches indifference to the risk of further harm from the student s resumption of football activities could be considered to shock one s conscience. Accordingly, the court refused to dismiss the student s claims as requested by the school district and coaches. PRACTICAL ADVICE The Safety in Youth Sports Act, enacted in 2012, mandates that a student who exhibits signs or symptoms of a concussion or traumatic brain injury while participating in an athletic activity, must be removed by the coach from participation at that time. This decision can be made by a game official, coach from the student s team, certified athletic trainer, licensed physician, licensed physical therapist, or other official designated by the student s school. The coach is not permitted to return a student to participation until he or she is evaluated and cleared for return in writing by an appropriate medical professional. The statute establishes progressive penalties for coaches who violate these requirements. The court concluded that the circumstances alleged in the student s complaint sufficiently met these requirements. The complaint stated that the coaching staff knew or should have known of the dangers of traumatic brain injuries associated with football activities and that allowing a student athlete to continue to participate in football activities after demonstrating concussion symptoms posed a heightened risk of serious bodily injury. The suit further alleged that the coaching staff s failure to have the student medically assessed following the first collision and directing that the athlete continue participating in the practice exposed the student to 2 The Palmerton Area School District case demonstrates that the failure to assess potential concussions of student-athletes and to properly manage their return to sports practices and competitions not only poses the risk of further injury to the student but also exposes the school and coaches to civil liability. Consequently, it is imperative that school districts establish, follow and enforce among coaches appropriate protocols for the removal from sporting activities of students exhibiting concussion symptoms and ensuring that appropriate medical personnel clear the student s return to play. d

3 Volume XXV Number COMMONWEALTH COURT HOLDS THAT SCHOOL DISTRICT HAS AS DUTY TO TRANSPORT STUDENT TO AND FROM A FATHER AND MOTHER S SEPARATE RESIDENCES LOCATED WITHIN THE SCHOOL DISTRICT Watts v. Manheim Township School District, 84 A.3d 378 (Pa. Commw. Ct. 2014). Commonwealth Court affirms trial court s order and holds that when a child has two legal residences within a school district, the school district must provide transportation to and from the residences or a designated bus stop within one and one-half miles of the residences. SUMMARY AND FACTUAL BACKGROUND The divorced parents ( Father and Mother ) of a middle-school aged student ( Student ) in the school district ( District ) share equally divided physical and legal custody of the Student and both live within the District, but on different school bus routes and more than one and one-half miles apart. In an effort to reduce transportation costs, the District implemented a policy that eliminated the transportation of students to and from multiple locations. Under this policy, the District informed the Father that it would no longer transport the Student to and from the Father s residence, but that it would continue to transport the Student from the Mother s residence. After his efforts to convince the District to rescind this policy and restore bus transportation to his residence failed, the Father filed a complaint and sought injunctive relief against the District. The lower court agreed with the Father and ordered the District to resume bussing services to the Father s residence. The District appealed. DISCUSSION The issue before the Commonwealth Court was whether the District was required to provide transportation to a resident pupil to and from more than one location within the District. Pursuant to Section 1361(1) of the School Code, a district may elect to provide free transportation to any resident pupil to and from the student s school. 24 P.S (1). Courts have held that the term resident pupil means a student who lives in a school district and that students can have more than one residence under the School Code. Watts, 84 A.3d at The District did not dispute that the Student could have two residences within the District. However, the District maintained that the School Code did not obligate it to provide transportation to more than one location. The Commonwealth Court disagreed. The court noted that Section 1361 must be read with reference to other Sections of the School Code, specifically, Section 1362, which provides that a pupil cannot be made to travel more than one and one-half miles from his residence to the school or to the bus stop. 24 P.S The Court concluded that Sections 1361 and 1362 of the School Code, when read together, require school districts to provide transportation to and from a child s residence or a designated bus stop within one and one-half miles from the residence. Watts, 84 A.3d at When a child has two legal residences within a district pursuant to a division of custody, the school district must provide transportation to and from both residences if the residences are more than one and one-half miles apart. Therefore, the Court concluded that the continued 3

4 EDUCATION LAW REPORT District violated the School Code when it eliminated transportation services to the Father s residence because the District could not require the Student to travel more than one and one-half miles from the Father s residence to access the bus. Id., at 386. PRACTICAL ADVICE While courts generally do not interfere with school districts discretion regarding school policy, school districts are not permitted to disregard statutory mandates. Accordingly, school districts generally must provide transportation services to students with multiple residences within the District. However, school districts can, in their discretion, eliminate transportation services to non-residence locations, including those to daycare or after-school activities because those services are not required by the School Code. Id., at 388 n. 7. Therefore, school districts should review their transportation policies carefully with their solicitor. Moreover, school districts should continue to follow this case because the Supreme Court of Pennsylvania recently agreed to hear the District s appeal. However, until the Supreme Court decides the appeal, the Commonwealth Court s decision remains valid and controlling. d EMPLOYER CANNOT OVERRULE DOCTOR S RETURN TO WORK RECOMMENDATION UNDER FMLA Budhun v. Reading Hospital and Medical Center, 665 F.3d 245 (3d Cir. 2014). An employee whose job involved typing injured her pinky finger, and applied for leave under the Federal Family and Medical Leave Act (FMLA). She visited a doctor who taped her fingers together and filled out a fitness-for-duty certification which indicated the employee could return to work with no restrictions. Despite the doctor s recommendation, the employer determined that because the employee could not type at one hundred percent efficiency she could not perform an essential function of the job and could not return to work. The Court held that the employer erred by overruling the Doctor s determination, and that the employer had not established that typing was an essential function of the job in this particular circumstance. BACKGROUND AND SUMMARY Vanessa Budhun was a credentialing assistant at Berkshire Health Partners (BHP). The written job description for her position required her to generate and maintain records and to demonstrate efficiency and accuracy in the credentialing of network healthcare providers. Approximately sixty percent of her job involved typing. Budhun broke her fifth metacarpal, the bone connecting her pinky finger to her wrist, in an incident unrelated to her job. When she arrived to work with a metal splint on her right hand, on August 2, 2010, her supervisor and human resources director provided her with FMLA leave forms and advised her to visit a doctor. BHP required its employees to submit a fitness-for-duty certification filled out by a doctor, before returning from FMLA leave. On August 3 and August 10, 2010, Budhun visited Dr. Richard Battista, who taped her pinky, ring and middle fingers together on her right hand. Budhun said her job involved typing, but that she thought she could adequately type with the fingers on her left hand and her index finger and thumb on her right hand. On August 12, 2010, Budhun ed a doctor s note to her 4

5 Volume XXV Number supervisors indicating that she could return to work on Monday, August 16 with no restrictions in splint. Budhun informed her supervisors that she would be returning to work on August 16. When she returned to work, Budhun s human resources director, Stacey Spinka, told Budhun that because she could not type as fast as she was normally able to type, Dr. Battista was incorrect in stating that [Budhun] could work unrestricted. Spinka told Budhun that she should obtain a note from her doctor excusing her from further work until she could type at one hundred percent of her previous ability level. Budhun returned to Dr. Battista who excused Budhun from work until re-evaluation on September 8, Budhun s finger had not healed by September 8, Because she had previously used a portion of her 12 weeks for an unrelated incident, Budhun s FMLA leave was exhausted on September 23, Because Budhun did not return to work by this date, her supervisors terminated her and offered her job to the employee who had been filling in for Budhun during her leave. DISCUSSION When an employee takes FMLA leave, the act guarantees the employee will be restored by the employer to the position of employment held by the employee [or an equivalent position] when the leave commenced. The employer in this case argued that Budhun never attempted to return to work because she acquiesced to Spinka s instruction to obtain a note from her doctor excusing her from work until her finger was fully healed. The U.S. Court of Appeals for the Third Circuit rejected this argument and stated that Budhun s of August 12 was arguably enough to invoke her right to return to work. The Court pointed out that Budhun s informed her employer that she would be returning on August 16 and included Dr. Battista s note stating that Budhun could return with no restrictions. The employer also argued that even if Budhun invoked her right to return to work under the FMLA, BHP had no duty to restore her employment because she could not fully perform an essential function of her job: typing. Under the FMLA, an employer has no duty to restore an employee who cannot perform an essential function of the job. However, there was not enough evidence to find, as a matter of law, that typing was an essential function of Budhun s job. First, BHP never forwarded a list of essential functions to Dr. Battista, as BHP was allowed to do, in order to help the doctor determine whether Budhun could return to work. Consequently, Dr. Battista properly relied on Budhun s statements that she could adequately type despite her injury. Additionally, there was no minimum words-perminute requirement in the job description for Budhun s position. Some of Budhun s co-workers with similar job responsibilities typed with only one finger on each hand, using the hunt and peck method. The Court noted that FMLA regulations put the onus on an employee s health care provider not her employer to certify whether the employee is unable to perform any essential function of her job. Given that BHP did not forward a list of essential functions to Dr. Battista, the Court explained that BHP improperly overruled Dr. Battista s recommendation. continued 5

6 EDUCATION LAW REPORT PRACTICAL ADVICE It is the doctor, not the employer, who ultimately decides when an employee is ready to return to work. However, school districts can assist the doctor who is making this decision by forwarding a list of essential job functions which an employee must be able to perform in order to return to work. Each school district should have a system in place to make sure the district forwards a list of essential job functions to an employee s doctor every time an employee requests FMLA leave. d PUBLIC RECORDS REQUESTS ONLY VALID WHEN ADDRESSED TO AGENCY S OPEN RECORDS OFFICER Commonwealth of PA Gaming Control Board v. Office of Open Records, et al. (Pa. 2014) (Decided November 10, 2014). The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court and held that a records request must be addressed to an agency s open records officer to constitute a valid request under the Pennsylvania Right-to-Know Law. SUMMARY AND FACTUAL BACKGROUND On March 20, 2009, James Schneller ( Requester ), a member of a group called Eastern Pennsylvania Citizens Against Gambling, sent an to a press aide in the Office of Communications and Legislative Affairs of the Pennsylvania Gaming Control Board ( Board ) seeking copies of communications between the Board and several applicants for gaming licenses. The also requested permission to speak at the next public meeting of the Board. The aide responded via on March 24, 2009, apologized for the delay in her response and attached a public comment sign-up form. The aide did not otherwise respond to the request for records. On March 30, 2009, having interpreted the lack of response to his request for records as a deemed denial under the Pennsylvania Right-to-Know Law ( RTKL ), the Requester filed an appeal to the Pennsylvania Office of Open Records ( OOR ). The Board took the position that there was no deemed denial because the Requester had not submitted a valid request to its open records officer that would trigger a response under the RTKL. The OOR agreed with the Requester that the Board s failure to respond constituted a deemed denial and ordered the Board to provide the requested records within thirty days. The Board appealed the decision of the OOR to the Pennsylvania Commonwealth Court. The Commonwealth Court, in a 4-3 decision, affirmed the decision of the OOR that the was a valid RTKL request and remanded the case to the OOR for a determination as to whether the requested records were public records under the RTKL. The majority stated unequivocally: We conclude that the General Assembly intended that state and local agencies should presume that written requests for records are Right-to-Know requests. The Pennsylvania Supreme Court agreed to hear the Board s appeal to determine what constitutes a proper written request under the RTKL. 6

7 Volume XXV Number DISCUSSION The Court looked to the Statutory Construction Act of 1972 which, among other things, provides that a court s objective when interpreting a statute is to ascertain and effectuate the intention of the General Assembly and to construe language which is not ambiguous according to its common and approved usage. With this in mind, the Court looked to Section 703 of the RTKL which provides, in relevant part, that [a] written request must be addressed to the open records officer The OOR and the Requester argued that this provision applies to any agency employees who might receive a request for records, while the Board asserted that this provision applies only to the individuals requesting records. The Court agreed with the Board and held that for a written request to constitute a valid RTKL request under Section 703, the requestor must address his request to the open-records officer. In addition to the plain language of the statute, the Court discussed the limited burden this would place on those individuals seeking records under the RTKL. The Court appeared to contrast this with the heavier burden faced by public agencies that would otherwise be forced to treat every requesting a record as a formal, valid RTKL request under the OOR s interpretation of Section 703. Based upon the unambiguous language in the statute, the Supreme Court reversed the decision of the Commonwealth Court. PRACTICAL ADVICE The Supreme Court s decision in this case should relieve public agencies from some of the burden that had resulted from prior OOR and court decisions which had required that every request for a record received by any agency employee to be handled as a formal Right-to-Know request. As the dissent stated in the Commonwealth Court s decision in this matter, the OOR s interpretation would make an unaddressed request written on the back of a brown paper bag and given to a PennDot plow driver by the side of the road on a snowy night a valid right-to-know law request. The Supreme Court did not make a final determination as to the obligation of an agency employee who receives a request addressed to the agency s open records officer to forward the request to that officer. Accordingly, for now districts should continue to handle all written requests addressed to their open records officer as valid RTKL requests, regardless of which employee actually receives the request. d The law firm of Tucker Arensberg, P.C. is pleased to announce that 22 attorneys from the firm s Harrisburg and Pittsburgh offices were recently selected for inclusion in the 2015 edition of Best Lawyers in America published by Woodward/White, Inc. Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading attorneys confidentially evaluate their peers. The Best Lawyers in America (2015) is based on more than 5.5 million evaluations of lawyers by other lawyers in their field. 7

8 MUNICIPAL AND SCHOOL LAW GROUP Matthew M. Hoffman Co-chair John T. Vogel Co-chair Frederick J. Wolfe James G. Morgan, Jr William Campbell Ries Kenneth G. Scholtz Irving S. Firman Gavin A. Robb Edward R. Lawrence, Jr Christopher Voltz Thomas P. Peterson Richard B. Tucker, III Steve R. Bovan David Mongillo Robert L. McTiernan MUNICIPAL AND SCHOOL LAW GROUP Tucker Arensberg, P.C One PPG Place Pittsburgh, PA tuckerlaw.com The Tri-State Area School Study Council at the University of Pittsburgh was established in 1948 as a continuing partnership between school districts and the University. We are the third oldest and second largest Study Council in the country. We seek to work with you to address the issues of practice we all face as we lead educational organizations to improve focus and build organizational capacity. Priorities established by the membership include: 1) timely information dissemination on current research and exemplary practices; 2) research and development technical assistance on projects to meet district needs; 3) professional development programs and workshops on current topics; 4) participation in District clinical experiences to prepare future school leaders and; 5) practitioner participation in academic preparation programs. For more information, please contact Dr. Diane Kirk, Director, The information contained in Tucker Arensberg s EDUCATION LAW REPORT is for the general knowledge of our readers. The REPORT is not designed to be and should not be used as the sole source of resolving or analyzing any type of problem. The law in this area of practice is constantly changing and each fact situation is different. Should you have any specific questions regarding a fact situation, we urge you to consult with legal council. 8