                                                         NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 12-3574
                                  _____________

                RONALD E. CHAMBERS; LESLIE A. CHAMBERS,

              As guardians of Ferren Chambers, an incapacitated person,

                                                          Appellants

                                         v.

        SCHOOL DISTRICT OF PHILADELPHIA BOARD OF EDUCATION



                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (District Court No. 2-05-cv-02535)
                    District Judge: Honorable Gene E. K. Pratter



                              Argued on May 23, 2013


             Before: RENDELL and GREENAWAY, JR., Circuit Judges
                        and ROSENTHAL*, District Judge

                        (Opinion Filed: September 17, 2013)




       Honorable Lee H. Rosenthal, Judge of the United States District Court for the
Southern District of Texas, sitting by designation.
Michael J. Torchia, Esquire (Argued)
Alfredo M. Sergio, Esquire
Semanoff, Ormsby, Greenberg & Torchia, LLC
2617 Huntingdon Pike
Huntingdon Valley, PA 19006

                     Counsel for Appellants


Jeffrey M. Scott, Esquire (Argued)
Richard G. Tuttle, Esquire
Archer & Greiner
1650 Market Street
One Liberty Place, 32nd Floor
Philadelphia, PA 19103

                     Counsel for Appellee




                                       OPINION


RENDELL, Circuit Judge:

       Ronald and Leslie Chambers, as guardians of their daughter, Ferren Chambers,

and in their own right, brought an action against the School District of Philadelphia,

arguing that the School District denied Ferren a free and appropriate public education

(“FAPE”) and seeking relief under the Individuals with Disabilities in Education Act

(“IDEA”), the Rehabilitation Act (“RA”) and the Americans With Disabilities Act

(“ADA”). The present appeal concerns the District Court‟s denial of Appellants‟ motion

for summary judgment and grant of summary judgment in favor of the School District on

Appellants‟ RA and ADA claims. For the reasons stated below, we will affirm in part

and reverse in part the District Court‟s order.

                                              2
                                      I. Background1

       Appellants filed this suit in May 2005. Their daughter Ferren, now 27 years old, is

severely developmentally disabled. She is autistic, suffers from seizures, and

communicates at the level of a young child.

       In September 1990, Ferren entered a program for children with mental retardation

at the Farrell School, a public school, on the recommendation of a School District

psychologist. After three weeks, Mr. Chambers removed Ferren from Farrell because he

did not think that the program was appropriate given her condition. After a July 1991

hearing, a special education due process appeals panel established by the State‟s

Department of Education reclassified Ferren as an autistic person with pervasive

developmental delay and ordered the School District to place her in an autism-support

program and develop an individualized education plan (“IEP”) to address issues it

identified as: social relatedness, interaction, language, and activity level. In February

1992, the School District assigned Ferren to an autism-support program at its Greenfield

School. A year and a half later, against Appellants‟ wishes, the School District

transferred Ferren to another autism-support program at Loesche Elementary School.

After 11 and a half days of school there, Mr. Chambers removed Ferren from that school.

       In November 1994, a school psychologist suggested that Ferren should be placed

in a more restrictive educational setting in a private school. Appellants agreed with this

suggestion, but the School District did not initially comply because it failed to locate a

1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              3
private school that had other autistic children and offered speech or occupational therapy.

In 1995, Appellants sent the School District a request for a due process hearing. After

some delay, the state appeals panel ordered the School District to implement the

psychologist‟s November 1994 recommendation to place Ferren in a private school. At

the beginning of the 1995-96 school year, when Ferren was 11 years old, the School

District placed her in the Wordsworth Academy.

       In November 1996, Appellants again requested a due process hearing because they

thought that the School District was failing to provide Ferren with both speech therapy

and occupational therapy at Wordsworth, as Ferren‟s IEP required. The parties entered

into settlement agreements in both 1997 and 1998, in which the School District agreed to

provide Ferren with the speech and occupational therapy services she had not previously

received. In March 1999, in response to a complaint filed by Appellants, the

Pennsylvania Bureau of Special Education issued a report detailing the School District‟s

failure to provide the therapy services required by her IEP. After the report was issued,

the parties agreed that the School District would provide compensatory services at its

own expense. Those services were terminated, however, after the School District failed

to guarantee payments for the therapists that Appellants had identified.

       In January 2001, the School District requested that Appellants permit a special

education consultant to evaluate Ferren‟s progress at Wordsworth. Appellants objected,

and another due process hearing ensued in September 2001. Ultimately, the evaluation

took place, and the consultant concluded that Ferren was the lowest functioning member

of her group at Wordsworth and suggested that she be placed in a school for severely

                                             4
mentally retarded students. Over the next two years, however, Ferren remained at

Wordsworth as Appellants and the School District engaged in a protracted disagreement

over the appropriate people to evaluate her. Meanwhile, in April 2002, Appellants filed

another complaint with the Bureau of Special Education, asserting that the School

District failed to provide speech and language services as well as occupational and

physical therapy to Ferren during the 2000-01 school year. The Bureau found that the

School District had not provided Ferren the therapy her IEP required.

       In June 2003, the School District reconvened its IEP team. Appellants were

unhappy with the proposed IEP and requested another due process hearing. The hearing

took place in March 2004 before Hearing Officer Rosemary Mullaly. In April 2004,

Mullaly issued her decision, finding that Ferren had been denied a FAPE from 2001 until

April 2004 and awarding Ferren 3,180 hours of compensatory education. She also

ordered the School District to place $209,000 in an educational trust for Ferren‟s benefit.

Neither party appealed this decision.

       Appellants commenced the present action on May 27, 2005, seeking compensatory

damages under the IDEA, RA, and ADA. The District Court granted summary judgment

in favor of the School District in 2007. On appeal, another panel of the Third Circuit

affirmed the dismissal of Appellants‟ IDEA claim but reversed and remanded the case to

the District Court for further proceedings on the RA and ADA claims. Chambers ex rel.

Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176 (3d Cir. 2009). That panel

found that Appellants had not waived their right to pursue their RA and ADA claims on

Ferren‟s behalf, as the District Court had found, and that there may have been a factual

                                             5
issue as to whether the School District had violated these statutes as alleged. Id. at 188-

90.

        Upon remand, both parties filed motions for summary judgment. The District

Court once again granted the School District‟s motion. Specifically, the District Court

found that Hearing Officer Mullaly‟s administrative decision was inadmissible and her

conclusions should not be given preclusive effect. Chambers ex. rel. Chambers v. Sch.

Dist. of Phila. Bd. of Educ., 827 F. Supp. 2d 409, 417-20 (E.D. Pa. 2011). The District

Court also held that Appellants had to prove intentional discrimination to support their

request for compensatory damages under the RA and ADA. (Id. at 420-25.). Although

the District Court did not address whether intentional discrimination required evidence

showing deliberate indifference, or whether it required evidence showing actual

discriminatory animus, it held that under either standard, Appellants had presented no

dispute of material fact as to intentional discrimination. (Id. at 425-28.) In October

2011, the District Court granted the School District‟s motion for summary judgment in its

entirety, but noted that “in the event a bona fide, good faith argument can be made that

the Chambers Plaintiffs erred in their understanding as to the „record‟ on which they

could or should base their summary judgment motion . . ., the Court would permit an

application for leave to re-open and supplement these summary judgment papers.” (Id. at

430.)

        The District Court thereafter vacated its October 2011 order to allow the motion to

reopen and additional submissions. From November 2011 to January 2012, Appellants

filed motions to supplement the record and the School District responded. After

                                             6
Appellants filed a “motion to alter judgment,” attaching documents that had not been part

of the pre-existing record, the Court made clear that it had given Appellants an

opportunity to file a motion for reconsideration “if they could direct the Court to

appropriate citations in the pre-existing summary judgment record, . . . and second, if

they could argue why, if at all, that evidence compels the Court to reconsider its grant of

summary judgment.” (J.A. 31 (emphasis in original).) The Court clarified that the

opportunity was “not an invitation to the Plaintiffs to re-file an entirely new motion for

summary judgment or to review and assemble hundreds and hundreds of educational

records.” (Id. (alterations and internal quotation marks omitted).)

       The District Court, construing the motion to reopen to alter judgment as a motion

for reconsideration, ultimately denied Appellants‟ motion to reopen, concluding that they

had not met the reconsideration standard because they had not demonstrated an

intervening change in controlling law, the availability of new evidence which was not

available when the Court issued its order, or the need to correct a clear error of law or

fact or to prevent manifest injustice. Accordingly, the District Court issued its final

judgment, granting the School District‟s motion for summary judgment in its entirety on

August 15, 2012.

       On appeal, Appellants argue that the District Court erred by: (1) granting the

School District‟s motion for summary judgment because this Court had already

determined that there was a factual dispute as to whether Ferren was denied a FAPE; (2)

denying their motion for partial summary judgment because it should have given the

findings of two previous administrative hearings preclusive effect; (3) determining that

                                              7
damages were available under the RA and ADA only upon a showing of intentional

discrimination; (4) determining that Ferren was not subjected to intentional

discrimination; (5) refusing to consider certain evidence offered by Appellants in

connection with the cross-motions for summary judgment; and (6) refusing to reconsider

its October 24, 2011 opinion granting the School District‟s motion for summary

judgment and denying Appellants‟ motion.

                                 II. Standard of Review

       Appellate review of an entry of summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure is plenary, and we apply the same standard as the

district court. Disabled in Action of Pa. v. SEPTA, 635 F.3d 87, 92 (3d Cir. 2011).

       A motion for reconsideration is reviewed for an abuse of discretion. In re Cendant

Corp. Prides Litig., 311 F.3d 298, 300 (3d Cir. 2002) (reviewing a motion under Rule

60(b)); Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985) (treating a

motion for reconsideration as a motion under Rule 59(e) and stating that such motions are

generally reviewed for abuse of discretion). However, “if the [district] court‟s denial was

based upon the interpretation and application of a legal precept, review is plenary.” Id.

                                     III. Discussion

                                  A. Denial of a FAPE

       Appellants first argue that the District Court erred by granting the School

District‟s motion for summary judgment because a panel of this Court had previously

posited that “the record contains enough of a genuine factual dispute about whether the

School District in fact provided Ferren with a FAPE.” Chambers, 587 F.3d at 189-90.

                                             8
This argument misunderstands the basis of the School District‟s summary judgment

motion, however. In the appeal of the motion for summary judgment before us today, the

School District‟s argument is not that it had in fact provided Ferren with a FAPE. Rather,

its argument is that Appellants failed to put forth evidence that its denial of a FAPE was a

result of intentional discrimination, which they argue is needed to support a

compensatory damages award under the RA and ADA. Deciding whether Ferren was

denied a FAPE does not resolve this dispute. Thus, whether a previous panel thought that

there was a genuine issue of material fact with respect to whether Ferren was given a

FAPE is irrelevant.

                           B. Previous Administrative Hearings

       Next, Appellants argue that the District Court‟s denial of its partial motion for

summary judgment was error because the District Court should have given preclusive

effect to the 1995 and 2004 administrative decisions finding that the School District

failed to provide Ferren with a FAPE. Under Appellants‟ theory, the School District has

already been determined to be liable under § 504 of the RA and § 202 of the ADA.

Although collateral estoppel, or issue preclusion, “forecloses re-litigation in a later action

of an issue of fact or law which was actually litigated and which was necessary to the

original judgment,” Dici v. Pennsylvania, 91 F.3d 542, 548 (3d Cir. 1996) (internal

alterations and quotation marks omitted), if there are different burdens of proof, that will

defeat the application of issue preclusion, In re Braen, 900 F.2d 621, 624 (3d Cir. 1990).

As the District Court noted, Appellants‟ argument fails to take into account the disparate

burdens of proof in the administrative proceedings vis-à-vis the present proceeding.

                                              9
Because of that, issue preclusion does not apply in this case. We need not repeat the

District Court‟s thorough analysis on this point—Appellants‟ argument must fail.

                               C. Compensatory Damages

       Appellants also urge that the District Court erred in concluding that intentional

discrimination is required for an award of compensatory damages under the RA and

ADA. Again, Appellants‟ argument fails. The District Court‟s thorough analysis with

respect to this issue is supported by our recent decision in S.H. v. Lower Merion School

District, No. 12-3264, 2013 WL 4752015 (3d Cir. Sept. 5, 2013); see also Chambers, 827

F. Supp. 2d at 421-25. In S.H., we held that “claims for compensatory damages under §

504 of the RA and § 202 of the ADA . . . require a finding of intentional discrimination.”

S.H., 2013 WL at *10. More specifically, we held that “a showing of deliberate

indifference may satisfy a claim for compensatory damages under § 504 of the RA and §

202 of the ADA.” Id. at *11. Thus, the District Court was correct in holding that

Appellants were required to prove intentional discrimination.

                              D. Intentional Discrimination

       Alternatively, Appellants argue that, even if intentional discrimination is required

to award compensatory damages under the RA and ADA, evidence in the record creates a

factual dispute as to whether the School District was deliberately indifferent to providing

Ferren with a FAPE. Having reviewed the record, we agree with Appellants, and will

therefore reverse the District Court‟s grant of the School District‟s motion for summary

judgment.



                                            10
       As discussed above, in S.H. we held that a plaintiff must demonstrate intentional

discrimination by showing deliberate indifference in order to succeed on a claim for

compensatory damages under the RA and ADA. We then explained that the deliberate

indifference standard has two parts, “requiring both (1) „knowledge that a harm to a

federally protected right is substantially likely,‟ and (2) „a failure to act upon that

likelihood.‟” S.H., 2013 WL at *11 (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124,

1139 (9th Cir. 2001)). We also noted that “deliberate indifference must be a deliberate

choice, rather than negligence or bureaucratic inaction.” S.H., 2013 WL at *11 (internal

quotation marks omitted).

       This case presents a close call. It has been clear since 1991 that Ferren needs both

speech and occupational therapy. (See J.A. 115 (Special Education Appeals Panel report

classifying Ferren “as a child with autism/pervasive developmental delay”).) It has also

been clear that placements at private schools have not sufficiently addressed Ferren‟s

needs. (See Appellee Br. at 12 (noting that Ferren was the “lowest functioning member

in the class of autistic students at Wordsworth”).) The School District was informed of

this at various junctures, and was ordered to provide those services. (See id. at 10-11

(recounting various instances in which the School District was ordered to provide

services because they had failed to do so).) Appellants‟ requests were often ignored.

Requested hearings often occurred only after extended delays. (See J.A. at 802-03

(detailing the School District‟s delays in scheduling hearings); id. at 377-78 (describing a

speech therapist arrangement falling through because the School District refused to

guarantee payment).) This situation has persisted. Indeed, at oral argument, the School

                                              11
District could not confirm that Ferren received any compensatory hours of education to

which she was entitled. Furthermore, several experts have noted these failures and have

surmised as to how, over time, they have impacted Ferren. (See, e.g., J.A. 895 (expert

report noting that Ferren was placed in classes where instructors were not familiar with

her specific disabilities and received inadequate educational services).)

       Given this record, there is a genuine dispute of material fact as to whether the

School District was deliberately indifferent. Indeed, it seems to us that a reasonable jury

could infer that (1) the School District knew that Ferren was not being provided a FAPE,

and (2) failed to act appropriately in a way that rose above mere negligence. The record

suggests that the School District was made aware numerous times that Ferren was not

being provided with the various therapies to which she was entitled. The record also

suggests that the School District repeatedly failed to schedule hearings after they were

requested, and did not place Ferren in an appropriate program for students with her type

of disability.

       Of course, reasonable minds could disagree, but that is not the test on summary

judgment. While the record does demonstrate that the School District made attempts to

provide Ferren with services and participated in developing her IEPs, we cannot ignore

the evidence that reflects serious and repeated failures by the School District at several

key junctures to ensure that Ferren was receiving the services that were required, and

were clearly known to be required. Accordingly, summary judgment was not properly

granted because there is a genuine dispute as to whether the School District was

deliberately indifferent. Accordingly, we will reverse the order of the District Court.

                                             12
               E. Motion for Reconsideration and Supplemental Evidence

       Appellants also argue that the District Court erred in refusing to reconsider its

October 24, 2011, order and in refusing to consider supplemental evidence outside the

previously submitted record. Given that we will remand this case to the District Court on

the issue of whether the School District‟s actions could constitute deliberate indifference,

our analysis of the District Court‟s order denying Appellants‟ motion for reconsideration

is moot.2

       We note, however, that the District Court did not err in refusing to consider

supplemental evidence. A party opposing summary judgment is responsible for pointing

to evidence to show disputes of material fact. See Fed. R. Civ. P. 56(c); see also Pavlik v.

Lane Ltd./Tobacco Exps. Int’l, 135 F.3d 876, 882 n.2 (3d Cir. 1998) (affirming a district

court that refused to consider newly presented evidence on a motion for reconsideration

that was available prior to the filing of summary judgment); Harsco Corp. v. Zlotnicki,

779 F.2d 906, 909 (3d Cir. 1985) (“Where evidence is not newly discovered, a party may

not submit that evidence in support of a motion for reconsideration.”). To the extent that

Appellants argue that the District Court “invited” them to submit post-summary judgment

motions and then did not consider the evidence, Appellants misconstrue the District

Court‟s invitation. The District Court afforded Appellants the opportunity to revisit


2
 Appellants also contend that the District Court erred by treating their post-summary
judgment submissions as motions for reconsideration under Rule 59(e) rather than
motions to alter the judgment under Rule 60. We disagree. As the District Court
properly noted, “the function of the motion, not the caption [should] dictate which Rule
applies.” J.A. 33 (internal quotation marks omitted).) Because we will reverse the grant
of summary judgment, we need not address this issue further.
                                             13
summary judgment “with more appropriate briefing and/or record references” and

repeatedly warned Appellants that it would not consider evidence outside the previous

summary judgment record. (J.A. 31.) Thus, the District Court was not wrong in refusing

to consider Appellants‟ supplemental evidence, which was previously available to them.3

                                      IV. Conclusion

       For the foregoing reasons, we will affirm in part, reverse in part, and remand this

case to the District Court for further proceedings consistent with this Opinion.




3
  Although neither the RA nor the ADA has a statute of limitations, the School District
argues that the District Court may not consider evidence outside the IDEA‟s two-year
statute of limitations. The District Court did not address this argument, as it was
unnecessary to the District Court‟s holding. Although we believe that Appellants‟ claims
were filed before the statute of limitations took effect, see Lawrence Twp. Bd. of Educ. v.
New Jersey, 417 F.3d 368, 370 (3d Cir. 2005) (“[A]mendments to the IDEA have
prospective application only . . .. Therefore, the provisions in effect at the time the
complaint was filed in 2003 will be applied here.”), this issue is more appropriately left to
the District Court on remand.
                                             14
