NOT PRECEDENTIAL 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.
2

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

O P I N I O N 

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.
3

I. Background

1

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.
4

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 
5

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 
6

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 
7

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 
8

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. 
9

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. 
10

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.
11

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 
12

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.
13

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.
14

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.