San Antonio solo Charles Straith Frigerio scored a defense win in a Nov. 15 jury verdict. It came in a hard-fought discrimination case, during which jurors easily could have empathized with the plaintiffs: a company and its owners who serve students with learning disabilities.
The litigation followed a zoning dispute and included allegations that the city of Selma delayed approving a zoning request, thereby dousing plans for the creation of a school for the students.
“Their claim was that we had done it intentionally. So, we had to get the jury to understand that the zoning process takes time,” said Frigerio, who represents Selma in Dusti Kelly-Fleming vs. City of Selma.
The verdict disappointed the plaintiffs, and they will consider an appeal, said Mark Anthony Sanchez, a partner in San Antonio’s Gale, Wilson & Sanchez who represents all the plaintiffs. A city planning commission and city engineer agreed with his clients’ proposed zoning changes before the city council “ignored those recommendations,” he said.
Plaintiffs are Dusti Kelly-Fleming, John Fleming and their company TECLARC, which operated a private school for children with certain learning disabilities, such as dyslexia, attention deficit disorder and Asperger’s Syndrome. TECLARC is an acronym for The Exceptional Children’s Learning and Resource Center, said Sanchez.
In an amended complaint filed Sep. 7, 2010, the plaintiffs alleged that “without explanation,” the city denied and delayed conducting a hearing regarding its proposed zoning request “before the City Council until it became apparent that [they] could not hope to complete the move of their school in time for the beginning of the school year.”
The plaintiffs brought a cause of action under the Americans With Disabilities Act, 42 U.S.C. §12131, et seq. which bars discriminatory action against qualified individuals with a disability, including intentional discrimination by segregating disabled people in services, programs and activities.
In an answer filed Feb. 21, 2012, the city denied the allegations and argued that “its conduct was not intentional and was not an act of discrimination but rather the fact that Plaintiffs were inexperienced in the zoning process.”
After a four-day trial that Frigerio describes as “document-intensive,” the jury issued its Nov. 15 verdict, ruling that the city had not delayed acting on zoning requests based on the plaintiffs’ associations with the disabled and that the plaintiffs had suffered no damages. The judge in the U.S. District Court for the Western District of Texas in San Antonio issued a take-nothing final judgment the same day.
Frigerio said the two sides had engaged in mediation, during which the plaintiffs had sought $1.1 million and not less. “They were very stubborn,” he said, happy about that in hindsight.