SB v. Board of Education of Harford
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-01068-JFM. [999791356]. [15-1474]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1474
S.B., a minor, by and through his Guardian and next friend,
A.L.; T.L., in his own right,
Plaintiffs – Appellants,
and
A.L., in her own right,
Plaintiff,
v.
BOARD OF EDUCATION OF HARFORD COUNTY,
Defendant – Appellee,
and
DR. ROBERT TOMBACK; WILLIAM LAWRENCE; MICHAEL OʹBRIEN,
Defendants.
----------------------------------------COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
Amicus Supporting Appellants,
NATIONAL SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF
BOARDS OF EDUCATION,
Amici Supporting Appellee.
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Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cv-01068-JFM)
Argued:
January 27, 2016
Decided:
April 8, 2016
Before WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge Wynn and Judge Biggs joined.
ARGUED:
Martin Jay Cirkiel, CIRKIEL & ASSOCIATES, P.C., Round
Rock,
Texas;
Tracy
Diana
Rezvani,
REZVANI
VOLIN
P.C.,
Washington, D.C., for Appellants. Andrew G. Scott, PESSIN KATZ
LAW, P.A., Towson, Maryland, for Appellee. ON BRIEF: Edmund J.
O’Meally, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellee.
Selene Almazan-Altobelli, COUNCIL OF PARENT ATTORNEYS AND
ADVOCATES, INC., Towson, Maryland; Mark B. Martin, LAW OFFICES
OF MARK B. MARTIN, P.A., Baltimore, Maryland, for Amicus Council
of Parent Attorneys and Advocates.
Francisco M. Negrόn, Jr.,
General Counsel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,
Virginia, for Amici National School Boards Association and
Maryland Association of Boards of Education.
2
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PAMELA HARRIS, Circuit Judge:
This case arises from the student-on-student bullying and
harassment of S.B., a disabled student who attended Aberdeen
High School in Harford County, Maryland.
S.B., by and through
his mother, A.L., sued the Harford County Board of Education
(the
“Board”),
students
to
alleging
harass
S.B.
primarily
based
on
that
his
by
allowing
disability,
violated § 504 of the Rehabilitation Act.
other
the
Board
S.B.’s stepfather,
T.L., a teacher and athletic director at Aberdeen High School,
sued in his own right, claiming that the Board also violated
§ 504
by
retaliating
against
him
for
advocating
on
S.B.’s
behalf. 1
After
extensive
discovery,
the
district
court
granted
summary judgment to the Board, holding that there was no record
evidence to support either S.B.’s or T.L.’s claims.
And while
we sympathize with students and parents who face school bullying
issues, we agree.
acted
with
the
S.B. has provided no evidence that the Board
deliberate
indifference
liable for student-on-student harassment.
necessary
to
hold
it
Nor does the record
substantiate T.L.’s allegation of a causal connection between
his advocacy for S.B. and any adverse action taken by the Board.
Accordingly, we affirm the judgment of the district court.
1
Like the district court, we refer to S.B. and his parents
only by their initials.
3
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I.
A.
In reviewing the district court’s grant of summary judgment
to the Board, we present the facts of the case in the light most
favorable to S.B. and T.L., the non-moving parties.
See Blake
v. Ross, 787 F.3d 693, 695 (4th Cir. 2015).
S.B.
was
a
student
with
disabilities
such
as
Attention
Deficit Hyperactivity Disorder, weak visual-spatial ability, and
a nonverbal learning disability. 2
There is no question but that
his years at Aberdeen High School, which he entered in the fall
of
2010, were
bullied
him,
difficult
sometimes
ones.
S.B.’s
severely.
insulted him using homophobic slurs.
or physically threatened him.
Some
fellow
of
students
S.B.’s
often
classmates
Others sexually harassed
And S.B. faced — and sometimes
contributed to — racial tensions with his classmates; in one
significant episode, S.B. responded to three black students who
had been calling him names with a racial epithet and made other
threatening remarks.
S.B. or his parents reported most of these incidents to the
school,
and
the
school,
in
turn,
2
investigated
each
reported
As required by the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1400 et seq., Aberdeen High School
provided S.B. with an Individualized Education Plan and
assembled a team to implement that plan.
S.B. has not alleged
that the school failed to meet its obligations under the IDEA.
4
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incident.
In
offenders,
using
conferences,
From
almost
case,
the
school
such
as
student
measures
parent
January
every
phone
2013
to
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calls,
June
detentions,
2013,
the
school
disciplined
warnings
and
the
and
suspensions.
also
assigned
a
school-employed paraeducator to follow S.B. during the school
day, monitoring his safety and acting as an objective witness to
any alleged acts of bullying.
S.B.’s
issues
parents
S.B.
was
were
very
concerned
confronting
at
about
school.
the
Both
bullying
had
close
connections to Aberdeen High School: S.B.’s mother A.L. was a
substitute teacher, and T.L., as noted above, was the school’s
athletic
director
and
a
physical
education
teacher.
A.L.
frequently emailed school principal Michael O’Brien about the
bullying of S.B., and O’Brien consistently responded, though not
always to A.L.’s satisfaction.
Eventually, both A.L. and T.L. began publicly criticizing
and questioning the school’s efforts to prevent the harassment
of their son.
email
For instance, in November 2012, A.L. posted her
conversation
publicize
her
with
complaints.
O’Brien
In
on
the
Facebook
same
month,
in
order
both
to
parents
attended a hearing on whether the school should have suspended
S.B. for using a racial epithet.
In April 2013, A.L. and T.L.,
along with S.B., filed the original complaint in this action.
And after filing this suit, T.L. raised concerns at an October
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2013 parents’ forum about the lack of harassment reporting forms
available at the high school.
At around the same time, the school took several actions
with respect to T.L. that figure in T.L.’s retaliation claim.
In
November
2012,
O’Brien
denied
T.L.
the
opportunity
to
complete a practicum for his master’s degree program on-site at
Aberdeen High School.
As a result, T.L. instead completed the
practicum at the school district’s central office, working under
the district’s athletic supervisor.
In the spring of 2013, the
school failed to give T.L. tickets to a scholarship banquet for
student-athletes.
And in April 2013, O’Brien informed T.L. that
T.L.
be
would
not
teaching
the
school’s
summer
physical
education class that year, though he had taught it for the three
previous years.
Just over a year later, in June 2014, S.B. graduated on
time
from
Aberdeen
High
School.
During
high
school,
S.B.
consistently achieved passing grades, and in fall 2014, he began
taking classes at Harford Community College.
B.
In their amended complaint against the Board, filed in
July 2013, S.B. and his parents alleged violations of § 504 of
the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq.; and 42 U.S.C. §§ 1983 and 1985.
6
The gist of all of those
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claims was that the defendants had discriminated against S.B.
based
on
his
disability,
student-on-student
against
S.B.’s
primarily
bullying
parents
and
when
by
failing
harassment,
they
sought
to
and
to
prevent
retaliated
remedy
that
discrimination.
The focus of the case was narrowed in the district court.
First, in September 2013, the district court granted in part the
Board’s
motion
to
dismiss,
dismissing
from
the
suit
all
individual defendants and S.B.’s claims under §§ 1983 and 1985.
Subsequently, A.L. voluntarily dismissed her retaliation claims.
That left the claims that are before us now: S.B.’s claim of
disability-based
discrimination
under
§ 504
and
the
ADA,
and
T.L.’s claim of retaliation under § 504.
The district court denied the Board’s motion to dismiss on
those claims, allowing the parties to move forward to discovery.
But
the
court
was
skeptical
that
the
claims
could
succeed,
expressing doubt that S.B. could establish that the Board had
discriminated
against
him
by
acting
with
“deliberate
indifference” to student-on-student bullying, or that T.L. could
show that the Board had retaliated against him because of his
advocacy on behalf of S.B.
Memo to Counsel, S.B. v. Bd. of
Educ. of Harford Cty., No. 1:13-cv-1068-JFM, ECF. No. 35 (D. Md.
Sept. 30, 2013); J.A. 114.
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After
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substantial
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discovery,
in
April
2015
court granted summary judgment to the Board.
district
court,
founded.”
its
initial
skepticism
the
district
According to the
“proved
to
be
well-
S.B. v. Bd. of Educ. of Harford Cty., 1:13-cv-1068-
JFM, slip op. at
1 (D. Md. Apr. 17, 2015) (“District Court
Decision”); J.A. 2389. The court observed that “[d]espite the
extensive
discovery
that
has
been
taken
and
the
voluminous
papers that have been filed, it is now clear that the action is
a frivolous one.”
Specifically,
Id. at
1–2.
regarding
S.B.’s
claim
of
disability-based
discrimination, the district court first found that “it is not
at all clear that any harassment directed toward [S.B.] was on
account of his disability.”
rested
its
“absolutely
decision
no
discriminated
misjudgment
on
a
evidence”
against
or
Id. at 2.
different
in
S.B.
the
by
deliberate
But the district court
ground:
record
acting
Id.
there
was
the
Board
had
that
with
indifference
student-on-student harassment.
that
“bad
in
faith,
responding
gross
to”
Instead, the record showed
that the “Board investigated every harassment claim against S.B.
brought to its attention and assigned a person to be with S.B.
throughout the school.”
the
district
court
Id.
As to T.L.’s retaliation claim,
concluded
that
there
was
“no
evidence
whatsoever” of a causal link between T.L.’s advocacy of S.B.’s
rights and any action taken by the Board.
8
Id.
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S.B.
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and
T.L.
timely
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appealed
the
district
court’s
judgment.
II.
We review the district court’s grant of summary judgment de
novo.
Summary
judgment
genuine
dispute
as
entitled
to
[]
to
is
any
appropriate
judgment
as
material
a
“when
fact
matter
of
is
no
the
movant
is
law.’”
Dash
v.
and
‘there
Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (quoting Fed. R.
Civ. P. 56(a)).
to
S.B.
and
We view the facts in the light most favorable
T.L.
as
the
non-moving
reasonable inferences in their favor.
parties
and
draw
all
Blake, 787 F.3d at 695.
But if “no reasonable jury could find for the nonmoving party on
the
evidence
before
summary judgment.
it,”
then
we
will
affirm
the
grant
of
Perini Corp. v. Perini Constr., Inc., 915
F.2d 121, 124 (4th Cir. 1990).
A.
We begin with S.B.’s claim that the Board discriminated
against him based on his disability in violation of § 504 of the
Rehabilitation Act.
Section 504 provides that “[n]o otherwise
qualified individual with a disability . . . shall, solely by
reason
of
her
or
his
disability,
be
excluded
from
the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
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financial assistance.”
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29 U.S.C. § 794(a).
According to S.B.,
he was subjected for years to sustained and pervasive studenton-student harassment and bullying based on his disability, and
by failing to prevent that harassment, the Board itself engaged
in disability-based discrimination prohibited by § 504. 3
1.
The Supreme Court addressed a very similar claim in Davis
v. Monroe County Board of Education, 526 U.S. 629 (1999), a
student-on-student sexual harassment case brought under Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681(a).
Like
§ 504, Title IX is what is known as Spending Clause legislation,
applying
to
schools
and
educational
programs
that
receive
federal funds; and much like § 504, Title IX provides that no
person
“shall,
on
the
basis
of
sex,
be
excluded
from
participation in, be denied the benefits of, or be subjected to
discrimination” in a federally funded program.
3
Id.
Given that
S.B. also refers on appeal, though only briefly, to his
distinct claim under the ADA.
Though his argument is not
entirely clear, S.B. appears to take the position that the Board
engaged in disability-based discrimination under the ADA by
failing to supplement its anti-bullying policy with a special
policy tailored to the needs of disabled students.
S.B. cites
no case law in support of such a duty, and we decline to hold
that a school discriminates on the basis of disability unless it
establishes a second and separate anti-bullying policy specific
to disabled students.
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statutory structure, the Court held in Davis, a school could be
liable in damages for student-on-student sexual harassment only
if
it
was
“deliberately
harassment.
The
indifferent”
to
known
acts
of
such
rule
that
526 U.S. at 642, 649.
Court
started
with
the
well-established
recipients of federal funds must have adequate notice that they
may
be
liable
for
certain
action will be allowed.
conduct
before
Id. at 640.
a
private
damages
It followed, the Court
concluded, that schools may not be held liable under Title IX
for the misconduct of their students, but only for their “own
decision to remain idle in the face of known student-on-student
harassment,” id. at 641 (emphasis in original) — “intentional
conduct that violates the clear terms of the statute,” id. at
642.
A negligent failure to learn of or react to its students’
independent actions, in other words, will not subject a school
to
liability,
but
harassment” will.
“deliberate
indifference
to
known
acts
of
Id. at 642–43.
Like most of the federal courts to consider the question,
we
think
it
clear
that
the
same
reasoning
applies
to
§ 504
claims arising from student-on-student harassment or bullying.
See, e.g., Estate of Lance v. Lewisville Indep. Sch. Dist., 743
F.3d
982,
995–96
(5th
Cir.
2014)
(citing
cases
from
other
circuits); S.S. v. E. Ky. Univ., 532 F.3d 445, 454 (6th Cir.
2008)
(citing
cases
from
district
11
courts).
As
noted
above,
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§ 504,
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like
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Title
IX,
is
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Spending
Clause
legislation,
which
means that fund recipients must be on notice that they could be
liable for student-on-student wrongdoing — a condition satisfied
by intentional and official conduct in the form of “deliberate
indifference.”
operative
See Davis, 526 U.S. at 640–42.
language
is
strikingly
similar
to
And § 504’s
Title
IX’s,
prohibiting the same “exclu[sion] from participation,” “deni[al]
of benefits,” and “discrimination” in federally funded programs.
See Lance, 743 F.3d at 996 (noting similarities in wording of
§ 504 and Title IX).
Given these parallels, it plainly follows
from Davis that § 504 claims predicated on student-on-student
harassment, like their Title IX counterparts, require a showing
of deliberate indifference on the part of the funding recipient.
S.B.
standard
argues
by
that
holding
our
in
circuit
Sellers
v.
has
adopted
School
Board
a
of
different
City
of
Manassas, 141 F.3d 524, 529 (4th Cir. 1998), that a school may
be liable for damages under § 504 if it acts with “bad faith or
gross misjudgment.”
in
an
excess
of
And we note that the district court, likely
caution,
applied
the
“bad
faith
or
gross
misjudgment” standard as well as the “deliberate indifference”
standard and held that S.B. could satisfy neither.
Court Decision at 2.
See District
But the Sellers standard does not govern
this case, because Sellers did not involve school liability for
student-on-student
misconduct.
Instead,
12
Sellers
presented
a
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straightforward claim that a school’s own direct conduct — an
alleged failure to provide a free appropriate public education
under the Individuals with Disabilities Education Act (“IDEA”) —
constituted § 504 discrimination, and held only that “bad faith
or gross misjudgment” was required “in the context of education
of handicapped children” to turn an IDEA violation into § 504
discrimination.
distinct
issues
Sellers, 141 F.3d at 529. 4
implicated
by
school
To resolve the
liability
arising
from
student misconduct, we are guided not by Sellers but by Davis,
which addressed those issues directly.
2.
In
the
§ 504
context,
the
Davis
deliberate
indifference
standard requires a plaintiff like S.B. to show that he was an
individual with a disability, harassed by fellow students based
on
his
disability;
that
the
disability-based
harassment
was
sufficiently “severe, pervasive, and objectively offensive” that
it effectively deprived him of “access to educational benefits
and opportunities” at school, Davis, 526 U.S. at 650; and that
the
school
knew
about
the
disability-based
4
student-on-student
We took the same view of Sellers in Shirey ex rel. Kyger
v. City of Alexandria Sch. Bd., 229 F.3d 1143, 2000 WL 1198054,
at *4 (4th Cir. 2000) (unpublished table decision), explaining
that Sellers “adopted the heightened standard of ‘bad faith or
gross misjudgment’ for proving discrimination in the specific
context of developing appropriate [Individualized Education
Plans] for disabled children” under the IDEA.
13
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harassment and was deliberately indifferent to it.
See Lance,
743 F.3d at 996; S.S., 532 F.3d at 454; cf. Davis, 526 U.S. at
649–50
(same
under
Title
IX).
Like
the
district
court,
we
conclude that on the record evidence in this case, no reasonable
jury could find that S.B. has made the necessary showing.
The district court held first that “it is not at all clear”
that S.B. could establish that the student-on-student bullying
he
suffered
disability,
and
as
reported
required
slightest
to
of
S.B.,
for
the
on
his
Read most
record
that
S.B.
of
based
District
evidence
violation
was
§ 504.
the
a
school
We agree with that assessment.
Court Decision at 2.
generously
to
contains,
was
at
best,
harassed
only
because
of
the
his
disability, mostly in the form of S.B.’s self-serving affidavit.
Instead, as the Board argues, S.B’s own evidentiary submissions
strongly
suggest
that
S.B.
most
often
was
the
victim
(and
sometimes the perpetrator) of race-based bullying and slurs —
conduct that is deplorable and damaging in its own right, but
cannot give rise to § 504 liability.
Moreover, though there is no question but that the school
was on notice that S.B. was being bullied, there is very much a
question as to whether the school knew of any disability-based
bullying, as would be required for S.B. to prevail under the
Davis
standard.
harassed
because
Even
of
assuming
his
that
disability,
14
S.B.
none
was
of
on
occasion
the
email
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communications
Filed: 04/08/2016
or
harassment
Pg: 15 of 21
reports
filed
by
S.B.
or
his
parents and included in the record informed the school of that
fact.
S.B. argues that the school should have known, by way of
investigation, that the harassment of which he complained was
based
on
his
disability
—
but
the
Supreme
Court
rejected
precisely that negligence standard in Davis, 526 U.S. at 642
(declining
to
impose
liability
under
“what
amount[s]
to
a
negligence standard” for failure to respond to harassment of
which
a
school
“knew
or
should
have
known”
(emphasis
in
original)), and we cannot employ it here.
In any event, and like the district court, we find that
whatever the nature of the harassment directed at S.B., there is
no record evidence suggesting that the Board responded to it
with
the
deliberate
indifference
District Court Decision at 2.
deliberate indifference.
required
by
Davis.
See
Davis sets the bar high for
The point, again, is that a school may
not be held liable under Title IX or § 504 for what its students
do, but only for what is effectively “an official decision by
[the school] not to remedy” student-on-student harassment.
U.S. at 642.
eliminate
526
Thus, it is not enough that a school has failed to
student-on-student
harassment,
disciplinary sanctions sought by a victim.
or
to
impose
the
Id. at 648; see
Lance, 743 F.3d at 996 (under Davis standard, “[s]ection 504
does
not
require
that
schools
15
eradicate
each
instance
of
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bullying from their hallways to avoid liability”).
school
will
be
liable
where
its
“response
for
student-on-student
. . .
or
lack
Instead, a
harassment
thereof
is
unreasonable in light of the known circumstances.”
only
clearly
Davis, 526
U.S. at 648.
Without
making
any
effort
to
tie
his
argument
to
the
record, S.B. asserts generally that the Board either did nothing
in
response
confronted,
to
repeated
or
failed
complaints
to
investigate
complaints in a meaningful way. 5
the contrary.
about
the
and
bullying
address
he
those
But the record is squarely to
First, the record shows conclusively that the
school in fact investigated every single incident of alleged
harassment of which it was informed by S.B. or his parents.
in
nearly
measures
every
case,
ranging
from
suspensions.
the
school
parent
disciplined
phone
calls
to
offenders
detentions
And
with
to
Finally, as the district court emphasized, from
January 2013 to June 2013, the school assigned a paraeducator —
a school professional who works with students — to accompany
5
In the fact section of his brief, S.B. alleges generally
that, with two exceptions, “no formal disciplinary or other
remedial action[] was taken against students who bullied S.B.”
Appellants’ Br. at 26.
That claim is flatly belied by the
record, which contains evidence of numerous disciplinary actions
beyond the two noted by S.B. See, e.g., J.A. 1797 (parent phone
call and letter, student conference and warning, detention);
J.A. 1816 (parent phone call and letter, student conference);
J.A. 1870 (student conference and warning).
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S.B. during the school day to ensure S.B.’s safety as well as to
provide objective witness to alleged acts of bullying.
There is no “decision to remain idle” on this record — no
“official decision by [the school] not to remedy” known studenton-student harassment.
See Davis, 526 U.S. at 641–42.
That is
not to say, of course, that only a complete failure to act can
constitute
deliberate
indifference,
or
that
any
half-hearted
investigation or remedial action will suffice to shield a school
from liability.
that
a
series
Where, for instance, a school has knowledge
of
“verbal
reprimands”
is
leaving
student-on-
student harassment unchecked, then its failure to do more may
amount to deliberate indifference under Davis.
Patterson v.
Hudson Area Schs., 551 F.3d 438, 448–49 (6th Cir. 2009); see
also Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70
(2d Cir. 2012) (school response to student-on-student harassment
may
be
unreasonable
implementing
“little
where
more
school
than
“dragged
half-hearted
its
feet”
before
measures”).
But
school administrators are entitled to substantial deference when
they
calibrate
a
disciplinary
response
to
student-on-student
bullying or harassment, see Davis, 526 U.S. at 648; Lance, 743
F.3d at 996–97, and a school’s actions do not become “clearly
unreasonable” simply because a victim or his parents advocated
for stronger remedial measures, Zeno, 702 F.3d at 666.
In this
case, no reasonable juror could find that the school was less
17
Appeal: 15-1474
than
Doc: 57
fully
engaged
disciplinary
harassment
behalf.
Filed: 04/08/2016
with
sanctions
and
to
taking
Pg: 18 of 21
S.B.’s
punish
other
problems,
and
deter
protective
using
escalating
student-on-student
measures
on
S.B.’s
Accordingly, as the district court held, S.B. simply
cannot make out a case of deliberate indifference under Davis.
B.
We now turn to T.L.’s retaliation claim under § 504, which
we can dispense with more briefly.
Absent direct evidence of
retaliation, T.L. may proceed under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973),
making
a
prima
facie
case
of
retaliation
by
showing
(1) that he engaged in protected activity, (2) that the Board
took an adverse action against him, and (3) that the adverse
action was causally connected to his protected activity.
Rhoads
v.
F.D.I.C.,
retaliation claim). 6
257
F.3d
373,
392
(4th
Cir.
2001)
See
(ADA
If T.L. can meet this burden, then the
Board must articulate a “legitimate nonretaliatory reason for
its actions,” at which point the burden shifts back to T.L. to
6
As the parties agree, retaliation claims under § 504 are
subject to the same standard as ADA retaliation claims.
See
Lyons v. Shinseki, 454 F. App’x 181, 182, 184 (4th Cir. 2011)
(per curiam) (unpublished) (applying same standard to ADA and
§ 504 retaliation claims); Myers v. Hose, 50 F.3d 278, 281 (4th
Cir.
1995)
(noting
that
“the
substantive
standards
for
determining liability are the same” under the Rehabilitation Act
and the ADA); see also Reinhardt v. Albuquerque Pub. Schs. Bd.
of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010).
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Doc: 57
“demonstrate
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that
the
forbidden retaliation.”
Pg: 19 of 21
proffered
reason
is
a
pretext
for
Id.
The Board does not dispute that T.L. advocated on behalf of
S.B., a disabled student, and thus engaged in protected activity
for purposes of a retaliation claim.
And although the Board
does contest the second element of the analysis, we think it
clear that one of the actions identified by T.L. — the decision
not to rehire T.L. to teach the summer physical education class
he had taught for three previous years — amounted to the kind of
“materially adverse” action that can give rise to a retaliation
claim.
See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (Title VII retaliation claim); Rhoads, 257 F.3d at
391 (applying Title VII retaliation standards to ADA retaliation
claim).
Even if, as the Board argues, T.L. did not have a
legally cognizable “expectation of continued employment” as a
summer teacher, Appellee’s Br. at 55, the loss of a summer job
and wages that had been available for the past three years “well
might” be enough to “dissuade[] a reasonable worker from making
or supporting a charge of discrimination,” and that is enough to
satisfy the “materially adverse” standard.
Burlington, 548 U.S.
at 54; see Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., 595
F.3d 1126, 1133 (10th Cir. 2010) (loss of salary customarily
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received for usual extended contract may constitute materially
adverse action). 7
Like
the
nevertheless
reasonable
between
was
jury
the
activity.
district
court,
entitled
could
Board’s
however,
to
find
summary
the
adverse
we
judgment
necessary
action
think
and
Board
because
causal
T.L.’s
no
connection
protected
The Board has come forward with a legitimate and
plausible nonretaliatory reason for its decision:
school
the
principal
O’Brien,
because
of
the
According to
number
of
female
students enrolled in the summer physical education class, he
concluded that the class should be taught by one female and one
male
teacher,
and
he
selected
a
male
teacher
who
experience than T.L. in teaching physical education.
had
more
And the
next year, when O’Brien needed an additional teacher for the
summer of 2014, he chose T.L. for the slot.
The burden now
shifts
explanation
to
T.L.
to
demonstrate
that
this
is
pretextual, and that the decision to hire the more experienced
teacher in 2013 in fact was causally linked to his protected
7
T.L. complains of two additional actions by the Board:
first, the Board’s failure to provide him with tickets to a
student-athlete scholarship banquet; and second, the Board’s
decision that he could not complete his practicum at Aberdeen
High School, which required him to complete it at the school
district’s central office instead. Viewing the related facts in
the light most favorable to T.L., we are convinced that neither
of those actions rises to the level of “materially adverse.”
See Burlington, 548 U.S. at 68 (“trivial harms” and “minor
annoyances” are not actionable in a retaliation claim).
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activity.
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But there simply is no record evidence to support
that proposition.
While the temporal proximity between T.L.’s
protected activity and the reassignment of the summer teaching
job may be sufficient to make an initial prima facie showing of
causation, see Jacobs v. N.C. Admin. Office of the Courts, 780
F.3d 562, 579 (4th Cir. 2015), timing alone generally cannot
defeat
summary
judgment
once
an
employer
convincing, nonretaliatory explanation.
has
offered
a
See Pinkerton v. Colo.
Dep’t of Transp., 563 F.3d 1052, 1066 (10th Cir. 2009).
Without
more than his own assertions, T.L. cannot meet his burden at
summary judgment.
F.3d
696,
705–06
See Haulbrook v. Michelin N. Am., Inc., 252
(4th
Cir.
2001)
(rejecting
plaintiff’s
retaliation claim at summary judgment because no reasonable jury
could find the employer’s explanation pretextual). 8
III.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED
8
S.B. and T.L. also appeal the denial of their motion for
sanctions based on alleged spoliation of evidence by the Board,
and argue that the district court erred in ignoring certain
evidentiary objections.
We find no error in the district
court’s ruling on spoliation, and our decision today relies on
none of the evidence to which S.B. and T.L. object.
21
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