SB v. Board of Education of Harford


PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-01068-JFM. [999791356]. [15-1474]

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Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 1 of 21 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. Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 2 of 21 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 3 of 21 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 4 of 21 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 incident. In offenders, using conferences, From almost case, the school such as student measures parent January every phone 2013 to Pg: 5 of 21 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 5 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 6 of 21 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 7 of 21 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. 7 Appeal: 15-1474 Doc: 57 After Filed: 04/08/2016 substantial Pg: 8 of 21 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. Appeal: 15-1474 Doc: 57 S.B. Filed: 04/08/2016 and T.L. timely Pg: 9 of 21 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 9 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 financial assistance.” Pg: 10 of 21 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. 10 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 11 of 21 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, Appeal: 15-1474 § 504, Doc: 57 like Filed: 04/08/2016 Title IX, is Pg: 12 of 21 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 13 of 21 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 14 of 21 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 Appeal: 15-1474 Doc: 57 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 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 16 of 21 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). 16 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 17 of 21 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). 18 Appeal: 15-1474 Doc: 57 “demonstrate Filed: 04/08/2016 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 19 Appeal: 15-1474 Doc: 57 Filed: 04/08/2016 Pg: 20 of 21 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). 20 Appeal: 15-1474 Doc: 57 activity. Filed: 04/08/2016 Pg: 21 of 21 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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