Lee v. Natomas Unified School District

Filing 39

ORDER denying defendants' 14 Motion for Summary Judgment, signed by Chief Judge Morrison C. England, Jr., on 2/25/15. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRASON LEE,

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No. 2:13-cv-00181-MCE-EFB
Plaintiff,

v.

MEMORANDUM AND ORDER

NATOMAS UNIFIED SCHOOL
DISTRICT, et al.,
Defendants.

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Through the present action, Plaintiff Brason Lee (“Plaintiff”) claims he was

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retaliated against by the Natomas Unified School District (“Defendants” or “NUSD”) for

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advocating on his daughter’s behalf with respect to the provision of special educational

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services. According to Plaintiff, Defendants’ conduct in this regard ran afoul of both

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Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, (hereinafter “Section 504”) and

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Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”).

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Currently before the Court is Defendants’ Motion for Summary Judgment, or alternatively

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for summary adjudication as to certain claims. (ECF No. 14). For the reasons set forth

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below, Defendants’ Motion is DENIED.1

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Because oral argument will not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local Rule 230(g).

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BACKGROUND2

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Plaintiff is the parent of a student (“Student”) who previously attended Two Rivers

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Elementary in the Natomas Unified School District (“NUSD”). Beginning in 2007, when

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she had not yet turned three years of age, Student began receiving speech and

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language services from NUSD. Student was eligible for such services under the Speech

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and Language category of the Individuals with Disabilities in Education Improvement Act

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(“IDEA”).

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In 2009, while Student was still in preschool, NUSD conducted a psycho-

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educational assessment (“Assessment”), which concluded that Student had a disability

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which fell along the Autism spectrum. Based on this Assessment, NUSD determined

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that Student should continue to receive speech and language services from NUSD.

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Decl. of Suzanne Johnstone (“Johnstone”), ECF No. 14-8, ¶ 6. Plaintiff disagreed with a

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number of the conclusions in the Assessment and was active in voicing that

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disagreement. Plaintiff authored a letter to the NUSD Board of Trustees (“Board”) in

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September of 2009, setting forth his disagreement with the Assessment in an attempt to

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have it removed from Student’s record. Id. at ¶ 9.

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Although the Board found the Assessment was proper, Plaintiff continued to

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request that the Assessment be removed from Student’s record in subsequent

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correspondence with NUSD. Id. He authored numerous written communications in that

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regard, which Plaintiff claims represented an effort to advocate on behalf of his

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daughter’s rights. These communications included allegations that the Director of

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NUSD’s Special Education Program, Suzanne Johnstone (“hereinafter referred to as

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Director”), and other NUSD staff, acted unlawfully and/or unethically, and falsified

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records as to compliance with Student’s Individualized Education Program (“IEP”).

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Johnstone at ¶ 10. In providing the needed speech and language therapy services,

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Student’s March 22, 2010, IEP called for sixty (60) sessions per school year, at twenty-

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Unless otherwise noted, the following facts are taken from Plaintiff’s Complaint. ECF No. 1.

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five (25) minutes each, with licensed speech and language pathologist Sean Green

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(“Green”). Id. at ¶ 7.

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times per week. Id. Plaintiff believed that NUSD was failing to comply with the terms of

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the IEP and subsequently falsifying records to show Student had received services when

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she had not. Id. at ¶¶ 10, 12, 21.

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Green scheduled these sessions at a rate of approximately two

In July 2010, Plaintiff approached Green to allege that his daughter was not

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receiving the speech therapy outlined in her IEP. Decl. of Sean Green (“Green”), ECF

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No. 14-7, ¶¶ 5-7. Green claims he tried to assure Plaintiff that Student’s speech therapy

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had started, but Plaintiff stated that this was “hard to believe.” Id. On another occasion,

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Plaintiff asked Green to meet him outside of campus, but did not state the purpose for

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the meeting, and refused to make an appointment with him at school to discuss

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Student’s program. Id.

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On October 8, 2010, Plaintiff emailed a copy of an article titled “Administrative

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Pressures to Practice Unethically: Research and Suggested Strategies” to Student’s first

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grade teacher, as well as to Sean Green. Johnstone at ¶ 11. On October 6, 2010,

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Plaintiff emailed Dr. Susan Heredia, a NUSD Board member, to complain that Student

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was not receiving her scheduled speech therapy. Decl. of Bobbie Plough (“Plough”),

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ECF No. 14-5, ¶ 4. In this correspondence Plaintiff made accusations that NUSD staff

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had engaged in “periodic alterations in speech services” as retaliation for a “parental

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challenge.” Id. This e-mail was shared with Bobbie Plough (“Superintendent”), the then

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Superintendent of NUSD, who proceeded to tell Plaintiff that she would contact Green to

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ensure his compliance with Student’s IEP. Id. at ¶¶ 4-6.

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Plaintiff responded to the Superintendent’s e-mail on October 11, 2010, and

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copied that response on all NUSD Board members, as well as on Plaintiff’s own

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attorney. Id. at ¶ 7. Plaintiff stated that he would “hold [Superintendent] personally

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accountable for the truthfulness and accuracy of all information provided to [Plaintiff]

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from [that] date and [would] consider any continued acts of deception or

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misrepresentation by NUSD officials as acts endorsed by [Superintendent] and the
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Board.” Id. The Superintendent perceived those statements as an accusation that she

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and the Board would attempt to deceive Plaintiff in future communications regarding

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Student. Id. Two days later, on October 13, 2010, the Director e-mailed Plaintiff,

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summarized the scope of services provided in Student’s March 22, 2010 IEP, and

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reported on the number of speech and language therapy sessions provided. Johnstone

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at ¶ 12. She additionally assured Plaintiff that Student would receive all contemplated

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sessions during the IEP year. Id.

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Following additional correspondence from Plaintiff to the Superintendent, to Two

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Rivers Principal Leslie Sargent (“Principal”), to NUSD’s Board of Trustees, and to Sean

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Green himself, the Superintendent became concerned that Plaintiff was challenging

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staff’s credibility and integrity. Plough at ¶¶ 9-10. She was also concerned about

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Plaintiff’s ultimatums in demanding specific time periods for particular responses, as well

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as the inferences Plaintiff purported to draw from any failure to meet those deadlines.

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Id. at ¶ 10. Because she felt “annoyed and harassed” by this course of conduct,

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Superintendent Plough asked the Director to contact NUSD attorneys to see whether all

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future communications with Plaintiff could be routed through counsel as opposed to

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NUSD staff. Id. On October 22, 2010, an e-mail was sent to Plaintiff instructing him to

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direct all future communications to NUSDs’ attorney. Id. at ¶ 11.

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Plaintiff approached Green the following day on school grounds, stating that

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“[NUSD] is in trouble, we are talking about felonies, so be careful.” Green at ¶ 10.

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Plaintiff also asked Green whether he treated Plaintiff’s daughter like his own child,

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which Green claims he found bizarre and threatening. Id.

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On October 24, 2010, Plaintiff wrote a letter to the Office of Special Education

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Programs (“OSEP”) of the U.S. Department of Education, which was copied to the

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Principal, the entire NUSD Board, the Director of the Sacramento Special Education

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Local Plan Area, Green, Student’s classroom teacher, and “other interested parties.”

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Plough at ¶ 12. The letter made multiple requests, and alleged that NUSD engaged in

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retaliatory practices as a result of Plaintiff’s challenge to Student’s March 2009

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Assessment, and further accused staff of falsifying Student’s IEP records. Id.

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Additionally, in an October 25, 2010, email to the Department Chair of the

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Bilingual Education Program at Sacramento State University, Plaintiff alleged that an

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escalating situation existed where acts of misrepresentation had become fraud, and

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were personally continued by the Superintendent. Plough at ¶ 14.

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On November 4, 2010, the Principal observed Plaintiff sitting on a bench in front

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of the main office approximately 25 minutes before Student would be let out of class.

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Decl. of Leslie Sargent ("Sargent"), ECF No. 14-6, ¶ 8. Typically, parents begin to arrive

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no sooner than five to 10 minutes before the end of a school day. Id. The Principal

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commented to Plaintiff that he was there early and asked if he had signed in at the

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office. Id. at ¶ 9. Plaintiff stated, “I am just sitting here.” Id. The Principal advised

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Plaintiff of the district and school policy to sign in when on the campus. Id. Plaintiff

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responded that “the ladies [in the office] can see me; I sit here every day.” Id. The

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Principal informed Plaintiff that he must follow the policy, which is provided to the parents

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in the “Parent/Student Handbook” at the beginning of the school year. Id. at ¶ 10.

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Plaintiff had previously received a copy of this policy and signed an acknowledgment of

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receipt. Id.

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That same day, Plaintiff sent an e-mail to the Superintendent and the Board titled

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“Continued Parental Harassment? Brason Lee.” Plough at ¶ 17. The e-mail relayed the

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encounter Plaintiff had that day with the Principal regarding the sign in policy, and

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expressed Plaintiff’s belief that the incident was yet another example of the harassment

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he was subjected to after challenging Student’s Assessment in 2009. Id.

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On November 5, 2010, the Principal sent an e-mail to the Superintendent advising

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her that her staff were concerned about Plaintiff’s habit of spending time on campus and

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taking notes. Id. at ¶ 18. She relayed that staff members were uncomfortable with

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Plaintiff’s behavior. Id. The same day, Plaintiff sent an e-mail to Student’s teacher

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stating that he had reviewed Student’s spelling scores and noted that the average in the
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report was too low. Sargent at ¶ 13. Plaintiff remarked that the additional comments

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appeared “suspicious.” Id. Plaintiff requested a correction, but also commented that he

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hoped “the educational welfare of the children” was her “number one priority in practice,”

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even if “administrative pressures may not always be consistent with this idea.” Id. The

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teacher responded on November 6, 2010, expressing her concerns to Plaintiff that these

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statements questioned her integrity. Id.

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On November 8, 2010, Student’s teacher forwarded another e-mail she had

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received from Plaintiff to the Superintendent. That e-mail included a “friendly reminder”

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from Plaintiff that the teacher keep out of the district politics. Johnstone at ¶ 18. The

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teacher responded by asking Plaintiff to please stop discussing “district politics” with her

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so that she could focus on doing her job in the classroom. Sargent at ¶ 15. Plaintiff

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responded by stating that she should not allow people to communicate through her so

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that she would not be “involved in what appears to be a case of fraudulent records

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related to a federally-funded program.” Id. at ¶ 16.

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On or about November 9, 2010, NUSD’s counsel wrote to Plaintiff’s attorney at

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the request of the Superintendent, advising that Plaintiff’s communication with district

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personnel was causing them “to feel extremely anxious and threatened.” Plough at ¶ 19.

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NUSD counsel suggested a meeting with Plaintiff so that his concerns could be

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addressed. Id. Plaintiff unilaterally canceled the meeting. Id. at ¶ 23.

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On January 14, 2011, the Director received a copy of a letter from the National

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Association of School Psychologists (“NASP”) addressed to Clarissa Tuttle, a School

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Psychologist with NUSD. Johnstone at ¶ 25. The letter included a Complaint initiated by

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Plaintiff against Ms. Tuttle for her conduct in connection with the March 2009

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Assessment. Id.

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On February 1, 2011, the Superintendent, Director, and Green, in their individual

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capacities, and with a declaration from the Principal, petitioned the Sacramento Superior

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Court for a Temporary Restraining Order (“TRO”) against Plaintiff that would prohibit his

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allegedly ongoing harassment. Def.s’ Separate Statement of Undisputed Material Facts,
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ECF No. 14-1, ¶ 12. Plaintiff alleges this petition was an attempt to halt or chill the

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advocacy and participation by Plaintiff in the special education process.

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Plaintiff’s “advocacy” for Student, specifically in reference to the submission on

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January 14, 2011, of “a complaint sent to the NASP against a school psychologist,” was

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one of the purported reasons that the Director sought the restraining order. Pl’s

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Evidence, ECF No. 18, Ex. H. Further, the Superintendent admitted in the filings for the

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restraining order that Plaintiff had forwarded a “complaint filed with the U.S. Department

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of Education.” Id. The Superintendent subsequently attached a copy of the Complaint

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made by Plaintiff as part of her restraining order application. Id.

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Plaintiff alleges the adverse actions taken by NUSD, if successful, would have

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effectively barred him from the school’s campus, given the requested 50-yard keep away

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order. Opp., ECF No. 15, 7:16-20. Defendants contend that the petitions collectively

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sought to give Plaintiff an appropriate single point of contact, and were designed to deter

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conduct and communications that raised concerns for their own safety, reputations and

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well-being. Reply, ECF No. 22, 4:14-16; Green at ¶¶ 25-27; Plough at ¶ 26; Johnstone

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at ¶ 26. The petitions were ultimately denied by the Superior Court. Even after denial of

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the TROs, Plaintiff contends that NUSD continued to take actions against Student’s

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interest, as well as his own. Decl. of Brason Lee (“Lee”), ECF No. 16, ¶ 25. Plaintiff

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eventually withdrew Student from the school district. Id.

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STANDARD

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The Federal Rules of Civil Procedure provide for summary judgment when “the

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movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

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Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to

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dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.

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Rule 56 also allows a court to grant summary judgment on part of a claim or

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defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may

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move for summary judgment, identifying each claim or defense—or the part of each

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claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v.

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Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a

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motion for partial summary judgment is the same as that which applies to a motion for

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summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic

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Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary

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judgment standard to motion for summary adjudication).

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In a summary judgment motion, the moving party always bears the initial

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responsibility of informing the court of the basis for the motion and identifying the

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portions in the record “which it believes demonstrate the absence of a genuine issue of

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material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial

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responsibility, the burden then shifts to the opposing party to establish that a genuine

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issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

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253, 288-89 (1968).

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In attempting to establish the existence or non-existence of a genuine factual

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dispute, the party must support its assertion by “citing to particular parts of materials in

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the record, including depositions, documents, electronically stored information,

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affidavits[,] or declarations . . . or other materials; or showing that the materials cited do

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not establish the absence or presence of a genuine dispute, or that an adverse party

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cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The

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opposing party must demonstrate that the fact in contention is material, i.e., a fact that

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might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and

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Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also

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demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is
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such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,

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477 U.S. at 248. In other words, the judge needs to answer the preliminary question

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before the evidence is left to the jury of “not whether there is literally no evidence, but

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whether there is any upon which a jury could properly proceed to find a verdict for the

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party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251

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(quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original).

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As the Supreme Court explained, “[w]hen the moving party has carried its burden under

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Rule [56(a)], its opponent must do more than simply show that there is some

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metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore,

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“[w]here the record taken as a whole could not lead a rational trier of fact to find for the

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nonmoving party, there is no ‘genuine issue for trial.’” Id. at 87.

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In resolving a summary judgment motion, the evidence of the opposing party is to

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be believed, and all reasonable inferences that may be drawn from the facts placed

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before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at

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255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn.

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Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d,

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810 F.2d 898 (9th Cir. 1987).

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ANALYSIS

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A.

Section 504 and ADA Retaliation Claims

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Retaliation claims, whether brought pursuant to the ADA or Section 504, are

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analyzed under the same standard. Douglas v. Cal. Dept. of Youth Auth., 285 F.3d

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1226, 1229 n.3 (9th Cir. 2002). Both statutes contain anti-retaliation provisions, which

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permit non-disabled persons standing to bring claims for retaliation suffered in protecting

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the rights of disabled persons. Barker v. Riverside Office of Edu., 584 F.3d 821, 824-28

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(9th Cir. 2009). Significantly, the anti-retaliation provision in Title VI of the Civil Rights

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Act has been incorporated by the Rehabilitation Act and states:

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No recipient or other person shall intimidate, threaten,
coerce, or discriminate against any individual for the purpose
of interfering with any right or privilege secured by Section
601 of [the Civil Rights] Act or this part, or because he has
made a complaint, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
part.

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34 C.F.R. § 100.7(e) (emphasis added). This regulation applies to all rights secured by

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the Rehabilitation Act pursuant to 34 C.F.R. § 104.61. Barker, 584 F.3d at 825 citing

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Weber v. Cranston, 212 F.3d 41, 48 (1st Cir. 2000) (granting standing under section 504

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of the Rehabilitation Act to a mother who claimed the school system had retaliated

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against her personally for attempting to enforce her disabled child's rights). Moreover,

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as indicated above, because the ADA is interpreted in the same manner, the same

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retaliation provisions inure to it as well. Douglas, 285 F.3d at 1229 n.3 (cases

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interpreting the two laws are “interchangeable”). As a result, claims of retaliation are

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analyzed under the two laws by the same standard. Id.

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The so-called McDonnell Douglas test provides the applicable standard for claims

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of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Although

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the Supreme Court’s decision in McDonnell Douglas was decided in the context of a Title

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VII retaliation claim, its initial requirement that a prima facie case of retaliation be made,

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followed by a burden-shifting analysis in assessing the viability of a retaliation claim,

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applies equally to retaliation claims like Plaintiff’s herein brought under the ADA or

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Section 504. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (overruled on

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other grounds) (applying Title VII framework to ADA retaliation claims); Hodge v.

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Oakland Unified Sch. Dist., 2012 WL 1933678, at *8 (N.D. Cal. May 29, 2012) citing

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34 C.F.R. § 104.33(b)(1).

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First, to establish a prima facie claim of retaliation, Plaintiff must show that: (1) he

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engaged in a protected activity; (2) NUSD knew he was involved in a protected activity;

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(3) an adverse action was taken against him; and (4) a causal connection exists
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between the protected activity and the adverse action. Pardi v. Kaiser Permanente

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Hosp. Inc., 389 F.3d 840, 849 (9th Cir. 2004); Alex G. v. Board of Trustees, 387 F. Supp.

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2d 1119, 1128 (E.D. Cal. 2005). Consequently, if Plaintiff can establish a prima facie

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case of retaliation in the instant matter, the burden shifts to NUSD to show a legitimate,

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non-retaliatory purpose for its actions. Pardi, 389 F.3d at 849. If NUSD is able to

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demonstrate such a purpose, the burden shifts back to Plaintiff to demonstrate that the

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proffered reason is pretextual. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.

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2000).

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Protected Activity and Knowledge

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Advocating for disabled students on issues related to their federal and state

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educational rights is a protected activity. Hodge, 2012 WL 1933678, at *8 (holding

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plaintiff need not prove the school district in fact violated the IDEA; a genuine dispute

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about whether plaintiff was advocating for students based upon potential violations was

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sufficient to satisfy this first prong) citing Barker v. Riverside Cnty. Office of Edu.,

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584 F.3d 821, 824 (9th Cir. 2009); Alex G., 387 F. Supp. 2d at 1128 (holding the actions

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of a disabled child’s parents, including filing requests for a due process hearing, and

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writing a letter complaining about the implementation of a settlement agreement,

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arguably established a prima face case of retaliation). Additionally, Plaintiff need only

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prove that NUSD staff was aware of the protected activities. Alex G., 387 F. Supp. 2d at

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1128.

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Plaintiff’s issues with NUSDs’ Board appear to have begun after he expressed his

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disagreement with Student’s 2009 Assessment, where it was determined that Student

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had a disability which fell along the Autism spectrum. Lee at ¶¶ 3-4. This conflict

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appears to have set in motion the succeeding series of actions by Plaintiff, which

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included authoring numerous e-mails to various NUSD officials, where Plaintiff voiced his

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concern with Defendants’ compliance with Student’s IEP. Id. at ¶ 8. Plaintiff went so far

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as to lodge these complaints with the Department of Education, alleging that NUSD was

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falsifying documents to conceal their noncompliance. Id. at ¶13.
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Regardless of the accuracy of Plaintiff’s concerns regarding the educational

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services his daughter was receiving, it seems clear that his motivation was to act as

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Student’s advocate in ensuring that her educational needs were met. Such advocacy on

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Plaintiff’s part qualifies as a protected activity under either the ADA or Section 504.

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Barker, 584 F.3d at 826 (holding that a special education teacher, who advocated on

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behalf of disabled students by voicing concerns that federal and state requirements were

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not met, had standing to bring a retaliation claim under Section 504 and the ADA). It is

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equally clear that Defendants were aware of this protected activity, since it was NUSD

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officials who were at the receiving end of the complaints at issue. Thus, the requisite

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protected activity and knowledge elements in establishing a prima facie case of

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retaliation appear to have been met.

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2.

Adverse Action

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An adverse action is an act that likely would have dissuaded a person from

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making a complaint. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53,

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68 (2006); Alex G., 387 F. Supp. 2d at 1129 (finding that defendants’ request for a TRO

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to unilaterally change the student’s educational placement was a factor to prove adverse

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action by the defendant). Here, Defendants filed three applications for a restraining

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order against Plaintiff, which, if granted, would have precluded Plaintiff from

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communicating his concerns regarding Student’s education to certain NUSD

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representatives. Compl. at ¶ 9. Defendants’ act of filing multiple TROs against Plaintiff

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could be considered by the trier of fact to be actions “reasonably likely to dissuade a

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person from engaging in protected activity,” namely, advocating for a disabled student,

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and accordingly may amount to actionable retaliation. Pardi, 389 F.3d at 850.

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Therefore, Plaintiff has identified an adverse action that suffices for purposes of

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demonstrating retaliation.

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3.

Causal Connection

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Courts have generally held that causation can be inferred from timing alone

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where the adverse action follows closely on the heels of the protected activity. See, e.g.,
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Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (stating that the

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temporal proximity must be “very close”); Alex G., 387 F. Supp. 2d at 1129. When an

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adverse action closely follows a complaint, retaliatory intent may be inferred. See Bell v.

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Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003) (holding that proximity in time

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may by itself constitute circumstantial evidence of retaliation); Pardi, 389 F.3d at 850.

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Plaintiff lodged numerous complaints with NUSD personnel regarding the

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educational services provided to Student by Defendants. Specifically, the Director’s

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TRO application lists a January 14, 2011, letter from Plaintiff as a basis for the February

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1, 2011, application. Pl.’s Evidence at Ex. H. The temporal proximity between Plaintiff’s

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protected activities and NUSDs’ adverse acts, as well as the reflection of Plaintiff’s

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efforts in the applications for the TRO, sufficiently raises an inference of a causal link.

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Since Plaintiff has successfully identified both a protected activity and an adverse action

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arguably connected with that activity, the Court concludes that Plaintiff has made a

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prima facie showing cognizable as a cause of action under both the ADA and the

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Rehabilitation Act.

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4.

Burden Shifting

As indicated above, once Plaintiff establishes a prima facie case of retaliation, the

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burden then shifts to NUSD to show a legitimate, non-retaliatory purpose for its actions.

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Pardi, 389 F.3d at 849. Defendants “need only produce admissible evidence which

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would allow the trier of fact rationally to conclude that the…decision had not been

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motivated by discriminatory animus.” Miller v. Fairchild Industries, Inc., 797 F.2d 727,

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731 quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981);

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Alex G., 387 F. Supp. 2d at 1129 (holding the school district’s actions, rather than

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retaliatory, were motivated by a desire to protect staff and fellow students from the

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student’s dangerous behavior).

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NUSD adamantly insists that its actions were not done out of retaliation, but were

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instead motivated by a desire to protect staff members from feeling threatened,

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harassed, or interfered with in the execution of their educational purpose as a result of
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Plaintiff’s actions. P&A in Support of Def.s’ Mot. for Summ. J. (“Mot. for Summ. J.”), ECF

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No. 14, 19:1-3. While the merit of any such conclusion raises a question of fact, the

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Court will assume for purposes of analysis that the Defendant’s alleged desire to protect

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staff members is indeed a legally sufficient non-retaliatory explanation of the Defendants’

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actions against Plaintiff. That brings us to the final question of whether that explanation

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amounts to more than mere pretext.

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5.

Pretext

If a defendant meets his burden of proving a legitimate non-retaliatory purpose for

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his actions, the plaintiff must then raise a genuine issue of material fact suggesting that

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defendant’s “legitimate non-retaliatory” reason is pretextual.” Yartzoff v. Thomas, 809

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F.2d 1371, 1377 (9th Cir. 1987). To defeat summary judgment on a retaliation claim

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under the ADA and Rehabilitation Act with a showing of pretext, a plaintiff must

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demonstrate that: (1) the defendant's proffered non-retaliatory reason for the adverse

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action is unworthy of credence; or (2) retaliation was the more likely motivation. Brooks

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v. Capistrano Unified Sch. Dist., 2014 WL 794581 (C.D. Cal. Feb. 20, 2014).

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To show pretext, the plaintiff is not necessarily required to introduce evidence

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beyond that already offered to establish their prima facie case, although they may

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provide additional proof of the defendants' unlawful motivation. See Burdine, 450 U.S. at

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255; Pardi, 389 F.3d at 850 n.5.

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Courts have recognized that true motivations are particularly difficult to ascertain.

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Miller, 797 F.2d at 733 citing United States Postal Service Board of Governors v. Aikens,

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460 U.S. 711, 716 (1983) (holding that there will seldom be “eyewitness” testimony as to

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an individual’s mental processes). This makes such factual determinations generally

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unsuitable for disposition at the summary judgment stage. Lowe v. City of Monrovia,

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775 F.2d 998, 1009 (9th Cir. 1985) (stating that very little additional evidence is required

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to raise a genuine issue of fact regarding motive, concluding that summary judgment on

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the merits is ordinarily inappropriate once a prima facie case has been established).

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Defendants rely on the reasoning in Alex G. for the supposition that Plaintiff
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cannot sufficiently prove pretext, but that case is distinguishable based on the facts at

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hand. The court in Alex G. found that the plaintiff was unable to rebut defendants’

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legitimate reason for their alleged retaliatory actions because there was no dispute of

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fact. Alex G., 387 F. Supp. 2d at 1129. The court found that plaintiff’s evidence

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supported the defendant school districts’ position that its personnel struggled to handle

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an undisputedly difficult child while also protecting students and staff from potential

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physical injury. Id. No such agreement exists with regard to the facts of the present

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matter, which are disputed at every turn. The issues here are simply not suitable for

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decision on summary judgment.

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The true rationale for Defendants’ TRO filings, as well as whether any such

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rationale was made for sufficiently “non-retaliatory” purposes, presents an “elusive

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factual question.” Burdine, 450 U.S. at 255 n.8. The Court thus finds that there are

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triable issues with respect to this claim that preclude summary judgment.

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B.

Monetary Damages

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The issue of whether monetary damages are available for retaliation claims under

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the Rehabilitation Act has not been decided by this Circuit. Cefalu v. Holder, 2013 WL

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5315079, at *17 (N.D. Cal. Sept. 23, 2013). Defendant cites McCoy v. Dep’t of the

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Army, 789 F. Supp. 2d 1221, 1234 (E.D. Cal. 2011) for the proposition that

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compensatory damages are not available for retaliation claims under the Rehabilitation

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Act. Mot. for Summ. J. at 19:25-28. In McCoy, the district court relied on two controlling

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Circuit cases. The first case held that because the remedies for violations of the ADA

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and the Rehabilitation Act are co-extensive with each other, and are linked to Title VI of

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the Civil Rights Act of 1964, the ADA and Rehabilitation Act remedies must be construed

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in the same manner applicable to remedies under Title VI. Ferguson v. City of Phoenix,

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157 F.3d 668, 673 (9th Cir.1998) (citing 42 U.S.C. § 12133 & 29 U.S.C. § 794a(a)(2)).

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The second Ninth Circuit case cited by McCoy held that “punitive and compensatory

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damages are not available for ADA retaliation claims.” Alvarado v. Cajun Operating

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Company, 588 F.3d 1261, 1269 (9th Cir. 2009). In attempting to harmonize the holdings
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of Ferguson and Alvarado, the court in McCoy held that “it appears that in this circuit

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compensatory damages are not available for retaliation claims under the Rehabilitation

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Act.” McCoy, 789 F. Supp. 2d at 1234.

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Plaintiff, however, directs the Court to another Eastern District case, Herrera v.

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Giampietro, 2010 WL 1904827, at *9 (E.D. Cal. May 10, 2010). Pl.’s Memo. Of P&A in

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Opp. To Def.s’ Mot. for Summ. J., ECF No. 15, 9:13-20. In Herrera, the district court

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held that a plaintiff may be entitled to monetary damages for her ADA retaliation claim

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against a public school district. Herrera, 2010 WL 1904827, at *9. The court was able to

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distinguish Alvarado based on the fact that the defendant in Herrera was a school

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district, which was a public entity, governed by 42 U.S.C. § 12133, whereas the

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defendant in Alvarado was a private entity governed by 42 U.S.C. § 12117. Id. Citing

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Barnes v. Gorman, 536 U.S. 181, 184–85 (2002), the Herrera court held that “the

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remedies available pursuant to section 12133 are coextensive with the remedies

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available in a private cause of action brought under Title VI of the Civil Rights Act of

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1964, which include monetary damages.” Id. Therefore, Herrera suggests that the

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Rehabilitation Act’s retaliation provision, when applied to public entities such as NUSD,

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permits monetary damages.

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As stated, because this issue has not been authoritatively decided by this Circuit,

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and because this Court finds the rationale of Herrera more persuasive, summary

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adjudication as to this damages issue would be inappropriate. Id.

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CONCLUSION
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Given the foregoing, the Court finds that NUSD has not demonstrated its

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entitlement to summary adjudication as to either of Plaintiff Brason Lee’s claims.

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Defendants’ Motion for Summary Judgment (ECF No. 14) is therefore DENIED.

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IT IS SO ORDERED.
Dated: February 25, 2015

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