Garedakis v. Brentwood Union School District

Filing 218

ORDER by Judge Hamilton granting 164 Motion for Summary Judgment in part and deferring ruling in part. (pjhlc1, COURT STAFF) (Filed on 4/29/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL GAREDAKIS, et al., 9 10 11 Case No. 14-cv-4799-PJH Plaintiffs, 8 v. ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BRENTWOOD UNION SCHOOL DISTRICT, et al., United States District Court Northern District of California Defendants. 12 13 14 Defendants’ motion for summary judgment came on for hearing before this court 15 on April 13, 2016. Plaintiffs appeared by their counsel Todd Boley and Teresa Li; plaintiff 16 M.R. appeared by his counsel Peter Rukin; the Brentwood defendants appeared by their 17 counsel Claudia Leed, Christopher Vincent, and Louis Leone; and defendant Dina Holder 18 appeared by her counsel Eric Bengston. Having read the parties’ papers and carefully 19 considered their arguments and the relevant legal authority, the court hereby GRANTS 20 the motion in part and DEFERS ruling in part pending further briefing. 21 22 BACKGROUND This case was brought by six minor plaintiffs and their parents and guardians ad 23 litem – M.G., and his guardians ad litem Michael Garedakis and Tamara Garedakis; A.G., 24 and her guardian ad litem Yolanda Jackson; B.G., and his guardians ad litem Lawrence 25 Gullo and Danielle Gullo; M.R., and his guardian ad litem Laurie Baca; Kathryn Maguire; 26 B.R., and his guardian ad litem Viviana Rose; and E.R., and his guardians ad litem 27 Ahmad Razaqi and Dania Razaqi. The minor plaintiffs are all disabled, and some were 28 nonverbal. Five were diagnosed with autism or autism-spectrum disorder, and one was 1 2 diagnosed with Down’s Syndrome. They ranged from three to six years of age. Defendants are Brentwood Union School District ("Brentwood" or "the District"); 3 Dina Holder, a teacher formerly employed by Brentwood; Lauri James, former principal of 4 Loma Vista Elementary School, part of Brentwood; Jean Anthony, former director of 5 Special Education at Brentwood; Margo Olson, director of Special Education and 6 Interventions at Brentwood; Margaret Kruse, Assistant Superintendent at Brentwood; 7 Merrill Grant, former Superintendent at Brentwood; and Brian Jones, principal of Krey 8 Elementary School, part of Brentwood. Dina Holder (“Holder”) was employed by Brentwood as a special education 10 teacher in special day classes from 1996 to 2012. She taught at Loma Vista Elementary 11 United States District Court Northern District of California 9 School until May 2010 when she was removed and transferred to Krey Elementary 12 School to begin the 2010-2011 school year. 13 This is the third lawsuit filed in this judicial district, arising out of events that 14 allegedly occurred in Holder’s classroom while she was employed by the District. The 15 first suit arose from an incident that occurred at the end of the school year in 2010, when 16 Holder pulled a student out of a chair and kicked him as he lay on the floor. That student 17 and his family were plaintiffs in Phelan v. Holder (Case No. C-12-0465), which was filed 18 in January 2012, settled in January 2013, and was dismissed in April 2013. The second 19 suit, Guerrero v. Brentwood (Case No. C-13-3873), involved eight minor plaintiffs and 20 their families. It was filed in August 2013, and settled and was dismissed in May 2014. 21 The claims in the present action, which was filed in October 2014, arise out of the 22 experiences of the six minor plaintiffs in Holder’s class during various time periods 23 between July of 2008 and June of 2012. 24 In the third amended complaint in this action, plaintiffs incorporate allegations 25 relating to the incidents that gave rise to the Phelan and Guerrero cases, starting in 2008, 26 when a parent observed Holder shaking her son, L.L. (a plaintiff in the Guerrero case), by 27 the shoulders, and another student, K.G. (also a plaintiff in the Guerrero case), reported 28 that he had been slapped at school by an adult. Both these incidents were reported to 2 1 the District and the police. Investigations ensued but Holder remained employed by the 2 District. Following the investigation of the incident that occurred in May 2010 and which 3 gave rise to the Phelan case, the District did not find sufficient cause to terminate Holder, 4 and instead issued a "Letter of Unprofessional Conduct" and transferred her to Krey from 5 Loma Vista. Holder resigned from the District pursuant to the settlement in the Phelan 6 case. Her teaching credentials were revoked by the California Commission on Teacher 7 Credentialing on February 21, 2013. With their opposition to the present motion, plaintiffs have submitted a declaration 9 by Lynn Ponton, M.D., a psychiatrist who states that she examined 14 children who had 10 been students in Holder's classroom (though apparently none are plaintiffs in the present 11 United States District Court Northern District of California 8 case). Dr. Ponton refers specifically to five of the students she interviewed and states 12 that some of them reported that Holder yelled at them; hit, grabbed, and pinched them; 13 and allowed students to hit each other. Dr. Ponton asserts that all the children she 14 interviewed exhibited signs of PTSD, depression, and anxiety, caused by the abuse they 15 allegedly witnessed. 16 Plaintiffs have also submitted excerpts of deposition testimony by the parents of 17 four of the minor plaintiffs in this action – M.G., E.R., B.G., and A.G. Mr. Garedakis 18 testified that after M.G. entered Holder’s class, he “was uneasy" and showing "signs that 19 he really didn't want to be there;" that he seemed "more stressed, more anxiety [sic], 20 more – not his normal, at-ease self;" that the "changed behaviors" worsened over time; 21 and that when picked up after school, was often "pressed up against the window" and 22 would run out of the room. Mrs. Garedakis testified that M.G. "had a high level of anxiety 23 and fear;" that "his sleeping patterns and his eating patterns had changed;" that "he went 24 from very, very happy to very, very anxious;" and that when his father took him to school, 25 "he would cling to his father's leg and wouldn't let go," and he "looked very scared," "very 26 stressed." 27 28 Mrs. Razaqi testified that E.R. regressed academically and behaviorally in Holder's class. Mrs. Gullo testified that B.G. began hiding “every few days” after he started in 3 1 Holder's class. Mr. Gullo testified that B.G. became defensive, withdrawn, and emotional 2 and did not progress while he was in Holder's class. Mrs. Jackson testified that she had 3 concerns about how A.G. was acting and progressing in Holder's class, and she recalled 4 telling the IEP team during the May 2013 meeting she wanted A.G. to repeat the grade 5 because she had "lost time academically." 6 Plaintiffs submitted a declaration by Helena Huckabee, Ph.D., a psychologist who examined four of the minor plaintiffs – A.G., E.R., B.G., and B.R. Dr. Huckabee reports 8 that according to A.G.’s parents, prior to the time she was enrolled in Holder's class, A.G. 9 she was a "sweet, caring, and loving child" who enjoyed helping at home and spending 10 time with family, and who was doing well in school. After examining A.G., Dr. Huckabee 11 United States District Court Northern District of California 7 found that she was "a different child," who refused to follow directions or cooperate, and 12 who would run away and lock herself in the bathroom; and that while A.G.'s speech was 13 previously reported as being within normal limits, she now speaks at such a rapid rate 14 that her speech is almost incomprehensible. Dr. Huckabee concluded that these 15 changes and other behaviors she engaged in reflected severe anxiety, and that she now 16 meets the criteria for PTSD. 17 With regard to E.R., Dr. Huckabee reports that his IEPs reflected significant delays 18 in speech and language, and in adaptive, social, and academic skills. She reports that 19 E.R. had a successful first half of kindergarten, but that according to his parents, this 20 changed after he entered Holder's classroom in January 2012, when he became "sad," 21 "didn't want to be held," "avoided the family," and exhibited "no affection." His parents 22 also reported a decline in skills by the end of the 2012 school year. She reports that, 23 according to his parents, B.R. asks them if they remember the "mean teacher" and 24 appears distressed when he speaks about a specific incident when he was not allowed to 25 go to the library. Huckabee states that B.R. exhibits symptoms of trauma (anxiety, 26 difficulty sleeping, unwillingness to talk about past events), and she concludes that he 27 suffers from PTSD. 28 With regard to B.G., Dr. Huckabee reports that according to his parents, B.G. was 4 formerly a "happy child" who had a strong relationship with his twin sister, but that after 2 being enrolled in Holder's class, he began exhibiting markedly increased aggressive 3 behaviors (including hitting) and that he would hide under blankets whenever he was 4 upset or would start crying but could not explain why. He also told his parents almost 5 daily that he was "scared," began hitting his sister and telling his parents he did not want 6 to go to school. Dr. Huckabee found that B.G. exhibited marked depression, low energy, 7 poor motivation, difficulty communicating, and concluded that emotional symptoms and 8 trauma were impacting him academically. She states that when she asked B.G about 9 Holder, he stated that he did not remember her, and Dr. Huckabee concluded from this 10 that he was repressing the memories of the time he was in her classroom, and that he 11 United States District Court Northern District of California 1 was suffering from PTSD and major depression. 12 Dr. Huckabee reports that according to his parents, B.R. loved going to pre-K, 13 loved his pre-K teacher, and was "happy and excited" to be entering kindergarten. She 14 states that B.R.'s IEP at the age of four reflected that he had a lot of potential to recover 15 from autism, or at least have a positive outcome. His parents reported that he also 16 "loved" his kindergarten teacher, Mrs. Poole, and that he was making good progress. 17 However, B.R.'s parents reported that after he entered Holder's class as a first-grade 18 student, his behavior changed, and he became unwilling to go to school, and was 19 "downcast and discouraged." B.R. is currently a sixth-grade student, and based on his 20 current IEP, Dr. Huckabee concludes that he requires significant support to navigate the 21 school environment. She refers to deposition testimony by B.R.'s mother that while he 22 was in Holder's class, he returned home with red marks on two occasions, and that he 23 told his mother he had been pushed into a chair by Holder on the first occasion, pulled 24 into line on the second occasion. Dr. Huckabee concludes that because B.R. states he 25 does not remember much from Holder's class, he is suffering from PTSD. 26 Plaintiffs also submitted a declaration by Nora Baladerian, Ph.D., a psychologist 27 who examined M.G. Dr. Baladerian specializes in examining special needs children and 28 adults who have been victims of abuse. She states that she reviewed transcripts of 5 1 depositions of five District employees who are not defendants in this action, plus 2 deposition transcript excerpts of M.G.’s parents, as well as the June 4, 2010 "Letter of 3 Unprofessional Conduct" issued to Holder. She states that based on that review, she is 4 "aware . . . that Holder's classroom was a tense, unhappy, and fearful environment, in 5 which a number of children were physically abused and the entire class subjected to 6 yelling and hearing disparaging remarks made about children." She notes that Mr. 7 Garedakis testified in his deposition that he had observed classroom aides wiggling their 8 toes at M.G., while he became sexually aroused, and that "Kelly", a classroom aide, had 9 told him that aides would put M.G. on the floor and wiggle their toes in his face and make 10 United States District Court Northern District of California 11 "sexualized comments about him responding sexually." Dr. Baladerian visited M.G. in his home on two occasions. She reports that M.G. 12 initially seemed friendly and interacted with her in a positive way. However, when she 13 showed him a picture of Holder, his demeanor changed immediately, and he "began to 14 tear up" and then left the room and did not reappear for an hour. Dr. Baladerian reports 15 that on the second occasion, when M.G. saw who was at the door, he spat at her twice, 16 then kicked her, and later spat at her again and made some hitting motions. 17 Dr. Baladerian asserts that based on her interview, M.G.'s psychological changes 18 since his time at Loma Vista Elementary include nightmares, lack of energy, irritability, 19 depression, anxiety, social isolation, poor tolerance in previously pleasurable activities, 20 problems thinking and concentrating, phobia about going to school, anger, crying, and 21 other emotional difficulties. She states that M.G.'s parents reported changes they 22 observed in M.G.'s behavior while he was enrolled in Holder's class. She concludes that 23 the Brentwood employees engaged in sexual abuse of M.G., and that he also exhibits 24 symptoms of PTSD. 25 Plaintiffs filed the present action on October 28, 2014, and filed a first amended 26 complaint on December 15, 2014, pursuant to stipulation. On January 30, 2015, plaintiffs 27 filed a second amended complaint. Following rulings on defendants’ motions to dismiss 28 and to strike, plaintiffs filed the third amended complaint on October 21, 2016. 6 Remaining in the case are causes of action for discrimination in violation of the 1 2 ADA, by the six minor plaintiffs against Brentwood; and violation of § 504 of the 3 Rehabilitation Act of 1973, by the minor plaintiffs against Brentwood; plus state and 4 common law claims for violation of Cal. Civil Code § 52.1 ("Bane Act"), by the minor 5 plaintiffs against Holder and Brentwood; battery, by the minor plaintiffs against Holder; 6 intentional infliction of emotional distress, negligence, negligent supervision, and violation 7 of Cal. Civil Code § 51 (Unruh Act), by all plaintiffs against all defendants; violation of 8 mandatory duty to report child abuse, by the minor plaintiffs against all defendants; and 9 violation of Cal. Educ. Code § 220, by the minor plaintiffs against Brentwood. 10 Defendants now seek summary judgment as to all claims asserted against them. DISCUSSION United States District Court Northern District of California 11 12 A. Legal Standard 13 A party may move for summary judgment on a “claim or defense” or “part of . . . a 14 claim or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there 15 is no genuine dispute as to any material fact and the moving party is entitled to judgment 16 as a matter of law. Id. 17 A party seeking summary judgment bears the initial burden of informing the court 18 of the basis for its motion, and of identifying those portions of the pleadings and discovery 19 responses that demonstrate the absence of a genuine issue of material fact. Celotex 20 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the 21 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 22 dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable 23 jury to return a verdict for the nonmoving party. Id. 24 Where the moving party will have the burden of proof at trial, it must affirmatively 25 demonstrate that no reasonable trier of fact could find other than for the moving party. 26 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue 27 where the nonmoving party will bear the burden of proof at trial, the moving party can 28 prevail merely by pointing out to the district court that there is an absence of evidence to 7 1 support the nonmoving party’s case. Celotex, 477 U.S. at 324-25. If the moving party 2 meets its initial burden, the opposing party must then set out specific facts showing a 3 genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. at 250; see also 4 Fed. R. Civ. P. 56(c), (e). When deciding a summary judgment motion, a court must view 5 the evidence in the light most favorable to the nonmoving party and draw all justifiable 6 inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of L.A., 638 F.3d 703, 709 7 (9th Cir. 2011). 8 B. 9 10 Defendants' Motion 1. State and common law claims Defendants argue that summary judgment should be granted on the state and United States District Court Northern District of California 11 common-law claims because plaintiffs failed to comply with the claim presentation 12 requirements in California's Government Claims Act, Cal. Govt. Code § 900, et seq. 13 (“Claims Act”). Under the Claims Act, no suit for “money or damages” may be brought 14 against a public entity until a written claim has been presented to the public entity and the 15 claim either has been acted upon or is deemed to have been rejected. Cal. Govt. Code, 16 §§ 905, 945.4. Compliance with this requirement constitutes an element of a cause of 17 action for damages against a public entity or official. State v. Sup. Ct. (Bodde), 32 18 Cal.4th 1234, 1244 (2004). A suit for “money or damages” includes all actions where the 19 plaintiff is seeking monetary relief, regardless whether the action is founded in tort, 20 contract, or some other theory. Hart v. Alameda Cnty., 76 Cal. App. 4th 766, 778-79 21 (2000) (citing Baines Pickwick Ltd. v. City of L.A., 72 Cal. App. 4th 298, 307 (1999)). 22 Defendants contend that two sets of plaintiffs – the Rose (B.R.) and Razaqi (E.R.) 23 plaintiffs – never presented written claims, and are thus barred from pursuing the state 24 and common-law claims asserted; and that the other four sets of plaintiffs – the 25 Garedakis (M.G.), Maguire/Baca (M.R.), Jackson (A.G.), and Gullo (B.G.) plaintiffs – did 26 not file their written claims until June of 2014, and when those claims were denied as 27 untimely, failed to file the required applications to file late claims, and are now barred 28 from pursuing those claims. 8 1 In response, plaintiffs concede that with the exception of the claims asserted by 2 M.G., the state and common-law claims are barred either by the statute of limitations or 3 by plaintiffs’ failure to comply with the requirements of the Claims Act. They assert that 4 M.G.'s claims are not barred because they are based on childhood sexual abuse arising 5 on/after January 1, 2009, which have been excepted from the claim filing requirements. 6 California Govt. Code § 905(m) provides that "[c]laims made pursuant to Section 7 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of 8 childhood sexual abuse . . . arising out of conduct occurring after January 1, 2009" are 9 excepted from the claim filing requirements. Plaintiffs contend that it is undisputed that M.G. was in Holder's class during the 2008-2009 school year, and that they have 11 United States District Court Northern District of California 10 established that he was the victim of sexual abuse. 12 The motion is GRANTED as to the state and common-law law claims asserted by 13 all plaintiffs with the exception of M.G. The court has directed that the parties provide 14 further briefing on this issue, and DEFERS ruling on the portion of the motion directed at 15 M.G.’s state law claims until after the further briefing is complete. 16 2. Federal claims 17 Defendants assert that summary judgment should be also granted in their favor 18 with regard to the ADA and Rehabilitation Act § 504 claims (which are asserted only 19 against the District). Defendants argue that plaintiffs lack evidence sufficient to create a 20 triable issue as to whether any alleged discrimination occurred by reason of the minor 21 plaintiffs' disabilities; and as to whether the defendants displayed deliberate indifference 22 with respect to the minor plaintiffs. Defendants also assert that the court should decline 23 to recognize a separate or distinct claim under the ADA or § 504 based on an allegedly 24 hostile educational environment, or, in the alternative, should find that plaintiffs lack 25 evidence sufficient to create a triable issue as to whether the minor plaintiffs experienced 26 a hostile educational environment. 27 Title II of the ADA provides that “no qualified individual with a disability shall, by 28 reason of such disability, be excluded from participation in or be denied the benefits of 9 1 the services, programs, or activities of a public entity, or be subjected to discrimination by 2 any such entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act provides that 3 “[n]o otherwise qualified handicapped individual in the United States . . . shall, solely by 4 reason of his handicap, be excluded from participation in, be denied the benefits of, or be 5 subjected to discrimination under any program or activity receiving Federal financial 6 assistance.” 29 U.S.C. § 794. 7 Title II of the ADA was expressly modeled after § 504 of the Rehabilitation Act. Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2002). The court analyzes 9 claims under the ADA and § 504 together, because there is no significant difference in 10 the analysis of rights and obligations created by the two Acts. Zukle v. Regents of the 11 United States District Court Northern District of California 8 Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999); see also Wong v. Regents of 12 Univ. of Cal., 410 F.3d 1052, 1055 n.1 (9th Cir. 2005). 13 In a case alleging discrimination in violation of the ADA and § 504, the plaintiff 14 bears the burden of proving that he/she is disabled within the meaning of the Acts. 15 Wong, 410 F.3d at 1063. In addition, the plaintiff must show that the discrimination was 16 “by reason of” (or in the case of § 504, “solely by reason of”) his/her disability. See 42 17 U.S.C. § 12132; 29 U.S.C. § 794; see also E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ., 18 728 F.3d 982, 992 (9th Cir. 2013). The plaintiff must also show that the discrimination 19 was intentional. Duvall, 260 F.3d at 1138-39. Deliberate indifference – defined as 20 “knowledge that a harm to federally protected right is substantially likely, and a failure to 21 act on that likelihood – qualifies as intent. Id. at 1139. The failure to act must be more 22 than negligent, and “involves an element of deliberateness.” Id. 23 In their first main argument, defendants contend that plaintiffs lack evidence that 24 any discrimination occurred by reason of the minor plaintiffs' disabilities, and indeed, that 25 the parents of each of the minor plaintiffs testified in their depositions that they had no 26 information that any of the individual defendants had denied their children any benefits 27 based on their disabilities. 28 Mrs. Jackson (mother of and guardian ad litem for A.G.) testified that she has no 10 1 information that any of the individual defendants denied A.G. any benefits based on her 2 disability. Mr. Gullo (father of B.G.) testified that he has no information that anyone at the 3 District discriminated against any of the students in Holder's class because they were 4 disabled; and Mrs. Gullo similarly testified that she had no information that the District 5 discriminates against disabled students, and no information that any of the defendants 6 have prevented B.G. from getting necessary special education services. 7 Mrs. Rose (mother of and guardian ad litem for B.R.) testified that she has no information that any of the individual defendant administrators intentionally discriminated 9 against B.R. because he is a special-needs student. As to the allegation that Holder had 10 injured B.R.'s wrist, Mrs. Rose testified that her assumption regarding the reason was not 11 United States District Court Northern District of California 8 B.R.'s disability, but rather that Holder was impatient because B.R. was not lining up as 12 instructed. 13 Mr. and Mrs. Garedakis (M.G.'s parents) offered similar testimony. Mr. Garedakis 14 testified that he has no information that any of the individual defendant administrators 15 harbored any discriminatory feelings towards children with disabilities, and Mrs. 16 Garedakis testified that she has no information that any of the individual defendant 17 administrators were in any way prejudiced against M.G. or other disabled children 18 because of their disabilities. 19 Both Mr. and Mrs. Razaqi (parents of E.R.) testified that they have no documents 20 to support their allegation that E.R. was deprived of advantages, privileges, and services 21 based on his disability. Mr. Razaqi also testified that he has no information to suggest 22 that District employees intentionally deprived disabled students of special education 23 services. Moreover, during his deposition, E.R. denied have ever heard a teacher call 24 him (or any other student) "stupid." 25 Finally, when Mrs. Maquire (mother of M.R.) was asked similar questions, her 26 testimony and her attorneys' objections demonstrated that she has no knowledge or 27 information about this issue other than information she received from her attorneys. 28 Moreover, M.R. himself testified that he did not remember ever having been yelled at 11 1 2 while in school or having been called a bad name in school. In opposition, plaintiffs assert that because the minor plaintiffs were assigned to 3 Holder’s classroom because of needs related to their disabilities, and because students 4 in other Brentwood classrooms were not subjected to similar abuse, the discrimination 5 and denial of access to education were necessarily “by reason of” their disabilities. 6 Plaintiffs also assert that discriminatory animus is shown by the fact that Holder 7 referred to the students as "stupid" and "little shits" and described teaching her students 8 as "puppy training;" by the fact that she admitted to the mother of the student who was 9 kicked that she "frequently expressed frustration" with the student; by the fact that other District employees expressed concern that she was becoming frustrated with special 11 United States District Court Northern District of California 10 needs students, and the fact that she aggressively moved children by the arm and forced 12 them into chairs, and "yelled" at children and berated them if they did not verbalize a 13 response. 14 The court finds that plaintiffs have not provided evidence sufficient to create a 15 triable issue as to whether any discrimination or denial of benefits occurred by reason of 16 the minor plaintiffs' disabilities. First, they offer no argument or evidence to support the 17 notion that the individual defendant administrators discriminated against, or denied 18 benefits to, the minor plaintiffs "by reason of" their disabilities. Indeed, all the parents 19 who were deposed conceded that they had no evidence of deliberate indifference or 20 discrimination by reason of their children's disabilities. 21 Without evidence supporting that element (i.e., discrimination or denial of benefits 22 by reason of a disability), any claim based on the actions or inactions of the individual 23 defendants must fail. For example, plaintiffs cannot base liability on the decision to place 24 Holder in the special day class, and cannot base liability on decisions relating to how 25 Holder was supervised, disciplined (or not), assigned to her classroom, or evaluated 26 (including with respect to potential termination of her employment), because they have no 27 evidence that any such decision was made "by reason of" the minor plaintiffs' disabilities. 28 It is true that the minor plaintiffs were assigned to Holder's special education classroom 12 1 "because of the needs related to” their disabilities. Nevertheless, this does not provide 2 proof of discrimination "by reason of" the minor plaintiffs' disabilities. To conclude 3 otherwise would mean that it is sufficient under the ADA and § 504 to simply show that 4 the plaintiff is disabled, thereby removing the element of causation from the calculus. Rather than attempting to make a case against the administrator defendants, 5 6 plaintiffs have focused their attention on Holder. For example, they assert that Holder 7 "accompanied" her alleged verbal and physical abuse with slurs directed against her 8 students ("stupid," "little shits," etc.), suggesting a connection between the alleged slurs 9 and the alleged abuse, and that the abuse occurred "by reason of" the plaintiffs' disabilities. However, the record does not support plaintiffs’ theory. For example, Heidi 11 United States District Court Northern District of California 10 Vincent testified that while she had heard Holder swear "about" her students, she had 12 never heard her swear "at" her students. Similarly, Janice Lopez testified that while she 13 had heard Holder refer to J.P. (not a plaintiff in this case) as a "son of a bitch," she had 14 never heard Holder say that to J.P.'s face, and that she did not recall Holder saying that 15 to any other student. As for the statement attributed to Megan Balderas – that Holder 16 purportedly compared teaching her students to "puppy training" – this statement is 17 inadmissible hearsay. Moreover, it appears that Holder was simply expressing her 18 opinion regarding a particular method of teaching, rather than comparing her students to 19 dogs. 20 As for plaintiffs’ argument that the evidence shows that Holder became frustrated 21 with her students, what is missing is any evidence that the alleged frustration with the 22 students’ disabilities was a factor that motivated discrimination. Mere signs of frustration, 23 without more, are not sufficient to subject the District to liability based on a conclusion 24 that Holder discriminated against the minor plaintiffs or denied them benefits "by reason 25 of" their disabilities. 26 For example, plaintiffs cite the deposition testimony of Samantha Sheldon to show 27 Holder's frustration. However, Ms. Sheldon never testified that any such alleged 28 frustration derived from the students' disabilities, as opposed to the fact that pre-school 13 1 students can be difficult to handle (whether or not disabled). In any event, much of 2 Sheldon's testimony is inadmissible hearsay, as it consists of her reporting on what she 3 claims to have heard from other classroom aides. Plaintiffs also point to the deposition 4 testimony of another aide, Kelly Knapp. She testified that Holder would sometimes 5 become frustrated if a student would not respond to her, but she offered no opinion with 6 regard to any possible basis for such frustration (and if she had offered an opinion, it 7 probably would not be admissible). 8 9 In their second main argument, defendants contend that plaintiffs lack evidence sufficient to create a triable issue as to whether the defendants displayed deliberate indifference with respect to the minor plaintiffs. As indicated above, deliberate 11 United States District Court Northern District of California 10 indifference is an element of plaintiffs' federal claims under the ADA and § 504, and it 12 requires both knowledge that a harm to a federally protected right is substantially likely, 13 and also a failure to act upon that the likelihood. Duvall, 260 F.3d at 1139. This is a 14 stringent standard of fault, “even higher than gross negligence[.]” Patel v. Kent Sch. 15 Dist., 648 F.3d 965, 974 (9th Cir. 2011). 16 17 18 19 [D]eliberate indifference requires a culpable mental state. The state actor must ‘recognize[ ] [an] unreasonable risk and actually intend[ ] to expose the plaintiff to such risks without regard to the consequences to the plaintiff.’ In other words, the defendant ‘knows that something is going to happen but ignores the risk and exposes [the plaintiff] to it.’” Id. (citations omitted). 20 Defendants argue that plaintiffs cannot prove that defendants demonstrated 21 deliberate indifference towards the minor plaintiffs because there is no evidence that the 22 minor plaintiffs were subjected to physical or verbal abuse, let alone that any District 23 administrators knew about or were deliberately indifferent to any abuse. They assert that 24 the evidence, including the parent plaintiffs’ own testimony, shows that the District never 25 received complaints from the parent plaintiffs that would have alerted the District that a 26 harm to a federally-protected right was substantially likely to occur. Indeed, the parents 27 (including Mrs. Gullo, Mr. Gullo, Ms. Maguire, Mrs. Razaqi, Mrs. Garadakis, Mrs. 28 Jackson, and Mrs. Rose) testified that they never told anyone at the District that his/her 14 1 2 child's behavior changes or other problems were connected to Holder's class. Defendants argue further that the District’s response, when it learned of the 2010 3 incident involving J.P., is inconsistent with deliberate indifference, as District personnel 4 quickly mounted an investigation, took written statements from aides who had been 5 present in the classroom, and interviewed Holder. After spending time over the summer 6 formulating a plan as to how to deal with the problem, they came to a conclusion that the 7 District lacked sufficient evidence to fire Holder. Instead, they set up new procedures 8 relating to Holder's return to the classroom, as well as a schedule of observations by 9 various administrators (who later met to discuss their observations). 10 Plaintifffs’ position, as set forth in the opposition, is that the District is vicariously United States District Court Northern District of California 11 liable for the deliberate indifference of Holder. Plaintiffs argue that "there is much 12 evidence of prior notice of Holder's abuse to administrators,” although they support that 13 contention with citations to various exhibits without explaining the relevance of those 14 exhibits to their argument. Moreover, they assert, defendants' arguments – that the 15 administrators did not have knowledge of Holder's misconduct or did not act appropriately 16 when they learned of it – are irrelevant, because under Duvall, Brentwood has 17 respondeat superior liability for Holder's deliberate indifference. 18 As for Holder, plaintiffs argue that there is ample evidence of her deliberate 19 indifference. They assert that "the risk of substantial harm from Holder's abuse and 20 failure to provide services is obvious," and that Holder was "deliberately indifferent to 21 suggestions from school psychologists, speech-language pathologists, and other 22 specialists advising her on how to improve her classroom." However, rather than 23 explaining those statements, they again cite to a string of exhibits (declarations and 24 excerpts of deposition transcripts), without pointing to any particular testimony by 25 reference to page/line or paragraph number. Plaintiffs contend that because Holder was 26 instructed as to what she needed to do with regard to providing individualized education, 27 but failed to comply with those instructions, and failed to follow the IEPs, she deliberately 28 failed to provide appropriate instruction to her students, and the minor plaintiffs were 15 1 deprived of access to education based on their disabilities, for which the District is 2 vicariously liable. 3 The court finds that the evidence provided by plaintiffs is insufficient to create a triable issue with regard to deliberate indifference. First, Holder's alleged failure to act in 5 response to her own behavior – that is, the assertion that she was aware of her own 6 purportedly inappropriate conduct, but continued to act in the same manner – does not 7 create a triable issue with regard to deliberate indifference. Plaintiffs seem to be 8 suggesting that the fact of Holder's conduct by itself satisfies the two-part requirement for 9 showing deliberate indifference – notice that harm is likely to occur, and failure to act in 10 response to that knowledge – but under that theory, the District would be subjected to 11 United States District Court Northern District of California 4 liability based solely on the alleged misdeeds of Holder. It ignores the issue of whether 12 anyone who had the authority to address Holder's behavior (i.e., the administrator 13 defendants) exhibited any deliberate indifference. 14 The Duvall case is factually distinguishable. Duvall involved a requested 15 accommodation (unlike the present case), and the Ninth Circuit emphasized the fact that 16 the individual defendant in that case had the authority to make the requested 17 accommodation, but failed to make use of that authority, and so could be said to have 18 shown deliberate indifference. See id., 260 F.3d at 1140-41 n.15. Here, Holder could not 19 have removed herself from the classroom, or otherwise responded in a meaningful way 20 to her own misdeeds. The deliberate indifference analysis does not stop with Holder, but 21 instead must include the administrator defendants because it was only the individual 22 administrator defendants who, like the defendant in the Duvall case, had the authority to 23 take action in response to any threat that Holder might have posed to her students' 24 federally-protected rights. 25 Second, plaintiffs have provided no evidence supporting deliberate indifference 26 generally; no evidence regarding any actual physical or verbal abuse of these particular 27 minor plaintiffs; no evidence that District administrators were aware of and ignored such 28 alleged abuse of the minor plaintiffs; and no evidence that the District ever received from 16 1 the parents of these minor plaintiffs complaints that would have alerted them that harm to 2 a federally-protected right was likely to occur in Holder's classroom. 3 None of the evidence cited by plaintiffs constitutes competent evidence regarding 4 the requisite notice and failure to act. Plaintiffs repeatedly cite Exhibit 1, the Notice of 5 Unprofessional Conduct that the District issued to Holder following the Phelan incident. 6 However, this letter does not support a claim of deliberate indifference; rather, it reflects 7 and illustrates the many steps that District personnel engaged in as part of the District's 8 response to that incident. Regardless of whether the District's response produced the 9 desired result from plaintiffs’ perspective, it cannot be said that the response constituted 10 United States District Court Northern District of California 11 deliberate indifference. The allegations regarding L.L. and K.G. have no bearing on this case, as neither is 12 a plaintiff here, and both incidents predated the incident that gave rise to the Phelan 13 action. Furthermore, the evidence shows that the District investigated both of these 14 incidents, and that neither investigation resulted in evidence from which the District could 15 have concluded that Holder posed a substantial threat to her students' federally-protected 16 rights – i.e., there was no supporting evidence apart from the original allegation. Holder 17 denied the accusations, and the classroom aides also denied that the incidents had 18 occurred. Moreover, defendants assert, even if these incidents actually occurred as the 19 parents claimed, it is not clear that either incident implicated federally-protected rights to 20 be free from discrimination based on disability, to be free from conscience-shocking 21 behavior, or to be free from unreasonable seizures or other restraints. 22 The allegations regarding B.R., a plaintiff in this action (allegations that Holder 23 scratched B.R.'s arm), do not support plaintiffs’ position. B.R.'s mother Mrs. Rose 24 testified in her deposition that she had no personal knowledge of what happened, and 25 that none of the alleged injuries bled, bruised, or required a bandage or a trip to the 26 doctor. Moreover, B.R. himself testified that Holder never hurt him and that he never told 27 anyone she had touched him in a way he did not like. 28 Plaintiffs’ citation to the letter from Mr. and Mrs. Holm – parents who considered 17 1 placing their child in Holder's classroom but withdrew him after one day because they 2 found Holder to be "unprofessional" and "sloppy" and "unfocused" – does not help 3 plaintiffs’ case. Nothing in that letter is sufficient to provide notice that harm to a federally 4 protected right was substantially likely to occur. 5 In their third main argument, defendants assert that the court should decline to 6 recognize a separate or distinct claim under the ADA or § 504 based on an allegedly 7 hostile educational environment, or, in the alternative, should find that plaintiffs lack 8 evidence sufficient to create a triable issue as to whether the minor plaintiffs experienced 9 a hostile educational environment. In support of their argument regarding the "hostile educational environment" claim, 11 United States District Court Northern District of California 10 plaintiffs rely primarily on the decision in Guckenberger v. Boston Univ., 957 F.Supp. 306 12 (D.Mass. 1997). Plaintiffs contend that there is sufficient evidence to raise a triable issue 13 as to whether Holder subjected the minor plaintiffs to severe and pervasive harassment 14 based on their disabilities. 15 In Guckenberger, the District of Massachusetts recognized a cause of action 16 under the ADA and § 504 for hostile learning environment when the harassment is based 17 on a student's disability. The court found that the language of both the ADA and § 504 is 18 substantially similar to the language in Title IX, which courts have held provides a 19 statutory basis for hostile learning environment claims based on sexual harassment. Id. 20 at 313-14. The court concluded that "the flexible Title VII standards for establishing a 21 hostile work environment claim apply to hostile learning environment claims brought 22 under the federal statutes prohibiting discrimination against persons with disabilities[,]" 23 and articulated a standard based on the standard for sexual harassment set forth in 24 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-73 (1986). See Guckenberger, 957 25 F.Supp. at 314. 26 Federal courts have recognized claims of hostile educational environment based 27 on sex (Title IX) and race (Title VI and/or Equal Protection Clause under § 1983). See 28 Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629, 639-47 (1999) (recognizing private 18 1 damages action by a student against a school board for peer-to-peer sexual harassment 2 under Title IX); Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033-34 (9th 3 Cir. 1998) (recognizing claim of racially hostile educational environment under Title VI, 4 based on peer-to-peer harassment of one student by other students). 5 However, this court was unable to locate any decision by the Ninth Circuit or by 6 any district court within the Ninth Circuit recognizing a claim of hostile educational 7 environment under the ADA or § 504, against a school board, and this court declines to 8 do so. In addition, even were the claim to be recognized, plaintiffs have not provided 9 evidence sufficient to create a triable issue as to whether they were subjected to a hostile educational environment that was both based on their disabilities and was sufficiently 11 United States District Court Northern District of California 10 pervasive or severe. 12 The court finds that summary judgment must be GRANTED as to the ADA and 13 § 504 claims. First, there is no evidence that any District personnel discriminated against 14 any of the minor plaintiffs "by reason of" their disabilities. In particular, there is no 15 evidence in any of the parent depositions that any of the defendants – including Holder – 16 discriminated against the minor plaintiffs or denied them benefits "by reason of" their 17 disabilities. 18 Plaintiffs' argument appears to be that because their claim is that the minor 19 plaintiffs were denied meaningful access to education, and because the education that 20 the minor plaintiffs did not receive was education directed that focused on their 21 disabilities, the denial of such access to education was necessarily "by reason of" their 22 disabilities. The problem with this theory, as defendants point out, is that it could be 23 applied to any ADA or § 504 claim by a student against a school district, and would 24 eliminate the requirement that an ADA or § 504 plaintiff show that the alleged 25 discrimination was "by reason of" his/her disability, which is an element of claims under 26 both the ADA and § 504. 27 28 Plaintiffs' other argument appears to be that because Holder had poor classroom management skills, and was not otherwise an effective teacher, and because she had 19 1 been observed kicking and hitting students who are not plaintiffs in the present case, she 2 necessarily must have been harboring discriminatory animus towards the disabled minor 3 plaintiffs in this case. However, plaintiffs have produced no evidence showing that 4 Holder engaged in any discriminatory act towards any one of the individual minor 5 plaintiffs "by reason of" his/her disability. Instead, they have filled pages with citations to 6 evidence that purports to demonstrate that Holder was a bad teacher. However, this 7 does not show discriminatory animus. 8 9 Plaintiffs refer generally to Holder engaging in "physical and verbal abuse," but most of the evidence does not relate to the minor plaintiffs in this case. The primary exceptions are the Huckabee Declaration (re A.G., B.G., B.R., and E.R.) and the 11 United States District Court Northern District of California 10 Baladerian Declaration (re M.G.), but there, the allegations regarding the alleged abuse 12 involve hearsay reports by the parents, school and IEP records showing a deterioration of 13 functioning, and the conclusions of Drs. Huckabee and Baladerian, respectively, that five 14 of the six minor plaintiffs are suffering from PTSD. There is no testimony or other 15 evidence that shows that the six minor plaintiffs in this case were subjected to abuse. 16 Nor have plaintiffs provided evidence sufficient to raise a triable issue with regard 17 to deliberate indifference. Plaintiffs refer generally to "the risk of harm from Holder's 18 abuse and failure to provide services," but they have not established that Holder abused 19 any of the minor plaintiffs. None of the parents testified regarding any specific acts of 20 abuse by Holder. There are vague references to the fact that she "yelled at students," 21 and created an unwelcoming atmosphere, but nothing about specific acts aimed at 22 specific plaintiffs. 23 As for the claim that Holder was "deliberately indifferent to suggestions from 24 school psychologists," the court agrees with defendants that Holder's alleged failure to 25 act with regard to her own behavior does not create a triable issue with regard to 26 deliberate indifference. 27 28 CONCLUSION In accordance with the foregoing, defendants’ motion is GRANTED as to the state 20 1 law claims asserted by all plaintiffs with the exception of those asserted by M.R. As 2 stated at the hearing, the court will permit additional briefing as to that one plaintiff. The 3 motion is GRANTED as to the federal claims asserted by all plaintiffs. 4 5 IT IS SO ORDERED. 6 Dated: April 29, 2016 7 8 __________________________________ PHYLLIS J. HAMILTON United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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