Vergara et al v. Wesleyan Academy, Inc. et al
Filing
65
OPINION and ORDER GRANTING in part and DENYING in part 32 motion for summary judgment. Signed by Judge Juan M. Perez-Gimenez on 9/4/2019. (RIF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
AIXA VERGARA, on her own and on behalf of
her minor son CMRV, EDGARDO NERIS
TORRES,
CIVIL NO. 17-1013 (PG)
Plaintiffs,
v.
WESLEYAN ACADEMY, INC., et al.,
Defendants.
OPINION AND ORDER
Before the court is Defendants’ Motion for Summary Judgment (ECF No. 32),
Plaintiffs’ Response in Opposition (ECF No. 50), and Defendants’ Reply (ECF No. 58). For
the reasons set forth below, the court GRANTS IN PART and DENIES IN PART
Defendants’ motion.
I.
BACKGROUND
On January 4, 2017, Plaintiffs Aixa Vergara (“Vergara”), on her own and on behalf of
her son “CMRV,” and the minor’s step-father Edgardo Neris Torres (collectively, “Plaintiffs”)
filed this suit against Wesleyan Academy, Inc. (“Wesleyan” or “the School”), Wesleyan’s
Headmaster, President and Executive Director, Fernando J. Vazquez Zayas (“Vazquez”), and
Wesleyan’s High School Principal, Ingrid Llorens de Pagan (“Ms. Llorens”) (collectively,
“Defendants”). See Compl., ECF No. 1. Plaintiffs allege that Wesleyan and its employees
discriminated against CMRV because of his physical and mental disabilities by expelling him
and refusing to provide him reasonable accommodations. Plaintiffs also allege retaliation for
engaging in protected conduct. They claim Defendants’ actions are in violation of Section
504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), as well as Puerto Rico statutes
Civil No. 17-1013(PG)
Page 2
prohibiting disability discrimination and retaliation and cyberbullying. Plaintiffs request
compensatory and punitive damages under federal and Puerto Rico laws.
Plaintiffs’ complaint included a request for a Temporary Restraining Order (“TRO”),
which the court granted in part. See Op. and Order from January 7, 2017, ECF No. 3. The
court ordered Defendants to readmit CMRV as a student and allow him to continue his
eleventh-grade studies at Wesleyan. Since Plaintiffs also sought a preliminary injunction,
the court set a hearing for January 13, 2017. However, on that date, the parties agreed to
convert the TRO into a preliminary injunction or pendente lite. ECF No. 14. 1 Later that
month, the court held a status conference during which case management deadlines de
rigueur were set. ECF Nos. 18, 29. Defendants now move for summary judgment and
Plaintiffs oppose their request.
II.
STANDARD OF REVIEW
A motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil
Procedure, which entitles a party to judgment if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “When the party who bears the burden of proof at trial is faced with a
properly constituted summary judgment motion, defeating the motion depends on her
ability to show that such a dispute exists.” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir.
2014) (citing Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)).
At the summary judgment juncture, the court must examine the facts in the light most
favorable to the non-movant, indulging that party with all possible inferences to be derived
Although the parties later filed the agreement in its entirety, and the court allowed them to restrict its viewing
to selected parties, the terms and conditions of the agreement were placed on the record during proceedings
held in January of 2017. See ECF No. 15.
1
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Page 3
from the facts. See Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.
2002). The court need not “draw unreasonable inferences or credit bald assertions, empty
conclusions, rank conjecture or vitriolic invective.” Cherkaoui v. City of Quincy, 877 F.3d 14,
23 (1st Cir. 2017) (quoting Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 2014)). The
court reviews the record “as a whole,” and “may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135
(2000). This is so because credibility determinations, the weighing of the evidence and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id.
If the non-movant generates uncertainty as to the true state of any material fact, the
movant’s efforts should be deemed unavailing. Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st
Cir. 2000). But the mere existence of “some alleged factual dispute between the parties will
not affect an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505 (1986). See Cherkaoui, 877 F.3d
at 23-24 (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (noting that “[f]acts
are material when they have the ‘potential to affect the outcome of the suit under the
applicable law’” and that “[a] dispute is ‘genuine’ if ‘the evidence about the fact is such that
a reasonable jury could resolve the point in favor of the non-moving party’”).
III.
FINDINGS OF FACT
Aixa Vergara is CMRV’s mother. CMRV is a disabled student with physical and mental
disabilities. He began his studies at Wesleyan in Kindergarten. ECF No. 1 ¶ 16; Pls.’
Statement of Material Facts Which Preclude Entry of Summ. J. in Defs.’ favor pursuant to
Local Rule 56(c), (e) (“PSMF”) ¶ 1, ECF No. 50-2. CMRV suffers from the following mental
and physical impairments: Attention Deficit Disorder (“ADD”) with predominatelyinattentive hyperactivity; severe major depression; fine motor skills problems; visual
Civil No. 17-1013(PG)
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perception difficulties and renal insufficiency. Ecf No. 1 ¶ 11. These impairments, according
to plaintiffs, substantially limit various life activities, like his ability to study, to learn and to
excrete urine. Id. at ¶ 14.
Wesleyan Academy is a private, non-profit, evangelical Christian school affiliated
with the Wesleyan Church that receives federal funds or financial assistance from the United
States Department of Education. See Defs.’ Statement of Uncontested Material Facts
(“SUMF”) ¶ 1, ECF No. 32-1; ECF No. 1 ¶ 18; Answer to Compl. ¶¶ 17-18, ECF No. 22. The
Wesleyan School Community Handbook states that the School “strives to present a Christian
world view and democratic values in an environment of academic excellence.” SUMF ¶ 1. 2
At the time of the events alleged in the complaint, Co-Defendant Vazquez was
Wesleyan’s President and Executive Director; Co-Defendant Ms. Llorens, Wesleyan’s High
School Principal; Betsey Cora (“Ms. Cora”), the High School Guidance Counselor; Leyda
Mercado, another Student Counselor; and Betzaida Flores, Wesleyan’s Social Worker. See,
e.g., SUMF ¶¶ 47 & 64; PSMF ¶ 10.
The Wesleyan Academy Policy Manual states that the school’s opportunities are
offered regardless of social or political factors, and prohibits discrimination “in any of its
policies, practices, or procedures on the basis of race, class, color, national origin, sex, or
handicap as defined by law.” SUMF ¶ 2.3 The Manual also provides that “Wesleyan admits
and welcomes students of any race or class, color, national and ethnic origin, sex or
2 The parties submitted the Wesleyan Academy Community Handbook, the entire Wesleyan Policy Manual
mentioned below and its amendments as part of their restricted agreement pendente lite. See Ex. 1-3, ECF No.
13-1 to 13-3.
3 Plaintiffs offer the same qualification for SUMF ¶¶ 1-4: “the fact that Defendants are quoting from Wesleyan’s
Policy Manual and School Community Handbook does not mean that [they] actually complied with the
postulates contained in such documents.” Pls.’ Resp. to Defs.’ “SUMF” pursuant to Local Rule 56(c), (e) at 13,
ECF No. 50-1. Plaintiffs further aver that Defendants’ conduct runs afoul with the contents of the cited
materials. The court notes their qualification and will proceed to present the undisputed facts in the light most
favorable to Plaintiffs.
Civil No. 17-1013(PG)
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handicap, and does not discriminate on this basis in admissions or in any area of the school
life and program.” SUMF ¶ 3 (quoting Ex. 2, ECF No. 32-3 at 5).
Under the Manual, the basic qualifications for admission are: “(1) desire to attend
[the school]; (2) demonstrate[] average or above average academic ability; (3) a pattern of
obedient behavior, and (4) evidence of being able to live in harmony with our purposes and
way of life.” SUMF ¶ 3. The Manual warns that by enrolling in the school, students and their
parents accept and agree to comply with Wesleyan’s policies, rules and regulations. Id. ¶ 4.
Wesleyan has a Procedure Manual for the Implementation of the Reasonable
Accommodation Passport for Post-Secondary Education. It is not incorporated in the
Handbook or the Policy Manual. PSMF ¶ 39.
Elementary School
In January of 2005, Vergara applied to enroll her minor son in kindergarten at
Wesleyan, for the 2005-2006 school year. SUMF ¶ 5. Throughout elementary school, CMRV
struggled to meet Wesleyan’s academic and conduct standards. Wesleyan continually
conditioned CMRV’s admission and enrollment on his academic improvement and other
requirements. Id. ¶¶ 6-7, 11, 17-18, 19. 4 CMRV had to be tutored, attend summer school for
SUMF ¶ 11 relates to Wesleyan’s decision to withhold CMRV’s acceptance to the fourth grade pending
Vergara’s compliance with the school’s request for a professional evaluation of the student and
recommendations for improvement. Plaintiffs’ qualification of the proposed fact states in relevant part: “As to
the letter dated January 20, 2009, Vergara signed it because if she did not sign, Wesleyan would not enroll her
son.” ECF No. 50-1 at 13-14.
Plaintiffs’ qualification of SUMF ¶ 11 does not clarify, modify or limit Defendants’ factual assertion, as
required under current summary judgment standards. See Rodriguez-Soto v. Presbyterian Med. Anesthesia
Grp., Civil No. 17-1477 (GAG), 2019 WL 1349991, at *2 (D.P.R. Mar. 22, 2019) (explaining that a qualification
“must clarify a statement of fact that, without clarification, could lead the Court to an incorrect inference”);
Richardson v. Mabus, 203 F. Supp. 3d 86, 113-114 & n. 48 (D. Me. 2016) (admitting defendant’s statement of
uncontested material fact as submitted in light of plaintiff’s inapposite qualification of that fact). The court
thus accepted SUMF ¶ 11 as uncontested, and disregarded other qualifications offered by Plaintiffs that fail to
comply with the summary judgment rules.
Plaintiffs admit and deny SUMF ¶ 19, arguing that Defendants did not include proper record citations.
Their contention is unavailing because Defendants did include the required citations in support of that fact.
Plaintiffs’ remaining assertions in response to SUMF ¶ 19 are either unintelligible or irrelevant, and therefore,
4
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Spanish and math subjects, undergo evaluations or receive occupational therapy. Vergara
did not always comply with some of the requests and conditions established by the school.
Id. ¶¶ 8, 10-12, 17-22.
Psychological Evaluations
In 2009, clinical psychologist Dr. Amalyn Perez Rivera (“Dr. Perez”), began
evaluating CMRV. In her first psychological evaluation report, Dr. Perez concluded that
CMRV did not show any difficulties associated with attention deficit, following instructions
or other problems of distraction. Nonetheless, Dr. Perez’s report advised that CMRV needed
to strengthen his interpersonal relationship skills and social interactions. Id. ¶¶ 13-15. 5
On March 9, 2009, Dr. Perez provided a second psychological evaluation report. This
time, Dr. Perez found that CMRV showed a “[s]light lag in fluidity skills in writing and
redaction” and a “[s]ignificant lag in fluidity skills in mathematics.” Id. ¶ 16.
Middle School
When CMRV was in eighth grade, Vergara enrolled him in an after-school music
program at the Puerto Rico Conservatory of Music (the “Conservatory”). He continued to
participate in the music program throughout his middle school and high school years. Id. ¶
23. CMRV finished his eighth grade with the following grades: English, 71%; Math, 65%;
Science, 87%; Physical Education, 98%; Spanish, 72%; Social Studies, 58%; Bible, 55%;
Music, 90%; Art, 86%; Communication, 71%. Id. ¶ 24; PSMF ¶ 11. CMRV thus had to attend
Wesleyan’s summer program, where he obtained 32% in Social Studies and 88% in Bible.
SUMF ¶ 25.
the court disregarded them.
5 The first report is dated February 14, 2009. See Cert. English Translation of Defs.’ Ex. 7, ECF No. 42-1. As
mentioned below, Dr. Perez rendered a second report on March 9, 2009. See Cert. English Translation of Defs.’
Ex. 8, ECF No. 42-2.
Civil No. 17-1013(PG)
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High School
As noted before, CMRV continued to participate in the Conservatory’s after-school
music program throughout ninth grade. Id. ¶ 26. Vergara considered not enrolling him for
the first semester of ninth grade so that he could focus on school. Id. ¶ 29. Later during that
semester, CMRV e-mailed his Physical Science teacher, Aidyn Fontanez (“Fontanez”), with
concerns about his performance and grade in the class. CMRV admitted that he missed a
test due to a medical appointment and that he knew he had not been “very responsible.” He
also requested extra credit to raise his grade. Id. ¶ 27; PSMF ¶ 12. Fontanez responded with
feedback and informed that she had referred his e-mail to Wesleyan’s guidance counselor
and high school principal. SUMF ¶ 28.
First “No-Return” Decision
On January 13, 2015, Wesleyan informed CMRV that he had not been accepted to
tenth grade. Id. ¶¶ 30-32; PSMF ¶¶ 13-15. As the No-Return Letter explained, the decision
was based on CMRV’s poor academic performance, grades (one D and two F’s in Bible,
Algebra and Physical Science), excessive tardiness, and other factors (e.g., unpreparedness,
poor attitude, and failure to make up for his work or hand his work on time). SUMF ¶¶ 3031. 6 Upon Vergara’s request, Wesleyan reconsidered the no-return decision and readmitted
Plaintiffs deny Defendants’ SUMF ¶ 30 arguing that the no-return Letter cited in support constitutes
inadmissible hearsay and lacks proper authentication. See Defs.’ Ex. 18, ECF No. 33-8; ECF No. 50-1 at 5-6.
However, under current Rule 56(c)(2), Plaintiffs’ objection must be that the evidence at issue cannot be
submitted in a trial-admissible form. Fed. R. Civ. P. 56(c)(2). See Mercado-Reyes v. City of Angels, Inc., 320 F.
Supp. 3d 344, 350 (D.P.R. 2018) (quoting S.E.C. v. Ramirez, 2018 WL 2021464, at *7 (D.P.R. Apr. 30,
2018) (Delgado–Hernández, J.)) (rejecting the defendant’s hearsay objection to the plaintiff-nonmovant’s
affidavit because “a district court may consider hearsay evidence submitted in an inadmissible form at
the summary judgment stage where the content of the evidence proffered could later be provided in an
admissible form at trial.”); Gonzalez-Bermudez v. Abbott Labs. PR Inc., 214 F. Supp. 3d 130, 137 (D.P.R. 2016)
(“The objecting party must thus state the proper grounds for which the opposing party's evidence cannot be
presented in a form that would be admissible at trial.”). Plaintiffs do not provide any substantive reason why
the content of the letter could not be presented in an admissible form at trial.
Also, Plaintiffs quote former Rule 56(e) requiring authentication for all documents supporting or
opposing motions for summary judgment. After the 2010 amendments to the rule, authentication is no longer
6
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CMRV, subject to an updated psychological evaluation. Id. ¶¶ 32-33. Plaintiffs maintain that
this event caused them considerable emotional damages for which they sought pastoral
counseling at their church and psychological counseling for CMRV. PSMF ¶ 16.
On February 14, 2015, Dr. Perez diagnosed CMRV with ADD. SUMF ¶¶ 34-35. On
February 15, 2015, CMRV e-mailed his English teacher admitting he forgot to hand in an
assignment and asking if he could turn it in late to “get at least half credit[.]” Id. ¶ 36. A week
later, CMRV wrote an e-mail to Fontanez to make the same request. Id. ¶ 37. Fontanez
granted the extension, allowing him to turn in the assignment late for partial credit. Id. ¶ 38.
The next day CMRV e-mailed his History teacher to find out his grade in the class and ask if
he could raise it to B with an upcoming assignment. Id. ¶ 39. On March 12, CMRV e-mailed
his English teacher saying that he would be turning in an essay the following day and that
he understood “[he wouldn’t] get full credit.” Id. ¶ 40.
CMRV was admitted to the tenth grade on the following conditions: (1) obtain at least
70% in all classes; (2) maintain good conduct; (3) schedule medical appointments after
school hours; (4) attend summer school for Physical Science, Health and Algebra I; (5)
quarterly evaluations of CMRV’s progress by the Admissions Committee. Id. ¶ 42; Ex. 26,
ECF No. 34-6. Wesleyan also urged Vergara to become more involved in CMRV’s education
and recommended she communicate frequently with teachers and the school. SUMF ¶ 43.
On May 20, Vergara received CMRV’s acceptance letter and enrolled him for the tenth grade.
required. Garcia-Garcia v. Costco Wholesale Corporation, 878 F.3d 411, 418 n. 11 (1st Cir. 2018) (citing Fed. R.
Civ. P. 56; 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (4th ed. 2017
Update)) (so noting); Gonzalez-Bermudez, 214 F. Supp. 3d at 137 (citing Int'l Shipping Agency, Inc. v. Union
de Trabajadores de Muelles Local 1740, Civil No. 12-1996 (SCC), 2015 WL 5022794, at *3 (D.P.R. Aug. 21,
2015)) (denying parties’ objections to summary judgment exhibits lacking authentication). Finally, Plaintiffs
rely on several of Defendants’ supposedly inadmissible and unauthenticated exhibits to support their opposing
and additional statements of fact. See, e.g., PSMF ¶ 13 (where, importantly, Plaintiffs state that CMRV received
the No-Return Letter from January 13 notifying the expulsion, and thereafter, Vergara asked Wesleyan to
reconsider). The court reminds them that those who live in glass houses should not throw stones. At bottom,
the facts related to this no-return decision remain undisputed.
Civil No. 17-1013(PG)
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Id. ¶ 44. CMRV took the required summer courses and earned the following grades: Physical
Science, 91%; Health, 90%; Algebra I, 61%. Id. ¶ 46.
On September 25, 2015, Vergara met with Ms. Llorens and Ms. Cora to establish a
reasonable accommodation plan for CMRV. Id. ¶ 47. The parties agreed that CMRV had to
obtain a minimum of 70% in all his classes, including electives. Id. ¶ 50. Wesleyan agreed to
reserve a desk for CMRV in front of the classroom; his teachers would provide clear
instructions, positive reinforcement, additional time for class work and exams, and
whenever possible, administer exams one page at a time. Id. ¶ 48. Under this plan, CMRV’s
parents had to implement the recommendations given by the professionals treating or
evaluating CMRV, and submit evidence thereof; meet with teachers on a monthly basis and
schedule additional meetings with them; submit CMRV to a neurological evaluation; provide
a “quiet, structured home environment, conductive to studying[,]” as well as an “educational,
social, family environment to help CMRV’s development.” Id. ¶¶ 49-50.
Sitting in the front of the classroom allowed CMRV to focus. Id. ¶ 56. His teachers
gave him extra time to complete quizzes and exams when he so requested, but that was not
always the case. 7 Id. ¶¶ 57-58. CMRV continued to attend after-school music lessons at the
Conservatory during that year. Id. ¶ 59.
Second “No-Return” Decision
On January 24, 2016, Wesleyan informed that CMRV would not be admitted to
eleventh grade for the 2016-2017 school year because he failed to obtain at least 70% in all
his classes during the first semester of tenth grade. The letter specifically mentioned CMRV
Notwithstanding Plaintiffs’ qualifications or denials of Defendants’ proposed facts, CMRV’s deposition
testimony shows that he mostly needed accommodation for math class. Regarding other subjects (e.g., History,
English and Spanish), CMRV explained that he only sometimes needed extra time to take notes or “write things
down.” See Ex. 13, ECF No. 33-3 at 20-21. Based on the evidence, SUMF ¶¶ 51 to 53 and 55 are undisputed.
7
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finished that semester with 67% in English and 64% in Biology I. Id. ¶ 60. Upon Vergara’s
reconsideration request, Wesleyan decided to readmit CMRV for the first semester of
eleventh grade on several conditions: (1) obtain at least 75% in all classes, per quarter; (2)
mandatory tutoring for any class in which his grade dipped below 75%; (3) turn in projects
and assignments on or before their due date; (4) quarterly meetings between CMRV’s
parents and teachers. Id. ¶¶ 61-62. After receiving the conditional acceptance letter, Vergara
decided to enroll CMRV for the first semester of the 2016-2017 year. Id. ¶ 63. 8
On February 25, 2016, CMRV met with the guidance counselor, Ms. Cora, to discuss
his academic performance and his first semester final grades. During the meeting, CMRV
admitted he had failed to meet deadlines. Ms. Cora thus emphasized the importance of
working on projects as soon as they are assigned to submit them in a timely manner. CMRV
agreed he would do his homework everyday; review each class daily; write down assignments
in his agenda; and study for quizzes and tests on weekends. Finally, CMRV recognized that
he needed to raise his grades. Id. ¶ 65; Ex. 31, ECF No. 35-1.
The next day, CMRV met with Omar Gonzalez (“Mr. Gonzalez”), his tenth grade
Geometry teacher, to discuss his performance and strategies for improvement. SUMF ¶¶ 6768; Ex. 32, ECF No. 35-2. Following Mr. Gonzalez’s recommendation, Vergara enrolled
CMRV in a pilot program that provided online tutoring for students with difficulty in math.
SUMF ¶ 69. CMRV used the program until the end of his Geometry class in May 2016. Id. ¶
70.
For the second semester of tenth grade, CMRV attended the Conservatory’s afterschool music program, where he took classes on Tuesdays, 5:00 PM to 6:00 PM; 7:00 PM to
8 In Wesleyan, the passing grade for every subject is 70%. High school students who fail must take summer
school for the required course before advancing to the next grade level. PSMF ¶ 34.
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8:30 PM; Wednesdays, 4:30 PM to 5:00 PM; Thursdays, 4:30 PM to 6:00 PM; and
Saturdays, 12:00 PM to 3:00 PM. Id. ¶ 71. CMRV finished tenth grade with the following
grades: English, 61%; Geometry, 69%; Biology I, 61%; Physical Education, 90%; Spanish,
68%; History, 78%; Bible, 95%; Music, 100%. Id. ¶72. Because CMRV did not obtain passing
grades in four of his classes, he had to attend summer school. His final grades for those
classes were: English, 78%; Geometry, 69%; Biology I, 61%; Spanish, 75%. Id. ¶ 73; Ex. 34,
ECF No. 35-4.
On August 12, 2016, Plaintiffs met with Ms. Llorens and Ms. Cora to go over the
conditions previously established for CMRV’s acceptance to the first semester of eleventh
grade. Id. ¶ 74. They did not establish a reasonable accommodation plan for that academic
year. PSMF ¶ 38. Early in September of 2016, CMRV’s Algebra II teacher, Paola Enriquez
(“Ms. Enriquez”), e-mailed Vergara with concerns about CMRV’s performance in her class
and the fact that he had a 73% grade. SUMF ¶¶ 75-76. Soon thereafter, Vergara and her son
met with Ms. Llorens, Ms. Cora, Ms. Enriquez and Mr. Gonzalez. Id. ¶ 77. During that
meeting, Ms. Enriquez mentioned that CMRV was not turning all his work on time. 9 As
previously noted, complying with deadlines for projects and assignments was one of several
conditions for CMRV’s acceptance. Id. ¶ 86.
Vergara requested that CMRV be placed in Mr. Gonzalez’s Algebra II class because
his teaching style was better for CMRV than Ms. Enriquez’s. Id. ¶¶ 78-80. 10 Defendants
denied the request, but the parties agreed that CMRV could seek Mr. Gonzalez for help,
questions or doubts about Algebra II during lunch or office hours. Id. ¶¶ 82-83. CMRV never
9 The court modified Defendants’ SUMF ¶ 86 to incorporate Plaintiffs’ qualification, which in turn, reflects
Vergara’s deposition testimony that CMRV turned in “some” of his math work late. ECF No. 50-1 at 15.
10 Plaintiffs admit that Ms. Enriquez had tried to explain the material to CMRV independently to no avail— “he
just did not understand it.” SUMF ¶ 81.
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sought his help. Id. ¶ 84. After that meeting, Ms. Enriquez began tutoring CMRV
approximately three times a week. CMRV took between six to nine tutoring sessions, but his
grades did not improve. Some time later, Ms. Enriquez informed Vergara that she would no
longer be able to tutor CMRV. Id. ¶¶ 87-89.
On September 29, 2016, Ms. Cora e-mailed Vergara about CMRV’s concerns
regarding his grade (53%) and performance in Algebra II. She mentioned the fact that CMRV
had not sought Mr. Gonzalez’s help with the subject and reminded Vergara the importance
of him doing so. She also provided tutoring alternatives for CMRV, subject to Vergara’s
approval and confirmation. Id. ¶ 90. 11 On October 7, 2016, Ms. Cora e-mailed Vergara again
with similar concerns and updated information regarding CMRV’s grades and performance,
tutoring opportunities, as well as the most recent efforts undertaken by the school and
faculty to help CMRV meet his academic conditions. Id. ¶ 91. 12
CMRV continued to attend the Conservatory’s after-school music program during the
first semester of eleventh grade. 13 Id. ¶ 94. His music class schedule conflicted with the
tutoring sessions provided by Wesleyan’s teachers every day after school, from 3:30 PM to
4:30 PM, specifically. Id. ¶¶ 95-96. So, beginning in October one of CMRV’s eleventh grade
classmates, “KM,” tutored him three times a week at 7:00 PM. Id. ¶¶ 98, 101, 103. She also
helped CMRV during class. Id. ¶ 97. 14 Despite Ms. Cora’s recommendations, Plaintiffs did
Plaintiffs response to Defendants’ SUMF ¶¶ 90 and 91 is to “admit” the supporting evidence’s authenticity
only. ECF No. 50-1 at 2. Given that Plaintiffs fail to admit, deny or qualify the substance of Defendants’ properly
supported facts, the court finds them undisputed.
12 Vergara’s deposition testimony shows that she never received the e-mails in question because the account
was “hacked.” Regardless, Ms. Cora made a follow-up call to Vergara and read the contents of the e-mails.
According to Vergara, she was already aware of the information. See SUMF ¶¶ 92-93; Ex. 5 at 379-380 (ECF
No. 32-6 at 104-105). On the other hand, Plaintiffs failed to adequately respond to Defendants’ SUMF ¶¶ 93,
94, 95, 96, 98, 101, 102 and 103. ECF No. 50-1 at 2. Having reviewed the evidence with which they are
supported, the court finds that these facts are undisputed.
13 His schedule was: Mondays, 3:30 PM to 4:30 PM; Wednesdays, 3:30 PM to 4:30 PM; Thursdays, 3:30 PM
to 4:30 PM; and Saturdays, 12:00 PM to 3:00 PM.
14 See also Defs.’ Ex. 5 at 123-124, 136-137 (ECF No. 32-6 at 52-55). Plaintiffs’ deny SUMF ¶ 97 because “KM
11
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not seek or implement other alternatives for CMRV to improve. Id. ¶¶ 102-103. And KM’s
tutoring lessons were not enough to help CMRV in math. Id. ¶ 99.
Third “No-Return” Decision
By the end of the first quarter, CMRV was failing to maintain a 75% or more in each
class. In Algebra II, for example, his grade was 58%. He also failed to turn in assignments
and projects by their due date or attend tutoring lessons on a consistent basis. Id. ¶ 100. On
November 14, 2016, Wesleyan decided to expel CMRV for the second semester of eleventh
grade given Plaintiffs’ failure to satisfy the academic conditions established for his first
semester acceptance. Id. ¶ 104; PSMF ¶ 32. Two days later, Vergara met with Ms. Enriquez
to discuss CMRV’s performance in Algebra II. Id. ¶ 105. Ms. Enriquez informed that CMRV
failed to turn in coursework and even missed a quiz. Id. Vergara later asked for
reconsideration of Wesleyan’s November 14, 2016 no-return decision, but the school denied
her request. Id. ¶¶ 106-107. The court states the facts related to the legal action taken by
Plaintiffs in response to that decision below. As for CMRV’s academic performance, the
record shows that he finished the semester with the following final grades: Bible, 82%;
English, 77%; Spanish, 78%; Algebra II, 52%; Biology II, 74%; Government, 87%;
Economics, --; Music, 98%; Physical Education, 98%. Id. ¶ 109; Ex. 40, ECF No. 35-10.
On January 4, 2017, Plaintiffs filed this suit against Defendants. They also moved the
court for a TRO and preliminary injunction. The court issued the TRO and ordered the
school to readmit CMRV for the second semester of eleventh grade, beginning in January of
2017. SUMF ¶¶ 108, 110. The parties agreed to convert the TRO into a preliminary injunction
actually tutored CMRV in Algebra II.” ECF No. 50-1 at 7. Their response does not controvert the proposed fact:
that KM helped CMRV during class. The portions of Vergara’s deposition testimony cited by Plaintiffs do not
create a genuine dispute as to this fact, either. See Defs.’ Ex. 5 at 380, ECF No. 32-6 at 105.
Civil No. 17-1013(PG)
Page 14
or pendente lite and adopt a reasonable accommodation plan. Id. ¶¶ 111; ECF No. 15.
Reasonable Accommodations
As part of the reasonable accommodation plan, Wesleyan agreed to provide a desk for
CMRV in the first, second or third row of the classroom; administer exams one page at a
time; give CMRV additional time to complete exams and hand in class work, as well as clear
and individual instructions for assignments and coursework, or repeat instructions upon
request; and provide review materials for final exams. SUMF ¶ 112. 15 Wesleyan also agreed
to change CMRV to Mr. Gonzalez’s Algebra class. Id. ¶ 115.
Vergara, in turn, agreed to attend bi-monthly meetings with teachers and any other
additional meetings requested by teachers or staff; procure tutoring lessons for CMRV in the
subjects he so required by a certified educator, subject to Wesleyan’s approval, and submit
monthly attendance records to the high school principal’s office; provide Wesleyan with the
neurological evaluation performed by Dr. Carlos Barreto Miranda in March of 2015; notify
Wesleyan the date of CMRV’s scheduled neurological evaluation; procure psychological
counseling for CMRV and inform his attendance thereto to the school. Id. ¶ 113. As for
CMRV, the parties agreed he would maintain all his grades at 70% or more and good
conduct, as well as to comply with Wesleyan’s School Wide Discipline Plan, incorporated in
the Handbook. Id. ¶ 114.
Other Facts
On February 24, 2017, Vergara met with Ms. Cora and Mr. Rafael Torres, CMRV’s
Biology teacher, to discuss and coordinate math tutoring lessons for CMRV. Mr. Torres
agreed to tutor CMRV and noted that they needed to meet three to four times a week. Id. ¶
15 Plaintiffs take issue with the fact that Defendants left out other stipulations and conditions contained in the
plan. After a careful review, the court finds the omitted portions immaterial to the pending dispositive motion.
Civil No. 17-1013(PG)
Page 15
116. The lessons began in March of 2017. Id. ¶ 117. During the second semester of eleventh
grade, CMRV continued to take music lessons at the Conservatory. Id. ¶ 119. At the end of
that semester, CMRV obtained the following grades: Bible, 95%; English, 72%; Spanish,
78%; Algebra II, 68%; Biology II, 96%; Government, --; Economics, 82%; Music, 100%;
Physical Education, 91%. Id. ¶ 118. 16 His final grades for that school year were: Bible, 89%;
English, 75%; Spanish, 78%; Algebra II, 60%; Biology II, 83%; Government, 87%;
Economics, 82%; Music, 99%; Physical Education, 94%. See Ex. 42, ECF No. 36-2.
CMRV’s teachers complied with and provided the required accommodations during
CMRV’s tenth and eleventh grades. SUMF ¶ 135. But Wesleyan readily admits that some of
the accommodations requested were denied, to wit, changing CMRV to Mr. Gonzalez’s
Algebra II class, recording his classes, and photographing the blackboard. Id. ¶ 123. Plaintiffs
counter that they also requested bathroom breaks as necessary to accommodate CMRV’s
renal and urinary condition. ECF No. 50-1 at 9-10. One of his teachers, Laura Burgos, refused
to give CMRV bathroom breaks. Id. 17
Vergara also asked Wesleyan to allow CMRV to record his classes. Wesleyan denied
that request not only because, as a matter of fact, Wesleyan students cannot record their
classes, but also due to privacy concerns. SUMF ¶¶ 124, 126. 18 To provide that
Having considered Plaintiffs’ qualifying response, the court modified Defendants’ proposed fact to include
CMRV’s grades for each subject.
17 It is unclear for what specific condition the bathroom breaks accommodation was needed. The references to
renal, kidney and urinary condition(s) without a hint of distinction among them abound in the summary
judgment record. Plaintiffs do not provide adequate citations to the record for most of the assertions included
in their response to SUMF ¶ 123. Their proposed additional facts on this supposed request for an
accommodation falter for the same reasons. Therefore, the court only considered the properly supported facts
and disregarded the rest. See Fed. R. Civ. P. 56(c); L. Civ. R. 56(c), (e).
18 Plaintiffs deny SUMF ¶ 124 by stating that “Wesleyan does allow the recording of classes for students with
learning disabilities depending on the student’s individual needs[.]” ECF No. 50-1 at 10. Their denial does not
controvert Defendants’ proposed fact: that for privacy reasons, Defendants denied Plaintiffs’ accommodation
request. Plaintiffs support their denial with portions of Leyda Mercado’s deposition testimony. But a close
examination of that evidence heavily suggests that Plaintiffs misquoted Mercado in their attempt to create a
factual dispute, as she did not testify that Wesleyan allows students (disabled or not) to record their classes.
16
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Page 16
accommodation, Wesleyan would have had to obtain authorization from the parents of
CMRV’s classmates, and as part of that process, disclose the requesting student’s (here,
CMRV’s) learning disability or condition. Id. ¶ 125.
Vergara made another request for reasonable accommodation. She asked Wesleyan
to allow CMRV to take photos of the blackboard--where teachers provided materials and
instructions for class assignments--with a cellphone or device, instead of taking notes. Id. 19
Wesleyan denied this request. Id. ¶ 123, 133. Vergara later acknowledged that Dr. Perez
recommended the use of visual aids for CMRV, not photographing the blackboard. Id. ¶
134. 20 Per the school’s cellphone policy, students are not allowed to use cellphones during
school hours and infractions to that policy are subject to varying levels of disciplinary action,
up to and including detention and suspension. Id. ¶¶ 130-131. See also Wesleyan Academy
School Community Handbook, ECF No. 13-3 at 30-31. One exception to the policy is the use
of cellphones during field trips to take notes or photos for class reports, or to contact parents.
ECF No. 50-1 at 11.
Furthermore, Wesleyan required all teachers to post all course-related information,
class summaries, materials and grades to Edline, the online system used by the school, which
students and parents could access from home. SUMF ¶ 132. Vergara testified that the
information available in Edline was not always up-to-date. ECF No. 50-1 at 11.
Cyberbullying
Wesleyan’s Anti-Bullying Protocol contains the school’s policy against bullying and
See Defs.’ Ex. 44 at 104-106, ECF No. 36-4; Pls.’ Ex. D at 104-106, ECF No. 50-9.
Because Plaintiffs failed to adequately support their responses to SUMF ¶¶ 125 and 126, these facts are
undisputed too.
19 Plaintiffs did not respond at all to SUMF ¶ 129, so that fact is deemed admitted.
20 Although Plaintiffs contend that “[a] photograph, most certainly, constitutes a ‘visual aid [,]’” their assertion
is unsupported. See ECF. 50-1 at 12.
Civil No. 17-1013(PG)
Page 17
cyberbullying and sets forth preventive measures and the institutional response to bullying
incidents. SUMF ¶ 137. It requires teachers and staff to report and investigate all incidents,
even when the victim does not formally complain or express disapproval of the purported
bullying. PSMF ¶ 48.
On February 26, 2016, Vergara complained to Ms. Llorens and Ms. Cora about a
cyberbullying incident CMRV had confronted via group text messages with other Wesleyan
students (e.g., student identified as “D.P.”). Id. ¶ 45. Vergara did not report or complain
about cyberbullying again until December of that year. Id. ¶ 32, 44. 21 See Pls.’ Ex. B1 at 395,
ECF No. 50-5 at 139. Although Defendants assert that CMRV had no subsequent issues with
the perpetrator, Plaintiffs counter that CMRV had to be treated for depression and given
medication because of the cyberbullying events. ECF No. 50-1 at 13.
Now, Defendants aver that they learned of the cyberbullying incident by way of the
complaint filed in January of 2017. Early in February of 2017, Vergara met with Wesleyan’s
Dean of Students, Jose L. Mass. She asked him not to activate the anti-bullying protocol,
asserting that CMRV had moved on from the one-time incident. See Defs.’ Reply Statement
of Material Facts ¶ 49, ECF No. 58-2. Because Vergara refused to sign the minutes of the
meeting, the school proceeded with the investigation, but subsequent communications with
Plaintiffs’ counsel brought the school’s efforts to a halt. Id.
The record suggests that Vergara mentioned the cyberbullying incidents in the letter she wrote to Rev.
Benjamin Galarce requesting reconsideration of the no-return decision notified in November of 2016. SUMF
¶¶ 104, 106; PSMF ¶ 32. It is undisputed that Vergara later met with Rev. Galarce—on December 5, 2016 to be
exact—to discuss CMRV’s expulsion and other related matters. PSMF ¶ 44. Plaintiffs’ proposed additional facts
on the cyberbullying incidents are either unsupported by the evidence or hotly disputed, as is the case of the
proposed facts regarding Vergara’s conversation with Mercado about the alleged cyberbullying. See, e.g., PSMF
¶¶ 47-48 and Defs.’ Reply Statement of Material Facts, ECF No. 58-2 ¶¶ 47-48.
21
Civil No. 17-1013(PG)
Page 18
A. Rehabilitation Act
IV.
DISCUSSION
22
i. Disability Discrimination
Section 504 of the Rehabilitation Act provides “that no otherwise qualified individual
with a disability shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving federal funds.” Ruskai v. Pistole, 775 F.3d 61, 77 (1st Cir. 2014)
(quoting 29 U.S.C. § 794(a)). Importantly, Section 504 prohibits federally-funded entities
and academic institutions from discriminating against disabled students. See Fry v.
Napoleon Cmty. Sch., 137 S. Ct. 743, 749 (2017); J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224
F.3d 60, 70 (2d Cir. 2000); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir.
1992).
To establish a prima facie case of discrimination, a plaintiff must show (1) that he is
a qualified individual with a disability; (2) is “otherwise qualified” to participate in or receive
services from a program or entity; (3) that he was excluded from participating in, denied, or
otherwise discriminated against “solely by reason of [his] … disability;” (4) that the program
or entity received federal financial assistance. Lesley v. Hee Man Chie, 250 F.3d 47, 52-53
(1st Cir. 2001) (alteration in original) (some quotation marks omitted) (citing § 794(a));
Rivera-Concepcion v. Puerto Rico, 786 F. Supp. 2d 489, 500 (D.P.R. 2011). 23
Since Congress modeled many provisions of the American with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., after Section 504, claims under both statutes “are analyzed under the same standards and the case law
construing the ADA pertains equally to claims under the Rehabilitation Act.” Davila v. Potter, 550 F. Supp. 2d
234, 243 (D.P.R. 2007) (citing Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 12 (1st Cir. 2004); Phelps v.
Optima Health, Inc., 251 F.3d 21, 23 n. 2 (1st Cir. 2001)); see also Chenari v. George Washington Univ., 847
F.3d 740, 746–47 (D.C. Cir. 2017) (quoting Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1260 & n. 2,
1266-67 & n. 14 (D.C. Cir. 2008)) (noting that for purposes of analyzing a failure-to-accommodate claim under
the Rehabilitation Act, Section 504 is construed in pari materia with Title II of the ADA).
23 Where, as here, a plaintiff offers circumstantial evidence to prove a disability discrimination claim under
Section 504, the court applies the burden-shifting framework laid out by the Supreme Court in McDonnellDouglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) and its progeny. See Delgado Echevarria v.
22
Civil No. 17-1013(PG)
Page 19
Disability means “(A) a physical or mental impairment that substantially limits one
or more of [an] individual’s major life activities; (B) a record of such an impairment; or
(C) being regarded as having such an impairment….” 29 U.S.C. § 705(20)(B) (incorporating
definition found in 42 U.S.C. § 12102). Major life activities are activities “of central
importance to daily life,” or functions such as “performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” Vazquez v. Municipality of Juncos, 756
F. Supp. 2d 154, 161 (D.P.R. 2010) (quoting 29 C.F.R. § 1630.2) (citing Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002)). Thinking and concentrating are also
considered major life activities. See Calero-Cerezo, 355 F.3d at 21 (citing Whitney v.
Greenberg, Rosenblatt, Kull & Bistoli, P.C., 258 F.3d 30, 33 n. 4 (1st Cir. 2001)).
In the educational setting, an otherwise qualified individual is one who can meet all
of an academic program’s requirements in spite of his or her disability, with or without
reasonable accommodation. See Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir.
1998) (citing Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979)); S.S. by
S.Y. v. City of Springfield, Massachusetts, 146 F. Supp. 3d 414, 419-20 (D. Mass. 2015) (“[i]f
there are reasonable modifications that would allow a school to accommodate a disabled
individual, the individual is qualified for the program offered by the school.”).
In this case, Defendants concede CMRV is physically and mentally disabled for
AstraZeneca Pharm. LP, 856 F.3d 119, 133–34 (1st Cir. 2017); Rios-Jimenez v. Principi, 520 F.3d 31, 40-41 (1st
Cir. 2008) (applying McDonnell Douglas framework to disability discrimination claim under the
Rehabilitation Act).
If the plaintiff succeeds at the prima facie stage, the burden then shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the alleged adverse action against plaintiff. See Novak v. Bd. of
Trustees of S. Illinois Univ., 777 F.3d 966, 974 (7th Cir. 2015) (citing Bunn v. Khoury Enters., Inc., 753 F.3d
676, 685 (7th Cir. 2014)). If the defendant articulates such a reason, then the plaintiff must present evidence
that the proffered reason is pretext for discrimination. Id. (quoting Steinhauer v. DeGolier, 359 F.3d 481, 484
(7th Cir. 2004)); Rios-Jimenez, 520 F.3d at 40-41 (citing McDonnell Douglas, 411 U.S. at 802, 804).
Civil No. 17-1013(PG)
Page 20
summary judgment purposes. 24 Thus, the first prima facie element is met. Insofar as
Defendants admit that Wesleyan receives federal funds, the school is a covered entity under
the Rehabilitation Act. This satisfies the fourth element of the test. Further, it is undisputed
that CMRV was subjected to adverse actions because he was expelled on more than one
occasion from the school. On this basis, the third element of the test is met. 25
Now, Defendants argue that CMRV is not “otherwise qualified” because he could not
meet Wesleyan’s academic standards and requirements for continued enrollment even with
reasonable accommodations. Plaintiffs disagree maintaining that CMRV did meet
Wesleyan’s essential eligibility requirements, like age and entering academic credentials. See
Pls.’ Mem. of Law in Supp. of Opp’n to Defs.’ “MSJ,” ECF No. 50 at 12.
At the outset, the court must note that Plaintiffs confuse essential eligibility
requirements for admission with those for continued enrollment. On the one hand, the
Wesleyan Academic Policy Manual mentions four basis qualifications for admission (SUMF
¶ 3). On the other, the Manual establishes essential eligibility standards and requirements
for graduation and course credit, participation in non-credit activities and other areas of
student life, and guidelines for determining conditions for admissions, denial of
readmission, academic probation or suspension. See Wesleyan Policy Manual, ECF No. 131 at 57-95.
The Policy Manual’s section on student affairs warns that the Admissions Committee
may place students who show questionable behavior, poor attitude, or poor academic
performance on disciplinary or academic conditions, set the duration of the conditions, and
24 Notwithstanding, Defendants mention that their expert evidence discredits CMRV’s ADD diagnosis.
Defendants thus suggest that CMRV was never entitled to reasonable accommodations. See Defs.’ Reply
Statement of Material Facts at 6, n. 1, ECF No. 58-2.
25 Plaintiffs’ claim under Section 504 for failure to accommodate is discussed infra at subsection ii.
Civil No. 17-1013(PG)
Page 21
stipulate special expectations. 26 These conditions become part of the contract between
Wesleyan and the student, and Wesleyan can deny readmission or return for the second
semester or the subsequent school year based on the student’s noncompliance with the
conditions. See id. at 57-59.
As the material facts and evidence show, CMRV’s documented struggles with
Wesleyan’s academic standards date back to his elementary school years. 27 For present
purposes, however, the court will only mention those that brought about the “no-return” or
expulsion decisions. In January of 2015, the Admissions Committee made the first no-return
decision challenged by Plaintiffs; it was based on CMRV’s poor academic performance—
including two F’s—, his noncompliance with Wesleyan’s attendance policy, and other factors.
He was in ninth grade at the time. On May 20, 2015, the Admissions Committee decided to
readmit CMRV with conditions for the tenth grade, like keeping a minimum grade of 70% in
all his classes, electives included. The letter warned that the Committee would evaluate
CMRV’s progress on a quarterly basis to determine his eligibility to remain at Wesleyan, and
that the conditions for acceptance would be re-evaluated in October of 2016 (at the end of
the first quarter). See Defs.’ Ex. 26, ECF No. 34-6.
Having been diagnosed with ADD back in February of 2015, Plaintiffs met at the start
of the first semester of tenth grade to establish reasonable accommodations, like a reserved
desk for CMRV in the front of the classroom and additional time for exams and homework.
Despite the reasonable accommodations provided, which, by CMRV’s own admission,
allowed him to focus, he failed to comply with eligibility requirements established for his
In other cases, one or more F’s or two or more D’s could land a student on academic probation.
His final grades for eighth grade were, in relevant part, a 65% in Math, a 58% in Social Studies, and a 55% in
Bible.
26
27
Civil No. 17-1013(PG)
Page 22
tenth grade. 28 The Admissions Committee issued the second no-return decision on January
24, 2016.
After Vergara asked for reconsideration, the Committee decided to offer readmission
for the first semester of eleventh grade subject to conditions, including a minimum grade of
75% in each of CMRV’s classes, per quarter. Despite Plaintiffs’ contentions, 29 Vergara reenrolled CMRV in school, thus accepting to abide by these eligibility requirements and
conditions. The uncontroverted facts demonstrated that for the first quarter of CMRV’s
eleventh grade, during the 2016-2017 academic year, CMRV had a 58% in Algebra II. Also,
he was not submitting all assignments in a timely manner or complying with tutoring
conditions. Wesleyan thus decided not to admit him for the second semester of the 20162017 school year.
Based on these and the other undisputed material facts recounted above, the court
concludes that Plaintiffs are unable to show that CMRV was “otherwise qualified” for
continued enrollment at Wesleyan. Even if Plaintiffs could surpass that hurdle, that is, show
that CMRV met essential eligibility requirements with reasonable accommodations, neither
the facts nor the evidence on this record suggest that any of the challenged decisions were
made solely because of CMRV’s actual or perceived disabilities (be it his ADD, renal or
urinary conditions, or depression), as opposed to his repeated noncompliance with the
school’s performance requirements and academic conditions. Rivera-Concepcion, 786 F.
Supp. 2d at 500 (dismissing Rehabilitation Act claim given plaintiff’s failure to show she was
By the end of the first semester, CMRV had obtained two D’s.
Specifically, the court is referring to Plaintiffs’ argument that Defendants deviated from Wesleyan’s policy
by raising the passing grade to 75%, which also constituted discrimination. Upon a straightforward reading of
the relevant evidence—the Policy Manual, Handbook, and the Admissions Committee’s letters—the court
concludes that Wesleyan could rightfully place the 75% threshold as a condition for readmission, whether for
a semester or an entire school year, in accordance with its academic policy. See ECF No. 13-1 at 52-74.
28
29
Civil No. 17-1013(PG)
Page 23
“otherwise qualified” for the internship position from which she was expelled, and that the
expulsion was solely grounded on her mental disability, as opposed to her absenteeism and
behavior). Therefore, Plaintiffs still fail to establish a prima facie case of disability
discrimination.
ii. Failure to Accommodate
Plaintiffs allege that Defendants violated Section 504 by failing to provide several
reasonable accommodations for CMRV. They argue that CMRV’s academic performance
would have been satisfactory had Wesleyan provided him with the requested reasonable
accommodations, which were recommended by the minor’s health professionals, but
Defendants never implemented. Wesleyan allegedly ignored Vergara’s repeated requests for
reasonable accommodations on behalf of her son.
Section 504 requires covered entities to offer eligible students meaningful access to
reasonable accommodations. Alexander v. Choate, 469 U.S. 287, 301 (1985); Theriault v.
Flynn, 162 F.3d 46, 48 (1st Cir. 1998). Defendants well recognize that “[a] federally-funded
organization violates Section 504 if it denies a qualified individual with a disability a
reasonable accommodation that the individual needs in order to enjoy meaningful access to
the benefits of public services.” ECF No. 32 at 12 (citing Rivera-Concepcion, 786 F. Supp. 2d
at 500).
The elements of a prima facie case for failure to accommodate are like those required
under a disability discrimination theory, but for purposes of the third prong, Plaintiffs must
prove that Defendants knew of CMRV’s disability yet did not reasonably accommodate it.
See Enica v. Principi, 544 F.3d 328, 338 (1st Cir. 2008) (citing Calero-Cerezo, 355 F.3d at
20) (discussing the elements of a prima facie case for a failure-to-accommodate claim under
the Rehabilitation Act in the employment context).
Civil No. 17-1013(PG)
Page 24
Generally, to trigger a defendant’s obligation to provide any type of accommodation,
the plaintiff’s “request must be sufficiently direct and specific, and it must explain how the
accommodation is linked to plaintiff’s disability.” Jones v. Nationwide Life Ins. Co., 696 F.3d
78, 89 (1st Cir. 2012) (citing Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st
Cir. 2007). But see Bajandas v. Cupeyville, Inc., 61 F. Supp. 3d 218, 220 (D.P.R. 2014) (citing
Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir. 2002)) (noting, in an employment
discrimination case under the ADA, that “[t]he employee’s request does not have to be in
writing or formally invoke the magic words ‘reasonable accommodation.’”).
Here, it is undisputed that CMRV underwent various psychological evaluations but
was not diagnosed with ADD or other learning disability until February 14, 2015. Plaintiffs
argue that Defendants had a duty to accommodate him since 2009 because, unbeknownst
to Vergara, CMRV appeared on a purported list of students that needed accommodations.
Their contention is unavailing. First, there are no set of facts present that could allow a
reasonable jury to conclude that Plaintiffs put the school on notice of CMRV’s disabilities
and that they requested specific accommodations for those disabilities prior to 2015. As
Defendants well point out, Wesleyan had no obligation to provide unrequested
accommodations for unknown disabilities before then. See Halpern v. Wake Forest Univ.
Health Scis., 669 F.3d 454 (4th Cir. 2012) (medical school had no obligation to accommodate
medical student’s disability [ADHD] until he provided proper diagnosis to and requested
specific accommodations, which he only did after engaging in misconduct that warranted
dismissal from the program); Carten v. Kent State Univ., 78 F. App'x 499, 501 (6th Cir. 2003)
(citing Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998)
(school not required to accommodate plaintiff’s disability until he “provided a proper
diagnosis…and requested specific accommodation.”)); Wynne v. Tufts Univ. Sch. of Med.,
Civil No. 17-1013(PG)
Page 25
976 F.2d 791, 795–96 (1st Cir. 1992) (alteration in original) (quoting Nathanson v. Medical
College of Pa., 926 F.2d 1368, 1381 & 1386 (3d Cir. 1991)) (recognizing that “an academic
institution can be expected to respond only to what it knows or is chargeable with knowing,”
and thus, a relevant part of the Section 504 inquiry is “whether the student ever put the
school on notice of his handicap by making ‘a sufficiently direct and specific request for
special accommodations.’).
Second, Plaintiffs’ argument is underdeveloped. In their opposition, Plaintiffs neither
raise genuine issues of material fact to defeat Defendants’ motion on this point, nor do they
cite any analogous cases or on-point legal authority to sustain their theory. This pales in
comparison to the relevant case law and reasoned analysis offered by Defendants. The
problem for Plaintiffs is that “[j]udges are not mindreaders. Consequently, a litigant has an
obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.”
Echevarría v. AstraZeneca Pharmaceutical LP, 856 F.3d 119, 139 (1st Cir. 2017) (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). This includes “highlighting the
relevant facts and analyzing on-point authority.” Rodriguez v. Mun. of San Juan, 659 F.3d
168, 175 (1st Cir. 2011) (citation omitted). The upshot is that “issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.” Zannino, 895 F.2d at 17.
To recap, the court concludes that even if CMRV was “regarded as” disabled before
2015, thus triggering a duty to accommodate, Plaintiffs have failed to meet their burden of
showing in the first instance what specific accommodation CMRV needed and how those
Civil No. 17-1013(PG)
Page 26
accommodations were connected to his undiagnosed disabilities. 30 See Ortiz-Martinez v.
Fresenius Health Partners, PR, LLC, 853 F.3d 599, 605 (1st Cir. 2017).
Requests for Accommodations after ADD Diagnosis
With respect to reasonable accommodations requests after CMRV’s ADD diagnosis
in February of 2015, the record amply demonstrates that Wesleyan provided most, if not all
the accommodations or modifications recommended by CMRV’s treating professionals. The
court notes, again, that CMRV was diagnosed with ADD approximately one month after the
Admissions Committee decided to deny him admission to tenth grade based on his poor
academic performance, conduct issues, and noncompliance with the school’s standards and
policies. 31 After the school reconsidered that decision and readmitted CMRV subject to
conditions, school officials met with Vergara several times to discuss appropriate
accommodations for CMRV.
On September 25, 2015, the parties established a reasonable accommodation plan.
CMRV had a reserved desk in the front rows of the classrooms to improve his focus; his
teachers gave him more time to complete exams and extensions of time to submit
assignments and projects. The mutually agreed upon accommodations undisputedly
ameliorated CMRV’s learning disabilities, which mostly affected him in math subjects. The
record further demonstrates instances where CMRV belatedly requested more time to turn
in assignments to receive partial credit. Despite the accommodations, CMRV failed two
classes during the first semester of tenth grade and did not comply with other conditions
established for readmission.
Indeed, Plaintiffs make no effort to mention what accommodations CMRV needed for which of the alleged
disabilities.
31 Even before the diagnosis, Defendants requested professional evaluations and recommendations from
Plaintiffs to help CMRV improve not only his grades, but also, his relationships and social interactions.
30
Civil No. 17-1013(PG)
Page 27
In September of 2016, CMRV’s academic woes continued, which prompted another
meeting between Plaintiffs, the high school principal, and two of CMRV’s math teachers.
Vergara asked that her son be placed in Mr. Gonzalez’s algebra class because she understood
that his teaching style was better than Ms. Enriquez’s. Defendants denied the
accommodation but provided alternatives, one of which was that CMRV could seek Mr.
Gonzalez’s help during lunch and office hours. The fact is that he never did. Ms. Enriquez
tutored CMRV three to four times weekly for some time, and he was later tutored by another
student, who also assisted CMRV in class. Despite the alternatives provided in lieu of the
requested accommodation, and Defendants’ additional efforts and many warnings (see, e.g.,
SUMF ¶¶ 90-91, 95-96, 98, 101, 103), CMRV continued to miss deadlines and his grades did
not improve. Defendants further point to the uncontroverted fact that CMRV was placed in
Mr. Gonzalez’s class after the filing of this lawsuit. Yet, CMRV finished the semester with a
68% in Algebra II notwithstanding the accommodation and the supposed benefits of Mr.
Gonzalez’s teaching style.
Plaintiffs challenge Wesleyan’s denial of their request for recording classes as an
accommodation for CMRV. Defendants counter that the request was unreasonable and their
denial, based on legitimate, non-discriminatory policy and privacy reasons. As matter of
policy, students cannot record their classes. Leyda Mercado explained during her deposition
that part of the policy’s rationale is to avoid the misuse of class recordings for non-academic
purposes. Also, the school would have had to engage in the gargantuan task of first obtaining
the written consent of all the parents of every other minor student in all of CMRV’s classes
before allowing him to record his classes. The court agrees that this request was, therefore,
far from reasonable.
Civil No. 17-1013(PG)
Page 28
Next, there is the request to allow CMRV to take photos of the blackboard, instead of
taking notes, which Wesleyan denied. According to Vergara, this would have entailed a
minor adjustment on the school’s part that was necessary to accommodate CMRV’s ADD
and lagging visual motor skills. The court reiterates what Vergara’s own testimony shows—
that Dr. Perez, CMRV’s treating psychologist, recommend the “use of visual aids,” not taking
photographs of the blackboard. A careful review of Dr. Perez’s 2015 evaluation report
demonstrates that she recommended the use of the following “visual aids:” highlighter tape
erasable highlighter, hefty tabs, post-it notes, tabs, etc. ECF No. 42-3 at 22. Photographs
from a mobile device were not included in the list.
Defendants assert that the requested accommodation was unreasonable in light of
Wesleyan’s cellphone policy, which bans the use of mobile devices by students during school
hours. Although Plaintiffs point out that the use of cellphones is allowed for field trips, the
court finds that exception to Wesleyan’s policy irrelevant to the present analysis. Moreover,
it is undisputed that Wesleyan provided alternatives to Plaintiffs’ accommodation request:
CMRV could take handwritten notes of the blackboard and access class materials and his
assignments from home. As previously determined, Wesleyan requires teachers to post
materials covered in class and assignments to Edline, thus permitting students to access
them remotely.
The court will not second-guess Wesleyan’s decisions on these matters. The court
certainly agrees that it is unreasonable to expect the school make an exception to its written
policy, especially when the exception at issue could potentially evolve into a slippery slope
of allowing students to use electronic devices in class and during school hours. And
particularly when alternatives were not only already available, but also, suggested during the
many meetings between Plaintiffs and school faculty and staff. As Defendants well point out,
Civil No. 17-1013(PG)
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the record in this case shows that reasonable alternatives were in fact provided, but CMRV
simply chose not to take advantage of them.
Finally, Plaintiffs take issue with the fact that one of CMRV’s teachers refused to give
him bathroom breaks. The record is completely silent as to the time and circumstances
surrounding that refusal. There is also no evidence showing that Plaintiffs, at the very least,
made a specific request for this accommodation and explained the link between CMRV’s
disability and the bathroom break accommodation. Based on the discussion of the applicable
law, the undisputed fact of that teacher’s refusal fails to carry Plaintiffs’ failure-toaccommodate claim forward.
Based on the foregoing discussion, the court GRANTS Defendants’ motion for
summary judgment as to Plaintiffs’ discrimination claims for failure to accommodate.
iii. Duty to Engage in an Interactive Process
Sometimes, “it may be necessary for the covered entity to initiate an informal,
interactive process with the individual with a disability in need of the accommodation. This
process should identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3). A request for an accommodation may thus trigger an entity’s duty to “engage
in a meaningful dialogue with the disabled individual to find the best means for
accommodating that disability.” Enica, 544 F.3d at 338-39 (citing Tobin v. Liberty Mut. Ins.
Co., 433 F.3d 100, 108 (1st Cir. 2005)). Both parties “are bound to cooperate and
communicate in good faith in the interactive process.” Mercado Cordova v. Walmart Puerto
Rico, Inc., 369 F. Supp. 3d 336, 356 (D.P.R. 2019) (citing Phelps v. Optima Health, Inc., 251
F.3d 21, 27-28 (1st Cir. 2001)) (so noting, albeit in regard to employee’s failure-toaccommodate claim under the ADA).
Civil No. 17-1013(PG)
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A claim for failure to engage in the aforementioned interactive process depends on
finding that (1) a breakdown in the process occurred due to the defendant’s failure to
participate in good faith or the disabled individual’s refusal to explore reasonable
accommodations; and (2) the parties could have indeed found a reasonable accommodation
that would enable the disabled individual perform the essential job’s functions, or here, to
meet the academic program’s requirements, if the interactive process had not broken down.
Charette v. St. John Valley Soil & Water Conservation Dist., 332 F. Supp. 3d 316, 361 (D. Me.
2018) (citing Jones, 696 F.3d at 91; Enica, 544 F.3d at 339).
Again, in this case, it is undisputed that CMRV was diagnosed with ADD in February
of 2015 and that the parties established various accommodations for CMRV afterwards. But
even before CMRV’s diagnosis, Wesleyan continually attempted to help CMRV improve his
grades and conduct by asking Vergara to become involved in her son’s education and
communicate frequently with faculty and teachers, seek occupational therapy for CMRV,
and procure tutoring lessons for him. CMRV also communicated with teachers to discuss his
grades and tools for academic improvement, and the record so shows. See SUMF ¶¶ 34-40,
43.
As discussed in the previous section, at the beginning of CMRV’s tenth grade the
parties met and established a reasonable accommodation plan. His teachers complied with
the plan by giving CMRV more time to complete exams and quizzes. CMRV met with his
guidance counselor several times and kept communicating with his teachers, often seeking
leniency in the enforcement of deadlines for projects and assignments. One of the conditions
in place for the 2015-2016 academic year required Vergara to meet with teachers, at least,
monthly. Id. ¶¶ 47-50.
Civil No. 17-1013(PG)
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Wesleyan required quarterly meetings between CMRV’s parents and teachers during
CMRV’s first semester of eleventh grade. Id. ¶ 61-62. Although no reasonable
accommodation plan was established for that first semester, the uncontroverted facts
sufficiently demonstrate that the parties still engaged in meaningful dialogue to determine
accommodations CMRV. The meetings and written communications between Plaintiffs,
Defendants and CMRV’s teachers in August and September of 2016, as well as the
accommodation alternatives they discussed and agreed on during that time frame and
beyond, are just an example of Defendants’ compliance with Section 504’s mandate. Id. ¶¶
74-77, 78, 87, 90-91.
On this record, the court finds no evidence of a breakdown in the required interactive
process as the result of Defendants’ lack of good faith or efforts, let alone that the school
refused to partake in that process, period. On the contrary, the facts here demonstrate that
Defendants tried to work constructively with Plaintiffs to address their concerns and meet
CMRV’s needs. Finally, there is no evidence for a reasonable factfinder to conclude that other
reasonable accommodations satisfactory to Plaintiffs would have been determined but for
Defendants’ failure to partake in meaningful dialogues with Vergara and CMRV.
Consequently, Defendants’ request for dismissal of Plaintiffs’ Section 504 claims for
failing to engage or participate in the required interactive process is GRANTED, and the
claims, dismissed.
iv. Retaliation
Plaintiffs claim retaliation under Section 504 of the Rehabilitation Act, which
“prohibit[s] retaliation against any person, whether disabled or not, for opposing disabilitybased discrimination made unlawful by that statute.” D.B. ex rel. Elizabeth B. v. Esposito,
675 F.3d 26, 40 and n. 9 (1st Cir. 2012) (alteration in original) (citing 28 C.F.R. §
Civil No. 17-1013(PG)
Page 32
42.503(b)(1)(vii)). A plaintiff’s retaliation claim “does not depend on the success of [his]
disability claim.” Jones v. Walgreens Co., 679 F.3d 9, 20 (1st Cir. 2012) (citing Colón–
Fontánez v. Municipality of San Juan, 660 F.3d 17, 36 (1st Cir. 2011)). Retaliation claims
under Section 504, like those under the ADA, are analyzed under the McDonnell-Douglas
burden-shifting framework. D.B., 675 F.3d at 41 (citing Reinhardt v. Albuquerque Pub. Sch.
Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010)).
To establish a prima facie case of retaliation, a plaintiff must show that: “(1) he
engaged in protected conduct, (2) he was subjected to an adverse action by the defendant,
and (3) there was a causal connection between the protected conduct and the adverse
action.” Id. (citing Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir. 2010)). If the
plaintiff succeeds, the burden shifts to the defendant to provide legitimate, non-retaliatory
reasons for the alleged adverse action. Id. (citing Carreras, 596 F.3d at 36, and Reinhardt,
595 F.3d at 1131). If the defendant does so, the burden shifts back to the plaintiff to establish
that the proffered reasons are pretextual, meaning a cover-up for the defendant’s retaliatory
motivation. Delgado Echevarria, 856 F.3d at 134 (quoting Collazo-Rosado v. Univ. of P.R.,
756 F.3d 86, 92 (1st Cir. 2014)).
Here, Plaintiffs argue that they engaged in protected conduct by requesting
reasonable accommodations for CMRV, and that after doing so, he was expelled three
times. 32 Plaintiffs also allege that they complained of cyberbullying (protected conduct in
itself), and that Defendants’ failure to act on the reported peer-on-peer harassment could
have been a retaliatory measure. Plaintiffs’ retaliation arguments hinge on the temporal
The court notes that the first of these expulsions (or “no-return” decision, as Wesleyan calls it) was made on
January 13, 2015, before the ADD diagnosis and requests for accommodations discussed above. This fact does
not affect the retaliation analysis or result.
32
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Page 33
proximity between their protected conduct and the adverse actions taken by Defendants.
The fact is that Plaintiffs engaged in protected conduct on different occasions. 33 The
record shows that beginning in February of 2015, Plaintiffs made several requests for
accommodations and modifications to allow CMRV to meet Wesleyan’s academic standards
and particularized enrollment conditions established for his enrollment. The first reasonable
accommodation plan was implemented on September 25, 2015, and four months later,
Wesleyan informed the second no-return decision, thus preventing CMRV from advancing
into eleventh grade at Wesleyan. “The gap of four months, on its own, is not ‘very close’ for
establishing causality.” Pena v. Honeywell Int'l, Inc., 923 F.3d 18, 32 (1st Cir. 2019) (citing
Cherkaoui, 877 F.3d at 28–29); Hollander v, American Cynamid Co., 895 F.2d 80, 85 (2d
Cir. 1990) (no causal connection established despite the fact that adverse action occurred
within four months of plaintiff’s protected activity). But there is more evidence suggesting
retaliation on the record.
In February of 2016, Vergara reported a cyberbullying incident to Ms. Llorens and
Ms. Cora after CMRV’s classmates sent hateful text messages about her son to a group chat.
The school did not investigate or take any disciplinary action against the alleged
perpetrators. 34 In January of 2017, almost a year after Vergara reported the incident,
Defendants tried to activate the school’s antibullying protocol to investigate. In a futile
attempt to avoid liability, Defendants insist that they lacked knowledge of the incident before
33 Here, the parties do not dispute Vergara’s advocacy for CMRV is protected conduct under the Rehabilitation
Act, so the court does not dwell on this point of law. See D.B., 675 F.3d at 41 (advocating on behalf of disabled
student’s right under the Rehabilitation Act and the ADA to be free from disability-based discrimination plainly
constitutes protected conduct under these statutes).
34 The complaint alleges that other students engaged in cyberbullying against CMRV and that their unidentified
parents are liable for the damages suffered by Plaintiffs as a result. ECF No. 1 at ¶¶ 37-39, 48-49. However,
Plaintiffs never amended their complaint to include the minors’ parents in this action and Wesleyan continues
to deny any liability for the acts of these minors outside of school and during off-hours. See ECF No. 32 at 2426.
Civil No. 17-1013(PG)
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the filing of the complaint. They also try to hide behind legal technicalities, arguing that one
hateful text message, by one student, at 6:54 PM does not rise to the level of bullying.
Defendants’ excuses fall woefully short of legitimate, non-retaliatory reasons for their failure
to act and subsequent adverse actions against Plaintiffs.
On August 12, 2016, the parties met to review conditions for CMRV’s acceptance to
the first semester of eleventh grade. Approximately a month later, during a meeting between
Plaintiffs and Llorens, Ms. Enriquez and Mr. Gonzalez, Vergara requested a transfer from
Ms. Enriquez’s to Mr. Gonzalez’s math class as an accommodation for CMRV. This request,
which constitutes protected conduct, was instantly denied. Plaintiffs mention that two other
non-disabled students were transferred to Mr. Gonzalez’s math class, thus allowing an
inference of differential treatment. See Gonzalez-Bermudez, 214 F. Supp. 3d at 159 (quoting
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991)) (mentioning differential
treatment as one of many sources of circumstantial evidence that can demonstrate
retaliation).
On November 14, 2016, before the semester ended, Wesleyan expelled CMRV for a
third time. This adverse action took place within three months after the first semester
meeting, and two months after Plaintiffs’ requested CMRV’s placement in a different math
class. 35 The First Circuit has viewed a two-month time gap between Plaintiffs’ protected
conduct and the adverse action as “close enough to suggest causation.” Sanchez–Rodriguez
v. AT & T Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012) (finding “very close” temporal
proximity for causation purposes where the plaintiff filed an EEOC complaint in February
2007 and was disciplined in May 2007).
35 The court assumes without deciding that Vergara advocated on behalf of her disabled son during the August
2016 meeting.
Civil No. 17-1013(PG)
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Now, Defendants argue that they had legitimate, non-discriminatory reasons for their
adverse decisions against CMRV. Mostly, they point to the fact that CMRV failed to meet
Wesleyan’s academic requirements and other conditions imposed by the Admission
Committee for re-enrollment. But Plaintiffs contend that for the first semester of eleventh
grade, CMRV would have complied with all requirements and conditions had it not been for
Wesleyan’s decision to raise the minimum passing grade to 75%. They further point out that
the school’s deviation from its own policy could be construed as pretext for retaliation. The
court is inclined to agree. See Echevarria, 856 F.3d at 136 (citing Acevedo-Parrilla, 696 F.3d
at 142-43) (recognizing that a defendant’s material deviation from policy or standard
procedure can establish a genuine dispute of material fact as to whether the defendant’s
articulated justifications are pretextual).
Because “[c]ourts confronted by summary judgment motions must focus on the
evidence as a whole[,]” the final critical question is whether the aggregate evidence of pretext
and retaliatory animus is enough to make out a jury question. 36 Gonzalez-Bermudez, 214 F.
Supp. 3d at 159–60 (quoting Mesnick, 950 F.2d at 827) (denying defendants’ motion for
summary judgment seeking dismissal of the plaintiff’s retaliation claims under the ADEA).
For the reasons discussed above, the court concludes that Plaintiff has submitted sufficient
evidence suggesting differential treatment and deviations from school policy to support a
claim of retaliation when considering the record as a whole. Therefore, the court DENIES
Defendants’ motion for summary judgment requesting dismissal of Plaintiff's claims of
retaliation under the Rehabilitation Act.
In the alternative, the record and the parties’ briefs on this issue are too underdeveloped for granting
summary judgment on the retaliation claims. The court will not do counsel’s work. See Echevarría, 856 F.3d at
139; Zannino, 895 F.2d at 17.
36
Civil No. 17-1013(PG)
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v. Other Section 504 Violations
A. Section 504
Plaintiffs claim that Defendants violated the Rehabilitation Act because they did not
designate a Section 504 coordinator or establish an informal grievance process. They only
cite a single decision in support of their argument, Guckenberger v. Bos. Univ., 974 F. Supp.
106, 142-44 (D. Mass. 1997), a case in which the court determined (after reasoned analysis)
that “a student has no cause of action to enforce the Section 504 regulations guaranteeing
due process….” This holding certainly disfavors Plaintiffs’ case. And upon further reading,
the court finds that their request for relief on this technical violation, without more, fails.
See Halasz v. Univ. of New England, 816 F. Supp. 37, 45 (D. Me. 1993) (finding that
University's technical violation of regulation by failing to name coordinator in notice of
nondiscrimination policy entitled plaintiff to no relief without showing of harm from the
violation). Consequently, Defendants’ motion for summary judgment on this claim is
GRANTED.
In their opposition, Plaintiffs claim that CMRV was the victim of student-on-student
disability-based harassment, and for the first time, raise a claim of discrimination under
Section 504 for deliberate indifference to that harassment. Plaintiffs did not raise this claim
in their complaint or sought leave to amend to include it. The court finds that Plaintiffs’
omissions are fatal, and therefore, will not allow them to amend their allegations through
the opposition to Defendants’ motion for summary judgment. See Castro-Medina v. Procter
& Gamble Commercial Co., 565 F. Supp. 2d 343, 364 (D.P.R. 2008) (citing cases) (so
concluding with respect to plaintiff’s attempt to amend her allegations on the major life
activities that were supposedly limited by her impairments via her opposition to the
defendant’s motion for summary judgment).
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B. Law 44
Plaintiffs also claim disability discrimination and retaliation under Puerto Rico’s Law
44. See ECF No. 1 at 13-14. “Law 44 bans discrimination against the disabled by any public
or private institution that receives funds from the Commonwealth of Puerto Rico.” Torres v.
House of Representatives of the Commonwealth of P.R., 858 F. Supp. 2d 172, 194 (D.P.R.
2012). Specifically, it prohibits covered institutions from taking any discriminatory action
against physically or mentally disabled persons. See 1 P.R. LAWS ANN. § 504. “Law 44 ‘is
Puerto Rico's counterpart to the ADA.’” Caez-Fermaint v. State Ins. Fund Corp., 286 F. Supp.
3d 302, 320 (D.P.R. 2017) (quoting Salgado–Candelario v. Ericsson Caribbean, Inc., 614
F.Supp.2d 151, 175 (D.P.R. 2008)).
To establish a prima facie case of discrimination under Law 44, a plaintiff must prove
the same elements as those required under the ADA. Id. The court already found that based
on the undisputed facts Plaintiffs cannot establish a prima facie case of disability
discrimination, be it on a simple disability-based discrimination theory or on failure to
accommodate grounds. The court also concludes that Plaintiffs did not present any evidence
demonstrating that Wesleyan receives funds from the Commonwealth and, therefore, is a
covered institution under Law 44.
Based on the foregoing, the court GRANTS Defendants’ motion for summary
judgment seeking dismissal of the coterminous claims under Law 44. On the other hand, the
court DENIES their request for dismissal of Plaintiffs’ retaliation claims under Law 44.
These survive summary judgment for the same reasons discussed in Section IV(A)(iv).
C. Other Puerto Rico Law Claims
As noted above, Plaintiffs assert a claim under Puerto Rico law based on alleged
incidents of cyberbullying perpetrated by CMRV’s classmates during his eleventh grade.
Civil No. 17-1013(PG)
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Defendants move for dismissal of this claim, arguing that the school complied with its
obligations under Law 104 of August 1, 2016, as amended (“Law 104”), by implementing an
anti-bullying protocol that establishes preventive measures and institutional response to
bullying and cyberbullying incidents like the ones Plaintiffs allege. Even if they could avoid
liability on their purported compliance with the law, the evidence suggests that Defendants
knew or should have known of the alleged cyberbullying since February of 2016, when
Vergara complained to school officials. Yet, Defendants failed to activate the school’s
protocol and investigate the matter promptly. Their argument regarding CMRV’s forgiveand-forget attitude is insufficient to sustain their request for dismissal of the remaining
claims. At bottom, Plaintiffs have pointed to sufficient evidence to create a triable issue of
fact on the matter of Defendants’ liability for any damages suffered as the result of the alleged
cyberbullying. There is also enough evidence suggesting that after the cyberbullying events,
CMRV was diagnosed with depression and received medical treatment as a result.
Next, Defendants argue that the law in question does not provide Plaintiffs with an
independent basis for recovery for any damages suffered as the result of the alleged
cyberbullying. According to Defendants, the only basis for recovery is Puerto Rico’s general
torts statute, Article 1802 of the Puerto Rico Civil Code. By their own admission, then, if
Plaintiffs cannot recover damages under Law 104, the Plaintiffs could still have recourse
under Article 1802. See ECF No. 1 at 14-15. Accordingly, Defendants’ motion for summary
judgment requesting dismissal of Plaintiffs’ claims under Puerto Rico law as the result of
cyberbullying is DENIED.
Civil No. 17-1013(PG)
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V.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment (ECF No.
32) is hereby GRANTED as to Plaintiffs’ discrimination claims under Section 504 of the
Rehabilitation Act and Law 44; DENIED as to Defendants’ request for dismissal of
Plaintiffs’ retaliation claims under Section 504 and Law 44, and DENIED as to the request
for dismissal of the claims based on the alleged cyberbullying, either under the Cyberbullying
Act or Article 1802 of the Puerto Rico Civil Code.
IT IS SO ORDERED.
In San Juan, Puerto Rico, September 4, 2019.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
SENIOR U.S. DISTRICT JUDGE
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