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M.L. v. Williamson County Board of Education

United States District Court, M.D. Tennessee, Nashville Division

June 12, 2018

M.L. & J.L., Plaintiffs,



         Pending before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 39). Plaintiffs filed a response in opposition (Doc. No. 43), and Defendant has replied. (Doc. No. 45). For the reasons discussed below, Defendant's motion for summary judgment is GRANTED.


         Plaintiffs, M.L and J.L, allege retaliation against Williamson County Board of Education (“WCBOE”) under Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (“ADA”) and the First Amendment under § 1983. (Doc. No. 1). Plaintiffs asserts Defendant engaged in retaliatory conduct on two occasions by reporting to the Department of Children's Services (“DCS”) that Plaintiffs abused or neglected their disabled son. (Id.).

         Plaintiff, J, has a “disability” as defined under the ADA and Section 504. (Id. at 2). Specifically, J was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”). (Doc. No. 43-1 at 1). During the 2015-2016 school year, J attended Kenrose Elementary and had teachers who worked closely with him, including: Carrie Glover, who served as J's second grade special education teacher, Allyson Whitley, who served as J's general education teacher, and Pam Callaway, who served as a special education teacher's assistant for J. (Id. at 2). During the 2015-2016 school year, J had an Individualized Education Program (“IEP”) in place at Kenrose. (Id. at 1). Throughout the school year M.L. had IEP meetings with teachers and faculty to discuss J and his IEP and make changes. (Id. at 24). At an IEP meeting on January 14, 2016, M.L. and J's teachers discussed J's eligibility for extended school year (“ESY”) during the summer, but it was proposed that ESY would not be the best fit for J; instead the teachers agreed home visits over the summer would work better for J. (Id. at 24). M.L. renewed her request for ESY at a meeting on May 18, 2016, but again it was denied. (Id. at 25). J's Behavioral Intervention Plan (“BIP”) was discussed at IEP meetings in both May and September of 2015, and was expected to be revised over the summer after the 2014-2015 school year, but was not put in place until November of the 2015-2016 school year. (Id. at 25-26). Over the 2015-2016 school year, M.L. and Ms. Glover had an amicable relationship, as evinced through emails M.L. sent to Ms. Glover. (Id. at 3-4). However, during the 2015-2016 school year, Kenrose staff made three reports to DCS concerning J. (Id. at 5).

         The first DCS report was made on November 9, 2015, by Ms. Callaway. (Id. at 5). Ms. Callaway offered to write J's assignment and noticed J was teary and emotional. (Id.). J informed Ms. Callaway that over the weekend his father, J.L., hurt J and his brother by twisting their arms and pinching their noses. (Id.). J also stated that J.L. was mad at J and his brother because they were taking naked pictures of J.L. and made a “naked room” to hang the pictures. (Id. at 6). When asked about the “naked room” J stated that J.L. had his shirt off but was wearing pants and underwear. (Id.). Ms. Callaway asked if J.L. was playing when he pinched and twisted J and his brother's arms, and J reported that he was a little afraid. (Id.). On November 24, 2015, a DCS investigator interviewed J.L. concerning the November 9, 2015 report and J.L. admitted to twisting J's arm and pinching his nose, but stated he was only playing with J. (Id.). On December 8, 2015, M.L. saw J's psychiatrist, and the progress note for the visit stated, “Mother has to be more protective, doesn't leave father alone with kids.” (Id. at 7-8). On December 10, 2015, DCS closed the case. (Id. at 7).

         On March 31, 2016, a second report to DCS was filed by Ms. Glover after J told Ms. Whitley that his father was in trouble for spanking J and pulling J's hair and nose. (Id. at 8). Ms. Whitley believed J was reporting a recent event, not events from November. (Id.). Along with the spanking incident, the DCS report also included an incident from September 29, 2015, where J grabbed a student around the waist and thrust his pelvic area into the other boy's bottom, and an incident from March 30, 2016, where the same student was bending over to tie his shoe and J wrapped his arms around the student's waist and hit the boy on the bottom. (Id. at 9). After the September 29th incident J met with the school counselor at Kenrose Elementary and the school counselor read and reviewed the book, “Good, Touch, Bad Touch” with J. (Id. at 11). DCS screened out the March 31, 2016 report the same day without investigation because a report mentioning “pinching of the nose” had already been investigated. (Id.).

         The third report to DCS was made on May 13, 2016, involving an incident where J put his head against a student's bottom. (Id. at 12). The incident involved the same student from the September 29, 2015 and March 30, 2016 incident. (Id.). Ms. Glover was concerned because of the sexual nature of J's behavior, given that J was only seven years old at the time. (Id. at 13). Ms. Glover consulted with the behavioral specialist, Lindsay Naylor, prior to contacting DCS, who agreed that under the circumstances Ms. Glover should report the incident to DCS. (Id. at 14-15). The DCS report identified the allegation as one of sexual abuse involving an unknown perpetrator. (Id. at 15). On May 13, 2016, J underwent a forensic interview at the Davis House Child Advocacy Center. (Id. at 18). During the interview J reported that his brother would touch J's penis on top of his clothes, or when J is changing his brother would touch his bottom, and that his brother sometimes would insert his finger in J's anus. (Id. at 18-19). J stated that when this occurred he felt weird and his clothes were off. (Id. at 19). J also reported that he sometimes touched his brothers' penises and bottoms on top of their clothing when he was acting funny. (Id.). On May 13, 2016, the DCS investigator visited Plaintiffs' home and completed a Non-Custodial Permanency Plan, which recommended that M.L. place a baby monitor in the hallway outside of J's room and bells on his door handle to allow Plaintiffs to hear if J got up in the night to go into his brother's room. (Id. at 20-21). M.L. expressed concerns with J's psychiatrist that J would touch his brothers inappropriately and would not allow J to be with his brothers unsupervised. (Id. at 16-17). The psychiatrist's record noted J exhibited symptoms of “grandiosity, hyper sexuality with inappropriate touching but the behavior seems to be more persistent, hasn't noticed cycling behavior.” (Id. at 17).

         After the third DCS was filed, M.L. expressed her concerns in a four-page email dated May 20, 2016 after an IEP meeting on May 18, 2016. (Doc. No. 41-4 at 5-7). M.L. discussed concerns regarding restraints and seclusion used on J and also reported that she and J.L. were concerned that Kenrose staff members were hyper-focused on J and his behavior. (Id.). She expressed how it took a long time to get an appropriate behavior plan in place for J and other concerns she had regarding the teachers behavior towards J. (Id.). M.L. also mentioned J changing schools for the 2016-2017 school year. (Id.). M.L. alleges she advocated for her son during the school years and believed the DCS reports were in retaliation for speaking out during the IEP meetings. (Doc. No. 43-2).


         Summary judgment is appropriate “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). The party bringing the summary judgment motion has the initial burden of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the nonmoving party's case. Id.

         In evaluating a motion for summary judgment, the court views the facts in the light most favorable for the nonmoving party, and draws all reasonable inferences in favor of the nonmoving party. Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). The Court does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, the Court determines whether sufficient evidence has been presented to make the issue of material fact a proper jury question. Id. The mere scintilla of evidence in support of the nonmoving party's position is insufficient to survive summary judgment; instead, there must be evidence of which the jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

         III. ANALYSIS


         Under the Individuals with Disabilities Education Act (“IDEA”), a local education agency is required to “create an [IEP] for…disabled students.” 20 U.S.C. § 1400 et seq., see also F.H. ex rel. Hall v. Memphis City Schs., 764 F.3d 638, 641 (6th Cir. 2014). The statute “guarantees these children a Free Appropriate Public Education (“FAPE”) ... in conformity with the IEP” and “provides specific procedural recourse should an involved party object to the construction or implementation of the IEP.” Hicks v. Benton Cnty. Bd. of Educ., 222 F.Supp.3d 613, 633 (W.D. Tenn. Dec. 1, 2016). Both the ADA and Section 504 prohibit retaliation against an individual seeking to enforce rights under the IDEA. See, e.g., 42 U.S.C. § 12203 and 28 C.F.R. 35.134 (ADA); 29 U.S.C. § 794(a) and 29 C.F.R. § 33.13 (Section 504). “The ADA and Section 504 have a similar scope and aim; for purposes of retaliation analysis, cases construing either Act are generally applicable to both.” A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013) (citing Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir.1997)).

         To show a violation of these statutes, a plaintiff may utilize direct or circumstantial evidence. Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014). If the plaintiff relies on indirect, circumstantial evidence, as here, the court is to analyze the claim based on the familiar burden-shifting analysis articulated in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Plaintiffs must first establish, by a preponderance of the evidence, that (1) they engaged in activity protected under Section 504 and the ADA; (2) WCBOE knew of this protected activity; (3) WCBOE then took adverse action against Plaintiffs; and (4) there was a causal connection between the protected activity and the adverse action. A.C., 711 F.3d at 697 (citing Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.2001). “The bar for demonstrating the prima facie case is a low one.” Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014). If the plaintiff establishes a prima facie case, “the defendant has a burden of production to articulate a nondiscriminatory reason for its action.” Hicks, 222 F.Supp.3d at 635. “If the defendant meets its burden, the plaintiff must prove the given reason is pretext for retaliation.” E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015).

         Here, Defendant argues Plaintiffs cannot establish a prima facie case for retaliation because Plaintiffs cannot show a causal connection between Plaintiffs advocacy for educational services and the DCS reports filed. (Doc. No. 40 at 9). Defendant further argues that even if Plaintiffs establish a prima facie case for retaliation, the school personnel had a legitimate, non-retaliatory reason for reporting to DCS, thus Plaintiffs cannot demonstrate pretext. (Id.). Plaintiff responds that the timing, falsity of the DCS reports, and lack of context of the DCS ...

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