United States District Court, M.D. Tennessee, Nashville Division
M.L. & J.L., Plaintiffs,
WILLIAMSON COUNTY BOARD OF EDUCATION, Defendant.
WILLIAM L. CAMPBELL, JR UNITED STATES DISTRICT JUDGE
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.
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.
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).
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).
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.).
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).
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).
STANDARD OF REVIEW
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
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.
RETALIATION UNDER §504 OF THE REHABILITATION ACT AND THE
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)).
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
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 ...