Sepúlveda-Villarini v. Department of Education , 628 F.3d 25 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 08-2283
ISRAEL SEPÚLVEDA-VILLARINI,
Plaintiff, Appellant,
v.
DEPARTMENT OF EDUCATION OF PUERTO RICO, ET AL.,
Defendants, Appellees.
No. 09-1801
MARTA VELÁZQUEZ-TORRUELLA,
Plaintiff, Appellant,
v.
ALEXIS OLIVERAS-SANTIAGO, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,* and Selya, Circuit Judge.
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Mauricio Hernandez Arroyo, with whom Law Offices of Mauricio
Hernandez Arroyo was on brief, for appellants.
Susana I. Peñagaricano-Brown, Assistant Solicitor General,
with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-
Anadón, Deputy Solicitor General, were on brief, for appellees.
December 10, 2010
SOUTER, Associate Justice. The issue in each of these
consolidated cases is the sufficiency of the complaint to state a
claim for failure to accommodate an employee’s disability as
required by Title I of the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12111-12117, and § 504 of the Rehabilitation Act, 29
U.S.C. § 794. The district court dismissed each under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim. We
vacate and remand.
It takes nimble footwork to reach that exact issue. The
appellants in these suits, Israel Sepúlveda-Villarini (Sepúlveda)
and Marta Velázquez-Torruella (Velázquez), are public school
teachers in Ponce, Puerto Rico. The appellees are the Puerto Rico
Department of Education; its Secretary, Rafael Aragunde-Torres
(Aragunde); and the school director (and appellants’ supervisor),
Alexis Oliveras-Santiago (Oliveras). Aragunde is sued in his
official capacity; Oliveras is sued in his personal capacity.
The appellants’ claims and the district court’s
resolution of them are largely similar, but differ somewhat in the
details. Sepúlveda alleged that he suffered a stroke while
teaching and required heart by-pass surgery. The nature of his
continuing impairment is unclear, but he claims that his doctor
ordered him to apply for accommodations upon his return to work.
The provision of a reasonable accommodation to a qualified
individual with a disability is required by 42 U.S.C. § 12112. See
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also § 12102(2) (definition of disability); § 12111(8) & (9)
(definitions of qualified individual with a disability and
reasonable accommodation). For five school years the school made
accommodations for Sepúlveda, providing him a classroom on the
first floor, a reduced class size of 15 pupils most years, and (at
least for some years) a rest period.1 Things changed in the 2007-
08 year, after the Secretary had issued instructions to keep class
size at a minimum of 20. Allegedly as a consequence, the school
director enlarged Sepúlveda’s class to 30, but provided a neophyte
teacher to share the duties.
Sepúlveda claims that the new arrangement is an
unreasonable refusal to accommodate, resulting in emotional
consequences with physical symptoms requiring treatment, and he
seeks monetary and equitable relief. His citation to legal
authority is vague, but the district court understood him to raise
claims of unlawful discrimination under Title I of the ADA, 42
U.S.C. §§ 12111-12117 (prohibiting discrimination on the basis of
disability by employers); Title II of the ADA, 42 U.S.C. §§ 12131-
12165 (same, by government entities); § 504 of the Rehabilitation
Act, 29 U.S.C. § 794 (same, by recipients of public funding) and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
1
The state of the complaint is such that the details of
factual allegations are often difficult to make out. For the
purposes of this appeal, the key accommodation appears to be the
reduced class size.
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seq. (prohibiting employment discrimination on the basis of sex,
race, religion, national origin). The district court dismissed all
claims of personal liability against the school director,
Oliveras,2 and all Title VII claims. It dismissed the ADA Title I
claim for failure to allege how the smaller class size would allow
Sepúlveda to go on teaching and the Rehabilitation Act claim for
the same reason. The court cited its ruling in a prior case to
hold that Title II of the ADA did not reach employment-based claims
(and in the alternative rejected the Title II claim on the same
grounds invoked for Title I). With all federal claims gone, the
court also dismissed without prejudice claims brought under the
Puerto Rico Civil Code, for which supplemental jurisdiction was
sought.
Velázquez alleges that she suffers from a throat
condition known as aphonia, with symptoms including excessive
coughing and shortness of breath, which was allegedly aggravated by
dust and debris stemming from construction at the school some years
ago. Also on doctor’s orders, she sought accommodations for her
disability and for four3 school years was provided with
accommodations virtually identical to Sepúlveda’s, although her
2
The district court read the complaint to assert claims under
the ADA and Title VII against Oliveras in his official and personal
capacities. The complaint, however, states that Oliveras “is sued
in his individual capacity under Puerto Rico law.”
3
Velázquez was denied accommodations the first year she
requested them.
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maximum class size was generally 20 rather than 15. When the
Secretary’s instructions were circulated, her class size, too, was
increased (“up to thirty (30) students,” without a team teacher),
and she, too, alleges that ensuing emotional and physical stress
required treatment. She seeks equitable relief and damages, in
pleadings the district court read to raise the same claims it found
Sepúlveda did. Here, again, the Court dismissed the personal
liability claims, all claims under Title VII, and the Title II
claim on the ground that the title does not refer to employment
discrimination (this time providing no alternative basis). Here,
though, the court addressed the appellees’ sovereign immunity
defense, which it had not reached in Sepúlveda’s case. The court
sustained the defense, dismissing the Title I claim against the
Department in toto and against the Secretary insofar as Velázquez
sought monetary damages. That left the Title I claim for equitable
relief against the Secretary, on the theory of Ex Parte Young, 209
U.S. 123 (1908), which the court dismissed for the same reason
given in the other case, a failure to allege in the pleadings how
the 20 pupil size accommodation requested would enable her to teach
but the larger class size would not. The Rehabilitation Act claim,
as before, went the way of that under Title I, and supplemental
jurisdiction over actions under the Civil Code was again declined
without prejudice.
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The briefs for the appealing plaintiffs primarily address
the district court’s failure to apply properly the standard of
review under Rule 12(b)(6), and do not take issue with any of its
conclusions of statutory interpretation or immunity from suit. We
thus infer that all claims of error are waived, except as to the
sufficiency of allegations as stating claims that the Department
and its Secretary are responsible under Title I or § 504 of the
Rehabilitation Act for failures to make reasonable accommodations
for disabilities. While it is true that both appellants’ briefs do
refer to their “Title II pleadings,” they go no further than
paraphrasing the statutory text and neglect to address the district
court’s ruling that Title II does not cover employment
discrimination. Such passing and conclusory references are
inadequate to press an issue on appeal.
The statement of a claim of actionable failure to make
reasonable employment accommodation for disability under either
Title I of the ADA or §504 of the Rehabilitation Act must allege a
disability covered by the statute, the ability of the plaintiff to
do a job with or without accommodation as the case may be, and the
refusal of the employer, despite knowledge of the disability, to
accommodate the disability by reasonably varying the standard
conditions of employment. Enica v. Principi, 544 F.3d 328, 338 &
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n.11 (1st Cir. 2008). The district court found the allegations
deficient with respect to the third element.4
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a
short and plain statement of the claim showing that the pleader is
entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R.
Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The
make-or-break standard, as the district court recognized, is that
the combined allegations, taken as true, must state a plausible,
not a merely conceivable, case for relief. Ashcroft v. Iqbal, 129
S.Ct. 1937, 1950-51 (2009) (citing Twombly, 550 U.S. at 570); see
also Twombly, 550 U.S. at 555 (“Factual allegations must be enough
to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).” (footnote and citations omitted)). “A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a ``probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 1949 (citations omitted).
4
This dispositive focus on the third element was apparently
a sua sponte choice of the district court; neither motion to
dismiss mentioned it.
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We think that the district court demanded more than
plausibility. Each set of pleadings includes two significant sets
of allegations. First, for a period of four or five school years
the school administration provided the reduced class size in
response to the respective plaintiff’s request, supported by some
sort of medical certification attesting to its legitimacy. In each
complaint, those years of requested accommodation are put forward
as establishing, in effect, a base-line of adequacy under the
statute in response to an implicit acknowledgment that a statutory
disability required the provisions that were made.5
Second, each set of pleadings describes changed facts
beginning in the 2007-08 year, in which instructions from the
defendant Secretary resulted in raising the class size to 30 (with
a young team teacher to share the load with Sepúlveda). Each
complaint alleges that the plaintiff’s emotional and physical
health subsequently deteriorated to the point of requiring
treatment, and each concludes that assigning 30 pupils was less
than reasonable accommodation under the statute. To be sure, this
sequence of alleged facts does not describe a causal connection in
terms of the exact psychological or physiological mechanism by
which each plaintiff’s capacity continues to be overwhelmed. But
5
The precise location of the base-line is difficult to pin
down as the number of students in each appellant’s class varied
somewhat during the good years (from 15 to 20 for Sepúlveda; from
“a maximum of 20” to “a minimum of 20” for Velázquez).
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reading the allegations with the required favor to the plaintiff
means accepting the changes in class size as the only variable,
from which one would infer that there probably is some causal
connection between the work of a doubled class size and the
physical and emotional deterioration of the disabled teacher.
After all, for years the school authorities themselves apparently
thought the small classes were the reasonable and appropriate size;
it does not seem remarkable that a teacher would be worn down by
doubling the size, even with a young helper, who will need to be
supervised.6
We therefore see the trial judge’s call for allegations
explaining “how” class size was significant and the change in size
was actionable as a call for pleading the details of medical
evidence in order to bolster the likelihood that a causal
connection will prove out as fact. It may even be read as an
expression of skepticism that medical evidence would support the
causal claim that increased class size damaged health. But Twombly
6
In fact, Velázquez specifically alleges that “[t]his failure
to accommodate her has aggravated her physical disability condition
by the increase[d] use of her voice with the larger amount of
students causing her pain, mental anguish, having to go . . . for
treatment and continued absences from her job.” Construed in the
light most favorable to her, this allegation seems to provide the
explanation the district court was looking for: “why a difference
of ten students would impact Plaintiff’s ability to perform her job
functions.” The counterintuitive placement of this allegation
(about “[t]his failure to accommodate”) at the end of a paragraph
otherwise describing only a year in which Velázquez received full
accommodation may explain why the district court missed it.
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cautioned against thinking of plausibility as a standard of likely
success on the merits; the standard is plausibility assuming the
pleaded facts to be true and read in a plaintiff’s favor. See
Twombly, 550 U.S. at 556 (“Asking for plausible grounds to infer an
agreement does not impose a probability requirement at the pleading
stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of illegal
[conduct].”)
None of this is to deny the wisdom of the old maxim that
after the fact does not necessarily mean caused by the fact, but
its teaching here is not that the inference of causation is
implausible (taking the facts as true), but that it is possible
that other, undisclosed facts may explain the sequence better.
Such a possibility does not negate plausibility, however; it is
simply a reminder that plausibility of allegations may not be
matched by adequacy of evidence. A plausible but inconclusive
inference from pleaded facts will survive a motion to dismiss, and
the fair inferences from the facts pleaded in these cases point to
the essential difference between each of them and the circumstances
in Twombly, for example, in which the same actionable conduct
alleged on the defendant’s part had been held in some prior cases
to be lawful behavior. See Twombly, 550 U.S. at 553-54, 564-69.
We therefore vacate the portion of the order in each case
that found the complaint inadequate to state a Title I violation,
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and inadequate to state a Rehabilitation Act claim for the same
reason. We likewise vacate the order relating to the Commonwealth
law claims, which were dismissed for want of any surviving federal
claim. Costs are taxed against the Department of Education of
Puerto Rico.
So ordered.
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