S.B. Ex Rel. A.L. v. Board of Education , 819 F.3d 69 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1474
S.B., a minor, by and through his Guardian and next friend,
A.L.; T.L., in his own right,
Plaintiffs – Appellants,
and
A.L., in her own right,
Plaintiff,
v.
BOARD OF EDUCATION OF HARFORD COUNTY,
Defendant – Appellee,
and
DR. ROBERT TOMBACK; WILLIAM LAWRENCE; MICHAEL OʹBRIEN,
Defendants.
-----------------------------------------
COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
Amicus Supporting Appellants,
NATIONAL SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF
BOARDS OF EDUCATION,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-01068-JFM)
Argued: January 27, 2016 Decided: April 8, 2016
Before WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge Wynn and Judge Biggs joined.
ARGUED: Martin Jay Cirkiel, CIRKIEL & ASSOCIATES, P.C., Round
Rock, Texas; Tracy Diana Rezvani, REZVANI VOLIN P.C.,
Washington, D.C., for Appellants. Andrew G. Scott, PESSIN KATZ
LAW, P.A., Towson, Maryland, for Appellee. ON BRIEF: Edmund J.
O’Meally, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellee.
Selene Almazan-Altobelli, COUNCIL OF PARENT ATTORNEYS AND
ADVOCATES, INC., Towson, Maryland; Mark B. Martin, LAW OFFICES
OF MARK B. MARTIN, P.A., Baltimore, Maryland, for Amicus Council
of Parent Attorneys and Advocates. Francisco M. Negrόn, Jr.,
General Counsel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,
Virginia, for Amici National School Boards Association and
Maryland Association of Boards of Education.
2
PAMELA HARRIS, Circuit Judge:
This case arises from the student-on-student bullying and
harassment of S.B., a disabled student who attended Aberdeen
High School in Harford County, Maryland. S.B., by and through
his mother, A.L., sued the Harford County Board of Education
(the “Board”), alleging primarily that by allowing other
students to harass S.B. based on his disability, the Board
violated § 504 of the Rehabilitation Act. S.B.’s stepfather,
T.L., a teacher and athletic director at Aberdeen High School,
sued in his own right, claiming that the Board also violated
§ 504 by retaliating against him for advocating on S.B.’s
behalf. 1
After extensive discovery, the district court granted
summary judgment to the Board, holding that there was no record
evidence to support either S.B.’s or T.L.’s claims. And while
we sympathize with students and parents who face school bullying
issues, we agree. S.B. has provided no evidence that the Board
acted with the deliberate indifference necessary to hold it
liable for student-on-student harassment. Nor does the record
substantiate T.L.’s allegation of a causal connection between
his advocacy for S.B. and any adverse action taken by the Board.
Accordingly, we affirm the judgment of the district court.
1
Like the district court, we refer to S.B. and his parents
only by their initials.
3
I.
A.
In reviewing the district court’s grant of summary judgment
to the Board, we present the facts of the case in the light most
favorable to S.B. and T.L., the non-moving parties. See Blake
v. Ross, 787 F.3d 693, 695 (4th Cir. 2015).
S.B. was a student with disabilities such as Attention
Deficit Hyperactivity Disorder, weak visual-spatial ability, and
a nonverbal learning disability. 2 There is no question but that
his years at Aberdeen High School, which he entered in the fall
of 2010, were difficult ones. S.B.’s fellow students often
bullied him, sometimes severely. Some of S.B.’s classmates
insulted him using homophobic slurs. Others sexually harassed
or physically threatened him. And S.B. faced — and sometimes
contributed to — racial tensions with his classmates; in one
significant episode, S.B. responded to three black students who
had been calling him names with a racial epithet and made other
threatening remarks.
S.B. or his parents reported most of these incidents to the
school, and the school, in turn, investigated each reported
2As required by the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1400 et seq., Aberdeen High School
provided S.B. with an Individualized Education Plan and
assembled a team to implement that plan. S.B. has not alleged
that the school failed to meet its obligations under the IDEA.
4
incident. In almost every case, the school disciplined the
offenders, using measures such as student warnings and
conferences, parent phone calls, detentions, and suspensions.
From January 2013 to June 2013, the school also assigned a
school-employed paraeducator to follow S.B. during the school
day, monitoring his safety and acting as an objective witness to
any alleged acts of bullying.
S.B.’s parents were very concerned about the bullying
issues S.B. was confronting at school. Both had close
connections to Aberdeen High School: S.B.’s mother A.L. was a
substitute teacher, and T.L., as noted above, was the school’s
athletic director and a physical education teacher. A.L.
frequently emailed school principal Michael O’Brien about the
bullying of S.B., and O’Brien consistently responded, though not
always to A.L.’s satisfaction.
Eventually, both A.L. and T.L. began publicly criticizing
and questioning the school’s efforts to prevent the harassment
of their son. For instance, in November 2012, A.L. posted her
email conversation with O’Brien on Facebook in order to
publicize her complaints. In the same month, both parents
attended a hearing on whether the school should have suspended
S.B. for using a racial epithet. In April 2013, A.L. and T.L.,
along with S.B., filed the original complaint in this action.
And after filing this suit, T.L. raised concerns at an October
5
2013 parents’ forum about the lack of harassment reporting forms
available at the high school.
At around the same time, the school took several actions
with respect to T.L. that figure in T.L.’s retaliation claim.
In November 2012, O’Brien denied T.L. the opportunity to
complete a practicum for his master’s degree program on-site at
Aberdeen High School. As a result, T.L. instead completed the
practicum at the school district’s central office, working under
the district’s athletic supervisor. In the spring of 2013, the
school failed to give T.L. tickets to a scholarship banquet for
student-athletes. And in April 2013, O’Brien informed T.L. that
T.L. would not be teaching the school’s summer physical
education class that year, though he had taught it for the three
previous years.
Just over a year later, in June 2014, S.B. graduated on
time from Aberdeen High School. During high school, S.B.
consistently achieved passing grades, and in fall 2014, he began
taking classes at Harford Community College.
B.
In their amended complaint against the Board, filed in
July 2013, S.B. and his parents alleged violations of § 504 of
the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq.; and 42 U.S.C. §§ 1983 and 1985. The gist of all of those
6
claims was that the defendants had discriminated against S.B.
based on his disability, primarily by failing to prevent
student-on-student bullying and harassment, and retaliated
against S.B.’s parents when they sought to remedy that
discrimination.
The focus of the case was narrowed in the district court.
First, in September 2013, the district court granted in part the
Board’s motion to dismiss, dismissing from the suit all
individual defendants and S.B.’s claims under §§ 1983 and 1985.
Subsequently, A.L. voluntarily dismissed her retaliation claims.
That left the claims that are before us now: S.B.’s claim of
disability-based discrimination under § 504 and the ADA, and
T.L.’s claim of retaliation under § 504.
The district court denied the Board’s motion to dismiss on
those claims, allowing the parties to move forward to discovery.
But the court was skeptical that the claims could succeed,
expressing doubt that S.B. could establish that the Board had
discriminated against him by acting with “deliberate
indifference” to student-on-student bullying, or that T.L. could
show that the Board had retaliated against him because of his
advocacy on behalf of S.B. Memo to Counsel, S.B. v. Bd. of
Educ. of Harford Cty., No. 1:13-cv-1068-JFM, ECF. No. 35 (D. Md.
Sept. 30, 2013); J.A. 114.
7
After substantial discovery, in April 2015 the district
court granted summary judgment to the Board. According to the
district court, its initial skepticism “proved to be well-
founded.” S.B. v. Bd. of Educ. of Harford Cty., 1:13-cv-1068-
JFM, slip op. at 1 (D. Md. Apr. 17, 2015) (“District Court
Decision”); J.A. 2389. The court observed that “[d]espite the
extensive discovery that has been taken and the voluminous
papers that have been filed, it is now clear that the action is
a frivolous one.” Id. at 1–2.
Specifically, regarding S.B.’s claim of disability-based
discrimination, the district court first found that “it is not
at all clear that any harassment directed toward [S.B.] was on
account of his disability.” Id. at 2. But the district court
rested its decision on a different ground: that there was
“absolutely no evidence” in the record that the Board had
discriminated against S.B. by acting with “bad faith, gross
misjudgment or deliberate indifference in responding to”
student-on-student harassment. Id. Instead, the record showed
that the “Board investigated every harassment claim against S.B.
brought to its attention and assigned a person to be with S.B.
throughout the school.” Id. As to T.L.’s retaliation claim,
the district court concluded that there was “no evidence
whatsoever” of a causal link between T.L.’s advocacy of S.B.’s
rights and any action taken by the Board. Id.
8
S.B. and T.L. timely appealed the district court’s
judgment.
II.
We review the district court’s grant of summary judgment de
novo. Summary judgment is appropriate “when ‘there is no
genuine dispute as to any material fact and the movant is
entitled to [] judgment as a matter of law.’” Dash v.
Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (quoting Fed. R.
Civ. P. 56(a)). We view the facts in the light most favorable
to S.B. and T.L. as the non-moving parties and draw all
reasonable inferences in their favor. Blake, 787 F.3d at 695.
But if “no reasonable jury could find for the nonmoving party on
the evidence before it,” then we will affirm the grant of
summary judgment. Perini Corp. v. Perini Constr., Inc., 915
F.2d 121, 124 (4th Cir. 1990).
A.
We begin with S.B.’s claim that the Board discriminated
against him based on his disability in violation of § 504 of the
Rehabilitation Act. Section 504 provides that “[n]o 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
9
financial assistance.” 29 U.S.C. § 794(a). According to S.B.,
he was subjected for years to sustained and pervasive student-
on-student harassment and bullying based on his disability, and
by failing to prevent that harassment, the Board itself engaged
in disability-based discrimination prohibited by § 504. 3
1.
The Supreme Court addressed a very similar claim in Davis
v. Monroe County Board of Education, 526 U.S. 629 (1999), a
student-on-student sexual harassment case brought under Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681(a). Like
§ 504, Title IX is what is known as Spending Clause legislation,
applying to schools and educational programs that receive
federal funds; and much like § 504, Title IX provides that no
person “shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination” in a federally funded program. Id. Given that
3 S.B. also refers on appeal, though only briefly, to his
distinct claim under the ADA. Though his argument is not
entirely clear, S.B. appears to take the position that the Board
engaged in disability-based discrimination under the ADA by
failing to supplement its anti-bullying policy with a special
policy tailored to the needs of disabled students. S.B. cites
no case law in support of such a duty, and we decline to hold
that a school discriminates on the basis of disability unless it
establishes a second and separate anti-bullying policy specific
to disabled students.
10
statutory structure, the Court held in Davis, a school could be
liable in damages for student-on-student sexual harassment only
if it was “deliberately indifferent” to known acts of such
harassment. 526 U.S. at 642, 649.
The Court started with the well-established rule that
recipients of federal funds must have adequate notice that they
may be liable for certain conduct before a private damages
action will be allowed. Id. at 640. It followed, the Court
concluded, that schools may not be held liable under Title IX
for the misconduct of their students, but only for their “own
decision to remain idle in the face of known student-on-student
harassment,” id. at 641 (emphasis in original) — “intentional
conduct that violates the clear terms of the statute,” id. at
642. A negligent failure to learn of or react to its students’
independent actions, in other words, will not subject a school
to liability, but “deliberate indifference to known acts of
harassment” will. Id. at 642–43.
Like most of the federal courts to consider the question,
we think it clear that the same reasoning applies to § 504
claims arising from student-on-student harassment or bullying.
See, e.g., Estate of Lance v. Lewisville Indep. Sch. Dist., 743
F.3d 982, 995–96 (5th Cir. 2014) (citing cases from other
circuits); S.S. v. E. Ky. Univ., 532 F.3d 445, 454 (6th Cir.
2008) (citing cases from district courts). As noted above,
11
§ 504, like Title IX, is Spending Clause legislation, which
means that fund recipients must be on notice that they could be
liable for student-on-student wrongdoing — a condition satisfied
by intentional and official conduct in the form of “deliberate
indifference.” See Davis, 526 U.S. at 640–42. And § 504’s
operative language is strikingly similar to Title IX’s,
prohibiting the same “exclu[sion] from participation,” “deni[al]
of benefits,” and “discrimination” in federally funded programs.
See Lance, 743 F.3d at 996 (noting similarities in wording of
§ 504 and Title IX). Given these parallels, it plainly follows
from Davis that § 504 claims predicated on student-on-student
harassment, like their Title IX counterparts, require a showing
of deliberate indifference on the part of the funding recipient.
S.B. argues that our circuit has adopted a different
standard by holding in Sellers v. School Board of City of
Manassas, 141 F.3d 524, 529 (4th Cir. 1998), that a school may
be liable for damages under § 504 if it acts with “bad faith or
gross misjudgment.” And we note that the district court, likely
in an excess of caution, applied the “bad faith or gross
misjudgment” standard as well as the “deliberate indifference”
standard and held that S.B. could satisfy neither. See District
Court Decision at 2. But the Sellers standard does not govern
this case, because Sellers did not involve school liability for
student-on-student misconduct. Instead, Sellers presented a
12
straightforward claim that a school’s own direct conduct — an
alleged failure to provide a free appropriate public education
under the Individuals with Disabilities Education Act (“IDEA”) —
constituted § 504 discrimination, and held only that “bad faith
or gross misjudgment” was required “in the context of education
of handicapped children” to turn an IDEA violation into § 504
discrimination. Sellers, 141 F.3d at 529. 4 To resolve the
distinct issues implicated by school liability arising from
student misconduct, we are guided not by Sellers but by Davis,
which addressed those issues directly.
2.
In the § 504 context, the Davis deliberate indifference
standard requires a plaintiff like S.B. to show that he was an
individual with a disability, harassed by fellow students based
on his disability; that the disability-based harassment was
sufficiently “severe, pervasive, and objectively offensive” that
it effectively deprived him of “access to educational benefits
and opportunities” at school, Davis, 526 U.S. at 650; and that
the school knew about the disability-based student-on-student
4
We took the same view of Sellers in Shirey ex rel. Kyger
v. City of Alexandria Sch. Bd., 229 F.3d 1143, 2000 WL 1198054,
at *4 (4th Cir. 2000) (unpublished table decision), explaining
that Sellers “adopted the heightened standard of ‘bad faith or
gross misjudgment’ for proving discrimination in the specific
context of developing appropriate [Individualized Education
Plans] for disabled children” under the IDEA.
13
harassment and was deliberately indifferent to it. See Lance,
743 F.3d at 996; S.S., 532 F.3d at 454; cf. Davis, 526 U.S. at
649–50 (same under Title IX). Like the district court, we
conclude that on the record evidence in this case, no reasonable
jury could find that S.B. has made the necessary showing.
The district court held first that “it is not at all clear”
that S.B. could establish that the student-on-student bullying
he suffered and reported to the school was based on his
disability, as required for a violation of § 504. District
Court Decision at 2. We agree with that assessment. Read most
generously to S.B., the record contains, at best, only the
slightest of evidence that S.B. was harassed because of his
disability, mostly in the form of S.B.’s self-serving affidavit.
Instead, as the Board argues, S.B’s own evidentiary submissions
strongly suggest that S.B. most often was the victim (and
sometimes the perpetrator) of race-based bullying and slurs —
conduct that is deplorable and damaging in its own right, but
cannot give rise to § 504 liability.
Moreover, though there is no question but that the school
was on notice that S.B. was being bullied, there is very much a
question as to whether the school knew of any disability-based
bullying, as would be required for S.B. to prevail under the
Davis standard. Even assuming that S.B. was on occasion
harassed because of his disability, none of the email
14
communications or harassment reports filed by S.B. or his
parents and included in the record informed the school of that
fact. S.B. argues that the school should have known, by way of
investigation, that the harassment of which he complained was
based on his disability — but the Supreme Court rejected
precisely that negligence standard in Davis, 526 U.S. at 642
(declining to impose liability under “what amount[s] to a
negligence standard” for failure to respond to harassment of
which a school “knew or should have known” (emphasis in
original)), and we cannot employ it here.
In any event, and like the district court, we find that
whatever the nature of the harassment directed at S.B., there is
no record evidence suggesting that the Board responded to it
with the deliberate indifference required by Davis. See
District Court Decision at 2. Davis sets the bar high for
deliberate indifference. The point, again, is that a school may
not be held liable under Title IX or § 504 for what its students
do, but only for what is effectively “an official decision by
[the school] not to remedy” student-on-student harassment. 526
U.S. at 642. Thus, it is not enough that a school has failed to
eliminate student-on-student harassment, or to impose the
disciplinary sanctions sought by a victim. Id. at 648; see
Lance, 743 F.3d at 996 (under Davis standard, “[s]ection 504
does not require that schools eradicate each instance of
15
bullying from their hallways to avoid liability”). Instead, a
school will be liable for student-on-student harassment only
where its “response . . . or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis, 526
U.S. at 648.
Without making any effort to tie his argument to the
record, S.B. asserts generally that the Board either did nothing
in response to repeated complaints about the bullying he
confronted, or failed to investigate and address those
complaints in a meaningful way. 5 But the record is squarely to
the contrary. First, the record shows conclusively that the
school in fact investigated every single incident of alleged
harassment of which it was informed by S.B. or his parents. And
in nearly every case, the school disciplined offenders with
measures ranging from parent phone calls to detentions to
suspensions. Finally, as the district court emphasized, from
January 2013 to June 2013, the school assigned a paraeducator —
a school professional who works with students — to accompany
5In the fact section of his brief, S.B. alleges generally
that, with two exceptions, “no formal disciplinary or other
remedial action[] was taken against students who bullied S.B.”
Appellants’ Br. at 26. That claim is flatly belied by the
record, which contains evidence of numerous disciplinary actions
beyond the two noted by S.B. See, e.g., J.A. 1797 (parent phone
call and letter, student conference and warning, detention);
J.A. 1816 (parent phone call and letter, student conference);
J.A. 1870 (student conference and warning).
16
S.B. during the school day to ensure S.B.’s safety as well as to
provide objective witness to alleged acts of bullying.
There is no “decision to remain idle” on this record — no
“official decision by [the school] not to remedy” known student-
on-student harassment. See Davis, 526 U.S. at 641–42. That is
not to say, of course, that only a complete failure to act can
constitute deliberate indifference, or that any half-hearted
investigation or remedial action will suffice to shield a school
from liability. Where, for instance, a school has knowledge
that a series of “verbal reprimands” is leaving student-on-
student harassment unchecked, then its failure to do more may
amount to deliberate indifference under Davis. Patterson v.
Hudson Area Schs., 551 F.3d 438, 448–49 (6th Cir. 2009); see
also Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70
(2d Cir. 2012) (school response to student-on-student harassment
may be unreasonable where school “dragged its feet” before
implementing “little more than half-hearted measures”). But
school administrators are entitled to substantial deference when
they calibrate a disciplinary response to student-on-student
bullying or harassment, see Davis, 526 U.S. at 648; Lance, 743
F.3d at 996–97, and a school’s actions do not become “clearly
unreasonable” simply because a victim or his parents advocated
for stronger remedial measures, Zeno, 702 F.3d at 666. In this
case, no reasonable juror could find that the school was less
17
than fully engaged with S.B.’s problems, using escalating
disciplinary sanctions to punish and deter student-on-student
harassment and taking other protective measures on S.B.’s
behalf. Accordingly, as the district court held, S.B. simply
cannot make out a case of deliberate indifference under Davis.
B.
We now turn to T.L.’s retaliation claim under § 504, which
we can dispense with more briefly. Absent direct evidence of
retaliation, T.L. may proceed under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), making a prima facie case of retaliation by showing
(1) that he engaged in protected activity, (2) that the Board
took an adverse action against him, and (3) that the adverse
action was causally connected to his protected activity. See
Rhoads v. F.D.I.C., 257 F.3d 373, 392 (4th Cir. 2001) (ADA
retaliation claim). 6 If T.L. can meet this burden, then the
Board must articulate a “legitimate nonretaliatory reason for
its actions,” at which point the burden shifts back to T.L. to
6
As the parties agree, retaliation claims under § 504 are
subject to the same standard as ADA retaliation claims. See
Lyons v. Shinseki, 454 F. App’x 181, 182, 184 (4th Cir. 2011)
(per curiam) (unpublished) (applying same standard to ADA and
§ 504 retaliation claims); Myers v. Hose, 50 F.3d 278, 281 (4th
Cir. 1995) (noting that “the substantive standards for
determining liability are the same” under the Rehabilitation Act
and the ADA); see also Reinhardt v. Albuquerque Pub. Schs. Bd.
of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010).
18
“demonstrate that the proffered reason is a pretext for
forbidden retaliation.” Id.
The Board does not dispute that T.L. advocated on behalf of
S.B., a disabled student, and thus engaged in protected activity
for purposes of a retaliation claim. And although the Board
does contest the second element of the analysis, we think it
clear that one of the actions identified by T.L. — the decision
not to rehire T.L. to teach the summer physical education class
he had taught for three previous years — amounted to the kind of
“materially adverse” action that can give rise to a retaliation
claim. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (Title VII retaliation claim); Rhoads, 257 F.3d at
391 (applying Title VII retaliation standards to ADA retaliation
claim). Even if, as the Board argues, T.L. did not have a
legally cognizable “expectation of continued employment” as a
summer teacher, Appellee’s Br. at 55, the loss of a summer job
and wages that had been available for the past three years “well
might” be enough to “dissuade[] a reasonable worker from making
or supporting a charge of discrimination,” and that is enough to
satisfy the “materially adverse” standard. Burlington, 548 U.S.
at 54; see Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., 595
F.3d 1126, 1133 (10th Cir. 2010) (loss of salary customarily
19
received for usual extended contract may constitute materially
adverse action). 7
Like the district court, however, we think the Board
nevertheless was entitled to summary judgment because no
reasonable jury could find the necessary causal connection
between the Board’s adverse action and T.L.’s protected
activity. The Board has come forward with a legitimate and
plausible nonretaliatory reason for its decision: According to
school principal O’Brien, because of the number of female
students enrolled in the summer physical education class, he
concluded that the class should be taught by one female and one
male teacher, and he selected a male teacher who had more
experience than T.L. in teaching physical education. And the
next year, when O’Brien needed an additional teacher for the
summer of 2014, he chose T.L. for the slot. The burden now
shifts to T.L. to demonstrate that this explanation is
pretextual, and that the decision to hire the more experienced
teacher in 2013 in fact was causally linked to his protected
7
T.L. complains of two additional actions by the Board:
first, the Board’s failure to provide him with tickets to a
student-athlete scholarship banquet; and second, the Board’s
decision that he could not complete his practicum at Aberdeen
High School, which required him to complete it at the school
district’s central office instead. Viewing the related facts in
the light most favorable to T.L., we are convinced that neither
of those actions rises to the level of “materially adverse.”
See Burlington, 548 U.S. at 68 (“trivial harms” and “minor
annoyances” are not actionable in a retaliation claim).
20
activity. But there simply is no record evidence to support
that proposition. While the temporal proximity between T.L.’s
protected activity and the reassignment of the summer teaching
job may be sufficient to make an initial prima facie showing of
causation, see Jacobs v. N.C. Admin. Office of the Courts, 780
F.3d 562, 579 (4th Cir. 2015), timing alone generally cannot
defeat summary judgment once an employer has offered a
convincing, nonretaliatory explanation. See Pinkerton v. Colo.
Dep’t of Transp., 563 F.3d 1052, 1066 (10th Cir. 2009). Without
more than his own assertions, T.L. cannot meet his burden at
summary judgment. See Haulbrook v. Michelin N. Am., Inc., 252
F.3d 696, 705–06 (4th Cir. 2001) (rejecting plaintiff’s
retaliation claim at summary judgment because no reasonable jury
could find the employer’s explanation pretextual). 8
III.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED
8
S.B. and T.L. also appeal the denial of their motion for
sanctions based on alleged spoliation of evidence by the Board,
and argue that the district court erred in ignoring certain
evidentiary objections. We find no error in the district
court’s ruling on spoliation, and our decision today relies on
none of the evidence to which S.B. and T.L. object.
21