K.H. v. Antioch Unified School District ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 K.H., a minor, by and through his Guardian ad Litem MARTARICE HUMPHREY, 11 No. C 18-07716 WHA Plaintiff, 12 ORDER GRANTING ANTIOCH v. UNIFIED SCHOOL DISTRICT'S 13 MOTION FOR SUMMARY ANTIOCH UNIFIED SCHOOL DISTRICT, a JUDGMENT AND CERTIFYING 14 public entity; CATAPULT LEARNING WEST, ISSUE UNDER 28 U.S.C. § 1292(b) LLC, a limited liability company dba Sierra 15 School of Antioch; SAMUEL MCBRIDE, an individual; JONIQUE ANDREWS, an individual; 16 BRUNO DIAZ, an individual; CORY MOORE, an individual; RUTH RUBALCAVA, an 17 individual; STEPHANIE ANELLO, an individual; and DOES 1 through 50, inclusive, 18 Defendants. 19 20 21 INTRODUCTION 22 In this action for the mistreatment of a student under the Americans with Disabilities and 23 Rehabilitation Acts, the defendant school district moves for summary judgment. Because a 24 school district is not liable for the wrongdoing of its contractors or employees absent advance 25 notice to a person of authority, the motion is GRANTED. 26 STATEMENT 27 Prior orders set out the facts of this case (Dkt. No. 58). In brief, plaintiff is a child with a 1 operated by defendant Catapult Learning West, LLC. On December 12, 2017, plaintiff left his 2 classroom, with teacher permission. Finding plaintiff out of class, teacher aides Jonique 3 Andrews and Samuel McBride allegedly grabbed plaintiff and dragged him back into the 4 classroom. In forcing the 14-year-old back into his seat they held his hands behind his back, 5 held him by the back of his neck, slammed him into the floor (hitting his head on a desk in the 6 process), and placed him in a two-person pro-act prone restraint, or so it is alleged. Plaintiff left 7 with a gash under his eye, a split lip, and bleeding gums (Dkt. Nos. 58 at 1–2, 74 at 3). The 8 school district now faces civil claims under the ADA and Section 504 of the Rehabilitation Act. 9 ANALYSIS 10 Assuming without concluding that Andrews and McBride acted as alleged, the school 11 district raises the issue whether it can be held liable under a theory of respondeat superior in 12 absence of notice to a person of authority, an issue of first impression under the ADA and 13 Section 504. No binding precedent squarely addresses this point and the two relevant lines of 14 precedent are two ships passing in the night — they diverge, seemingly without knowledge of 15 each other. Reconciling these lines of authority, however, requires holding that respondeat 16 superior under the ADA and Section 504 remains viable but only after prior notice to a person 17 of authority. 18 Our court of appeals first applied respondeat superior to a Section 504 claim in Bonner v. 19 Lewis, 857 F.2d 559 (9th Cir. 1988). It reasoned that because Department of Justice 20 enforcement of the Rehabilitation Act targeted the entity, not the wrongful employee, the Act 21 contemplated respondeat superior liability. It also explained that Monell v. New York 22 Department of Social Services, which bars respondeat superior for Section 1983 claims, stood 23 as an exception to the general rule that “respondeat superior applies” to civil rights actions. 24 Our court of appeals held “[t]he application of respondeat superior to § 504 suits would be 25 entirely consistent with the policy of that statute, which is to eliminate discrimination against 26 the [disabled.]” Id. at 566–67. 27 In Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001), our court of appeals 1 Rehabilitation Act or Title II of the ADA against a municipality (including a county), the public 2 entity is liable for the vicarious acts of its employees.” And, as recently as 2019 in United 3 States v. Town of Colorado City, our court of appeals has reaffirmed both Bonner and Duvall: 4 Monell’s holding remains the exception to the general rule. We have declined to bar respondeat superior in other contexts. In Bonner, for 5 example, we held that respondeat superior liability applies to claims pursuant to § 504 of the Rehabilitation Act of 1973 because the 6 application of respondeat superior is entirely consistent with the policy of that statute, which is to eliminate discrimination against the 7 handicapped. And, in Duval v. County of Kitsap, we held that respondeat superior liability applies to claims brought pursuant to 8 Title II of the Americans with Disabilities Act. 9 935 F.3d 804, 808–09 (9th Cir. 2019) (citations and quotations omitted). 10 But a parallel line of cases appears to undercut the application of simple respondeat 11 superior to ADA and Section 504 claims. The line began under Title IX of the Education 12 Amendments of 1972. In Gebser v. Lago Vista Independent School District, the Supreme Court 13 “conclude[d] that it would frustrate the purpose of Title IX to permit a damages recovery 14 against a school district for a teacher’s sexual harassment of a student based on principles of 15 respondeat superior or constructive notice, i.e., without actual notice to a school district 16 official.” The Supreme Court reached this conclusion after explaining that “[Title IX] was 17 modeled after Title VI of the Civil Rights Act of 1964.” 524 U.S. 274, 285–86 (1998) 18 (quotation marks omitted). 19 Later in 1998, our court of appeals then applied Gebser in Ferguson v. City of Phoenix, 20 holding “compensatory damages are not available under Title II [of the ADA] or § 504 absent a 21 showing of discriminatory intent” and explaining that “the remedies for violations of the ADA 22 and the Rehabilitation Act are coextensive with each other and are linked to Title VI of the Civil 23 Rights Act of 1964.” See 157 F.3d 668, 673–74 (9th Cir. 1998) (citations omitted). The clear 24 implication was that if Title IX limits respondeat superior, so must Title VI, and so must the 25 ADA and Section 504. In Lovell v. Chandler, our court of appeals came close to so holding: 26 “The Supreme Court has said that the purpose of requiring proof of intent as a prerequisite for 27 the recovery of monetary damages from a public entity is to ensure that the entity had 1 Neither of these more recent circuit cases involved respondeat superior. In Ferguson, 2 “the City’s liability ar[ose] from its own acts and official policies.” 157 F.3d at 677 (Tashima, 3 J., dissenting). And in Lovell, state policy supported direct liability. 303 F.3d at 1057. So, 4 though appearing to incorporate Gebser, neither case involved respondeat superior or was 5 squarely on point. It remains curious that our court of appeals in Colorado City discussed, and 6 explicitly reaffirmed, Bonner and Duvall without addressing Gebser, Ferguson, or Lovell. But, 7 upon review of the briefing and oral argument in that appeal, it seems counsel therein didn’t 8 inform the panel that another ship was passing in the night.* 9 Taking in the broader legal landscape, the Court of Appeals for the First Circuit, in 10 surveying other circuits, recently stated “[w]hether the rationale of Gebser should be extended 11 to insulate public entities from liability under Title II of the ADA on a theory of respondeat 12 superior is an open question.” Gray v. Cummings, 917 F.3d 1, 17 (1st Cir. 2019). 13 In one final attempt to resolve this open question, plaintiff appeals to Castle v. Eurofresh 14 where our court of appeals held that public entities “may not contract away their obligation to 15 comply with federal discrimination laws.” 731 F.3d 901, 910 (9th Cir. 2013). This holding 16 only overcomes the fact that Andrews and McBride were employed by a contractor, Sierra 17 School, and not the school directly. Respondeat superior may not differentiate between 18 contractors and employees under the ADA and Section 504, but the question remains whether 19 advance notice to a person of authority is required. 20 This order now holds that respondeat superior still applies in the ADA and Section 504 21 contexts but only if the district had advance notice of the problem. This seems to be the best, 22 most harmonious reconciliation of both lines of cases. 23 Despite ample opportunity for discovery, plaintiff presents no evidence that AUSD had 24 notice of the harm, or risk of harm, to plaintiff. Rather, following the primary dispute addressed 25 above, plaintiff’s opposition merely details Andrews and McBride’s deliberate indifference 26 27 * The lone “see also Gebser” cite (in the city’s reply) only contrasted Titles IX (of the Education 1 (Dkt. No. 106 at 15-16). But it remains uncontested that Andrews and McBride held no 2 authority at the Sierra School. Their actions, without notice to someone of authority at AUSD, 3 cannot support respondeat superior liability against AUSD. Thus, plaintiff's ADA and Section 4 504 claims against AUSD are foreclosed as a matter of law. 5 CONCLUSION 6 Because plaintiff fails to provide evidence of notice to AUSD, required to impose 7 respondeat superior liability under the ADA and Section 504, its motion for summary judgment 8 is GRANTED. But, because this order decides a controlling question of law and there is 9 substantial ground for difference of opinion between two diverging lines of precedent, this order 10 is CERTIFIED FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b). Plaintiffs state law 11 claims against AUSD remain and, as noted at the December 19 hearing, the parties have until 12 February 21 to file motions for summary judgment on those claims. IT IS SO ORDERED. 16 Dated: January 21, 2020. 18 LAC [> bee LIAM ALSUP 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28