J. v. v. Albuquerque Public Schools

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 19, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
J. V. and M. Q., on behalf of their minor
child C. V.,
Plaintiffs - Appellants,
v. No. 15-2071
ALBUQUERQUE PUBLIC SCHOOLS,
Defendant - Appellee.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:13-CV-01204-MV-KBM)
_________________________________
Joseph P. Kennedy (Michael L. Timm, Jr., with him on the briefs), Kennedy Kennedy &
Ives, LLC, Albuquerque, New Mexico, appearing for Appellants.
Emil J. Kiehne (Jennifer G. Anderson and Megan T. Muirhead, with him on the brief),
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, appearing for
Appellees.
_________________________________
Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
When C.V. was a seven-year-old second grade student at an elementary school
operated by Albuquerque Public Schools (“APS”), he was eligible for special education
benefits for autism. During two hours on the morning of November 14, 2011, C.V.
disrupted his class, ran away from APS staff, kicked an APS social worker, and kicked
and shot rubber bands at APS School Security Officer Xiomara Sanchez. To protect C.V.
and others, Officer Sanchez handcuffed him to a chair. Before doing so, Officer Sanchez
had called C.V.’s mother, who granted permission to restrain him, and repeatedly warned
C.V. to calm down. Officer Sanchez was unaware of C.V.’s disability.
C.V.’s parents (“Appellants”) sued under Title II of the Americans with
Disabilities Act (“ADA”), claiming APS denied C.V. a protected benefit and
discriminated against him. The district court granted summary judgment to APS.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
In 2011, C.V. attended Mary Ann Binford Elementary School in Albuquerque. He
weighed approximately 50 pounds and was four feet one inch tall. His second-grade
teacher, Paula Gutshall, was assisted by Ms. Trujillo.
During the previous year, his mother, M.Q., worked with Ms. Gutshall and an
APS social worker, Maria Martinez, to develop a Behavioral Intervention Plan (“BIP”),
which outlined strategies for correcting aspects of C.V.’s behavior. It did not include a
physical restraint strategy. C.V. was tested and determined to be eligible for special
education services for autism and for being gifted. It is undisputed that C.V.’s autism
qualifies him as disabled under the ADA.
On the morning of November 14, 2011, Ms. Trujillo told Ms. Martinez that C.V.
had been disrupting class and misbehaving. Ms. Martinez offered to take C.V. to her
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classroom. While in Ms. Martinez’s classroom, C.V. continued to act out—hitting toys
and throwing his shoes at her. Ms. Martinez called the assistant principal, Misti Miller,
for help. Ms. Miller asked Ms. Martinez to bring C.V. to the principal’s office. Before
they reached the office, C.V. ran away from Ms. Martinez.
Ms. Martinez and Ms. Miller attempted to locate C.V. to keep him from leaving
campus. Ms. Martinez also attempted to call C.V.’s mother so she could come to the
school and help calm C.V. Ms. Martinez left several messages between 11:15 and 11:30
a.m., but was unable to reach M.Q. She was able to reach C.V.’s father, but he refused to
come to the school because he was busy at work.
C.V. ran into the school nurse’s office, where he locked himself in a bathroom.
He next ran out of the nurse’s office and into the cafeteria. At approximately 12:15 p.m.,
Officer Sanchez, an APS security officer, was dispatched to the school based on a report
that a child was out of control. The record does not indicate who called APS and made
this report. When she first arrived at the school, Officer Sanchez met with the principal
and assistant principal, who informed her C.V. had been running around the school and
causing problems since approximately 10:30 a.m.
The principal, Cecilia Sanchez, escorted Officer Sanchez to the cafeteria. When
C.V. saw the principal and Officer Sanchez, he ran away. Officer Sanchez went to the
school office to call C.V.’s parents. She first spoke with C.V.’s father, who said he was
at the airport and unable to come to the school until after 2:30 p.m. He told Officer
Sanchez to call C.V.’s mother.
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Officer Sanchez reached C.V.’s mother, M.Q. Officer Sanchez identified herself
as “school security,” and informed M.Q. that she needed to pick C.V. up from school.
Aplt. App. at 141. M.Q. said she would come, but it would take approximately 30
minutes because she first needed to pick up her younger son from preschool. Officer
Sanchez asked M.Q. for permission to restrain C.V. M.Q. responded, “Yes.” Id. at 141.
M.Q. apparently did not understand that Officer Sanchez was seeking permission to
handcuff C.V. Rather, she thought that a trained member of C.V.’s behavioral
intervention team would hug or hold him to calm him down.
C.V. was ultimately led to a room, Room 127. When Officer Sanchez arrived at
Room 127, C.V. charged at her and attempted to run out of the room. Officer Sanchez
blocked the door to prevent C.V. from leaving. C.V. kicked his legs and swung his arms
to knock items off of the desks in the room. He also pulled computer power cables out of
the wall sockets. Ms. Martinez approached C.V. and asked him to stop because he was in
danger of harming himself. C.V. started swinging a power cord at Ms. Martinez in an
attempt to hit her. He then lay on his back and kicked Ms. Martinez. He made contact
with her several times, causing her to experience pain.
When Officer Sanchez would not let him leave the room, C.V. kicked her in the
shin. Officer Sanchez repeatedly said, “You’re not going out.” Id. at 131. C.V.
continued to move around. He finally sat on the floor with his legs crisscrossed, which
Ms. Martinez considered to be safe. At this point, the phone rang, and someone told Ms.
Martinez that C.V.’s mother had arrived at the school.
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Ms. Martinez then heard Officer Sanchez say, “Don’t do that,” and looked up to
see C.V. playing with a rubber band. Id. at 132. Officer Sanchez said, “Don’t do that,
[C.V.]. Give me the rubber band.” Id. C.V. was pointing the rubber band at Officer
Sanchez’s face. He shot it at her and hit her somewhere in the knee. Officer Sanchez
told him not to do it again. He shot it again and hit her in the chest. C.V. crawled over to
retrieve the rubber band.
Officer Sanchez stepped on the rubber band to prevent C.V. from shooting it a
third time. C.V. then began tugging Sanchez’s leg in an attempt to take the rubber band.
When he could not retrieve it, C.V. started to kick Officer Sanchez.1 Officer Sanchez
warned C.V. if he did not stop, she would place him in handcuffs.
1
Appellants dispute that C.V. kicked Officer Sanchez after he was unable to
retrieve the rubber band. They rely on Ms. Martinez’s deposition testimony in which she
did not clearly state that C.V. kicked Officer Sanchez before Officer Sanchez handcuffed
him. Ms. Martinez’s signed affidavit states the following:
C.V. then began to shoot rubber bands at Officer Sanchez. Officer Sanchez
warned C.V. several times to stop shooting rubber bands at her. C.V. then
began to kick Officer Sanchez in the legs. Officer Sanchez warned C.V. to
stop kicking or he would be placed in handcuffs.
Id. at 66-67.
In her deposition testimony, Ms. Martinez omitted this portion of the events but
did state that C.V. was “[k]icking and kicking and kicking, and [Officer Sanchez] is
standing with him and she is getting her handcuffs out and he is kicking and kicking and
kicking.” Id. at 135. In light of this testimony and the sworn affidavit, the district court
correctly determined it was undisputed that C.V. kicked Officer Sanchez before she
handcuffed him. But even if C.V. did not kick Officer Sanchez right before she
handcuffed him, this would have no effect on the outcome of the case, as explained
below.
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C.V. ignored Officer Sanchez’s warning. Officer Sanchez said, “[C.V.], what did
I just tell you? Get over here and sit down.” Id. at 134. C.V. got up and, according to
Ms. Martinez, “was wiggly and wiggly.” Id. When C.V. continued to kick and
attempted to get off of the chair, Officer Sanchez handcuffed him. Id. at 135. Officer
Sanchez double locked the handcuffs to prevent them from tightening. She ensured there
was a thumb-width of space, or approximately one inch, between the handcuffs and
C.V.’s wrist.
C.V. stood up in the chair and then sat back down while yelling he wanted the
handcuffs removed. Officer Sanchez advised C.V. if he sat in the chair and settled down,
she would immediately take off the handcuffs. C.V. stood up several more times and at
one point dragged the chair towards Officer Sanchez and tried to kick her. C.V.
continued to kick and struggle while in the handcuffs.
After approximately 15 minutes, APS Officer Villonez arrived. C.V. was
struggling and kicking. C.V. stood up and seemed like he was going to charge at Officer
Villonez, who ordered C.V. to sit and calm down.
Approximately 30 seconds later, M.Q. entered the room. She demanded that
Officer Sanchez remove the handcuffs. She took photographs with her cell phone.
Officer Sanchez removed the handcuffs. There were welts and scratches on C.V.’s wrists
where the handcuffs had cut into him as he struggled. He had been crying.
Before leaving the premises, C.V.’s mother withdrew him from the school. Since
this incident, C.V. has not been able to drive by the school or enter the school parking lot
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without throwing up. For the remainder of the 2011 to 2012 school year, C.V. attended
Los Ranchos Elementary School, another APS school.
B. Procedural History
In 2013, Appellants sued APS under the ADA for (1) denial of a benefit (access to
education) and (2) discrimination against C.V., both based on his disability. They
pursued three discrimination theories: (1) intentional discrimination, (2) disparate
impact, and (3) failure to provide a reasonable accommodation.
The district court granted summary judgment to APS. On the denial of benefit
claim, the court granted summary judgment because C.V.’s mother—not APS—withdrew
C.V. from the school, and C.V. attended a different school in the same school district.
On the discrimination claim, the court said the Appellants provided no evidence of
intentional discrimination, disparate impact, or a request or an obvious need for a
reasonable accommodation.
II. DISCUSSION
We affirm summary judgment on both ADA claims because Appellants failed to
show that APS or any of its staff took action against C.V. by reason of his disability.
Appellants have not otherwise shown a triable issue as to whether APS denied C.V.
access to education or that APS intentionally discriminated against C.V., implemented
policies that imposed a disparate impact on disabled students, or failed to act on a request
or obvious need for a reasonable accommodation.
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A. Standard of Review at Summary Judgment
We review a grant of summary judgment de novo. Osborne v. Baxter Healthcare
Corp., 798 F.3d 1260, 1266 (10th Cir. 2015). “The court shall grant summary judgment
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). An issue is
genuine “if there is sufficient evidence on each side so that a rational trier of fact could
resolve the issue either way.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)
(quotations omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue of fact is material “if under the substantive law it is essential to the proper
disposition of the claim.” Becker, 709 F.3d at 1022 (quotations omitted); see Anderson,
477 U.S. at 248.
B. ADA Background
Title II of the ADA states, “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. To have a viable claim, a plaintiff must prove:
(1) that he or she is a qualified individual with a disability;
(2) that he or she was either excluded from participation in or denied the
benefits of some public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and
(3) that such exclusion, denial of benefits, or discrimination was by reason
of the plaintiff’s disability.
Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999) (quotations and brackets
omitted). Based on the second element, courts have recognized two types of claims:
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(1) exclusion from or denial of benefits and (2) discrimination. Id. Appellants allege
both. Both require proof of the foregoing three elements, including proof that any denial
of benefits or discrimination was “by reason of the plaintiff’s disability.” Id.
Courts have recognized three ways to establish a discrimination claim:
(1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure
to make a reasonable accommodation. See Cinnamon Hills Youth Crisis Ctr., Inc. v.
Saint George City, 685 F.3d 917, 919 (10th Cir. 2012); Tsombanidis v. W. Haven Fire
Dep’t, 352 F.3d 565, 573 (2d Cir. 2003).
We recently applied Title II to an officer’s response to a disabled student’s
conduct in J.H. ex rel. J.P. v. Bernalillo County, 806 F.3d 1255 (10th Cir. 2015). In that
case, an officer arrested an eleven-year-old student in a special needs class for kicking a
teacher. 806 F.3d at 1256-57. We said that a Title II plaintiff must show a defendant
acted “by reason of an individual’s disability.” Id. at 1260. We held the plaintiff’s ADA
claim failed because the officer arrested the student for her assaultive conduct, not based
on her disability: “It was th[e] battery, rather than a disability, that led to the arrest.” Id.
C. Analysis
Our role is not to opine on whether it was wrong to handcuff C.V. We address
only whether Appellants are entitled to relief under the ADA. We affirm summary
judgment for APS on both of Appellants’ ADA claims. First, Appellants failed to show
that APS handcuffed C.V. by reason of his disability. Further, as to their denial of benefit
claim, Appellants fail to show C.V. was denied access to education. As to their
discrimination claim, Appellants failed to show APS intentionally discriminated against
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C.V., implemented policies that imposed a disparate impact on disabled students, or
failed to respond to a request or obvious need for a reasonable accommodation.
1. By Reason of a Disability
Both ADA claims require proof that APS either denied a benefit or discriminated
by reason of C.V.’s disability. Because Appellants did not provide such evidence, APS is
entitled to summary judgment.
Our recent decision in Bernalillo County addressed a similar claim and supports
affirmance here. In that case, we rejected the claim that an officer violated the ADA
when he arrested a disabled student for kicking a teacher, holding the officer acted based
on the student’s conduct and not his disability. 806 F.3d at 1257, 1260. In this case,
Officer Sanchez, like her counterpart in Bernalillo County, handcuffed C.V. based on his
conduct—two hours of disruptive behavior, including running from room to room and
kicking Ms. Martinez and Officer Sanchez and refusing to stop—not by reason of his
disability.2
Instead of offering evidence that Officer Sanchez’s handcuffing of C.V. or any
other action taken by APS staff was “by reason of [C.V.’s] disability,” § 12132,
Appellants contend C.V.’s behavior was a “manifestation[] of his disability,” Aplt. Br. at
26. Appellants fail to cite any evidence showing his conduct indeed was a manifestation
2
In Bernalillo County, we recognized that an ADA discrimination claim may be
viable when a plaintiff’s “disability might cause the police to incorrectly suspect that an
individual committed a crime.” See 806 F.3d at 1260 (citing Lewis v. Truitt, 960 F. Supp.
175, 176-77, 179 (S.D. Ind. 1997)). As in Bernalillo County, we do not find that
circumstance present in this case.
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of his disability. Also, they cite no authority suggesting a school may not regulate a
student’s conduct if that conduct is a manifestation of a disability. Rather, as Bernalillo
County indicated, a student’s conduct may be regulated, so long as action is not taken by
reason of the student’s disability. 806 F.3d at 1260.
Because Title II claims require a showing that a public entity acted “by reason of”
a person’s disability, and because Appellants have failed to provide evidence that APS or
its staff took any action by reason of C.V.’s disability, all their claims fail.
Even if Appellants’ lack of proof on the third element of an ADA claim—the “by
reason of” element—is not dispositive of all of their claims, each claim also fails for lack
of proof on the second element—that C.V. “was either excluded from participation in or
denied the benefits of some public entity’s services, programs, or activities, or was
otherwise discriminated against by [APS].” Gohier, 186 F.3d at 1219 (quotations
omitted).
2. Denial of Benefit
Appellants provide no authority to support their argument that C.V. was denied
access to education when Officer Sanchez handcuffed him or when his mother withdrew
him from one school operated by APS and enrolled him in another APS school.
Any educational interference from Officer Sanchez’s handcuffing C.V. to his
chair was the product of C.V.’s behavior. Moreover, Appellants provide no authority
suggesting a 15-minute interference with a disabled child’s education can be considered a
denial of benefits under Title II. Appellants do cite evidence that C.V. had lasting
emotional trauma from this incident. C.V. would throw up when driving by the school
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and experienced fear and anxiety around police officers. But this evidence alone does not
create a genuine issue of material fact as to whether APS kept C.V. from attending or
learning at school. The evidence showed just the opposite—C.V. was enrolled at another
APS school after the incident and completed the school year there.
Appellants’ cases are inapposite because they involve pervasive and continual
interference with disabled students’ education. See S.S. v. E. Ky. Univ., 532 F.3d 445,
454 (6th Cir. 2008); K.M. ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d
343, 360 (S.D.N.Y. 2005); T.K. v. N.Y.C. Dep’t of Educ., 32 F. Supp. 3d 405, 419
(E.D.N.Y. 2014).
APS is therefore entitled to summary judgment on Appellants’ denial of benefits
claim.
3. Discrimination Claim
Appellants assert all three ADA discrimination theories: (1) intentional
discrimination (disparate treatment), (2) disparate impact, and (3) failure to make a
reasonable accommodation. They contend APS’s failure to train its security officers on
how to calm disruptive disabled students supports each theory.
This circuit has not recognized a failure-to-train claim of discrimination under the
ADA, but we have not foreclosed the possibility. See Gohier, 186 F.3d at 1222 (noting
that “Gohier might have argued that Title II required Colorado Springs to better train its
police officers to recognize reported disturbances that are likely to involve persons with
mental disabilities, and to investigate and arrest such persons in a manner reasonably
accommodating their disability” but declining to recognize such a claim); Sperry v. Maes,
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592 F. App’x 688, 698 (10th Cir. 2014) (“[W]e do not have to determine whether such a
[failure-to-train ADA] claim exists.”), cert. denied, 136 S. Ct. 44 (2015). 3
As in Gohier and Sperry, we need not determine whether failure to train could
establish ADA liability4 because Appellants failed to provide evidence to support any of
the discrimination theories.5
3
Although this and other cases cited in this opinion are unpublished and therefore
not precedential, we cite them for their persuasive value. See Fed. R. App. P. 32.1; 10th
Cir. R. 32.1(A).
4
The First Circuit has declined to determine whether such a claim exists. See
Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006).
The Sixth Circuit said “the failure to train officers on how to comply with the
ADA is not intentional discrimination,” Everson v. Leis, 412 F. App’x 771, 780 n.3 (6th
Cir. 2011) (unpublished), and that failure to train is more properly considered under a
disparate impact theory, see Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir.
2005) (“The failure of Sandusky to install handicapped-accessible sidewalks and to train
its employees about the ADA affects all disabled persons, not just Dillery. Thus, Dillery
cannot demonstrate that Sandusky intentionally discriminated against her specifically by
failing to undertake these actions.”).
Other courts have recognized such a claim, but have not stated how it fits within
the framework of ADA Title II discrimination theories. See Camarillo v. Carrols Corp.,
518 F.3d 153, 158 (2d Cir. 2008) (recognizing a failure to train claim under Title III of
the ADA); Estate of Saylor v. Regal Cinemas, Inc., 54 F. Supp. 3d 409, 424 (D. Md.
2014); Schorr v. Borough of Lemoyne, 243 F. Supp. 2d 232, 235 (M.D. Pa. 2003).
5
In any event, this claim runs afoul of this court’s conclusion in Bernalillo County
that “the county could incur liability for failure to train only if Deputy Sharkey had
committed a constitutional or [ADA] violation.” 806 F.3d at 1262; see also Rosen v.
Montgomery Cty. Md., 121 F.3d 154, 156 n.2 (4th Cir. 1997) (“We agree with the district
court that this [failure to train] claim hinges on, at the minimum, a ruling that Rosen’s
ADA rights were violated.”).
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a. Intentional Discrimination
Appellants assert APS’s deliberate indifference to C.V.’s disability constituted
intentional discrimination against him. Their reliance on APS’s failure to train does not
begin to show deliberate indifference.
We have recognized that “‘intentional discrimination can be inferred from a
defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned
policies will likely result in a violation of federally protected rights.’” Barber ex rel.
Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228-29 (10th Cir. 2009) (quoting
Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999)); see also Duvall
v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).6 “Deliberate indifference requires
both knowledge that a harm to a federally protected right is substantially likely, and a
failure to act upon that . . . likelihood.” Duvall, 260 F.3d at 1139. The failure to act must
be “more than negligent” and involve “an element of deliberateness.” Barber, 562 F.3d
at 1228. When the alleged failure to act is an alleged failure to train, we have required a
showing that the defendant “was ‘on notice’ of the need for ‘more or different training.”
Sperry, 592 F. App’x at 698 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 397
(1989)).
6
Although Barber articulated the standard for intentional discrimination under the
Rehabilitation Act, we apply the same standard to ADA intentional discrimination cases
because, “[t]o the extent feasible, we look to decisions construing the Rehabilitation Act
to assist us in interpreting analogous provisions of the ADA.” Cohon ex rel. Bass v. N.M.
Dep’t of Health, 646 F.3d 717, 725 (10th Cir. 2011) (quotations omitted); see also
Duvall, 260 F.3d at 1138 (recognizing deliberate indifference as the proper standard for
ADA intentional discrimination cases).
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Appellants’ bare allegation of failure to train officers is not nearly enough to show
deliberate indifference. First, they have not shown APS was on notice of the need for
more or better training. They did not point to even a single incident of an APS officer
having any problem in calming a disabled student before the incident with C.V. Second,
even if APS should have provided training, Appellants have not shown that APS was
more than negligent in not providing it or that APS’s failure to train involved any element
of deliberateness. Finally, they have not shown that APS knew that lack of training made
harm to a federally protected right substantially likely.
Deliberate indifference/failure-to-train claims arise in civil rights actions under 42
U.S.C. § 1983. E.g., Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,
773-74 (10th Cir. 2013). We have relied on § 1983 decisions in addressing
failure-to-train ADA claims. E.g., Bernalillo County, 806 F.3d at 1262 (citing Ellis ex
rel. Estate of Ellis v. Ogden City, 589 F.3d 1099 (10th Cir. 2009)); Sperry, 592 F. App’x
at 698 (citing City of Canton). Courts in those cases require stringent proof to establish
deliberate indifference. For example, in City of Canton, the Supreme Court said a
plaintiff must show “the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent to
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the need.” 489 U.S. at 390. As stated above, Appellants fall far short of making this
showing.7
Because Appellants have failed to show deliberate indifference based on lack of
training, we affirm summary judgment on their intentional discrimination claim.
b. Disparate Impact
Appellants contend APS’s policies and failure to train its officers produced a
disparate impact on disabled children. APS argued and the district court determined that
Appellants waived this argument because they failed to include it in their complaint. The
district court also concluded the argument failed because Appellants failed to raise a
genuine issue of material fact regarding disparate impact. We agree on both grounds.
“Unlike a claim for disparate treatment, a claim for disparate impact doesn’t
require proof of intentional discrimination.” Cinnamon Hills, 685 F.3d at 922; see also
Raytheon Co. v. Hernandez, 540 U.S. 44, 52, (2003). “To prove a case of disparate
impact discrimination, the plaintiff must show that ‘a specific policy caused a significant
disparate effect on a protected group.’” Cinnamon Hills, 685 F.3d at 922 (quoting
Reinhart v. Lincoln Cty., 482 F.3d 1225, 1229 (10th Cir. 2007)). “This is generally
shown by statistical evidence involving the appropriate comparables necessary to create a
reasonable inference that any disparate effect identified was caused by the challenged
policy and not other causal factors.” Id. (quotation and alterations omitted). Moreover, a
7
Moreover, Appellants “have failed to demonstrate that more ‘adequate’ training
to accommodate [disabled students] would have required a different response.” Thao v.
City of St. Paul, 481 F.3d 565, 568 (8th Cir. 2007).
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disparate impact claim must allege a pattern or practice of discrimination, not merely an
isolated instance of it. Apsley v. Boeing Co., 691 F.3d 1184, 1200 (10th Cir. 2012).
Appellants waived this basis for ADA liability by omitting it from their complaint.
Moreover, despite Appellants’ assertion that APS’s failure to train led to “disabled
children, like C.V., [being] handcuffed and restrained for manifestations of their
disabilities,” Aplt. Br. at 42, Appellants provided no evidence showing any disabled
children besides C.V. were ever handcuffed.
We therefore affirm the district court’s determination that APS is entitled to
summary judgment on Appellants’ disparate impact claim.
c. Reasonable Accommodation
Appellants contend APS failed to accommodate C.V.’s disability. Because they
failed to request an accommodation or show that the need for an accommodation was
obvious, this claim fails.
ADA regulations require public entities to “make reasonable modifications in
policies, practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7). As a result, we
require public entities to provide reasonable accommodations to disabled persons.
Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1195 (10th Cir. 2007).
A public entity must provide a reasonable accommodation under the ADA when it
knows that the individual is disabled and “requires an accommodation of some kind to
participate in or receive the benefits of its services.” Id. at 1197. “[A] public entity is on
notice that an individual needs an accommodation when it knows that an individual
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requires one, either because that need is obvious or because the individual requests an
accommodation.” Id. at 1197-98.
Appellants do not contend they requested an accommodation for C.V. They assert
the need for an accommodation was obvious because C.V.’s BIP did not include a
restraint strategy. Appellants do not explain why this makes the need for an
accommodation obvious. In any event, Officer Sanchez received permission from M.Q.
to restrain C.V. without M.Q.’s mentioning particular limits on the form of restraint.
We said in Bernalillo County that an ADA plaintiff must show an obvious need
for an accommodation. 806 F.3d at 1261; see also Robertson, 500 F.3d at 119.
Appellants have not done so. Indeed, the accommodations Appellants asserted should
have been employed were used and unsuccessful. They urged that removing the rubber
band would have de-escalated the situation, but Officer Sanchez stepped on the rubber
band, and this did not placate C.V. Appellants argued Ms. Martinez should have
intervened, but Ms. Martinez tried to stabilize C.V. all morning to no avail. Under these
circumstances, Appellants have not shown it was obvious to APS what other
accommodations may have been needed.
Appellants also seem to assert that APS’s failure to train its officers was a failure
to accommodate C.V.’s disability, but they fail to explain or support how such training
amounts to a reasonable accommodation under ADA law.8 Nor do they show that
8
Commenting on whether the ADA can support a claim for failure to train, the
Fourth Circuit said, “While plaintiff attempts to pose training in dealing with those with
mental health problems as an ‘accommodation,’ it is well-settled that the failure to train
Continued . . .
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training was requested, that it was obvious to APS that training was needed, or what this
training would entail. See Sperry, 592 F. App’x at 698; Bernalillo County, 806 F.3d at
1261; Robertson, 500 F.3d at 1197.
APS is therefore entitled to summary judgment on Appellants’ reasonable
accommodation claim.
III. CONCLUSION
For the foregoing reasons, we affirm.
must have caused some violation of law for an action against a municipality to lie.”
Waller ex rel. Estate of Hunt v. Danville, Va., 556 F.3d 171, 177 n.3 (4th Cir. 2009)
(citing City of Canton, 489 U.S. at 388).
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