Abdull v. Lovaas Institute for Early Intervention Midwest

United States Court of Appeals
For the Eighth Circuit
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No. 14-3841
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Idil Abdull,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Lovaas Institute for Early Intervention Midwest,
lllllllllllllllllllll Defendant - Appellee.
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: October 19, 2015
Filed: April 6, 2016
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Idil Abdull brought this action against the Lovaas Institute for Early
Intervention Midwest and several of its employees, alleging unlawful discrimination
based on race and national origin under federal and Minnesota law. The district
court1 granted summary judgment in favor of the Institute and the employees on all
claims. We agree that there is no genuine issue of material fact for trial, and we
therefore affirm.
I.
A.
The Institute provides Intensive Early Intervention Behavior Therapy to young
children with Autism Spectrum Disorder. The Institute designs an individualized
treatment plan for each child, and a clinical supervisor leads a team of behavior
therapists that administers approximately forty hours of therapy and parent-training
sessions in the child’s home each week. From 2009 to 2011, the Institute treated
forty-five to fifty children, two or three of whom were African American. Subject to
staff availability, the Institute will admit any child, but it specializes in work with
young children. The Institute treats children for six-month periods; at the end of each
period, the Institute decides whether to provide another six months of treatment.
Before deciding whether to accept a child into its program, and at six-month
intervals thereafter, the Institute requires parents to read and sign an informed-
consent form. The form notifies parents that treatment hours will vary during the six-
month treatment period and that staff members will change regularly. Parents may
request replacement staff, but they are advised that a replacement is not guaranteed.
After the parents sign the form and the Institute decides to provide treatment, the
Institute submits a recommendation for treatment to the Minnesota Department of
Human Services. If the Department determines that treatment is medically necessary,
it will approve the recommendation and agree to fund the child’s treatment with the
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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Institute for the six-month period. Otherwise, the family must find an alternative
source of funding for the treatment.
The informed-consent form also explains the process for progress reviews. At
the end of each six-month treatment period, the Institute reviews the child’s progress
and determines whether further treatment would be beneficial. If the Institute and the
child’s family believe that treatment should continue, the Institute submits another
recommendation for treatment to the Department. The Institute, however, reserves
the right to discharge a child at the end of a six-month period.
From 2009 to 2011, the Institute discharged approximately twelve children
from its program each year. The primary factor that guides the Institute’s decision
to discharge a child is the child’s progress. The Institute may discharge a child for
other reasons, including uncooperative parents or insufficient staff. If a child has
failed to make adequate progress for two consecutive six-month treatment periods,
then the Institute may recommend a transitional-treatment plan designed to assist the
child’s integration into alternative-treatment services.
B.
Idil Abdull is Somali American. In May 2007, her son, whom we will identify
by his initials as “AA,” was diagnosed with a nonverbal Autism Spectrum Disorder.
The Institute treated AA from May 2008 through February 2010. When the Institute
accepted AA into its program, AA was almost six years old and only the second child
of Somali descent ever admitted.
During AA’s first six-month progress review in December 2008, Dr. Eric
Larsson, the Institute’s executive director of clinical services, and Karin Morris, AA’s
clinical supervisor, discussed AA’s progress and their recommendation with Abdull.
Given AA’s limited progress, they believed that the best course of action was for the
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Institute to provide another six months of treatment, and then, if AA’s progress
remained the same or regressed, for the Institute to provide six months of transitional
treatment. Abdull disagreed with their assessment and thought the Institute was
ignoring its policies by giving up on AA after only six months of treatment. Dr.
Larsson and Morris explained that the Institute would continue to provide treatment
to AA for another six-month period.
In February 2009, Abdull requested a new clinical supervisor and senior
behavior therapist for AA. Dr. Larsson informed Abdull that the Institute did not
have an available staff member to assume the clinical supervisor position and that the
Institute would have to discharge AA if Abdull insisted on obtaining a new
supervisor. Abdull then contacted Scott Wright, the Institute’s owner, and asked that
the Institute continue treating AA. Although Wright did not participate in the day-to-
day operations of the Institute, Wright allegedly stated that AA was too old for the
therapy program and that children AA’s age typically went to school. Soon after
Abdull asked for staff changes, one of the Institute’s clinical directors volunteered to
act as AA’s clinical supervisor. The Institute thus decided to retain AA in the
program and assigned Courtney Whitcraft to replace AA’s senior behavior therapist.
Abdull later requested that Whitcraft be replaced, and the Institute granted the
request.
During the spring of 2009, Abdull contacted state agencies concerning the
Institute’s treatment of her and AA. She ultimately filed several complaints, alleging
that the Institute was discriminating against her and AA based on their race and
national origin. Each agency determined that no action against the Institute was
necessary or that no probable cause existed to support a finding that the Institute had
discriminated against Abdull and AA.
By AA’s second six-month review in June 2009, his progress had not
improved. The Institute still did not discharge AA but approved another six months
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of treatment to focus on transitional objectives. At AA’s third six-month review, in
December 2009, AA’s progress remained stagnant. The Institute informed Abdull
that it would approve another six months of treatment for AA, but this period would
be the last. The Institute also told Abdull that she could transfer AA out of the
program before completion of the last six-month period if she preferred. In February
2010, Abdull removed AA from the Institute’s therapy program.
In August 2013, after exhausting administrative remedies in Minnesota,
Abdull sued the Institute and several of its employees, alleging that the Institute had
discriminated against her and AA in violation of federal and state civil rights laws,
and that the employees had aided and abetted a violation of state law. The district
court granted the Institute’s motion for summary judgment, reasoning that Abdull had
failed to establish a submissible case that the Institute discriminated against her or
AA on account of their race or national origin. We review the district court’s grant
of summary judgment de novo, viewing the evidence and drawing all reasonable
inferences from that evidence in the light most favorable to the nonmoving party.
Hervey v. Cty. of Koochiching, 527 F.3d 711, 719 (8th Cir. 2008).
II.
Federal law forbids discrimination “on the ground of race . . . or national
origin” in any program or activity, including the Institute’s, that receives federal
financial assistance. 42 U.S.C. § 2000d. The Minnesota Human Rights Act (MHRA)
also prohibits denying any person “full and equal enjoyment” of services of a place
of public accommodation “because of race . . . [or] national origin.” Minn. Stat. Ann.
§ 363A.11, subd. 1(a)(1). Abdull brought claims under both statutes and sought
damages. Abdull also alleged a violation of 42 U.S.C. § 2000a, which prohibits
discrimination in places of public accommodation, but that statute authorizes only
prospective relief, not money damages. Newman v. Piggie Park Enters., Inc., 390
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U.S. 400, 402 (1968) (per curiam). Because Adbull sought only damages, the district
court properly dismissed her claim under § 2000a.
The district court applied the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), to the claims under § 2000d and the
MHRA. Because the district court fully developed the record on the motion for
summary judgment, we need consider on appeal only whether there is a genuine issue
of material fact for trial on the ultimate question of discrimination vel non. See U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983); Riser v. Target
Corp., 458 F.3d 817, 820-21 (8th Cir. 2006); Johnson v. Ready Mixed Concrete Co.,
424 F.3d 806, 810 (8th Cir. 2005). We will assume for the sake of analysis that the
Institute is a place of public accommodation for purposes of the Minnesota statute.
The federal statute, § 2000d, forbids discrimination “on the ground of” race or
national origin. The phrase “on the ground of” is synonymous with “because of,” see
Webster’s New World Dictionary of the American Language 640 (College ed. 1968),
and the statute thus requires a plaintiff to show that a forbidden reason was the but-for
cause of a denial of benefits. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2528, 2533 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).
In cases arising under Chapter 363 of the MHRA, however, the Minnesota Supreme
Court has ruled that a plaintiff must demonstrate that a prohibited reason “more likely
than not motivated” the defendant in taking an adverse action. See Anderson v.
Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988); see also LaPoint
v. Family Orthodontics, P.A., 872 N.W.2d 889, 892-93 (Minn. Ct. App. 2015). Under
this approach, a plaintiff can prevail “even if a[] [defendant] has a legitimate reason”
for the disparate treatment. LaPoint, 872 N.W.2d at 892-93 (quoting McGrath v. TCF
Bank Sav., fsb, 509 N.W.2d 365, 366 (Minn. 1993)). Although the parties cite no
case addressing § 363A.11, subd. 1, we think it likely that the Minnesota court would
take the same approach with this provision that the court applies in other sections of
the MHRA with comparable text.
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As the standards under the state and federal statutes appear to differ, we
consider first whether Abdull has established a genuine issue for trial under the more
generous Minnesota standard. Because we conclude that her MHRA claim fails
under that standard, it follows that the federal claim under § 2000d was properly
dismissed as well.
Abdull argues first that her claims are supported by the fact that she and AA
were similarly situated to Caucasian parents and children who were treated more
favorably in the Institute’s program. Abdull posits that three Caucasian, nonverbal
autistic children were similarly situated to AA. But the main factor underlying the
Institute’s treatment decisions is the individual child’s progress, and Abdull’s
evidence does not address the rate of progress for the three comparators. Without
evidence showing that the Caucasian children were similarly situated to AA in all
material respects, Abdull cannot rely on comparisons in treatment to establish
unlawful discrimination. See Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir.
2011).
Aside from the comparators, Abdull contends that other evidence shows that
race or national origin motivated the Institute to deny her benefits of its program. She
complains that the Institute (1) replaced AA’s staff members more frequently than it
did for other children, (2) provided fewer treatment hours for AA than for other
children, (3) used different treatment programming, technology, or methods with AA
than for other children, (4) violated its own policies when it recommended
discharging AA after his first six months in its therapy program, and (5) refused to
consider the recommendation of AA’s independent psychologist. We agree with the
district court that there is insufficient evidence to show that any unfavorable
treatment was motivated by race or national origin.
Although AA endured several staff changes, the evidence does not support a
finding of discriminatory motive. From May to October 2008, three employees
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served as AA’s clinical supervisor. The first left the Institute for another job, and the
second was assigned only as a temporary replacement. Three more staff changes
occurred after October 2008 as a result of Abdull’s requests. Abdull protests that the
second supervisor falsely said that she was reassigned because she did not work with
children as old as AA, but Abdull does not dispute that this supervisor was designated
as temporary from the outset, and she offers no admissible evidence that the Institute
reassigned the supervisor to work with older children.
AA’s treatment hours do not support Abdull’s claim. During AA’s time with
the Institute, he received an average of forty-eight hours of treatment per week. From
June to December 2009, AA’s last six-month treatment period with the Institute, AA
averaged forty-six hours of treatment per week. These amounts were well within the
range of treatment hours that other children received at the Institute. Some of the
fluctuations about which Abdull complains, moreover, were caused by Abdull’s
decision to prohibit trainees from working with AA or by conflicts with AA’s
schooling schedule. Abdull presents no evidence to support a finding that race or
national origin was a motivating factor behind the Institute’s decisions about AA’s
treatment time.
Abdull’s complaints that the Institute used different treatment programming,
technology, or methods with AA do not support a finding of discriminatory motive.
While the Institute did not train AA to use eating utensils, the Institute was
responding to Abdull’s request to use a different approach for cultural reasons. The
Institute varied the lessons and the amount of time it devoted to teaching each lesson
based on AA’s individual needs. Abdull asserts that the Institute withheld technology
from AA’s treatment, but she fails to demonstrate that the Institute used either Apple
iPad technology or video recordings of therapy sessions during AA’s time in the
program. There is no evidence that the Institute declined to employ the technology
with AA for reasons of race or national origin.
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The evidence does not support a finding that the Institute’s handling of
Abdull’s recommended discharge was a denial of benefits motivated by race or
national origin. The Institute followed its policies and did not recommend AA’s
discharge until February 2009 when it was unable to accommodate Abdull’s demand
for another new clinical supervisor. Even then, the Institute eventually located
another clinical supervisor, and AA remained in the program. The alleged statement
of the Institute’s owner concerning AA’s age is therefore immaterial, because the
February 2009 recommendation did not deny AA the full and equal enjoyment of
services and benefits under the program.
The record belies Abdull’s claim that the Institute ignored the recommendation
of AA’s independent psychologist when it decided to recommend his discharge. In
May 2009, the Institute received a letter authored by AA’s independent psychologist
recommending continued treatment for AA. The February 2009 discharge
recommendation therefore pre-dated the psychologist’s input, and the Institute’s
actions after May 2009 conformed to the psychologist’s recommendation. The
Institute twice elected to provide another six months of treatment for AA after May
2009, and it continued to treat AA until Abdull withdrew him in February 2010.
Abdull also argues that the Institute treated her less favorably than it did other
parents. The Institute did adopt special procedures for Abdull involving an
individualized communication plan and an absentee system for missed treatment
sessions. But these procedures were triggered by Abdull’s absences and disruptions
of therapy sessions, as evidenced by her failure to meet the Institute’s benchmark for
maintaining professional boundaries with Institute employees. Abdull’s evidence
concerning her performance at parent-training sessions does not contradict the
Institute’s rationale for imposing these procedures. The Institute, moreover,
responded in a similar fashion when fourteen other families, a majority of whom were
of European descent, frequently disrupted or missed therapy sessions.
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For these reasons, the district court properly granted summary judgment in
favor of the Institute on Abdull’s civil rights claims. Because the Institute did not
violate the MHRA, the district court also correctly dismissed Abdull’s tag-along
claims that Institute employees aided and abetted a violation of the MHRA. See
Minn. Stat. Ann. § 363A.14; McDonald v. City of Saint Paul, 679 F.3d 698, 708 (8th
Cir. 2012).
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The judgment of the district court is affirmed. Abdull’s motion to strike
affidavits is dismissed as moot, because the disputed evidence is unnecessary to a
decision. See Stewart v. Prof’l Comput. Ctrs., Inc., 148 F.3d 937, 940 n.3 (8th Cir.
1998).
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