District Cannot Retaliate Against Teacher for Reporting IDEA Violations

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN LEE BARKER, ü
Plaintiff-Appellant, No. 07-56313
v. ý D.C. No. RIVERSIDE COUNTY OFFICE OF CV-07-00274-SGL
EDUCATION, OPINION
Defendant-Appellee. þ
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
December 12, 2008—Pasadena, California
Filed October 23, 2009
Before: Harry Pregerson and Dorothy W. Nelson, Circuit
Judges, and James K. Singleton, Senior District Judge.
Opinion by Judge Pregerson
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
14293
COUNSEL
Janice S. Cleveland, Law offices of Janice S. Cleveland, Riverside,
California, and Gary S. Bennett, Law Offices of Gary
S. Bennett, Laguna Hills, California, for the plaintiffappellant.
Jennifer D. Cantrell and Mark W. Thompson, Atkinson,
Andelson, Loya, Ruud & Romo, Riverside, California, for the
defendant-appellee.
OPINION
PREGERSON, Circuit Judge:
Susan Lee Barker was employed by the Riverside County
Office of Education as a Resource Specialist Program teacher
for students with disabilities. She brought suit against her
employer based on constructive termination arising out of an
intolerable work environment. Barker’s complaint alleged that
her supervisors at the Riverside County Office of Education
retaliated against her after she voiced concerns that the Riverside
County Office of Education was not complying with
requirements of federal and state law in how it provided educational
services to its disabled students. The district court
dismissed Barker’s lawsuit for lack of standing. Barker argues
that she has standing to sue the Riverside County Office of
14296 BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION
Education pursuant to the anti-retaliation provisions of both
section 504 of the Rehabilitation Act of 1973 and Title II of
the Americans with Disabilities Act (“ADA”). We agree with
Barker and therefore reverse and remand.
I. Background
Barker was employed as an itinerant Resource Specialist
Program teacher for students with disabilities within the
Alternative Education Program of the Riverside County
Office of Education from May 13, 2002 through August 1,
2006. Indeed, Barker was the most experienced special education
teacher at the Riverside County Office of Education.
Barker was regularly asked by other teachers to interpret educational
test results, and she received three or four telephone
calls per day from her colleagues requesting her opinion and
assistance in regard to special education issues with students.
Beginning as early as 2003, Barker voiced concerns to her
supervisors that the special education services provided by the
Riverside County Office of Education to its disabled students
were noncompliant with federal and state law. In May 2005,
Barker and a coworker filed a class discrimination complaint
with the U.S. Department of Education’s Office for Civil
Rights. The class discrimination complaint filed with the
Office for Civil Rights alleged that the Riverside County
Office of Education denied its disabled students a free appropriate
public education that they are entitled to receive under
federal and state law.
In June 2005, Barker’s supervisors at the Riverside County
Office of Education first learned that Barker filed the class
discrimination complaint with the U.S. Department of Education’s
Office for Civil Rights. In the constructive termination
action now before us, Barker alleges that her supervisors then
retaliated against her throughout the following school year by
BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION 14297
1. intimidating Barker for filing the class discrimination
complaint with the Office for Civil
Rights;
2. failing to respond to Barker’s emails and phone
calls;
3. excluding Barker from important staff meetings;
4. changing Barker’s work assignments to sites
further from her home;
5. reducing Barker’s caseload even though the Riverside
County Office of Education’s Alternative
Education’s disabled student population
increased; and
6. refusing to allow Barker to fill in for other
teachers during their vacations.
Barker further alleged that she was constructively terminated
on August 1, 2006 because her supervisors subjected her to an
intolerable work environment.
On July 13, 2005, Barker submitted a written complaint to
the U.S. Department of Education’s Office for Civil Rights,
alleging that the Riverside County Office of Education retaliated
against her for advocating on behalf of her students with
disabilities and for filing a complaint with the Office for Civil
Rights. The Office for Civil Rights subsequently conducted
an investigation into Barker’s complaint by gathering evidence
through interviews with Barker and fifteen current and
former Riverside County Office of Education staff and administrators,
and reviewing documents and records submitted by
Barker and the Riverside County Office of Education.
On June 16, 2006, the Office for Civil Rights determined
that the “preponderance of the evidence showed that [the Riv-
14298 BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION
erside County Office of Education] retaliated against [Barker]
in violation of Section 504 [and] Title II . . . .” The Office for
Civil Rights further stated that “[a]dvocacy on behalf of disabled
students on issues related to their civil rights, and the
filing of [Office for Civil Rights] complaints, are protected
activities under Section 504 and Title II.”
Barker then filed a complaint in federal district court contending
that the Riverside County Office of Education violated
the anti-retaliation provisions of both § 504 of the
Rehabilitation Act of 1973 and Title II of the Americans with
Disabilities Act by retaliating against her after she advocated
on behalf of her students with disabilities. In August 2007,
following the Riverside County Office of Education’s Fed. R.
Civ. P. 12(b)(6) motion, the district court found that Barker
did not have standing to sue under either statute and dismissed
her claim with prejudice. Barker timely appealed.
II. Standard of Review
The district court’s dismissal of an action pursuant to Fed.
R. Civ. P. 12(b)(6) is reviewed de novo. Zimmerman v. Or.
Dep’t of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). “Because
this is an appeal from the dismissal of an action pursuant
to Fed. R.Civ. P. 12(b)(6), we accept as true the facts
alleged in the complaint.” Id. at 1171. Moreover, we must
draw inferences in the light most favorable to the plaintiff.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
III. Discussion
A. Section 504 of the Rehabilitation Act of 1973
Barker contends that she has standing1 to sue her employer,
1Although Barker’s standing to sue the Riverside County Office of Education
pursuant to the Rehabilitation Act and the ADA is under review in
this case, Barker unquestionably meets the constitutional standing require-
BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION 14299
the Riverside County Office of Education, for retaliating
against her pursuant to section 504 of the Rehabilitation Act.
She argues that section 504 grants standing to individuals who
are retaliated against for attempting to protect the rights of
disabled people, even if they themselves are not disabled. The
Riverside County Office of Education, however, argues that
because Barker failed to allege that she was a “qualified individual
with a disability,” see 29 U.S.C. § 794(a), she cannot
avail herself of the Rehabilitation Act’s protection against
retaliation. According to the Riverside County Office of Education,
Section 504 was not “intended to provide redress of
employment claims for persons who [are] neither disabled
themselves, nor have any close relationship to a disabled person.”
Contrary to the Riverside County Office of Education’s
arguments, we find that the anti-retaliation provision of section
504 grants standing to non-disabled people who are retaliated
against for attempting to protect the rights of the
disabled.
In determining whether Barker has standing under section
504, we begin by examining the statute’s plain meaning. See
Molski v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007).
When “the statutory language is clear and consistent with the
statutory scheme at issue, the plain language of the statute is
conclusive and the judicial inquiry is at an end.” Id. Section
504(a) states:
ments of Article III. See Valley Forge Christian Coll. v. Am. United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). First,
Barker alleges an actual injury—that she was constructively terminated
from her job as a special education teacher with the Riverside County
Office of Education. See id. Second, Barker’s injury “fairly can be traced
to the challenged action,” because Barker alleges that she was constructively
terminated based solely upon the intolerable work environment created
by the Riverside County Office of Education. See id. (quoting Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976)). Third, Barker’s
injury “is likely to be redressed” by the compensatory damages requested.
See id. (quoting Simon, 426 U.S. at 38).
14300 BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION
No otherwise qualified individual with a disability in
the United States . . . 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 financial assistance . . . .
29 U.S.C. § 794(a) (codifying Section 504). Section 504
incorporates the anti-retaliation provision of Title VI of the
Civil Rights Act of 1964 by providing that:
The remedies, procedures, and rights set forth in title
VI of the Civil Rights Act of 1964 . . . shall be available
to any person aggrieved by any act or failure to
act by any recipient of Federal assistance . . . .
29 U.S.C. § 794a(2) (emphasis added).2 The anti-retaliation
provision of Title VI of the Civil Rights Act incorporated by
section 504 states:
No recipient or other person shall intimidate,
threaten, coerce, or discriminate against any individual
for the purpose of interfering with any right or
privilege secured by Section 601 of [the Civil
Rights] Act or this part, or because he has made a
complaint, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this part.
34 C.F.R. § 100.7(e) (emphasis added). This regulation
applies to all rights secured by the Rehabilitation Act pursuant
to 34 C.F.R. § 104.61. In other words, the anti-retaliation provision
in Title VI of the Civil Rights Act has been incorporated
by the Rehabilitation Act so as to extend the
2See also Weber v. Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir.
2000) (noting that Section 504 integrates the anti-retaliation provision of
Title VI of the Civil Rights Act).
BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION 14301
Rehabilitation Act’s protections to “ ‘any individual’ who has
been intimidated, threatened, coerced, or discriminated
against ‘for the purpose of interfering with [protected rights]’
under Title VI of the Civil Rights Act or the Rehabilitation
Act.” Weber, 212 F.3d at 48 (quoting 34 C.F.R. § 100.7(e))
(citing § 104.61) (granting standing under section 504 of the
Rehabilitation Act to a mother who claimed the school system
had retaliated against her personally for attempting to enforce
her disabled child’s rights).
[1] Contrary to the Riverside County Office of Education’s
arguments, the broad statutory language in section 504 and its
corresponding anti-retaliation provision in Title VI of the
Civil Rights Act does not demonstrate that Congress intended
to limit standing under section 504 to only those with disabilities.
3 Section 504 and its anti-retaliation provision use the allinclusive
phrases “any person aggrieved” and “any individual,”
and no language further limits who “any person
aggrieved” or “any individual” may be. In particular, the statutes
do not include language requiring such individuals to
have disabilities in order to have standing. Nor do they
require the protected individual to have any “close relation-
3In Settlegoode v. Portland Schools, 371 F.3d 503, 512 n.6 (9th Cir.
2004), we upheld a jury’s verdict in favor of a special education teacher
who sued her school district for retaliation pursuant to section 504 of the
Rehabilitation Act. The teacher sued because the district did not renew her
teaching contract after she voiced concerns that the district was discriminating
against her disabled students. Id. at 507. In our Settlegoode opinion,
however, we did not directly examine whether the teacher had standing
pursuant to section 504.
As a matter of interest, in an unpublished disposition we also extended
protection against retaliation under section 504 of the Rehabilitation Act
to a school psychiatrist who advocated on behalf of her disabled students.
See Sweet v. Tigard-Tualatin School District, No. 03-35455, 2005 WL
19531, at *1 (9th Cir. Jan. 5, 2005); see also Corrales v. Moreno Valley
Unified Sch. Dist., No. EDCV-08-00040-SGL, 2008 WL 4382507, at *2-
3 (C.D. Cal. Aug. 29, 2008) (granting standing under section 504 of the
Rehabilitation Act to a special education teacher whose teaching contract
was not renewed after she advocated for her students with disabilities).
14302 BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION
ship to a disabled person,” as argued by the Riverside County
Office of Education. Indeed, the use of “such broad language”
in the statutes “evinces a congressional intention to define
standing to bring a private action under 504 . . . as broadly as
is permitted by Article III of the Constitution.” Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2nd
Cir. 1997) (internal quotation marks omitted) (citing Trafficante
v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972)
(holding that the term “aggrieved person” in section 810(a) of
the Fair Housing Act demonstrated Congress’s “intention to
define standing as broadly as is permitted by Article III of the
Constitution”)) (holding that a drug and alcohol rehabilitation
center had standing pursuant to section 504 of the Rehabilitation
Act to sue a city for discriminatory motives in denying
a building permit).
[2] Such reasoning is consistent with Congress’s statutory
goal to protect the rights of the disabled. While “Congress
could have limited the remedial provisions of the Rehabilitation
Act to claims brought by or on behalf of disabled individuals,
it did not do so in apparent recognition of the fact that
disabled individuals may need assistance in vindicating their
rights . . . . ” Weber, 212 F.3d at 49. Indeed, empathetic people
who teach and interact frequently with the disabled are
those most likely to recognize their mistreatment and to advocate
on their behalf.
[3] Furthermore, while not controlling authority, it is persuasive
that after completing an investigation into Barker’s
complaint, the Department of Education’s Office for Civil
Rights concluded that “[a]dvocacy on behalf of disabled students
on issues related to their civil rights, and the filing of
[Office for Civil Rights] complaints, are protected activities
under Section 504 and Title II.”4 See Skidmore v. Swift & Co.,
4Also persuasive is the Office for Civil Rights’ conclusion that “the preponderance
of the evidence showed that [the Riverside County Office of
Education] retaliated against [Barker] in violation of Section 504 [and]
Title II . . . . ”
BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION 14303
323 U.S. 134, 140 (1944) (holding that “while [non-binding
agency opinions are] not controlling upon the courts by reason
of their authority, [these opinions] do constitute a body of
experience . . . . that give [them] power to persuade, if lacking
power to control”); see also Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1014 (9th Cir. 2006).
[4] Accordingly, we find that the district court erred in its
determination that Barker lacked standing under section 504,
and we reverse.
B. Title II of the Americans with Disabilities Act
Barker contends that she also has standing to sue the Riverside
County Office of Education under Title II of the Americans
with Disabilities Act (“ADA”). Again, the Riverside
County Office of Education alleges that Barker does not have
standing to sue under Title II because Barker is not a “qualified
individual with a disability.” See 42 U.S.C. § 12132. We
find that Barker does have standing under Title II for the same
reasons that she has standing under section 504 of the Rehabilitation
Act. Cf Innovative Health Sys., 117 F.3d at 46-48
(holding that a drug and alcohol rehabilitation center had
standing to sue the city of White Plains for its discriminatory
motives in denying the center a building permit under Title II
of the ADA).
[5] We begin by examining whether the plain meaning of
the language used in Title II of the ADA and its antiretaliation
provisions grant standing to non-disabled individuals
who are retaliated against for attempting to protect the
rights of the disabled. See Molski, 481 F.3d at 732. Title II of
the ADA provides:
Subject to the provisions of this subchapter, 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
14304 BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION
activities of a public entity, or be subjected to discrimination
by any such entity.
42 U.S.C. § 12132. The anti-retaliation provisions of Title II
of the ADA state:
(a) No private or public entity shall discriminate
against any individual because that individual has
opposed any act or practice made unlawful by this
part, or because that individual made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under the Act
or this part.
(b) No private or public entity shall coerce, intimidate,
threaten, or interfere with any individual in the
exercise or enjoyment of, or on account of his or her
having exercised or enjoyed, or on account of his or
her having aided or encouraged any other individual
in the exercise or enjoyment of, any right granted or
protected by the Act or this part.
28 C.F.R. § 35.134 (emphasis added). As in our analysis of
section 504 of the Rehabilitation Act, the language employed
in the anti-retaliation provisions of Title II does not evince a
congressional intent to limit standing to individuals with disabilities.
Instead, the use of the phrase “any individual” and
the absence of any language limiting standing to those with
disabilities indicates Congress’s intent to grant standing under
Title II “as broadly as is permitted by Article III of the Constitution.”
See Innovative Health Sys., 117 F.3d at 47 (citing
Trafficante v. Metropolitan Life Ins., Co., 409 U.S. 205,
209(1972)). As we recognized in our Rehabilitation Act analysis,
it appears that in formulating the language in Title II’s
anti-retaliation provisions, Congress recognized that disabled
individuals may require assistance from others to defend their
rights. Cf. Weber, 212 F.3d at 49 (While “Congress could
have limited the remedial provisions of [Title II] to claims
BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION 14305
brought by or on behalf of disabled individuals, it did not do
so in apparent recognition of the fact that disabled individuals
may need assistance in vindicating their rights . . . . ”).
Indeed, we find that the language of Title II’s antiretaliation
provisions set forth in 28 C.F.R. § 35.134 grants
standing to Barker. Clause (a) of § 35.134 protects “any individual”
who “has opposed any act or practice made unlawful
by this part.” 28 C.F.R. § 35.134 (emphasis added). Because
Barker engaged in activities opposing her school’s special
education policies that allegedly violated the ADA, we find
that she had standing to pursue her claim under clause (a).
Furthermore, clause (b) protects “any individual” from being
“coerce[d], intimidate[d], threaten[ed], or interfere[d] with”
by a “public entity” “on account of . . . her having aided or
encouraged any other individual in the exercise or enjoyment
of, any right granted or protected by the Act.” Id. (emphasis
added). Because Barker alleges that she was intimidated by
her supervisor for her role in advocating for her students, we
find that Barker also has standing under clause (b) of Title II’s
anti-retaliation provision.
The district court’s reliance on Zimmerman v. Oregon
Department of Justice, 170 F.3d 1169 (9th Cir. 1999) in determining
that Barker lacked standing under Title II of the ADA
was misguided. In Zimmerman, the plaintiff alleged that he
was fired from his job because of his visual impairment in
violation of Title II of the ADA. Id. at 1171. We held in Zimmerman
that the plaintiff ’s claim should have been brought
under Title I of the ADA instead of under Title II, because the
plaintiff claimed that his employer discriminated against him
because he had a disability, and employment violations are
protected under “Title I: Employment.” Id. at 1178. Here,
relying on Zimmerman, the district court incorrectly found
that because Barker also claimed that she was discriminated
against by her employer, Barker would similarly only have
standing under Title I of the ADA.
14306 BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION
[6] Contrary to the district court’s finding, Barker’s situation
can easily be distinguished from that in Zimmerman.
Unlike Zimmerman, Barker does not allege that she lost her
job because her employer discriminated against her because
of a disability she had. Instead, Barker alleges that she was
retaliated against and subsequently lost her job because she
advocated for disabled students who were receiving inadequate
public services—educational services provided by a
public school—which are covered under Title II of the ADA
(“Title II: Public Services”). See 42 U.S.C. § 12131, et seq.
Public services provided to disabled students are the focus of
Title II of the ADA. See id. Thus, Barker’s claim was appropriately
brought under Title II. Accordingly, the district court
erred in determining that our holding in Zimmerman “compell[
ed] a conclusion contrary to that reached by the Weber court.”5
Instead, our finding that Barker has standing to bring a claim
against the Riverside County Office of Education under Title
II of the ADA is consistent with our holding in Zimmerman.
IV. Conclusion
[7] Having concluded that Barker has standing to pursue
her retaliation claims under both section 504 of the Rehabilitation
Act and Title II of the ADA, we reverse and remand to
the district court.
REVERSED and REMANDED.
5The district court also found that “the Zimmerman case foreclose[d]
[Barker]’s claim based on 504 of the Rehabilitation Act,” because a “sideby-
side comparison of the relevant statutory language” in section 504 and
Title II of the ADA shows that the two statutes are “virtually identical.”
Again, we find that the district court erred in finding that Zimmerman
“compell[ed] a conclusion contrary to that reached by the Weber court”
under section 504.
BARKER v. RIVERSIDE COUNTY OFFICE OF EDUCATION 14307