371 F.3d 503 (9th Cir. 2004), 02-35260, Settlegoode v. Portland Public Schools

Docket Nº:02-35260.
Citation:371 F.3d 503
Party Name:Pamella E. SETTLEGOODE, Plaintiff-Appellant, v. PORTLAND PUBLIC SCHOOLS, Multnomah School District No.1; Susan Winthrop; Robert Crebo; Larry Whitson, Defendants-Appellees.
Case Date:April 05, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 503

371 F.3d 503 (9th Cir. 2004)

Pamella E. SETTLEGOODE, Plaintiff-Appellant,


PORTLAND PUBLIC SCHOOLS, Multnomah School District No.1; Susan Winthrop; Robert Crebo; Larry Whitson, Defendants-Appellees.

No. 02-35260.

United States Court of Appeals, Ninth Circuit

April 5, 2004

Submitted April 5, 2004.

Argued Oct. 7, 2003.

Amended June 9, 2004.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Charles J. Merten, Portland, OR, argued for the plaintiff-appellant.

Bruce L. Campbell, Portland, OR, argued for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Janice M. Stewart, Magistrate Judge, Presiding. D.C. No. CV-00-00313-ST.

Before D.W. NELSON, KOZINSKI and McKEOWN, Circuit Judges.



The opinion in this case is amended as follows:

Slip op. 4201, Line 11:

Insert "most of" before "the issues"

Slip op. 4201, Lines 15-16:

Delete "In other words, the section 1983 claim is both necessary and sufficient to sustain the jury's full verdict."

Slip op. 4205, Line 19:

Insert the following as a new footnote 6 at the end of the paragraph:

"The magistrate also granted judgment as a matter of law on Settlegoode's Rehabilitation Act claim based on Settlegoode's inability to write adequate IEPs. Settlegoode, CV-00-313-ST, at 25-26. There is some dispute as to which of the parties had the burden of proof under the Rehabilitation Act. Because we find the evidence about Settlegoode's IEPs entirely unconvincing in light of the demanding Rule 50 standard, and Settlegoode offered evidence that her IEPs had hardly been altered by her supervisors and that IEPs are easily criticized, the jury's verdict under the Rehabilitation Act is amply supported by the record, regardless of where the burden of proof falls.

We also reverse the magistrate's grant of a new trial based on insufficiency of the evidence for the reasons stated above."

The remaining footnotes are re-numbered accordingly.

Slip op. 4206, n. 7 (formerly n. 6), Line 6:

Insert ", in part," before "was concerned"

Slip op. 4206, n. 7 (formerly n. 6), Lines 12-16:

Replace "Once the case has proceeded to trial, these concerns fall by the wayside and the Saucier sequence is inapplicable. The court, rather, may decide the issues in whatever order it believes would serve the interests of justice in light of the then-existing circumstances."


"Once the case has proceeded to trial, these concerns fall by the wayside and the sequence in which the court decides the two issues is no longer important. Although the court must still decide both issues, it may do so in whatever order it believes would serve the interests of justice in light of the then-existing circumstances."

Slip op. 4212, Line 12:

Replace "Because we hold" with "We hold"

Slip op. 4212, Line 14:

Insert "against Winthrop and Crebo" after "1983 claims"

Slip op. 4212, Lines 14-15:

Delete ", we need not address her other claims"

Slip op. 4212, Line 17:

Insert the following as a new footnote 11 after "under section 1983.":

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"Settlegoode failed to challenge the magistrate's holding that the School Board could not be held liable under section 1983 because Settlegoode did not prove ratification or a pattern and practice, as required by Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Settlegoode, CV-00-313-ST, at 35. Thus, we affirm the district court's grant of judgment as a matter of law with respect to the section 1983 claims against the School Board. However, because we also find the School Board liable under the Rehabilitation Act, see note 6 supra, it is still liable for compensatory damages. See Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001) (Monell only applies to section 1983 claims, and not to Rehabilitation Act claims, which are governed by respondeat superior); Bonner v. Lewis, 857 F.2d 559, 566-67 (9th Cir. 1988) (municipalities are not exempted from respondeat superior liability under the Rehabilitation Act)."

The remaining footnotes are re-numbered accordingly.

The petition for rehearing is otherwise denied and the petition for rehearing en banc is rejected. Fed. R.App. P. 35; Fed. R.App. P. 40. No further petitions for rehearing or rehearing en banc will be accepted. The mandate shall issue forthwith.


KOZINSKI, Circuit Judge:

We consider the standard of review applicable to various post-trial motions following a jury verdict.


Many facts were hotly disputed at trial. We state them here consistent with the verdict.

Dr. Pamella Settlegoode was hired by Portland Public Schools as an Adapted Physical Education teacher for the 1998-99 academic year on a probationary basis. Hired to teach students with disabilities in various schools in the district, she was an itinerant teacher and therefore conducted her physical education classes at two or three different schools each day. Her job included teaching the disabled students as well as drafting individualized education programs (IEP) for them, as mandated by federal law. See 20 U.S.C. § 1414(d).

Settlegoode soon became concerned about the way disabled students were treated in the Portland schools. She had trouble finding a place to teach her high school students; material and equipment were often lacking, inadequate or unsafe. Settlegoode tried to talk to her immediate supervisor, Susan Winthrop, about these problems. Winthrop told Settlegoode that she was the only one who had ever complained about the facilities for disabled students, and Winthrop frequently attempted to change the subject. At the end of her first year of teaching, Settlegoode wrote Winthrop's supervisor, Robert Crebo, a ten-page letter expressing her concern that the Adapted Physical Education program suffered from problems of "[s]ystematic discrimination, maladministration, access, pedagogy, curriculum, equity and parity," and "greatly compromised" federal law. E.R. at 132. She described her negative experiences in several different schools in the district, comparing the treatment of disabled students to that of black students before the Civil Rights Movement. "In sum," she wrote, "these sketches offer a portraiture of a form of education that is ... all too familiar in this country. It wasn't all that long ago when Black African Americans took a back seat on the American School bus (though in Portland, there's still lots of 'Separate, but equal' to go around)." Id. at 141. Settlegoode

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also criticized Winthrop in this letter, claiming that Winthrop was dismissive of Settlegoode's concern for her students, and that Winthrop was too tied to the school bureaucracy to be in touch with the needs of disabled students.

Crebo gave Settlegoode's letter to Winthrop for comment. Winthrop replied with a memo to Crebo stating: "It is of concern to me that a staff member with such limited experience has the potential to defame my character and damage my professional reputation." Id. at 144. Winthrop ended with, "I appreciate your support in this." Id. Crebo then asked Winthrop to draft a response to Settlegoode's letter and to investigate Settlegoode's accusations. In the meantime, Winthrop told Settlegoode to stop writing letters, because it was not "an effective means of communicating." S.E.R. at 61.

Crebo's response to Settlegoode's letter defended Winthrop and the school district's treatment of disabled students. The letter ended by stating: "It is puzzling to me that with this limited experience you've made such critical comments about our system. It is unfortunate that you are so dissatisfied with your teaching position in Portland Public Schools." Id. at 155.

During Settlegoode's first year of teaching, her performance evaluations were generally positive. In all categories, Winthrop wrote that Settlegoode's performance met minimum standards. She elaborated that Settlegoode's instruction was "well planned, appropriate, and of high interest." Id. at 222. She also wrote that Settlegoode "is supportive of students, giving them good feedback and treating them with respect," and that she "has creative ideas and effectively uses unique materials to enhance activities." Id. With regard to the preparation of IEPs for her students, Winthrop explained that, "Ms. Settlegoode is working to develop her skills in writing IEP goals and objectives which are measurable. She has not yet had opportunities to prepare evaluation reports." Id.

Winthrop's evaluations after Settlegoode's letter were much more negative. Settlegoode no longer met minimum standards of performance in several areas, including IEP writing, behavior management practices, ability to maintain maximal instruction time for students, ability to interact positively with administrators, supervisors and colleagues, and ability to interact positively with parents and students. Winthrop noted in the evaluations that Settlegoode "is not writing IEP goals which are measurable nor is she establishing baseline data in the Present Level of Education Performance (PLOP). IEP objectives do not consistently include specific student behavior and measurable criteria." Id. at 232.1 Winthrop also wrote that Settlegoode was "strong, outspoken, and demanding," and that she was "not able to listen to constructive criticism, complete a self reflective process, and improve professional behavior." Id. at 235. The evaluation ended by stating that, "[i]f Dr. Settlegoode's work continues at its present quality, renewal of contract for another year cannot be recommended." Id. at 237.

Settlegoode next wrote a fifteen-page letter to Dr. Ben Canada, the superintendent of Portland Public Schools, claiming that she was being retaliated against for complaining about the treatment of her students. She also reiterated her...

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