B.K. v. Lake Oswego Sch. Dist.

• Decision Date: 12 March 2012
• Docket Number: 3:11-cv-278-JE
• Parties: B.K., by and through his parents, ROBERT KELLER and CYNTHIA MOHIUDDIN, and ROBERT KELLER and CYNTHIA MOHIUDDIN individually, Plaintiffs, v. LAKE OSWEGO SCHOOL DISTRICT, an Oregon School District, and RICHARD COHN-LEE, AND ANDREA HUNGERFORD, individually, Defendants.
• Court: U.S. District Court — District of Oregon

B.K., by and through his parents, ROBERT KELLERand CYNTHIA MOHIUDDIN, and ROBERT KELLER and CYNTHIA MOHIUDDIN individually, Plaintiffs,

v. LAKE OSWEGO SCHOOL DISTRICT, an Oregon School District,and RICHARD COHN-LEE, AND ANDREA HUNGERFORD, individually, Defendants.

3:11-cv-278-JE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

DATED: March 12, 2012

OPINION AND ORDER

KEVIN C. BRAGUE

The Brague Law Firm

MANDY G. LEIGH

JAY T. JAMBECK

Leigh Law Group

Attorneys for Plaintiffs

RICHARD G. COHN-LEE

The Hungerford Law Firm

Attorney for Defendant Lake Oswego

School District

PETER R. MERSEREAU

Mersereau and Shannon, LLP

Attorney for Defendants Richard

Cohn-Lee and Andrea Hungerford

MARSH, Judge

Magistrate Judge John Jelderks filed his Findings and Recommendation on October 24, 2011. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b).

When a party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. See 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); accord Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc).

Plaintiffs have timely filed objections. Therefore, I have given the file of this case a de novo review. I ADOPT the Findings and Recommendation (#37), as modified below.¹

BACKGROUND

Plaintiffs Robert Keller and Cynthia Mohiuddin bring this action individually, and on behalf of their son, B.K., alleging that the Lake Oswego School District (LOSD) failed to comply with procedural and substantive requirements of the Individuals with Disabilities Education Improvement Act (IDEA), 20 U.S.C. § 1400 et seq.; Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq.; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The overarching issue is whether LOSD and/or its attorneys violated the above statutes during the course of administrative proceedings that led to LOSD's decision that B.K.'s behavior was not a manifestation of a disability within the meaning of the IDEA (resulting in B.K.'s expulsion from public school). Plaintiffs allege that, rather than comply with the law, defendants took retaliatory and discriminatory actions against plaintiffs.

DISCUSSION

I. Defendants Cohn-Lee and Hungerford's Motion to Dismiss

A. Background.

Defendant Attorneys Cohn-Lee and Hungerford represented LOSD during the course of the administrative proceedings. In Claims II and IV, plaintiffs allege that Cohn-Lee and Hungerford retaliated, coerced, intimidated and interfered with plaintiffs' rights to participate in Individualized Education Program (IEP) meetings and the decision-making process. Defendant Attorneys moved under Fed. R. Civ. P. 12(b)(6) to dismiss the claims against them on the basis that (1) there is no individual liability for retaliation under either the ADA, Section 504 of the Rehabilitation Act, or the IDEA; and (2) an attorney-client litigation privilege and/or a common law immunity shield them from liability.

Judge Jelderks discussed, but did not decide, whether individual liability for retaliation exists under the ADA, Rehabilitation Act, and the IDEA. Instead, Judge Jelderks concluded that public policy warrants "an extension of the federal common law concept of immunity to this specific situation." F & R at 28. Plaintiffs object to this recommendation, arguing that individual liability under the ADA exists for retaliation in the provision of public services; and there is no authority to support a "federal common law litigation privilege."

I decline to adopt Judge Jelderks' extension of a common law immunity or state privilege based upon public policy. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (holding that state litigation privilege does not bar civil rights claims based on federal law, and that there is no common law immunity to shield non-governmental attorneys); Pardi v. Kaiser Foundation Hosp., 389 F.3d 840, 851 (9th Cir. 2004) (applying Kimes to ADA context); see also Steffes v. Stepan Co., 144 F.3d 1070, 1074-75 (7th Cir. 1998) (same). However, because I conclude that the ADA, Rehabilitation Act, and the IDEA do not create individual liability for retaliatory conduct in the public services context, I adopt Judge Jelderks' recommendation that defendants Cohn-Lee and Hungerford's motion to dismiss be granted.

B. Statutory Analysis.

Section 12203(a) of the ADA provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter." The remedial portion of the statute (§ 12203(c)), provides that the remedies and procedures available under Subchapter I (employment discrimination), Subchapter II (public services), and Subchapter III (public accommodations) of the ADA shall be available to aggrieved persons for violations of § 12203(a).

Relying primarily on the reasoning in Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003), plaintiffs arguethat an individual may be sued, in his or her personal capacity, for a violation of § 12203(a). Many courts have grappled with the difficult question of whether an individual may be held personally liable under § 12203(a) for retaliatory conduct in the public services context. The issue involves a multi-layered analysis that begins by looking at the remedial provision of § 12203(c), which, in turn, incorporates the remedial provisions of Subchapters I, II, or III (depending upon whether the retaliation arose in the employment, public services, or public accommodation context). In the public services context, Title II incorporates the remedies provided in the Rehabilitation Act (29 U.S.C. § 794a) which, in turns, incorporates remedial provisions of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), none of which provides remedies recoverable from a private individual in his personal capacity. See Shotz, 344 F.3d at 1169-70 & n.10.

In deciding whether this web of statutes creates individual liability for retaliation in the public services context, I agree with the lengthy statutory analysis done by the district court in N.T. v. Espanola Public Schools, 2005 WL 5840479 *10-*14 (D.N.M. May 20, 2005). In that case, the district court concluded that, despite the use of the term "person" in § 12203(a), a cause of action under the ADA for retaliation in the public services context does not lie against a private individual in his or her personal capacity:

In the context of public services, [§ 12203(c)] simply incorporates the remedies and procedures that would be available under Title II of the ADA in this context. As noted above, the remedies and procedures available under Title II of the ADA are a lawsuit against either a "public entity," or a "head of department, agency, or unit sued in his official capacity," rather than a lawsuit against an individual in his or her personal capacity. Thus, if 42 U.S.C. § 12203(c) determines the scope of liability for ADA retaliation claims, then the Court would simply follow the general rule applied in the context of litigation over public services under Title II of the ADA, which does not extend liability to individuals sued in their personal capacities.

The Shotz court chose a more complicated route and arrived at the conclusion that the ADA's retaliation provision was intended to go further than the Spending Clause legislation referenced in Title II and could provide an independent basis for imposing liability on persons in their individual capacity. This choice runs contrary to the reasoning of the majority of other courts that have addressed the issue because it unties the ADA's retaliation provision from the specific remedies and procedures provided elsewhere in the statute.

2005 WL 5840479 *11-*12 (citations omitted); see also Bertolotti v. Prunty, 2010 WL 3743866 *4 (S.D.W.Va. Sept. 21, 2010); Stassart v. Lakeside Joint School Dist., 2009 WL 3188244 *13 (N.D.Cal. Sept. 29, 2009); Brenneise v. San Diego Unified School Dist., 2009 WL 1308757 *8 (S.D.Cal. May 8, 2009); Warren v. Goord, 2006 WL 1582385 *18-*20 (W.D.N.Y. May 26, 2006); McNulty v. Bd. of Educ. Of Calvert Cty., 2004 WL 1554401 *5 (D.Md. July 8, 2004); Key v. Grayson, 163 F.Supp.2d 697, 703-04 (E.D.Mich. 2001); Baird ex rel. Baird v. Rose, 192 F.3d 462, 471-72 (4th Cir. 1999); cf Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th Cir. 2009)(declining to take "convoluted analytical path" to concludethat punitive and compensatory damages are available for ADA retaliation claim in employment context); but see Atlanta Indep. Sch. Syst. v. S.F., 740 F.Supp.2d 1335, 1349-50 (N.D.Ga. 2010); Datto v. Harrison, 664 F.Supp.2d 472, 491 (E.D.Pa. 2009); Alston v. District of Columbia, 561 F.Supp.2d 29, 41 (D.D.C. 2008).

The same reasoning applies to a retaliation claim under the Rehabilitation Act. N.T. v. Espanola Public Schools, 2005 WL 5840479 *9 & *14. Similarly, I conclude that there is no cause of action for retaliation against a private individual in his or her individual capacity under the IDEA. Id. at *9; Koehler v. Juniata County School Dist., 2008 WL 1787632 *7 (M.D.Pa. Apr. 17, 2008); see also C.O. v. Portland Public Schools, 3:05-cv-558, Op. & Order (#76) at 9 (Nov. 7, 2006) (finding "no indication that [the IDEA] provides for a cause of action based on retaliation by one private individual against another"). For these reasons, I adopt Judge Jelderks' recommendation that defendants Cohn-Lee and Hungerford's motion to dismiss be granted.

II. LOSD'S Motion to Dismiss.

LOSD filed a motion to dismiss on the basis that the complaint contains "allegations and claims" that are subject to dismissal for failure to exhaust administrative remedies. Additionally, LOSD moved to stay this proceeding pending resolution of B.K....