Barker v. Riverside County Office of Educ.

• Decision Date: 23 October 2009
• Docket Number: No. 07-56313.,07-56313.
• Citation: 584 F.3d 821
• Parties: Susan Lee BARKER, Plaintiff-Appellant, v. RIVERSIDE COUNTY OFFICE OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

584 F.3d 821

Susan Lee BARKER, Plaintiff-Appellant, v. RIVERSIDE COUNTY OFFICE OF EDUCATION, Defendant-Appellee.

No. 07-56313.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 12, 2008.

Filed October 23, 2009.

Janice S. Cleveland, Law offices of Janice S. Cleveland, Riverside, CA, and Gary S. Bennett, Law Offices of Gary S. Bennett, Laguna Hills, CA, for the plaintiff-appellant.

Jennifer D. Cantrell and Mark W. Thompson, Atkinson, Andelson, Loya, Ruud & Romo, Riverside, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California, Stephen G. Larson, District Judge, Presiding. D.C. No. CV-07-00274-SGL.

Before: HARRY PREGERSON and D.W. NELSON, Circuit Judges, and JAMES K. SINGLETON,^* Senior District Judge.

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 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

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 Riverside 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, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

III. Discussion

A. Section 504 of the Rehabilitation Act of 1973

Barker contends that she has standing¹ to sue her employer, 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:

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 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).

Contrary to the Riverside County Office of Education's arguments, the broad statutory language in section 504 and its...