Cudjoe v. Independent School Dist. No. 12
| Decision Date | 23 July 2002 |
| Docket Number | No. 01-6008.,01-6008. |
| Citation | 297 F.3d 1058 |
| Parties | Brenda CUDJOE; Adam "Scottie" Carrington, a minor, by and through his next friend, Brenda Cudjoe, Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 12 a/k/a Edmond Public Schools and Ysleta Hansen, individually and in her official capacity as a teacher for ISD No. 12, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Sheryl Gray Rasmus of The Rasmus Firm, Austin, TX, for Plaintiff-Appellant.
Frederick J. Hegenbart (Jerry A. Richardson with him on the brief), Rosenstein, Fist & Ringold, Tulsa, OK, for Defendant-Appellee Independent School District No. 12.
Maurice G. Woods, II (Michael McAtee with him on the brief), McAtee & Woods, P.C., Oklahoma City, OK, for Defendant-Appellee Ysleta Hansen.
Before EBEL and PORFILIO, Circuit Judges and SHADUR,* District Court Judge.
Plaintiff-Appellant, Brenda Cudjoe, individually and as next friend of Adam "Scottie" Carrington, brought suit against the Edmond Public School District and Ysleta Hansen (collectively "Appellees") for alleged violations of federal privacy and non-discrimination laws and the United States Constitution. Specifically, Appellant brought an action against the District and Hansen pursuant to 20 U.S.C. § 1232g () and 42 U.S.C. § 1983. Appellant also claimed that Hansen and the District violated Scottie's right to privacy incorporated into the Due Process Clause of the Fourteenth Amendment. Appellant alleged that the District discriminated against Scottie on the basis of his disability in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794. Finally, Appellant brought suit against the District for discrimination against Scottie on account of his race,1 in violation of Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d.2
The district court granted summary judgment to the District and Hansen on all claims. Appellant appeals that judgment with respect to all claims except for the District's alleged violation of the ADA. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's grant of summary judgment in favor of Appellees.
Scottie began kindergarten in the District in the fall of 1989. At the conclusion of that school year, he was evaluated by his teacher and the school counselor, and they recommended that he be placed in developmental first grade the following year. These evaluations and recommendations were recorded in a "Placement Form" dated April 11, 1990. Developmental first grade is not a special education placement. Appellant agreed with this recommendation. Scottie began the following year in Hansen's developmental first grade class. After three weeks in the class, Appellant removed Scottie from the class and the District.3
After Scottie's removal, the next time Appellant saw Hansen was eight and a half years later when Hansen purchased the condominium above Appellant. Hansen leased this condominium to Kathy Garrison. Over the next few months, Appellant and Garrison became involved in unfriendly encounters, which included each side calling the police on the other, and allegations of threats and racial epithets. Appellant also learned that someone had been making comments around the condominium property about herself and Scottie. She hired a private investigator, Christie Spencer, to discover the substance of the comments and their source.
Spencer arranged a meeting on March 22, 1999, in the condominium owned by Hansen. The meeting was tape recorded and attended by Hansen, Garrison, and Spencer. Hansen viewed the meeting as a "neighborly kind of dispute," not a school matter. Hansen's comments at that meeting about Scottie's social skills, behavior, and academic progress constitute the basis of Appellant's Fourteenth Amendment privacy claim.4
Scottie returned to the District for third grade and has been enrolled ever since. In the 1994-95 school year, his fifth-grade year, Scottie became ill, underwent surgery, and was placed on "homebound" status. Scottie was diagnosed with Epstein-Barr virus, which fatigues him to the point where he cannot attend classes. As such, he has remained on homebound status ever since his fifth-grade year. An individual accommodation plan ("IAP") was developed for him pursuant to Section 504 to deliver homebound services,5 and these IAP's have been revised annually. Appellant has participated in these meetings and her requests for educational services for Scottie have been complied with by the District, but at times, the District was late in providing some teaching materials to Scottie's homebound teacher. In the last two or three years, the associate superintendent, counselors not assigned to Scottie, psychologists, and a psychomotrist have attended these IAP meetings.
Appellant was allowed to request teachers from outside the District to teach Scottie for his seventh through tenth-grade years. Her recommendation to teach Scottie during his tenth-grade year, Carmen Heath, did not complete the District's employment forms until the spring semester of that year, because she was hired through the unconventional process of Appellant's selection. Upon receipt of these forms and completion of a background check, the District discovered that Heath had a prior felony conviction. The District allowed her to finish the remaining school year but did not continue her employment the next year.
Appellant was unhappy with this decision by the District because Scottie and Heath had a good relationship and she was pleased with Heath's performance. The District once again permitted Appellant to request a teacher for Scottie's eleventh-grade year. She selected an African-American male with twenty-three years of teaching experience and a master's degree. This candidate was interviewed by the District but was not hired. Instead, the District assigned Andrea Luster, who previously had taught Scottie in his fifth and sixth-grade years, to serve as his teacher for his junior year. Upon being notified that Luster would replace Heath, Appellant informed the District that she disapproved of this decision because Luster had had difficulty teaching Scottie sixth-grade math. Appellant had not expressed her dissatisfaction with Luster before this time, however. Because Appellant refused to let Luster teach Scottie, he was without a teacher for his eleventh-grade year.
The District's tardy provision of teaching materials, selection of Scottie's teachers, and attendance of additional personnel members at Scottie's IAP meetings provide the primary basis for Appellant's Section 504 disability discrimination and Title VI racial discrimination claims.
We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1313 (10th Cir. 1999). Summary judgment is appropriate if the pleadings, affidavits, and other evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we review the evidence "and inferences therefrom in the light most favorable to the nonmoving party." See Bullington, 186 F.3d at 1313.
Although the movant must show the absence of a genuine issue of material fact, the movant is not required to negate the opposing party's claim when the movant does not bear the ultimate burden of persuasion at trial. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the movant carries the first indicated burden, however, the nonmovant cannot rest upon his or her pleadings, "but must set forth specific facts showing that there is a genuine issue for trial." Bullington, 186 F.3d at 1313. "Summary judgment is appropriate if the evidence is such that no reasonable jury could return a verdict for the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
At the time Appellant brought this appeal, this court had held that a violation of the FERPA section at issue, § 1232g(b)(1), is actionable under § 1983. See Falvo v. Owasso Indep. Sch. Dist., 233 F.3d 1203, 1212-13 (10th Cir.2000), rev'd on other grounds, 534 U.S. 426, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002). The Supreme Court subsequently has held, however, that FERPA's nondisclosure provisions "create no rights enforceable under § 1983." Gonzaga Univ. v. Doe, ___ U.S. ___, 122 S.Ct. 2268, 2279, 153 L.Ed.2d 309 (2002). Accordingly, we affirm judgment for Appellees on the FERPA claim, although on a different ground than relied upon below.
Before the district court, a component of Appellant's § 1983 claim alleged that the District violated Scottie's right to privacy, as incorporated into the Due Process Clause of the Fourteenth Amendment. On appeal, she again raises her constitutional claim, but fails to argue that she is bringing it under § 1983. Construing her cursory argument on the issue as a properly raised § 1983 claim for a violation of Fourteenth Amendment rights, we reject Appellant's claim.
Appellant claims that the following statements by Hansen on March 22, 1999, violated Scottie's constitutional rights:
(1) Scottie had no social skills;
(2) Hansen "held back" Scottie;
(3) Scottie should have stayed in kindergarten;
(4) Scottie "never should have gone to developmental first grade";
(5) Scottie was a "hellion" or frustrated;
(6) Scottie was a "bully";
(7) Scottie acted like Mr. King;
(8) Scottie was...
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