Vargas v. Madison Metro. Sch. Dist.

• Decision Date: 20 May 2019
• Docket Number: 18-cv-272-slc
• Parties: MARCELA NICOLE SAUZO VARGAS, by and through MAYRA VARGAS RUIZ, Plaintiff, v. MADISON METROPOLITAN SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

MARCELA NICOLE SAUZO VARGAS,by and through MAYRA VARGAS RUIZ, Plaintiff, v. MADISON METROPOLITAN SCHOOL DISTRICT, et al., Defendants.

18-cv-272-slc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 20, 2019

OPINION AND ORDER

In April 2015, plaintiff Marcela Nicole Sauzo Vargas, a cognitively disabled student at James Madison Memorial High School, was sexually assaulted by another student while at school. Plaintiff, by her mother, Mayra Vargas Ruiz, brings claims for damages against the Madison Metropolitan School District and its insurance company (collectively, "the district") under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 ("ADA"), and Title V of the Rehabilitation Act, 29 U.S.C. § 794, contending that the district discriminated against her because of her disability when it failed to protect her from the assault.¹ Defendants have moved for summary judgment, asserting that plaintiff lacks evidence to establish key elements of her claims. I agree that plaintiff has failed to adduce facts from which a jury could find that the district discriminated against her because of her disability. Therefore, I am granting defendants' motion.

For purposes of deciding the motion for summary judgment, I find the following facts to be material and undisputed, except as otherwise noted.²

FACTS

Plaintiff is a cognitively and mentally disabled adult who resides with her mother, Mayra Lizeth Vargas Ruiz ("Vargas"). Plaintiff's ability to understand her world and respond to it are at a level typical for children three to five years old. At the time of the incident at issue in this lawsuit, plaintiff attended James Madison Memorial High School (Memorial), which is within the Madison Metropolitan School District. In 2017, Memorial had a student population of more than 1,900.

Plaintiff attended Memorial from September 2012 through November 2015 pursuant to an Individualized Education Plan ("IEP"). Jessika Schultz, a special education teacher at Memorial, was plaintiff's case manager in 2015. As a case manager, Schultz dealt with the day-to-day issues of her students and usually acted as the liaison between the school and her students' parents. Rosemary Barrientos-Irigoyen is a school social worker at Memorial, who had frequent contact with plaintiff and Vargas for at least one year prior to April 2015.

For at least eighteen months prior to April 20, 2015, plaintiff often told Barrientos and Schultz that she was interested in boys, she wanted to kiss boys, and she wanted to have a baby. Plaintiff's statements concerned Schultz and Barrientos, who shared their concerns with each other, with plaintiff's IEP team, and with Vargas. Based on plaintiff's statements, Schultz andBarrientos discussed with members of the IEP team the need to keep an eye on plaintiff in the school setting. Schultz knew that plaintiff's cognitive deficits made her a vulnerable student.

According to Vargas, sometime in early April 2015, plaintiff came home from school and told her that "a boy" at school wanted to have sex with her. Vargas says she called Barrientos the next day and reported what plaintiff had told her. Vargas could not identify the boy, nor did she know his name or his nationality, but she knew that he wore earrings and that he wore a blue t-shirt, jacket, or sweatshirt. According to Vargas, Barrientos told her that the school would pay close attention to plaintiff.

About a week later, says Vargas, she met with Barrientos and Schultz in person at school and told them that plaintiff had again told her that the same student was saying he wanted to have sex with plaintiff.³ According to Vargas, Barrientos and Schultz said "that they were going to be paying attention to that and looking out after things and more than anything regarding that kid." Barrientos and Schultz, however, both deny having had any conversation with Vargas before April 20, 2015 about a boy wanting to have sex with plaintiff.

On April 20, 2015, plaintiff told one of her teachers that she had had some form of sexual contact with a male student between class periods. Although plaintiff did not know who the boy was, Memorial staff eventually were able to identify him by reviewing recordings from surveillance cameras. I will refer to him as Student X to protect his privacy and pursuant to Wis. Stat. § 118.125. The recordings show Student X, followed by plaintiff, walking down into a stairwell and disappearing from view for about six or seven minutes.

Student X had transferred to Memorial from another district on March 5, 2015. Student X had cognitive disabilities. Student X had a prior history of engaging in inappropriate sexual conduct with another student at his previous school. There is no evidence, however, that anyone at Memorial knew this until Memorial conducted its investigation after the assault.

After reporting the incident to her teacher, plaintiff spoke with Barrientos and Schultz. Plaintiff's story about the incident evolved as she spoke. Although plaintiff used the word "sex" to describe what had happened with the other student, Schultz was uncertain whether plaintiff knew what that word actually meant. Regardless, Memorial staff took her allegation seriously. After speaking with plaintiff, Schultz and Barrientos, along with assistant principal Pete Hartman, called Vargas. In addition, Memorial staff contacted the Madison Police Department, which investigated the alleged sexual assault.

Hartman also conducted his own investigation. He reviewed Memorial's surveillance camera recordings and spoke with staff members about plaintiff's allegation. From his investigation, Hartman was not able to determine conclusively what had happened between Student X and plaintiff in the stairwell on April 20, 2015.

After the incident, plaintiff and Student X both were assigned a full-time staff member to chaperone them at all times during the entire school day.

OPINION

I. Summary Judgment Standard

Summary judgment is appropriate only if the moving party can demonstrate "that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matterof law." Federal Rule of Civil Procedure 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004).

A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. "As the 'put up or shut up' moment in a lawsuit, summary judgment requires a non-moving party to respond to the moving party's properly-supported motion by identifying specific, admissible evidence showing that there is a genuine dispute of material fact for trial." Grant v. Trustees of Indiana University, 870 F.3d 562, 568 (7^th Cir. 2017).

II. Disability Discrimination under the ADA and RA

Plaintiff brings claims against the district under Title V of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. The aim of both statutes is to protect disabled persons from discrimination in the provision of public services. In pursuit of this goal, Title II of the ADA requires that

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 . . . of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132 (2003).

Similarly, Title V, § 504 of the Rehabilitation Act provides that

No otherwise qualified individual with a disability . . . 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).

Rehabilitation Act claims are analyzed under the same standards as those used for ADA claims, with the only distinguishing factor being that claims under the Rehabilitation Act require that the defendant receive federal funds. Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 671 (7^th Cir. 2012); Ozlowski v. Henderson, 237 F.3d 837, 842 (7^th Cir. 2001). It is undisputed in this case that the district receives federal funds.

To establish a prima facie case of discrimination under Title II, a plaintiff must show that:

(1) she is a "qualified individual with a disability";

(2) she was denied "the benefits of the services, programs, or activities of a public entity" or otherwise subjected to discrimination by such an entity; and

(3) the denial or discrimination was "by reason of" her disability.

Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (quoting 42 U.S.C. § 12132).

To recover monetary damages, a plaintiff must prove that the defendants intentionally discriminated against her because of her disability. Strominger v. Brock, 592 F. App'x 508, 511 (7th Cir. 2014) ("Even if Strominger could show a violation of the ADA and/or Rehabilitation Act, he could not recover compensatory damages without showing intentional discrimination."); Barnes v. Gorman, 536 U.S. 181, 184-89 ("[T]he remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private causeof action brought under Title VI of the Civil Rights Act of 1964[.]"); Meagley v. City of Little Rock, 639 F.3d 384, 390 (8th Cir. 2011) ("Every circuit court to address the issue since Barnes has reaffirmed that intentional...