This retaliation case under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797, is before the Court on defendant Duval County School Board's Motion to Dismiss (Doc. 16), and plaintiff LaTanya McNeal's response in opposition (Doc. 17).
McNeal filed this action alleging that defendant Duval County School Board ("DCSB") unlawfully retaliated against her in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. According to the Amended Complaint (Doc. 15-1), McNeal was the principal at Southside Middle School (id. at ¶¶ 2, 35).*fn1 In February 2010, McNeal hired an attorney to assist in advocating for her handicapped child's rights under Section 504, and on March 3, 2010, her daughter was placed on a 504 plan. (Id. at ¶¶ 11-13.) McNeal alleges that in a meeting on March 5, 2010, her supervisor "chastised and berated" her for how she handled her child's 504 plan and stated that her choice to hire an attorney to assist in the plan was "over the top" and she needed to "back off." (Id. at ¶ 19.) McNeal alleges she was scheduled for an interim performance review at the end of February 2010, but she was never contacted regarding that review. (Id. at ¶ 21.) According to the Amended Complaint, on September 16, 2010, McNeal received a negative performance evaluation and her supervisor did not recommend her for merit pay. (Id. at ¶ 22.) McNeal's supervisor allegedly told her that the decision not to recommend her for merit pay was based on McNeal having hired an attorney to advocate for her daughter's 504 plan. (Id.) McNeal alleges that between the beginning of the 2010-2011 school year and March 2011, she was frequently harassed, demeaned, and threatened by her supervisors (id. at ¶¶ 24, 42), she received poor financial audits of her school (id. at ¶ 25), and she was prevented from engaging in training and traveling opportunities (id. at ¶ 26). On March 1, 2011, McNeal filed a complaint with DCSB's Office of Equity and Inclusion (id. at ¶ 28.), and on March 11, 2011, McNeal received a second negative performance evaluation and was put on a "success plan" (id. at ¶¶ 29-31).
McNeal claims DCSB's actions toward her were in retaliation for advocating for her daughter's Section 504 rights. (Id. at ¶¶ 40, 42.) As a result, on April 6, 2011, McNeal requested that DCSB provide an administrative hearing before the Florida Division of Administrative Hearings. (Id. at ¶ 7.) On May 3, 2011, DCSB denied her request. (Id. at ¶ 8.) Due to the denial of the hearing and in belief that she had exhausted her administrative remedies (id. at ¶¶ 7-9), on May 18, 2011, McNeal filed the present action (id. at ¶ 33).
Ultimately, on June 30, 2011, DCSB demoted McNeal from principal of Southside Middle School to assistant principal of a different middle school, resulting in a reduction in pay of approximately $33,000. (Id. at ¶¶ 35-37.)
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff, construing the allegations in the light most favorable to the plaintiff. Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006) (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007). However, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . ." Twombly, 550 U.S. at 555 (citations omitted). In its inquiry, the reviewing court must "draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950.
First, DCSB argues McNeal failed to allege a retaliation claim under Section 504. Second, DCSB argues McNeal failed to properly exhaust her administrative remedies in accordance with the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415, prior to filing her Section 504 lawsuit. The Court addresses these two arguments separately.
McNeal's retaliation claim under Section 504 is atypical. McNeal does not allege her child was discriminated or retaliated against, nor that she was dissatisfied with her child's Section 504 plan. Instead, McNeal asserts DCSB retaliated against her, in violation of the Rehabilitation Act, for advocating for her handicapped child's rights.
The Rehabilitation Act does not specifically provide an anti-retaliation provision. However, the Eleventh Circuit in Albra v. City of Fort Lauderdale, provided that "[t]he anti-discrimination provision of the Rehabilitation Act incorporates the anti-retaliation provision of the [Americans with Disabilities Act ("ADA")]." 232 F. App'x 885, 891 (11th Cir. 2007) (citing 29 U.S.C. § 794(a), (d); 42 U.S.C. § 12203(a)). Thus, "the prima facie case for retaliation under the Rehabilitation Act is the same as that under the ADA." Id. at 891 (citing Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 n.2 (11th Cir. 1997)). Moreover, because the ADA retaliation provision is similar to that of Title VII, retaliation claims filed under the Rehabilitation Act are assessed under the same framework as Title VII retaliation claims. Shannon v. Postmaster Gen. of U.S. Postal Serv., 335 F. App'x 21, 26 (11th Cir. 2009); Wilbourne v. Forsyth Cnty. Sch. Dist., 306 F. App'x 473, 475 (11th Cir. 2009). Accordingly, to establish a prima facie case for retaliation under the Rehabilitation Act, McNeal must show "(1) that she engaged in statutorily protected activity; (2) that she suffered an adverse employment action; and (3) a causal link between the protected activity and the adverse action." Wilbourne, 306 F. App'x at 475 (internal marks omitted) (citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998)).
McNeal has pled sufficient facts to infer she engaged in a statutorily protected activity under the Rehabilitation Act. McNeal asserted that her daughter had a disability and pursuant to 29 U.S.C. § 794(a), was entitled to a Section 504 plan. The ADA's retaliation provision, which is incorporated into the Rehabilitation Act, provides that "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any individual . . . on account of . . . her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the Act]." 42 U.S.C. § 12203(b) (emphasis added). McNeal alleges she advocated on behalf of her child for the school to provide her child with a Section 504 plan based on the child's disability, a statutorily protected activity under the Rehabilitation Act.
McNeal also sufficiently pled that she suffered an adverse employment action. The Eleventh Circuit has held that to sufficiently plead an adverse action, the plaintiff must show a reasonable employee would have found such conduct materially adverse. Shannon v. Postmaster Gen. of U.S. Postal Serv., 335 F. App'x 21, 26 (11th Cir. 2009) (citation omitted). Likewise, in analyzing a retaliation claim under Title VII, the United States Supreme Court has held that to demonstrate an adverse action, the plaintiff must show such action taken by her employer "well might have dissuaded a reasonable worker" from engaging in statutorily protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Among other things, McNeal asserts she was demoted resulting in a substantial loss of pay, received poor performance reviews, and was denied merit pay and travel and training opportunities. A reasonable employee could easily find such conduct to be materially adverse. See Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d ...