Wilson v. City of Southlake ( 2022 )

Case: 21-10771 Document: 00516577066 Page: 1 Date Filed: 12/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 13, 2022
No. 21-10771 Lyle W. Cayce
Clerk
Chad Wilson, Individually and as next friend of S.W.;
Martha Wilson, Individually and as next friend of
S.W.,
Plaintiffs—Appellants,
versus
City of Southlake,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-57
Before Willett, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:*
Plaintiffs-Appellants Chad and Martha Wilson (“the Wilsons”),
individually and as next friends of S.W., appeal the district court’s July 9,
2021 summary judgment dismissal of their intentional discrimination claims
asserted under Section 504 of the Rehabilitation Act of 1973 and Title II of
the Americans with Disabilities Act (“ADA”). The Wilsons’ claims against
*
This opinion is not designated for publication. See 5th Circuit Rule 47.5.4.
Case: 21-10771 Document: 00516577066 Page: 2 Date Filed: 12/13/2022
No. 21-10771
Defendant-Appellee City of Southlake (“Southlake”) arise from a January
23, 2014 encounter between then-Sergeant Randy Baker of the Southlake
Police Department and S.W., an eight-year-old second-grade student at
Carroll Elementary School. Baker worked as one of the uniformed school
resource officers (“SROs”) for the schools operated by the Carroll
Independent School District (“CISD”). Responding to a call for assistance
from SRO Robert Slusser, Baker handcuffed S.W., within seconds of his
arrival, upon observing S.W. screaming obscenities and swinging a child’s
jump rope in close proximity to the school principal, Stacy Wagnon, and
Slusser.
After telling S.W. that he had been handcuffed for his safety and the
safety of others, Baker sat S.W. in a chair in the principal’s office. He then
yelled, rebuked, and verbally sparred with S.W. for approximately 15 minutes
regarding the student’s misbehavior at school that day and on January 7,
2014. During part of this verbal exchange, Baker sat face-to-face with S.W.,
and, at one point, undisputedly lost his temper when S.W. told Baker: “I’m
going to kill you.” Wagnon and Slusser, as well as the school counselor,
Jennifer Bailey, remained in the room (or an adjoining one) during the
exchange between Baker and S.W. but did not interfere. Baker removed the
handcuffs when S.W.’s parents—whom the school office staff had
summoned, at Wagnon’s direction, when she and Bailey were unable to
control S.W.’s behavior—arrived to collect the child.
Following an internal affairs investigation regarding the January 23,
2014 incident, the Southlake Chief of Police determined that Baker’s verbal
interaction with S.W. had violated a number of the police department’s rules
of conduct. As a result, Baker’s employment was terminated. Thereafter,
the Wilsons sued Southlake and Baker, asserting various federal and state law
claims on behalf of S.W. On November 28, 2017, the district court granted
summary judgment in favor of Southlake based on the “exigent
2
Case: 21-10771 Document: 00516577066 Page: 3 Date Filed: 12/13/2022
No. 21-10771
circumstances” exception to the application of the ADA and the
Rehabilitation Act that was recognized in Hainze v. Richards, 207 F.3d 795,
799, 801–02 (5th Cir. 2000). On appeal, another panel of this court reversed
that judgment, finding Hainze inapplicable. See Wilson v. City of Southlake,
936 F.3d 326 (5th Cir. 2019). 1 Following remand and discovery, the district
court again granted summary judgment in Southlake’s favor, dismissing the
Wilsons’ ADA and Rehabilitation Act claims with prejudice. The Wilsons
appealed again. Considering the instant record, we AFFIRM.
I.
The factual background of this matter is more than adequately
detailed in the parties’ extensive briefs, the panel opinion from the prior
appeal in this matter, the district court’s written rulings, and the numerous
record documents. And, of course, no one is more familiar with the facts than
the parties and their counsel. Thus, we need not undertake a comprehensive
background discussion herein. Instead, we summarize the January 23
encounter, as well as a January 7, 2014 incident involving S.W., school
personnel, and Slusser, as follows:
A. January 7, 2014 Incident
On January 7, 2014, S.W. was serving an in-school suspension
(“ISS”) in Wagnon’s office. At approximately 9:15 a.m., Bailey summoned
Slusser to Wagnon’s office. When he arrived, Slusser observed S.W. scream
at Wagnon and Assistant Principal Angie George and overturn two chairs.
Slusser entered the office but initially remained silent. Thereafter, both
1
In Hainze, this court recognized an “exigent circumstances” exception to the
application of the ADA and the Rehabilitation Act. Reviewing the district court’s initial
summary judgment in favor of Southlake, the previous panel concluded the “exigent
circumstances” exception did not apply because, unlike in Hainze, Sergeant Baker
encountered an eight-year-old student with a jump rope, not a “potentially life-threatening
situation or threat to human life.” See Wilson, 936 F.3d at 331.
3
Case: 21-10771 Document: 00516577066 Page: 4 Date Filed: 12/13/2022
No. 21-10771
Wagnon and Slusser unsuccessfully attempted to calm S.W. by explaining
why he still had ISS hours to complete and telling him that “everyone at the
school cares about [him].” Despite their efforts, S.W. continued to scream
about ISS and attempted to overturn a table.
When Wagnon asked S.W. to sit down and do his work, S.W. punched
her in the stomach and kicked her in the leg. He also told Wagnon and Slusser
that he would have to kill them and said that if Wagnon “kept up her
behavior,” his “mother is going to sue for a million bucks.” S.W. twice
picked up a chair as if to throw it, but then put the chair down when Wagnon
and Slusser instructed him to do so, “stood back[,] and let [him] have plenty
of space.” S.W. still continued to complain about ISS and scream that he
was going to kill someone. Notably, however, he did not mention using or
having a weapon.
S.W. again kicked Wagnon a second time; this time in the knee. Then,
after asking Wagnon and Slusser if they wanted to see his penis, S.W. pulled
down his pants and undergarment to his knees, exposing himself. After
Slusser pulled up S.W.’s clothing and placed him in a chair, S.W. threatened
to tase them with Slusser’s taser and then shoot them with Slusser’s gun.
S.W. then removed a jar from a shelf, acting as if he was going to throw it, but
Slusser removed the jar from his grasp. Despite Slusser’s attempts to calm
S.W. with general conversation about Christmas, S.W. picked up the jar again
and threw it at Slusser, hitting him in the knee, and continued to scream
death threats and obscenities. He also told Slusser to “shut up” and said:
“When I get mad, I can’t control myself.”
After unsuccessfully attempting to call his mother using Wagnon’s
office telephone, S.W. walked around the room, picked up and threw a chair,
and then picked up a jar of beans, throwing it at the ground and breaking it.
4
Case: 21-10771 Document: 00516577066 Page: 5 Date Filed: 12/13/2022
No. 21-10771
S.W. then started to cry and screamed that he was going to kill someone,
break out of the window, and escape.
The January 7, 2014 encounter ended when S.W. left the school with
his parents. According to Slusser: “We were able to use verbal crisis
prevention techniques until S.W.’s parents arrived to pick up. Although we
gave him space and tried to engage in conversation, S.W. never calmed down
while he was in Principal Wagnon’s office.” See Slusser’s Oct. 5, 2020 Decl.,
¶ 8.
B. January 23, 2014 Incident
On January 23, 2014, S.W. returned to school for the first time since
the January 7 incident. Because he had not yet completed his ISS hours, he
reported to Wagnon’s office rather than his usual classroom. As soon as S.W.
was told to begin his schoolwork, however, he indicated that he would not
cooperate, made rude remarks, including profanity, and told Wagnon that, if
she touched him, his parents would sue her and CISD “would have to pay
for a private school.”
When Wagnon offered to help S.W. with his assignment, he became
visibly upset, continued uttering obscenities, “crumpled up the papers,” and
threw them and his pencil on the floor. Wagnon asked S.W. to read a book,
but he threw it off the table, screaming, “I don’t care.” Then, S.W. stated:
“I brought something in my backpack,” adding that it was for “self-
defense.” At that point, Wagnon asked Slusser to come to her office. And, at
approximately 9:40 a.m., Wagnon instructed the front office to call the
Wilsons and ask them to come to the school.
Wagnon asked to see what was in S.W.’s backpack, but S.W. declined
to show her. S.W. indicated that it was a weapon “deadly to squirrels and
other small animals,” but not humans. Wagnon attempted to search the
backpack, but S.W. threw papers in her face. He also threw a cup of hot
5
Case: 21-10771 Document: 00516577066 Page: 6 Date Filed: 12/13/2022
No. 21-10771
coffee at Wagnon, which missed her but hit the wall. S.W. then took from
his backpack what he called a “homebuilt nunchuck,” which actually was a
jump rope that the school had given him as part of “Jump Rope for the
Heart.” After S.W. twice tried to hit Wagnon with the item, and twice tried
to kick her, Slusser radioed Baker for backup.
Wagnon told S.W. that she would ask Slusser to confiscate the item if
he did not turn it over. S.W. refused, screamed obscenities, and then ran into
the hallway. At 9:47 a.m., Baker entered the hallway, where S.W. continued
to scream obscenities and was swinging his rope. 2 At approximately 9:47:48
a.m., Baker can be heard asking someone (presumably Slusser): “Why is he
swinging that around?”
It is disputed whether, during this time, S.W. was told to stop his
misconduct, kicked or attempted to kick Wagnon, and hit or attempted to hit
Baker. The statements provided by Baker, Slusser, and Wagnon (at varying
times), regarding the events occurring in the hallway in the seconds before
Baker handcuffed S.W., do not provide a sufficiently clear and consistent
account for a definitive determination to be made. However, at
approximately 9:47:55 a.m., someone other than S.W. can be heard (on the
audio recording) saying “Stop it!” in a sharp, firm tone. 3
II.
Summary judgments rendered pursuant to Federal Rule of Civil
Procedure 56 are reviewed de novo, applying the same standard as the district
court. Aggreko, L.L.C. v. Chartis Specialty Ins. Co., 942 F.3d 682, 687 (5th Cir.
2
Baker’s police vehicle’s audio-visual equipment provided a sound recording of
certain portions of the January 23, 2014 incident
3
Bailey’s notes from the January 23, 2014 encounter attribute this instruction to
Wagnon.
6
Case: 21-10771 Document: 00516577066 Page: 7 Date Filed: 12/13/2022
No. 21-10771
2019) (quoting Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir.
2016)). However, “[w]e may affirm the district court’s grant of summary
judgment on any ground supported by the record and presented to the district
court.” Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273
(5th Cir. 2015).
Summary judgment is appropriate where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56. Material facts are those that “might affect the
outcome of the suit under the governing law.” Leasehold Expense Recovery,
Inc. v. Mothers Work, Inc., 331 F.3d 452, 456 (5th Cir. 2003) (internal
quotation marks and citation omitted). “A genuine [dispute] of material fact
exists when the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th
Cir. 2017). The resolution of a genuine dispute of material fact “is the
exclusive province of the trier of fact and may not be decided at the summary
judgment stage.” Ramirez v. Landry’s Seafood Inn & Oyster Bar, 280 F.3d
576, 578 n.3 (5th Cir. 2002). Thus, the court must not weigh evidence or
make credibility findings, and construes all facts and reasonable inferences in
favor of the nonmovant. Deville v. Marcantel, 567 F.3d 156, 163–64 (5th Cir.
2009).
III.
On appeal, the Wilsons contend that the district court erred in
granting summary judgment on the merits of their ADA and Rehabilitation
Act claims against Southlake. Title II of the ADA provides 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, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. “Public entities” include local governments. 42
7
Case: 21-10771 Document: 00516577066 Page: 8 Date Filed: 12/13/2022
No. 21-10771
U.S.C. § 12131(1)(A). Section 504 of the Rehabilitation Act of 1973 provides,
in relevant part:
No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title, 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 or under any program or activity conducted
by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a).
The remedies, procedures, and rights available under the ADA
parallel those available under the Rehabilitation Act. Delano-Pyle v. Victoria
Cnty., 302 F.3d 567, 574 (5th Cir. 2002) (quoting 42 U.S.C. § 12133). “Thus,
‘[j]urisprudence interpreting either section is applicable to both.’” Id.(quoting Hainze, 207 F.3d at 799). “The only material difference between
the two provisions lies in their respective causation requirements.” Bennett-
Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).
To establish a prima facie case under either statute, a plaintiff must
show: “(1) that he is a qualified individual . . .; (2) that he is being excluded
from participation in, or being denied benefits of, services, programs, or
activities for which the public entity is responsible, or is otherwise being
discriminated against by the public entity; and (3) that such exclusion, denial
of benefits, or discrimination is by reason of his disability.” Cadena v. El Paso
Cnty.,946 F.3d 717, 723 (5th Cir. 2020) (quoting Melton v. Dallas Area Rapid
Transit, 391 F.3d 669, 671–72 (5th Cir. 2004)). Under Section 504 of the
Rehabilitation Act, the plaintiff must establish that disability discrimination
was the sole reason for the exclusion or denial of benefits. Id. at n.1. Under
Title II of the ADA, however, “discrimination need not be the sole reason.”
Id.
8
Case: 21-10771 Document: 00516577066 Page: 9 Date Filed: 12/13/2022
No. 21-10771
The Supreme Court has held that prisons are public entities that may
not exclude disabled individuals from participation in, or deny them the
benefits of, their services, programs, or activities. Pennsylvania Dep’t of Corr.
v. Yeskey, 524 U.S. 206, 210 (1998). And, in Windham v. Harris Cnty., Texas,
875 F.3d 229, 235–36 (5th Cir. 2017), this court recognized Title II claims in
the specific context of police officers who fail to reasonably accommodate the
known limitations of disabled persons they detain. See also Delano-Pyle, 302
F.3d at 570–71, 575–76 (affirming jury verdict that police officers
discriminated against deaf arrestee by failing to accommodate the limitations
arising from his inability to hear); Hainze, 207 F.3d at 802 (“Once the area
was secure and there was no threat to human safety, the . . . Sheriff’s deputies
would have been under a duty to reasonably accommodate Hainze’s
disability. . . .”); Waller ex rel. Est. of Hunt v. City of Danville, 556 F.3d 171,
174 (4th Cir. 2009) (“In the context of arrests, courts have recognized two
types of Title II claims: (1) wrongful arrest, where police arrest a suspect
based on his disability, not for any criminal activity; and (2) reasonable
accommodation, where police properly arrest a suspect but fail to reasonably
accommodate his disability during the investigation or arrest, causing him to
suffer greater injury or indignity than other arrestees.”).
“[T]he ADA requires [public entities] to reasonably accommodate
limitations, not disabilities.” Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155,
164 (5th Cir. 1996). Thus, “a critical component of a Title II claim for failure
to accommodate [] is proof that ‘the disability and its consequential
limitations were known by the [entity providing public services].’”
Windham, 875 F.3d at 236 (emphasis added) (quoting Jin Choi v. Univ. of Tex.
Health Sci. Ctr., 633 F. App’x 214, 215–16 (citing Neely v. PSEG Tex., Ltd.
P’ship, 735 F.3d 242, 247 (5th Cir. 2013))); accord Ball v. LeBlanc, 792 F.3d
584, 596 n.9 (5th Cir. 2015). In this context, “limitations” refers to the effect
that a disability has on a person’s life. Taylor, 93 F.3d at 164. “Mere
9
Case: 21-10771 Document: 00516577066 Page: 10 Date Filed: 12/13/2022
No. 21-10771
knowledge of the disability is not enough; the service provider must also have
understood ‘the limitations [the plaintiff] experienced . . . as a result of that
disability.’” Windham, 875 F.3d at 236 (quoting Taylor, 93 F.3d at 164(emphasis added)); accord Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437,
444–45 (5th Cir. 2017); Jin Choi, 633 F. App’x at 216. 4 “Otherwise, it would
be impossible for the provider to ascertain whether an accommodation is
needed at all, much less identify an accommodation that would be reasonable
under the circumstances.” Windham, 875 F.3d at 236; see id. (“‘The ADA
does not require clairvoyance.’”(quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d
928, 934 (7th Cir. 1995))). Accordingly, the plaintiff must “specifically
identify the disability and resulting limitations, and [] request an
accommodation in direct and specific terms.” Windham, 875 F.3d at 237
(internal quotation marks and citations omitted).
When a plaintiff has not requested an accommodation in this manner,
he must show that “‘the disability, resulting limitation, and necessary
reasonable accommodation’ were ‘open, obvious, and apparent’ to the
entity’s relevant agents.” Id. (emphasis added) (quoting Taylor, 93 F.3d at
165); accord Jin Choi, 633 F. App’x at 216. This is because “knowledge of a
disability is different from knowledge of the resulting limitation” and
“certainly is different from knowledge of the necessary accommodation.”
Windham, 875 F.3d at 238.
Where a disability is mental, rather than physical, the disability,
resulting limitations, and necessary reasonable accommodations often are
not “open, obvious, and apparent.” Taylor, 93 F.3d 165. Rather, in that
4
Although these principles were developed in cases applying Title I, e.g., Taylor,
93 F.3d at 163–65, the rules likewise apply in the context of Title II. Windham, 875 F.3d at
236 n. 9; see also Jin Choi, 633 F. App’x at 215–16; Ball, 792 F.3d at 596 n.9.
10
Case: 21-10771 Document: 00516577066 Page: 11 Date Filed: 12/13/2022
No. 21-10771
context, a health care provider is “best positioned to diagnose [] disabilities,
limitations, and possible accommodations.” Id.
Finally, to recover compensatory damages, a plaintiff must also prove
that the discrimination was intentional. Delano-Pyle, 302 F.3d at 574. “This
court has hesitated to ‘delineate the precise contours’ of the standard for
showing intentionality.” Cadena, 946 F.3d at 724 (quoting Miraglia v. Bd. of
Supervisors of La. State Museum, 901 F.3d 565, 575 (5th Cir. 2018)). Of
course, this standard is met under circumstances revealing a discriminatory
motive. Otherwise, Fifth Circuit cases discussing the issue have required
“something more than ‘deliberate indifference.’” Id. (quoting Miraglia, 901
F.3d at 575 (quoting Delano-Pyle, 302 F.3d at 575)); see also Smith v. Harris
Cnty., 956 F.3d 311, 318 (5th Cir. 2020) (same).
IV.
The Wilsons claim that Baker’s conduct on January 23, 2014
constituted intentional discrimination, under the Rehabilitation Act and the
ADA, based on two separate theories: (1) disparate treatment and (2) failure
to provide reasonable accommodations. It is undisputed that, at the relevant
time, S.W. had been diagnosed with Autism, Anxiety, and ADHD, and was
a qualified individual with a disability. Thus, the first requirement for
establishing a prima facie claim is satisfied.
As to the second and third requirements of their claims, the Wilsons
argue that Baker’s January 23, 2014 conduct creates, at a minimum, a genuine
dispute of material fact as to whether he intentionally discriminated against
S.W. “by reason of” his disability. Specifically, the Wilsons emphasize
Baker’s decision to handcuff S.W. within only 20-30 seconds of Baker’s
arrival, rather than first attempting to de-escalate the situation by using
methods other than physical intervention. Then, the Wilsons contend, Baker
aggravated the situation by shouting at S.W. for the next fifteen minutes—
11
Case: 21-10771 Document: 00516577066 Page: 12 Date Filed: 12/13/2022
No. 21-10771
calling him a “punk” and a “brat”—while the child remained handcuffed and
“clearly in distress.” Quoting the police chief’s characterization of Baker’s
conduct as “unprofessional, sarcastic, and antagonistic,” as well as
“inexcusable and unreasonable,” the Wilsons maintain that Baker’s
“sustained antagonism” reflected a complete lack of patience and deep-
seated animosity toward S.W., demonstrating the existence of a triable factual
dispute relative to whether this behavior suffices to show “bad faith,
prejudice, ill-will, or spite” based on S.W.’s disability.
The Wilsons also argue that the record establishes the existence of
triable issues of fact supporting their reasonable accommodations claim. Re-
garding the question of whether Sergeant Baker (and thus Southlake) had
sufficient notice of S.W.’s disability, limitations, and need for accommoda-
tion(s), the Wilsons reference information provided to school personnel,
contending the “information [] was (or, at a minimum, should have been)
shared with Sergeant Baker.” And, they contend: “Sergeant Baker also had
repeated exposure to S.W.’s difficulties, including from a highly similar inci-
dent that took place two weeks before the incident in question.” Finally, they
argue that, in any event, Southlake had the necessary notice because S.W.’s
disability and need for an accommodation were “open, obvious, and appar-
ent” to Baker. 5
5
Referencing certain language in the prior panel opinion in this matter, the
Wilsons additionally argue that the “law of the case” doctrine precludes an adverse
summary judgment ruling premised on the sufficiency of Baker’s awareness of S.W.’s
disability, limitations, and need for reasonable accommodation. This argument fails for a
number of reasons. The law of the case doctrine is a discretionary practice, not a
jurisdictional rule. See, e.g., United States v. Lee, 358 F.3d 315, 320–21 (5th Cir. 2004);
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). Moreover, the doctrine
applies only to matters actually decided on prior appeal. Despite including the language on
which the Wilsons now rely, the prior panel’s opinion emphasizes that the only issue
determined in that pre-discovery appeal was whether the Hainze “exigent circumstances”
exception entitled Southlake to summary judgment. Indeed, the opinion specifically states:
12
Case: 21-10771 Document: 00516577066 Page: 13 Date Filed: 12/13/2022
No. 21-10771
Regarding an appropriate accommodation, the Wilsons contend that
Baker should have acted as Slusser did. That is, “by speaking to [S.W.] in a
calm tone of voice, providing S.W. sufficient space, and, when necessary, tak-
ing control of objects that . . . might cause a problem.”
V.
The district court found the Wilsons’ evidentiary support insufficient
to avoid summary judgment on either of their theories. In reviewing this
decision, we emphasize that the issues before us do not include whether
Baker’s verbal exchange with S.W. was unprofessional, inappropriate,
unkind, and/or unproductive. Rather, our review is limited to deciding only
whether the Wilsons have put forth sufficient evidence to have their ADA and
Rehabilitation Act damage claims submitted to a jury for determination.
Having carefully considered the parties’ briefs, the record, and applicable law,
we agree with the district court’s assessment. The Wilsons’ position is long
on conclusions and speculation but fatally short on actual evidence of
intentional discrimination.
A. Reasonable Accommodation
Focusing first on the Wilsons’ reasonable accommodation claim, it is
undisputed that Baker had not actually met S.W. prior to the January 23, 2014
incident. Notably, Baker’s deposition testimony also indicates that, as of
January 23, 2014, he: (1) “didn’t know [S.W.] had a disability”; (2) was not
“included on any communication between . . . a principal and a parent”;
(3) did not recall being told or reading that S.W. suffered from autism;
(4) had no “reason to believe that S.W. had autism or another disability
“To be clear, we decide this case solely on the issues raised on appeal. Thus, we do not
offer an opinion on any other potential issues not before us.” Wilson, 936 F.3d at 333.
Consistent with this limitation, the prior panel vacated and remanded without further
limiting instructions or directives to the district court.
13
Case: 21-10771 Document: 00516577066 Page: 14 Date Filed: 12/13/2022
No. 21-10771
when[] [he] first saw [S.W.] in January 2014”; (5) thought S.W. was simply
“a kid . . . that was acting out . . . misbehaving”; (6) thought S.W.’s
“[a]typical” behavior on January 7 and 23, 2014, was “learned behavior”;
and (7) questioned where and how S.W. had learned to behave in that
manner. In response, the Wilsons maintain that other evidence in the record
casts sufficient doubt on the validity of these assertions to render Baker’s
knowledge of S.W.’s disability, limitations, and need for appropriate
accommodation questions to be decided by a jury.
Specifically, the Wilsons point to: (1) Baker’s presence at the October
9, 2013 meeting that various school officials, along with Officer Brett
Wilson, 6 Baker, and Slusser, held to discuss a plan to verify S.W.’s welfare
and obtain help for the family, in light of the suicide threats/comments that
S.W. had made with increased frequency during the year; (2) the Wilsons’
October 15, 2013 email to Wagnon indicating that S.W. has a “diagnosis of
depression, anxiety, as well as aspects of Asperger’s [Syndrome],” inquiring
“what plan and accommodations will be put in place to address his behavior
and statements before his return to school [the next day],” and requesting
that persons involved with the October 2013 meetings be notified that S.W.
is “under [] psychiatrist and psychologist care”; and (3) Baker’s awareness
of S.W.’s “difficulties” and “issues” by virtue of having “signed off” on the
report that Slusser prepared for the January 7, 2014 incident. Characterizing
the January 7, 2014 incident as “highly similar” to the January 23, 2014
incident, the Wilsons argue the report sufficiently notified Baker of S.W.’s
inability to cope with instruction from school personnel and resource officers
and need for an appropriate accommodation.
6
Officer Brett Wilson was also a City of Southlake police officer. He is not related
to the Wilsons.
14
Case: 21-10771 Document: 00516577066 Page: 15 Date Filed: 12/13/2022
No. 21-10771
The record in this matter certainly supports an inference that, prior
to January 23, 2014, Baker had some awareness of S.W.’s previous behavioral
problems. Even so, neither Baker’s participation in the October 9, 2013
meeting, the Wilsons’ October 2013 email to Wagnon, nor Baker’s awareness
of S.W.’s January 7, 2014 misconduct support a reasonable inference that,
contrary to his sworn testimony, Baker was sufficiently cognizant of S.W.’s
particular disability, the corresponding limitations, and the necessary accom-
modations, to satisfy the Wilsons’ summary judgment burden.
Unfortunately, the record lacks any minutes or notes from the Oc-
tober 9, 2013 meeting. Thus, the mere fact of Baker’s attendance at the meet-
ing bears little significance. And the related, one-page “Safety Plan,” dated
October 17, 2013, which “was developed in response to [S.W.’s] multiple
threats of self-harm,” simply lists various actions to be taken by “district
staff” in an effort to ensure S.W.’s safety at school. Notably, the “Safety
Plan” does not specify any particular actions or accommodations to be em-
ployed if S.W.’s behavior became disruptive or violent. Rather, it reflects a
need for future collaboration between the school district staff, S.W.’s parents,
and S.W.’s physicians regarding “expectations related to mood swings, side
effects from medication, or any other expected changes.”
The October 15, 2013 email to Wagnon likewise lacks important in-
formation regarding S.W.’s particular limitations and/or pertinent behavior
accommodations. Although the Wilsons were not required to specify all of
S.W.’s limitations and necessary accommodations, the vague and general na-
ture of the diagnoses referenced in the email, combined with the Wilsons’
refusal, prior to December 2013, to allow the school district to conduct a psy-
chological evaluation of S.W., made it very difficult, if not impossible, for the
school district—much less Baker—to determine what specific behavioral
15
Case: 21-10771 Document: 00516577066 Page: 16 Date Filed: 12/13/2022
No. 21-10771
accommodations were appropriate and necessary prior to, and during, the
January 23, 2014 incident at issue. 7
In any event, the October 15, 2013 email is directed to Wagnon, not
Baker, Slusser, or any other member of the Southlake Police Department.
Nor is there any indication that Wagnon actually shared the information in
the October 15, 2013 email (in accordance with the Wilsons’ request therein),
or the October 17, 2013 “Safety Plan,” with Baker. To the contrary, Wag-
non’s deposition testimony emphasized that school personnel “share very
little personal information with [SROs] about student[s].” And, notably, her
October 21, 2013 email indicates that she “understand[s] [the Wilsons]
plan[] to follow up with [the Southlake] police and [] encourage[s] [them] to
7
This is particularly true given that, during these times, S.W. was not designated
as a “special education” student for purposes of the IDEA. Thus, as the Wilsons knew,
the various plans and committees accompanying such a designation were not in place for
him. And school personnel reportedly did not know whether S.W.’s escalating misconduct
was related to a disability.
Notably, all of these points were emphasized in Wagnon’s December 1, 2013
email response to the Wilsons, which explained that, “[c]urrently, [S.W.] is not a student
entitled to [the] procedural [and] substantive protections under [the] IDEA” that “are
afforded to students receiving special education services under the [IDEA],” and noted the
school district’s prior offer to “conduct a psychological evaluation of [S.W.] and consider
special education eligibility,” as well as the Wilsons’ “refus[al] to provide consent.” The
email continues to discuss the school district’s concerns regarding S.W.’s escalating
behaviors, adding that the Wilsons’ failure to cooperate with the district’s efforts “to
collaborate and develop a more effective behavior plan or other services necessary under
[the] IDEA cannot be ignored and, as explained in both the written notice of proposal to
evaluate and the procedural safeguards provided to [the Wilsons], impacts the procedural
protections related to [S.W.’s] behavior regardless of his disability status.” Wagnon adds:
“[S]ave and except for your refusal to provide consent for evaluation, [S.W.] would in fact
be entitled to an expedited evaluation and ARD committee meeting if indicated at this
point, as it would be important to determine whether the escalating behaviors, which now
include the incident on Friday[,] which resulted in a disciplinary consequence, may be
related to a disability. However, you waived that protection when you refused to provide
consent.”
16
Case: 21-10771 Document: 00516577066 Page: 17 Date Filed: 12/13/2022
No. 21-10771
address [their] specific questions and comments related to the campus SRO
. . . at that time.” Thus, on the instant record, concluding that Wagnon acted
contrary to the usual school policy, i.e., sharing very little personal infor-
mation regarding students with the SROs, would require rank speculation,
which cannot satisfy the Wilsons’ summary judgment burden. See Jones v.
United States, 936 F.3d 318, 321 (5th Cir. 2019) (non-movant cannot avoid
summary judgment by presenting speculation).
The Wilsons’ evidence similarly fails to support a reasonable
inference that an officer with Baker’s experience and training would, without
more, have gleaned an adequate understanding of S.W.’s particular
disability, resulting limitations, and appropriate accommodations simply by
reviewing the report of the January 7, 2014 incident prepared by Slusser. If
anything, the report demonstrates why Wagnon repeatedly asked the
Wilsons for information from S.W.’s health care providers, and sought
permission for the school district to communicate directly with the providers
and conduct its own psychological evaluation of S.W.
Finally, nothing in the record suggests that the conciliatory response
advocated by the Wilsons would have successfully remedied this situation.
Given the negative progression of events on January 7, 2014, as detailed in
Slusser’s report, and the evident escalation on January 23, 2014, there is no
indication that S.W. would not have continued to attempt to hit or kick
Wagnon, or one of the officers, if Baker had not handcuffed S.W. when he
did. Notably, Wagnon believed S.W. to be an “[im]minent danger to himself
or others on January 23rd.” She also “believed[] that the physical restraint
[used] on S.W. was done for [the purpose of protecting the health and safety
of S.W. and others,]” and that use of “a restraint” was reasonable on that
occasion because S.W. caused “everything [to] escalate[] so quickly.” And,
while it is conceivable that Slusser and Baker could have physically restrained
S.W. without using handcuffs, the record likewise provides no assurance that
17
Case: 21-10771 Document: 00516577066 Page: 18 Date Filed: 12/13/2022
No. 21-10771
the alternative means would have worked as effectively in shielding those
present from continued hits, kicks, or other physical assaults, 8 or that such
efforts would not have resulted in S.W., or someone else, being injured. 9
Certainly, the efforts made by Wagnon, Slusser, and Bailey, on
January 23, 2014, to maintain any semblance of order prior to Baker’s arrival
on the scene were, for the most part, failing. Furthermore, according to
Baker’s, Slusser’s, and Wagnon’s written reports of the January 23 incident,
when S.W. was no longer handcuffed and was being carried out of the school
by his father, he grabbed a glass container from Wagnon’s credenza and
threw it, causing it to break, and then punched Slusser’s forehead hard
enough for it to turn red and sting. And, immediately before S.W.’s father
picked [him] up, “[S.W.] growled and charged at [Wagnon].”
Notably, the efforts that Wagnon and Slusser made, on January 7,
2014, to calm S.W. such that he could complete his schoolwork also had
failed. According to Slusser’s October 5, 2020 declaration, S.W. never
calmed down while in Wagnon’s office. Rather, S.W.’s parents had to
remove him from the school.
On this evidentiary showing, the Wilsons have failed to show the
existence of a genuine dispute of material fact relative to their Rehabilitation
Act and ADA reasonable accommodations claims. Accordingly, the district
court properly dismissed it.
8
For example, if Baker and Slusser had simply held S.W.’s arms, they likely would
have remained in kicking, lunging, biting, headbutting, and/or spitting range.
9
Bailey’s January 23, 2014 statement concludes: “Today was the angriest and
scariest I have ever seen [S.W.]. He wanted to hurt someone and someone was going to
get hurt today—him, Ms. Wagnon, myself, the officers—with the way he was continuing
to escalate.”
18
Case: 21-10771 Document: 00516577066 Page: 19 Date Filed: 12/13/2022
No. 21-10771
B. Disparate Treatment
The dearth of record evidence providing a reasonable inference that
Baker was adequately apprised of S.W.’s disability, its corresponding
limitations, and necessary accommodations, likewise dooms the Wilsons’
contention that Baker intentionally discriminated against S.W. “by reason
of” S.W.’s disability. Rather, Baker’s limited familiarity with S.W.’s
previous misbehavior—culminating in Slusser’s call for assistance on
January 23, 2014—suggests the contrary, i.e., that Baker’s actions were
motivated by S.W.’s escalating misconduct, not a disability. Certainly, given
the negative progression of events on January 7, 2014, and the evident
escalation on January 23, 2014, there is no indication that S.W. would not
have continued to attempt to hit or kick Wagnon, or one of the officers, if
Baker had not handcuffed S.W. when he did. 10
Nor does the addition of Baker’s heated verbal exchange with S.W.
—a captive eight-year old student—during which Baker, for a time, certainly
lost his temper, spoke in a harsh and elevated manner, and referred to S.W.
as a “brat” and “punk,” warrant a different inference. Putting aside the
inflammatory nature in which it was delivered, much of Baker’s message was
simply that it is unacceptable and dangerous for students to threaten, hit,
kick, or throw things at school personnel or police officers; that the principal
10
The police department’s internal affairs report concluded that S.W.’s “violent
behavior . . . was cause for the officers to . . . handcuff the student for his safety and the
safety of the school staff and officers.” The police chief’s February 10, 2014 memorandum
likewise reflects that Baker was terminated because of his verbal interaction with S.W., on
January 23, 2014, not his decision to handcuff the student. Regarding the latter topic, the
memorandum states: “On January 23, 2014, you responded to Carroll Elementary School
at the request of Officer Robert Slusser. Upon arrival[,] you contacted an 8 year old second
grade student who had assaulted the school principal and Officer Slusser. In order to
protect the student, the principal, and officers, you took the student into custody by
restraining his hands with handcuffs.”
19
Case: 21-10771 Document: 00516577066 Page: 20 Date Filed: 12/13/2022
No. 21-10771
and other school personnel were trying to help S.W.; that, for those efforts
to succeed, S.W. had to cooperate and behave; and that adverse actions yield
adverse consequences. Furthermore, even if ill-advised and unprofessional,
Baker’s chosen verbiage is not inherently discriminatory, or generally
associated with a protected disability.
Finally, there is no indication that Baker would not have delivered the
same message, in the very same manner, to a non-disabled student who—
despite previous efforts by school personnel and Slusser to bring about good
behavior by utilizing de-escalation techniques—acted as S.W. did on January
7 and 23. Thus, even if the police chief’s characterization of Baker’s verbal
interaction with S.W. (as “berating, demeaning, and antagonizing a student
clearly in distress”) is befitting, nothing suggests that Baker’s conduct was
motivated by S.W.’s disability.
VI.
In affirming the district court’s summary judgment dismissal of the
Wilsons’ claims, we recognize that one might reasonably argue that an SRO
may never appropriately engage any eight-year old student in a verbal
exchange akin to that which occurred between Baker and S.W. on January 23,
2014. Indeed, we note Baker’s employment was terminated as a result of that
exchange. Significantly, however, the Rehabilitation Act and Title II of the
ADA do not provide a legal remedy for all unreasonable, inappropriate,
unprofessional, and/or unduly harsh conduct by public agents. Rather, these
statutes provide a damages remedy only to protected persons in limited
circumstances, that is, when the public agent utilizes such conduct whilst
interacting with someone the actor knows to be a qualified person with a
disability, and resulting limitations necessitating certain action or inaction are
both known and disregarded. Because the Wilsons have not put forth
evidence demonstrating the existence of a genuine dispute regarding these
20
Case: 21-10771 Document: 00516577066 Page: 21 Date Filed: 12/13/2022
No. 21-10771
elements, the district court properly dismissed their ADA and Rehabilitation
Act intentional discrimination claims.
For the reasons stated herein, the district court’s July 9, 2021
judgment, dismissing with prejudice the ADA and Rehabilitation Act claims
asserted by Plaintiffs-Appellants Chad and Martha Wilson, individually and
as next friends of S.W., is AFFIRMED.
21