Jacquie Albright v. Mountain Home School District , 926 F.3d 942 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3298
___________________________
Jacquie Albright, As Parent and Next Best Friend of Child Doe
lllllllllllllllllllllPlaintiff - Appellant
v.
Mountain Home School District; Debbie Atkinson, Director of Special Education;
Susanne Belk, BCBA Consultant
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the Western District of Arkansas - Harrison
____________
Submitted: December 13, 2018
Filed: June 12, 2019
____________
Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Jacquie Albright alleges that her daughter Child Doe, a young student with
autism and significant intellectual deficits, was not provided a free appropriate public
education (FAPE) by Mountain Home School District (the District), as required by
the Individuals with Disabilities Education Act (IDEA or Act), 20 U.S.C. § 1400 et
seq. When her administrative challenge was rejected, Albright appealed that decision
in federal district court and brought additional claims for constitutional violations
under 42 U.S.C. § 1983, disability discrimination and retaliation under § 504 of the
Rehabilitation Act, disability discrimination under Title II of the Americans with
Disabilities Act (ADA), and violations of Arkansas law. The district court1 affirmed
the administrative decision, granted summary judgment to the District on the
remaining federal claims, and then declined to exercise supplemental jurisdiction over
Albright’s state law claims. We affirm.
Child Doe has been educated within the District from kindergarten to the
present in accordance with an Individualized Education Plan (IEP) formulated
pursuant to the IDEA. The IEP sets forth the educational accommodations approved
for Child Doe, as well as a behavior intervention plan (BIP) to address any
problematic behaviors. An IEP team periodically discusses and revises Child Doe’s
IEP as needed. Albright and appellee Susanne Belk, a Board Certified Behavior
Analyst employed as a consultant by the District during the relevant period, are
members of Child Doe’s IEP team. The highly contentious relationship between
Albright and the District, complicated further by Albright’s employment with the
District, has made it difficult for Albright and the remainder of the IEP team to agree
on many aspects of Child Doe’s IEP.
Albright has filed four due process complaints against the District challenging
Child Doe’s education. The first two complaints were resolved by settlement
agreements in August 2012 and March 2014. On October 20, 2014, early in Child
Doe’s fourth-grade year, Albright filed the due process complaint at issue, alleging
that the District had denied Child Doe a FAPE between November 15, 2013, and
October 17, 2014. Events after October 17, 2014, are the subject of a separate due
process complaint.
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
-2-
After Albright filed the third due process complaint, the parties proceeded to
an eleven-day hearing held between March and September of 2015. A hearing officer
employed by the Arkansas Department of Education presided and heard testimony
from witnesses, including Albright, Belk, and an expert hired by Albright. The
hearing officer thereafter issued a forty-page decision setting forth findings of fact
and conclusions of law. Relevant here, the hearing officer addressed whether
Albright was denied the opportunity to participate in developing the IEP, whether
Child Doe benefitted academically from the IEP, and whether the BIP adequately
addressed Child Doe’s behaviors or exacerbated them by permitting the use of
sensory integration techniques.
The hearing officer found that Albright had not been denied the opportunity to
participate in the IEP process, citing the following facts: During the period in
question, Albright attended all IEP conferences until September 2014, when she
chose not to attend a meeting, and there was no evidence to substantiate Albright’s
claims that other IEP conferences were held in her absence. Although the District did
not agree to or satisfy all of Albright’s requests regarding Child Doe’s education,
there was no evidence indicating that the District had hampered Albright’s active
participation in developing Child Doe’s IEP. Hundreds of pages of emails and
transcripts of IEP meetings demonstrate that Albright actively participated in the IEP
process.
The hearing officer also found that the IEP itself was working. More
specifically, he found that in light of Child Doe’s significant disabilities, the evidence
showed that the IEP did provide her with educational benefits. The hearing officer
also found, however, that Albright believed that Child Doe was capable of greater
academic achievements than indicated by the assessments. Nevertheless, he credited
Belk’s testimony that Child Doe had shown academic improvement during the
relevant period.
-3-
To complicate matters, Child Doe’s disability was originally identified as
intellectual deficits, but was changed to autism during the period in question. Despite
the changed diagnosis, the hearing officer found that the BIP in place at the time
addressed the same maladaptive behaviors identified by the psychologist who had
diagnosed Child Doe with autism. Albright’s expert testified that the BIP was
inadequate, but the hearing officer found that his testimony was refuted by the
District’s behavior data and Belk’s testimony regarding her understanding of Child
Doe’s behaviors.
In sum, the hearing officer determined that after “reviewing the elicited
testimony and the evidence in this case it is clear that the District attempted to focus
on what they believed to be the unique needs of [Child Doe] even prior to changing
the primary handicapping condition from intellectual deficits to autism.” The hearing
officer concluded that the District “recognized and accepted the additional challenge
of addressing the maladaptive behaviors [Child Doe] exhibited as a consequence,
more likely than not of her autism, as well as her intellectual deficits and the
challenges that she presented to the educators,” and it thus did not deny Child Doe
a FAPE.
Albright appealed the hearing officer’s decision in federal district court (Count
I) and brought several related claims under federal and state law (Counts II-VI),
which were subsequently bifurcated. In her IDEA appeal, Albright specifically
contested three of the hearing officer’s conclusions: that she had participated
meaningfully in the IEP process, that it had been unnecessary to develop a new BIP
for Child Doe, and that the District had used evidence-based practices in Child Doe’s
IEP. The district court decided the appeal on the briefs, affirming the hearing
officer’s decision on each issue, and “wholeheartedly agree[ing]” with the hearing
officer’s determination that Albright had participated meaningfully in the IEP
process. D. Ct. Order of July 5, 2017, at 6 [hereinafter July 5 Order]. The court also
found that “the BIP that was already in place was working well.” Id. Finally, the
-4-
court determined that it “ha[d] not found any evidence in the record that sensory
integration treatment is not based on peer-reviewed research, nor . . . that the
District’s use of sensory integration treatment somehow prevented the District from
utilizing services that are based on peer-reviewed research.” Id. at 8.
Albright moved to alter or amend the judgment, asserting that the district court
had made manifest errors of law or fact. The court denied Albright’s motion,
concluding that any errors it had made did not affect its disposition and that
Albright’s motion raised new arguments that she had not raised in her initial appeal
brief.
At the close of discovery, the District moved for summary judgment on Counts
II through VI. Under local rules, Albright’s response was due fourteen days after the
District’s motion was filed on April 28. Albright moved for leave to file an amended
complaint on May 4.2 The next day, she requested an extension of time to file her
summary judgment response, contending that the motion for summary judgment
would be moot if the court allowed her to file an amended complaint. The court
denied her motion for an extension on May 7. On May 10, Albright requested
another extension, asserting that her counsel had obligations in other cases and that
her counsel would need to attend to family medical issues over the following weeks.
The court denied the motion that same day. On May 22, ten days after the deadline
had passed, Albright began filing her summary judgment response, accompanied by
a motion to accept her response out of time.
In its summary judgment order, the district court denied Albright’s out-of-time
filing request, struck her filings from the record, and granted the District’s motion for
summary judgment. In her motion to alter or amend the judgment, Albright
contended that the court had applied the incorrect standard when evaluating her out-
2
The district court denied this motion as moot in its July 5 order.
-5-
of-time motion. Although the court agreed that it had applied the wrong standard, it
concluded that the motion failed under the correct standard. Albright thereafter filed
this appeal.
Albright first appeals the district court’s order affirming the hearing officer’s
determination that Child Doe was provided a FAPE. We review de novo whether the
District provided Child Doe with a FAPE. See I.Z.M. v. Rosemount-Apple Valley-
Eagan Pub. Sch., 863 F.3d 966, 970 (8th Cir. 2017). In so doing, we must afford due
weight to the outcome of the administrative proceedings, see id., and accept the
district court’s factual findings unless they are clearly erroneous, see Gill v. Columbia
93 Sch. Dist., 217 F.3d 1027, 1035 (8th Cir. 2000). “Our duty is to interpret and
apply the law, not to substitute our own notions of sound educational policy for those
of the school authorities which we review.” Special Sch. Dist. No. 1, Minneapolis
Pub. Sch. v. R.M.M. ex rel. O.M., 861 F.3d 769, 771-72 (8th Cir. 2017) (cleaned up).
The IEP is “the centerpiece of the [IDEA]’s education delivery system for
disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988). Albright asserts that
the District denied Child Doe a FAPE by implementing an IEP that was inadequate,
in no small part because Albright herself was denied the opportunity to meaningfully
participate in the formation process. The district court and hearing officer thought
otherwise. Our independent review of the record leads us to conclude that Albright
has failed to show that Child Doe’s IEP was inadequate.
“To meet its substantive obligation under the IDEA, a school must offer an IEP
reasonably calculated to enable a child to make progress appropriate in light of the
child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE–1,
137 S. Ct. 988, 999 (2017). “The Act contemplates that this fact-intensive exercise
will be informed not only by the expertise of school officials, but also by the input of
the child’s parents or guardians.” Id. “Any review of an IEP must appreciate that the
-6-
question is whether the IEP is reasonable, not whether the court regards it as ideal.”
Id.
At the due process hearing, and again before the district court, Albright argued
that the IEP’s behavior intervention plan was not working. She asserted that the BIP
included the use of pseudoscientific practices prohibited under the IDEA, such as
“sensory integration techniques,” and that the BIP required revision in light of Child
Doe’s apparently escalating patterns of behavior. Quoting Belk’s testimony, the
district court found that “the BIP that was already in place was working well.” July
5 Order, at 6. Albright argues that this finding was clearly erroneous in light of her
expert witness’s testimony that the plan in place would not improve Child Doe’s
behaviors. As proof of Child Doe’s worsening behaviors, Albright notes that between
January 2013 and October 2014 the BIP was updated to include a revised and slightly
longer list of “problem behaviors.”
The hearing officer found Belk’s testimony credible, giving her testimony
greater weight than that of Albright’s expert. See Bradley ex rel. Bradley v. Ark.
Dept. of Educ., 443 F.3d 965, 974 (8th Cir. 2006) (“We recognize that the hearing
officers ‘had an opportunity to observe the demeanor of the witnesses,’ and we are
mindful that it is not the place of the courts to ‘substitute [our] own notions of sound
educational policy for those of the school authorities that [we] review.” (alterations
in original) (quoting Strawn v. Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir.
2000))). The hearing officer and district court both credited Belk’s testimony that she
believed the IEP was working. The lists of problem behaviors alone do not contradict
Belk’s testimony, because they do not include important information, such as the
behaviors’ frequency, that would be relevant in determining whether Child Doe’s
behavior was worsening. Nor do the lists themselves purport to be exhaustive
chronicles of Child Doe’s behaviors. In light of Belk’s testimony, which was based
on her extensive experience working with Child Doe, we conclude that the district
-7-
court did not clearly err in finding that the BIP was “working well” or that it was
adequate.
Albright also argues that sensory integration techniques are pseudoscientific
treatments that violate the IDEA’s requirement that services be “based on peer-
reviewed research to the extent practicable.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV). The
district court found no evidence “that sensory integration treatment is not based on
peer-reviewed research, nor [did] it f[ind] any evidence in the record that the
District’s use of sensory integration treatment somehow prevented the District from
utilizing services that are based on peer-reviewed research.” July 5 Order, at 8.
Albright contends that this finding was clearly erroneous, again citing the testimony
of her expert witness and asserting that “the opportunity cost of the District’s decision
to use a pseudoscientific practice is that it foregoes use of other, peer-reviewed
treatments.” Appellant’s Br. 19. Albright does not object to the district court’s
finding that “it is abundantly clear from the record that the District made extensive
use of evidence-based practices to educate Child Doe.” July 5 Order, at 7. Even
putting aside the question whether sensory integration techniques are based on peer-
reviewed research, the district court’s other findings, which are not clearly erroneous,
are sufficient to refute Albright’s claim. Alongside the “extensive” use of peer-
reviewed practices, the use of sensory integration techniques, which were specifically
recommended by Child Doe’s occupational therapist, did not deny Child Doe a
FAPE. Cf. Bradley, 443 F.3d at 975 (“[T]he Act does not require ‘the furnishing of
every special service necessary to maximize each handicapped child’s potential.’”
(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 199 (1982))).
Albright next argues that the IEP’s failure to produce any academic progress
denied Child Doe a FAPE. Albright notes that despite being in fourth grade, Child
Doe was still instructed on kindergarten-level subject matter. She also argues that
Child Doe’s score in IQ testing had decreased between 2010 and 2014. As a
preliminary matter, Albright’s due process complaint concerns the period between
-8-
November 2013 and October 2014. Evidence pertaining to Child Doe’s performance
over a four-year period is thus overbroad and does not establish that she was denied
a FAPE during the period in question. Belk testified that Child Doe appeared to be
improving academically. The District supports her testimony with standardized tests
administered periodically throughout 2014 that show Child Doe’s progress during the
period at issue. The testing revealed that Child Doe’s scores in English, Reading, and
Math increased between January 2014 and August 2014. Although the test scores
varied within the period, in total they demonstrate academic improvement. See
Bradley, 443 F.3d at 973 (upholding factual finding of academic improvement based
on standardized test scores). Tests on first-grade subject matter administered in
October 2014, however, revealed that Child Doe was not yet prepared to advance to
more complex material.
The hearing officer observed in his decision that Albright believed Child Doe
was capable of greater academic achievements than the assessments indicated. The
district court echoed that sentiment, finding that “[i]t is also undoubtedly true that Ms.
Albright disagrees with other members of Child Doe’s IEP team about what Child
Doe’s true academic potential is.” July 5 Order, at 9. However regrettable the
disagreement between Albright and the remainder of the IEP team on this matter, the
IDEA requires that an IEP be “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at
999. The “IDEA does not require that a school either maximize a student’s potential
or provide the best possible education at public expense.” Fort Zumwalt Sch. Dist.
v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997). Based on the results of the District’s
testing, Child Doe made progress in a curriculum that was appropriate in light of her
circumstances.
Finally, Albright contends that she was denied the opportunity to meaningfully
participate in the formation of Child Doe’s IEP. “The Act contemplates that [IEP
drafting] will be informed not only by the expertise of school officials, but also by the
-9-
input of the child’s parents or guardians.” Endrew F., 137 S. Ct. at 999. Although
parents generally must be afforded the opportunity to participate in every IEP
meeting, a meeting may be conducted without them “if the public agency is unable
to convince the parents that they should attend.” 34 C.F.R. § 300.322(d) (2006); see
Lathrop R-II Sch. Dist. v. Gray, 611 F.3d 419, 427 (8th Cir. 2010). As the district
court found, voluminous evidence in the record demonstrates Albright’s extensive
involvement throughout the IEP process. Albright argues, however, that the IEP team
conspired to hold an IEP meeting without her on September 15, 2014. But as the
record clearly reveals, Albright chose not to attend the September 15 meeting despite
the District’s efforts to persuade her to attend. Moreover, to the extent there was a
technical violation of the Act’s notice requirements, “it did not affect the IEPs or
otherwise deprive [Child Doe] of educational benefit.” Id. The District did not
prevent Albright’s active participation in the IEP process.3
In sum, “a profoundly toxic lack of trust” between Albright and the District has
rendered it nearly impossible for the parties to agree on an education program best
suited for Child Doe’s needs, despite both parties’ seemingly earnest desire to provide
just that. July 5 Order, at 9. Nonetheless, having found no clear error in the district
court’s factual findings and having given due weight to the hearing officer’s
credibility determinations, we conclude that Child Doe was not denied a FAPE.
3
Although Albright also appears to argue that the District withheld information
from her, she does not point to anything in the record to which she was entitled but
which was originally withheld from her. She seems to argue instead that the District
failed to keep adequate records regarding Child Doe’s behavior, thus denying her
access to information. See, e.g., Appellant’s Br. 19 (“This caution points to the
District’s real failure – it never gathered any data to evaluate the effectiveness of
sensory integration or the January 2013 BIP.”). In light of our conclusion that Child
Doe’s IEP was adequate, the District’s record-keeping practices did not result in the
denial of a FAPE.
-10-
Albright appeals the district court’s denial of her motions for extensions of time
and her motion to accept her summary judgment response out of time. A district
court has “considerable discretion” to grant or deny a party’s motion for an extension
of time to file a summary judgment response. See Soliman v. Johanns, 412 F.3d 920,
921-22 (8th Cir. 2005). A court may grant a party’s timely motion for an extension
upon a showing of good cause, see Fed. R. Civ. P. 6(b)(1)(A), or may for good cause
grant a party’s request for an extension of time “after the time has expired if the party
failed to act because of excusable neglect,” id. 6(b)(1)(B). The district court found
that Albright had not shown good cause for an extension prior to the deadline, instead
finding “contumacious . . . disregard for deadlines and procedural rules” in light of
Albright’s repeated failure to meet deadlines throughout the case. D. Ct. Order of
September 15, 2017, at 4 (quoting Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781,
784 (8th Cir. 1998) (concluding that “[w]e have rarely, if ever, excused”
contumacious disregard for deadlines)). “The primary measure of good cause is the
movant’s diligence” in attempting to meet deadlines. Rahn v. Hawkins, 464 F.3d
813, 822 (8th Cir. 2006) (considering motion to amend pleadings under Rule 16(b)).
“We generally ‘will not consider prejudice [to the nonmovant] if the movant has not
been diligent . . . .’” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir.
2012) (first alteration in original) (quoting Sherman v. Winco Fireworks, Inc., 532
F.3d 709, 717 (8th Cir. 2008)).
Albright argues that she had established good cause by providing evidence of
her counsel’s busy work schedule and her counsel’s need to attend to family health
concerns. Albright requested a three-week extension after twelve of her fourteen days
to respond had elapsed, explaining, in part, that her counsel had many upcoming
obligations in other cases. She did not explain, however, why she could not have
completed her response in the preceding twelve days, nor did she provide evidence
of any diligent efforts on her counsel’s part to meet the original deadline, such as
attempting to reschedule upcoming obligations. The district court thus did not abuse
its discretion in denying Albright’s motions prior to the deadline.
-11-
Although Albright’s counsel thereafter attempted with some diligence to
complete her response, her filing it ten days after the deadline did not create good
cause where none previously existed. Nor could Albright establish excusable neglect
if good cause were found. Excusable neglect encompasses four factors: prejudice to
the non-moving party, the length of the delay, the movant’s good faith, and the reason
for the delay. See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig.,
496 F.3d 863, 866-67 (8th Cir. 2007) (citing Pioneer Inv. Serv. Co. v. Brunswick
Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993)). The reason for the delay is a key
factor in the analysis. Id. at 867. Albright argues that “[w]hat the district court
describes as a lack of diligence could just as easily be described as a ‘mistake’ by
counsel in managing her caseload, and thus, should be considered excusable neglect.”
Appellant’s Br. 35. We disagree, as we have previously held that preoccupation with
other hearings does not constitute excusable neglect. See Hawks v. J.P. Morgan
Chase Bank, 591 F.3d 1043, 1048 (8th Cir. 2010). In addition, the district court
found that Albright had not acted in good faith, having made little effort to meet the
original deadline despite the court’s repeated warnings. We conclude that Albright’s
late filing was not excusable, notwithstanding the relative insubstantiality of the delay
and of the danger of prejudice to the District.4 The district court thus did not abuse
its discretion in denying Albright’s motion and striking her response.
The district court concluded that Albright had failed to exhaust her
administrative remedies with regard to the majority of her allegations that arose
outside the period covered by her third due process complaint. The claims arising
before November 2013 had been resolved by settlement agreement, rather than by
way of a due process hearing. Albright argues that settlement constitutes exhaustion
4
Albright argues that the district court should have explicitly analyzed the
Pioneer factors. Such a failure “does not mandate an automatic reversal.” Guidant,
496 F.3d at 866 n.3. The district court’s decision to focus on the reason for delay and
Albright’s bad faith was “reasonable under the facts of this case.” Gibbons v. United
States, 317 F.3d 852, 854 n.4 (8th Cir. 2003).
-12-
under the IDEA, or, in the alternative, that exhaustion in her case would have been
futile.5 We have not heretofore decided whether settlement constitutes exhaustion
under the IDEA. We review de novo whether exhaustion of administrative remedies
was required. See J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 947 (8th Cir.
2017).
The IDEA requires a claimant to exhaust her administrative remedies at the
state level before filing a civil suit under its provisions. See 20 U.S.C.
§ 1415(i)(2)(A). Had Albright sought to sue only under the IDEA, subsection (i)
would have required that she be “aggrieved by the findings and decision made under
subsection (f).” Id. Subsection (f) sets forth the requirements for impartial due
process hearings. Because Albright filed suit under other laws in addition to the
IDEA, however, she was required to exhaust the administrative procedures “under
subsections (f) and (g) . . . to the same extent as would be required had the action
been brought under [the IDEA].”6 Id. at § 1415(l). Subsection (g), which governs
state administrative appeals, does not apply here.
Albright was thus required to exhaust the procedures set forth in subsection (f)
to the same extent required by subsection (i), which by its plain language permits
appeals only from “the findings and decision” resulting from a due process hearing.
Id. at § 1415(i)(2). It necessarily follows that like-extent exhaustion requires the
5
Albright also argues that even if her pre-November 15, 2013, claims are barred
for failure to exhaust, materials in the record from that period nonetheless support her
remaining claims because those materials would be admissible at trial. See Fed. R.
Civ. P. 56(c). We need not consider this argument, because once it struck Albright’s
summary judgment response, the district court considered only the record materials
cited by the District.
6
Albright does not contest the district court’s determination that her allegations
concerned the denial of a FAPE. See 20 U.S.C. § 1415(l); Fry v. Napoleon Comm.
Schs., 137 S. Ct. 743, 752 (2017).
-13-
entry of administrative findings and a decision. A pre-decision settlement thus fails
to satisfy the IDEA’s requirements.
Albright argues that this reading is inconsistent with Congress’s purported
intent to encourage settlement, particularly in light of the IDEA’s 2004 amendment
allowing claimants the option of mediating their claims. As the Tenth Circuit held,
however, when rejecting this same argument in A.F. ex rel. Christine B. v. Española
Public Schools, 801 F.3d 1245 (10th Cir. 2015), “the terms of the statute are clear and
unambiguous.” Id. at 1249 (quoting United States v. Sprenger, 625 F.3d 1305, 1307
(10th Cir. 2010)). Moreover, “there is nothing remotely implausible about the
‘policy’ result the plain language dictates.” Id. at 1250 (“[W]e can easily imagine a
rational Congress . . . taking one of many possible intermediate positions by requiring
those who wish to forego a mediated IDEA settlement to exhaust (or prove futile) all
of the administrative grievance processes available to them before bringing any
related federal lawsuit.”); see also Endrew F., 137 S. Ct. at 1001-02 (“By the time any
dispute reaches court, school authorities will have had a complete opportunity to
bring their expertise and judgment to bear on areas of disagreement.”).
Although we have recognized the futility exception to administrative
exhaustion requirements, see J.B. ex rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d
588, 594 (8th Cir. 2013), we do not address its application here because Albright did
not attempt to raise the issue before the district court. See Kountze ex rel. Hitchcock
Found. v. Gaines, 536 F.3d 813, 818 (8th Cir. 2008) (refusing to consider issue raised
for the first time on appeal where the record on the claim was not developed below).
Because we conclude that Albright’s claims are barred for failure to exhaust, we
likewise do not address the District’s argument that those claims were released by the
settlement agreements, nor Albright’s argument that the District breached the
settlement agreements.
-14-
Finally, Albright appeals the district court’s grant of summary judgment to the
District on her claims of retaliation against herself and Child Doe in violation of
§ 504 of the Rehabilitation Act. We review de novo the district court’s grant of
summary judgment. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.
2010). To establish a prima facie case of retaliation under § 504, Albright must show
that she was “engaged in protected activity, the School District took some adverse
action, and a causal connection between the activity and the District’s action.”
Bradley, 443 F.3d at 976.
Albright argues that she provided evidence of twelve adverse actions taken
against her and three taken against Child Doe, in support of which she cites materials
contained in her stricken summary judgment response. Moreover, many of her
allegations fall outside the due process period and have not been exhausted. The
district court determined that Albright’s complaint raised only six allegations of harm
against her or Child Doe that were properly exhausted or did not require exhaustion.
Those six allegations were:
(1) District personnel filed false allegations of child abuse against Ms.
Albright; (2) District personnel subjected Child Doe to strip searches for
recording devices that Ms. Albright had hidden on her; (3) Ms. Atkinson
generally endeavored to discredit Ms. Albright with District personnel
and filed false police reports against her; (4) Ms. Belk failed to
implement evidence-based practices when designing behavioral
interventions and strategies for Child Doe; (5) Child Doe was denied
access to remedial instruction on account of her disability; and (6) the
District held a meeting on September 5, 2014, at which the [D]istrict
attempted to change Child Doe’s IEP without Ms. Albright attending or
having been given notice.
July 5 Order, at 21-22 (citations omitted). Having struck Albright’s summary
judgment response, the district court deemed admitted or undisputed all factual
assertions made by the District in support of its summary judgment motion.
-15-
Albright’s first three allegations are refuted by the District’s undisputed factual
assertions that no false reports of child abuse were filed against Albright, that Child
Doe was never strip-searched, and that no false police reports were filed against
Albright. The latter three allegations are simply restatements of Albright’s IDEA
claims. Because of our decision that the District did not violate the IDEA, “a
retaliation suit under § 504 based on IDEA violations is precluded.” Bradley, 443
F.3d at 977. The District was thus entitled to summary judgment on Albright’s
retaliation claims.
The judgment of the district court is affirmed.
______________________________
-16-