Vergara et al v. Wesleyan Academy, Inc. et al, No. 3:2017cv01013 - Document 65 (D.P.R. 2019)

Court Description: OPINION and ORDER GRANTING in part and DENYING in part 32 motion for summary judgment. Signed by Judge Juan M. Perez-Gimenez on 9/4/2019. (RIF)

Download PDF

Vergara et al v. Wesleyan Academy, Inc. et al Doc. 65 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO AIXA VERGARA, on her own and on behalf of her m inor son CMRV, ED GARD O N ERIS TORRES, CIVIL NO. 17-10 13 (PG) Plaintiffs, v. W ESLEYAN ACADEMY, IN C., e t a l., Defendants. OPIN ION AN D ORD ER Before the court is Defendants’ Motion for Sum m ary J udgm ent (ECF No. 32), Plaintiffs’ Response in Opposition (ECF No. 50 ), and Defendants’ Reply (ECF No. 58). For the reasons set forth below, the court GRAN TS IN PART and D EN IES IN PART Defendants’ m otion. I. BACKGROU N D On J anuary 4, 20 17, Plaintiffs Aixa Vergara (“Vergara”), on her own and on behalf of her son “CMRV,” and the m inor’s step-father Edgardo Neris Torres (collectively, “Plaintiffs”) filed this suit against Wesleyan Academ y, Inc. (“Wesleyan” or “the School”), Wesleyan’s Headm aster, President and Executive Director, Fernando J . Vazquez Zayas (“Vazquez”), and Wesleyan’s High School Principal, Ingrid Llorens de Pagan (“Ms. Llorens”) (collectively, “Defendants”). See Com pl., ECF No. 1. Plaintiffs allege that Wesleyan an d its em ployees discrim inated against CMRV because of his physical an d m ental disabilities by expelling him and refusing to provide him reasonable accom m odations. Plaintiffs also allege retaliation for engaging in protected conduct. They claim Defendants’ actions are in violation of Section 50 4 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 50 4”), as well as Puerto Rico statutes Dockets.Justia.com Civil No. 17-10 13(PG) Page 2 prohibiting disability discrim ination and retaliation and cyberbullying. Plaintiffs request com pensatory and punitive dam ages under federal an d Puerto Rico laws. Plaintiffs’ com plaint included a request for a Tem porary Restraining Order (“TRO”), which the court granted in part. See Op. and Order from J anuary 7, 20 17, ECF No. 3. The court ordered Defendants to readm it CMRV as a student and allow him to continue his eleventh-grade studies at Wesleyan. Sin ce Plaintiffs also sought a prelim inary injunction , the court set a hearing for J anuary 13, 20 17. However, on that date, the parties agreed to convert the TRO into a prelim in ary injunction or pendente lite. ECF No. 14. 1 Later that m onth, the court held a status conferen ce during which case m anagem ent deadlines de rigueur were set. ECF Nos. 18, 29. Defendants now m ove for sum m ary judgm ent and Plaintiffs oppose their request. II. STAN D ARD OF REVIEW A m otion for sum m ary judgm ent is governed by Rule 56 of the Federal Rules of Civil Procedure, which entitles a party to judgm ent if “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “When the party who bears the burden of proof at trial is faced with a properly constituted sum m ary judgm ent m otion, defeating the m otion depends on her ability to show that such a dispute exists.” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 20 14) (citing Borges ex rel. S.M.B.W. v. Serrano-Isern, 60 5 F.3d 1, 5 (1st Cir. 20 10 )). At the sum m ary judgm ent juncture, the court m ust exam ine the facts in the light m ost favorable to the non-m ovant, indulging that party with all possible inferences to be derived 1 Although the parties later filed the agreem ent in its entirety, and the court allowed them to restrict its viewin g to selected parties, the term s and conditions of the agreem ent were placed on the record durin g proceedin gs held in J anuary of 20 17. See ECF No. 15. Civil No. 17-10 13(PG) Page 3 from the facts. See Rochester Ford Sales, Inc. v. Ford Motor Co., 28 7 F.3d 32, 38 (1st Cir. 20 0 2). The court need not “draw unreasonable inferences or credit bald assertions, em pty conclusions, rank conjecture or vitriolic invective.” Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir. 20 17) (quoting Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 20 14)). The court reviews the record “as a whole,” and “m ay not m ake credibility determ inations or weigh the evidence.” Reeves v. Sanderson Plum bing Products, Inc., 530 U.S. 133, 135 (20 0 0 ). This is so because credibility determ inations, the weighing of the evidence an d the drawing of legitim ate inferences from the facts are jury functions, not those of a judge. Id. If the non-m ovant generates uncertainty as to the true state of any m aterial fact, the m ovant’s efforts should be deem ed unavailing. Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir. 20 0 0 ). But the m ere existence of “som e alleged factual dispute between the parties will not affect an otherwise properly supported m otion for sum m ary judgm ent.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 10 6 S. Ct. 250 5 (1986). See Cherkaoui, 8 77 F.3d at 23-24 (quoting Sanchez v. Alvarado, 10 1 F.3d 223, 227 (1st Cir. 1996)) (noting that “[f]acts are m aterial when they have the ‘potential to affect the outcom e of the suit under the applicable law’” and that “[a] dispute is ‘genuine’ if ‘the evidence about the fact is such that a reason able jury could resolve the point in favor of the non-m oving party’”). III. FIN D IN GS OF FACT Aixa Vergara is CMRV’s m other. CMRV is a disabled student with physical and m ental disabilities. He began his studies at Wesleyan in Kin dergarten. ECF No. 1 ¶ 16; Pls.’ Statem ent of Material Facts Which Preclude Entry of Sum m . J . in Defs.’ favor pursuant to Local Rule 56(c), (e) (“PSMF”) ¶ 1, ECF No. 50 -2. CMRV suffers from the following m ental and physical im pairm ents: Attention Deficit Disorder (“ADD”) with predom inatelyinattentive hyperactivity; severe m ajor depression; fine m otor skills problem s; visual Civil No. 17-10 13(PG) Page 4 perception difficulties and ren al insufficiency. Ecf No. 1 ¶ 11. These im pairm ents, accordin g to plaintiffs, substantially lim it various life activities, like his ability to study, to learn and to excrete urine. Id. at ¶ 14. Wesleyan Academ y is a private, non-profit, evangelical Christian school affiliated with the Wesleyan Church that receives federal funds or financial assistance from the United States Departm ent of Education. See Defs.’ Statem ent of Uncontested Material Facts (“SUMF”) ¶ 1, ECF No. 32-1; ECF No. 1 ¶ 18; Answer to Com pl. ¶¶ 17-18, ECF No. 22. The Wesleyan School Com m unity Handbook states that the School “strives to present a Christian world view and dem ocratic values in an environm ent of academ ic excellence.” SUMF ¶ 1. 2 At the tim e of the events alleged in the com plaint, Co-Defendant Vazquez was Wesleyan’s President and Executive Director; Co-Defen dant Ms. Llorens, Wesleyan’s High School Principal; Betsey Cora (“Ms. Cora”), the High School Guidance Counselor; Leyda Mercado, another Student Counselor; and Betzaida Flores, Wesleyan’s Social Worker. See, e.g., SUMF ¶¶ 47 & 64; PSMF ¶ 10 . The Wesleyan Academ y Policy Manual states that the school’s opportunities are offered regardless of social or political factors, an d prohibits discrim ination “in any of its policies, practices, or procedures on the basis of race, class, color, national origin, sex, or handicap as defined by law.” SUMF ¶ 2. 3 The Manual also provides that “Wesleyan adm its and welcom es students of any race or class, color, national and ethnic origin, sex or 2 The parties subm itted the Wesleyan Academ y Com m unity Handbook, the entire Wesleyan Policy Manual m ention ed below and its am endm ents as part of their restricted agreem ent pendente lite. See Ex. 1-3, ECF No. 13-1 to 13-3. 3 Plaintiffs offer the sam e qualification for SUMF ¶¶ 1-4: “the fact that Defendants are quoting from Wesleyan’s Policy Manual and School Com m un ity Handbook does not m ean that [they] actually com plied with the postulates contained in such docum ents.” Pls.’ Resp. to Defs.’ “SUMF” pursuant to Local Rule 56(c), (e) at 13, ECF No. 50 -1. Plaintiffs further aver that Defendan ts’ conduct runs afoul with the contents of the cited m aterials. The court notes their qualification and will proceed to present the undisputed facts in the light m ost favorable to Plaintiffs. Civil No. 17-10 13(PG) Page 5 handicap, and does not discrim inate on this basis in adm issions or in any area of the school life and program .” SUMF ¶ 3 (quoting Ex. 2, ECF No. 32-3 at 5). Under the Manual, the basic qualifications for adm ission are: “(1) desire to attend [the school]; (2) dem onstrate[] average or above average academ ic ability; (3) a pattern of obedient behavior, and (4) evidence of being able to live in harm ony with our purposes and way of life.” SUMF ¶ 3. The Manual warns that by enrolling in the school, students and their parents accept and agree to com ply with Wesleyan’s policies, rules and regulations. Id. ¶ 4. Wesleyan has a Procedure Manual for the Im plem entation of the Reasonable Accom m odation Passport for Post-Secondary Education. It is not incorporated in the Handbook or the Policy Manual. PSMF ¶ 39. Elem en t a r y Sch o o l In J anuary of 20 0 5, Vergara applied to enroll her m inor son in kindergarten at Wesleyan, for the 20 0 5-20 0 6 school year. SUMF ¶ 5. Throughout elem entary school, CMRV struggled to m eet Wesleyan’s academ ic and conduct standards. Wesleyan continually conditioned CMRV’s adm ission and enrollm ent on his academ ic im provem ent and other requirem ents. Id. ¶¶ 6-7, 11, 17-18 , 19. 4 CMRV had to be tutored, attend sum m er school for 4 SUMF ¶ 11 relates to Wesleyan’s decision to withhold CMRV’s acceptance to the fourth grade pending Vergara’s com pliance with the school’s request for a professional evaluation of the student and recom m endations for im provem ent. Plaintiffs’ qualification of the proposed fact states in relevant part: “As to the letter dated J anuary 20 , 20 0 9, Vergara signed it because if she did not sign, Wesleyan would not enroll her son.” ECF No. 50 -1 at 13-14. Plaintiffs’ qualification of SUMF ¶ 11 does not clarify, m odify or lim it Defendants’ factual assertion, as required under current sum m ary judgm ent standards. See Rodriguez-Soto v. Presbyterian Med. Anesthesia Grp., Civil No. 17-1477 (GAG), 20 19 WL 1349991, at *2 (D.P.R. Mar. 22, 20 19) (explain ing that a qualification “m ust clarify a statem ent of fact that, without clarification, could lead the Court to an incorrect inference”); Richardson v. Mabus, 20 3 F. Supp. 3d 86, 113-114 & n . 48 (D. Me. 20 16) (adm itting defendant’s statem ent of uncontested m aterial fact as subm itted in light of plaintiff’s inapposite qualification of that fact). The court thus accepted SUMF ¶ 11 as uncontested, and disregarded other qualifications offered by Plaintiffs that fail to com ply with the sum m ary judgm ent rules. Plaintiffs adm it and deny SUMF ¶ 19, arguing that Defendants did not include proper record citations. Their contention is unavailing because Defendants did include the required citations in support of that fact. Plaintiffs’ rem aining assertions in response to SUMF ¶ 19 are either un intelligible or irrelevant, and therefore, Civil No. 17-10 13(PG) Page 6 Spanish and m ath subjects, undergo evaluations or receive occupational therapy. Vergara did not always com ply with som e of the requests and conditions established by the school. Id. ¶¶ 8 , 10 -12, 17-22. P s ych o lo gica l Eva lu a t io n s In 20 0 9, clinical psychologist Dr. Am alyn Perez Rivera (“Dr. Perez”), began evaluating CMRV. In her first psychological evaluation report, Dr. Perez concluded that CMRV did not show any difficulties associated with attention deficit, following instructions or other problem s of distraction. Nonetheless, Dr. Perez’s report advised that CMRV needed to strengthen his interpersonal relationship skills and social interactions. Id. ¶¶ 13-15. 5 On March 9, 20 0 9, Dr. Perez provided a second psychological evaluation report. This tim e, Dr. Perez found that CMRV showed a “[s]light lag in fluidity skills in writing and redaction” and a “[s]ignificant lag in fluidity skills in m athem atics.” Id. ¶ 16. M id d le Sch o o l When CMRV was in eighth grade, Vergara enrolled him in an after-school m usic program at the Puerto Rico Conservatory of Music (the “Conservatory”). He continued to participate in the m usic program throughout his m iddle school and high school years. Id. ¶ 23. CMRV finished his eighth grade with the following grades: English, 71%; Math, 65%; Science, 87%; Physical Education, 98%; Spanish, 72%; Social Studies, 58 %; Bible, 55%; Music, 90 %; Art, 86%; Com m unication, 71%. Id. ¶ 24; PSMF ¶ 11. CMRV thus had to attend Wesleyan’s sum m er program , where he obtained 32% in Social Studies and 88% in Bible. SUMF ¶ 25. the court disregarded them . 5 The first report is dated February 14, 20 0 9. See Cert. English Translation of Defs.’ Ex. 7, ECF No. 42-1. As m ention ed below, Dr. Perez rendered a second report on March 9, 20 0 9. See Cert. English Translation of Defs.’ Ex. 8, ECF No. 42-2. Civil No. 17-10 13(PG) Page 7 H igh Sch o o l As noted before, CMRV continued to participate in the Conservatory’s after-school m usic program throughout ninth grade. Id. ¶ 26. Vergara considered not enrolling him for the first sem ester of ninth grade so that he could focus on school. Id. ¶ 29. Later during that sem ester, CMRV e-m ailed his Physical Scien ce teacher, Aidyn Fontanez (“Fontanez”), with concerns about his perform ance and grade in the class. CMRV adm itted that he m issed a test due to a m edical appointm ent and that he knew he had not been “very responsible.” He also requested extra credit to raise his grade. Id. ¶ 27; PSMF ¶ 12. Fontanez responded with feedback and inform ed that she had referred his e-m ail to Wesleyan’s guidance counselor and high school principal. SUMF ¶ 28. F ir s t “N o -R et u r n ” Decis io n On J anuary 13, 20 15, Wesleyan inform ed CMRV that he had not been accepted to tenth grade. Id. ¶¶ 30 -32; PSMF ¶¶ 13-15. As the No-Return Letter explain ed, the decision was based on CMRV’s poor academ ic perform ance, grades (one D and two F’s in Bible, Algebra and Physical Science), excessive tardiness, and other factors (e.g., unpreparedness, poor attitude, and failure to m ake up for his work or hand his work on tim e). SUMF ¶¶ 30 31. 6 Upon Vergara’s request, Wesleyan reconsidered the no-return decision an d readm itted 6 Plaintiffs deny Defendants’ SUMF ¶ 30 arguin g that the no-return Letter cited in support constitutes inadm issible hearsay and lacks proper authentication. See Defs.’ Ex. 18, ECF No. 33-8; ECF No. 50 -1 at 5-6. However, under current Rule 56(c)(2), Plaintiffs’ objection m ust be that the evidence at issue can not be subm itted in a trial-adm issible form . Fed. R. Civ. P. 56(c)(2). See Mercado-Reyes v. City of Angels, Inc., 320 F. Supp. 3d 344, 350 (D.P.R. 20 18) (quotin g S.E.C. v. Ram irez, 20 18 WL 20 21464, at *7 (D.P.R. Apr. 30 , 20 18) (Delgado– Hernández, J .)) (rejectin g the defen dant’s hearsay objection to the plaintiff-nonm ovant’s affidavit because “a district court m ay consider hearsay evidence subm itted in an inadm issible form at the sum m ary judgm ent stage where the content of the evidence proffered could later be provided in an adm issible form at trial.”); Gonzalez-Berm udez v. Abbott Labs. PR Inc., 214 F. Supp. 3d 130 , 137 (D.P.R. 20 16) (“The objectin g party m ust thus state the proper grounds for which the opposing party's evidence cannot be presented in a form that w ould be adm issible at trial.”). Plaintiffs do not provide any substantive reason why the content of the letter could not be presented in an adm issible form at trial. Also, Plaintiffs quote form er Rule 56(e) requiring authentication for all docum ents supportin g or opposing m otions for sum m ary judgm ent. After the 20 10 am endm ents to the rule, authentication is no longer Civil No. 17-10 13(PG) Page 8 CMRV, subject to an updated psychological evaluation. Id. ¶¶ 32-33. Plaintiffs m aintain that this event caused them considerable em otional dam ages for which they sought pastoral counseling at their church an d psychological counseling for CMRV. PSMF ¶ 16. On February 14, 20 15, Dr. Perez diagnosed CMRV with ADD. SUMF ¶¶ 34-35. On February 15, 20 15, CMRV e-m ailed his English teacher adm itting he forgot to hand in an assignm ent and asking if he could turn it in late to “get at least half credit[.]” Id. ¶ 36. A week later, CMRV wrote an e-m ail to Fontanez to m ake the sam e request. Id. ¶ 37. Fontanez granted the extension, allowing him to turn in the assignm ent late for partial credit. Id. ¶ 38. The next day CMRV e-m ailed his History teacher to find out his grade in the class an d ask if he could raise it to B with an upcom ing assignm ent. Id. ¶ 39. On March 12, CMRV e-m ailed his English teacher saying that he would be turning in an essay the following day and that he understood “[he wouldn’t] get full credit.” Id. ¶ 40 . CMRV was adm itted to the tenth grade on the following conditions: (1) obtain at least 70 % in all classes; (2) m aintain good conduct; (3) schedule m edical appointm ents after school hours; (4) attend sum m er school for Physical Science, Health and Algebra I; (5) quarterly evaluations of CMRV’s progress by the Adm issions Com m ittee. Id. ¶ 42; Ex. 26, ECF No. 34-6. Wesleyan also urged Vergara to becom e m ore involved in CMRV’s education and recom m ended she com m unicate frequently with teachers and the school. SUMF ¶ 43. On May 20 , Vergara received CMRV’s acceptance letter and enrolled him for the tenth grade. required. Garcia-Garcia v. Costco Wholesale Corporation, 878 F.3d 411, 418 n. 11 (1st Cir. 20 18) (citin g Fed. R. Civ. P. 56; 10 B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (4th ed. 20 17 Update)) (so noting); Gonzalez-Berm udez, 214 F. Supp. 3d at 137 (citing Int'l Shipping Agency, Inc. v. Un ion de Trabajadores de Muelles Local 1740 , Civil No. 12-1996 (SCC), 20 15 WL 50 22794, at *3 (D.P.R. Aug. 21, 20 15)) (denyin g parties’ objections to sum m ary judgm ent exhibits lacking authen tication). Finally, Plaintiffs rely on several of Defendants’ supposedly inadm issible and unauthenticated exhibits to support their opposing and additional statem ents of fact. See, e.g., PSMF ¶ 13 (where, im portantly, Plaintiffs state that CMRV received the No-Return Letter from J anuary 13 notifyin g the expulsion , and thereafter, Vergara asked Wesleyan to reconsider). The court rem inds them that those who live in glass houses should not throw stones. At bottom , the facts related to this no-return decision rem ain undisputed. Civil No. 17-10 13(PG) Page 9 Id. ¶ 44. CMRV took the required sum m er courses and earned the following grades: Physical Scien ce, 91%; Health, 90 %; Algebra I, 61%. Id. ¶ 46. On Septem ber 25, 20 15, Vergara m et with Ms. Llorens and Ms. Cora to establish a reasonable accom m odation plan for CMRV. Id. ¶ 47. The parties agreed that CMRV had to obtain a m inim um of 70 % in all his classes, including electives. Id. ¶ 50 . Wesleyan agreed to reserve a desk for CMRV in front of the classroom ; his teachers would provide clear instructions, positive reinforcem ent, additional tim e for class work and exam s, an d whenever possible, adm inister exam s one page at a tim e. Id. ¶ 48 . Under this plan, CMRV’s parents had to im plem ent the recom m en dations given by the professionals treating or evaluating CMRV, and subm it evidence thereof; m eet with teachers on a m onthly basis and schedule additional m eetings with them ; subm it CMRV to a neurological evaluation; provide a “quiet, structured hom e environm ent, conductive to studying[,]” as well as an “education al, social, fam ily environm ent to help CMRV’s developm ent.” Id. ¶¶ 49-50 . Sitting in the front of the classroom allowed CMRV to focus. Id. ¶ 56. His teachers gave him extra tim e to com plete quizzes and exam s when he so requested, but that was not always the case. 7 Id. ¶¶ 57-58. CMRV continued to attend after-school m usic lessons at the Conservatory during that year. Id. ¶ 59. Se con d “N o- Ret u r n ” De cis ion On J anuary 24, 20 16, Wesleyan inform ed that CMRV would not be adm itted to eleventh grade for the 20 16-20 17 school year because he failed to obtain at least 70 % in all his classes during the first sem ester of tenth grade. The letter specifically m entioned CMRV 7 Notwithstandin g Plaintiffs’ qualifications or den ials of Defendants’ proposed facts, CMRV’s deposition testim ony shows that he m ostly needed accom m odation for m ath class. Regarding other subjects (e.g., H istory, English and Span ish), CMRV explain ed that he only som etim es needed extra tim e to take notes or “write things down.” See Ex. 13, ECF No. 33-3 at 20 -21. Based on the evidence, SUMF ¶¶ 51 to 53 and 55 are undisputed. Civil No. 17-10 13(PG) Page 10 finished that sem ester with 67% in English and 64% in Biology I. Id. ¶ 60 . Upon Vergara’s reconsideration request, Wesleyan decided to readm it CMRV for the first sem ester of eleventh grade on several conditions: (1) obtain at least 75% in all classes, per quarter; (2) m andatory tutoring for any class in which his grade dipped below 75%; (3) turn in projects and assignm ents on or before their due date; (4) quarterly m eetings between CMRV’s parents and teachers. Id. ¶¶ 61-62. After receiving the conditional acceptance letter, Vergara decided to enroll CMRV for the first sem ester of the 20 16-20 17 year. Id. ¶ 63. 8 On February 25, 20 16, CMRV m et with the guidance counselor, Ms. Cora, to discuss his academ ic perform ance and his first sem ester final grades. During the m eeting, CMRV adm itted he had failed to m eet deadlin es. Ms. Cora thus em phasized the im portance of working on projects as soon as they are assigned to subm it them in a tim ely m anner. CMRV agreed he would do his hom ework everyday; review each class daily; write down assignm ents in his agenda; and study for quizzes and tests on weekends. Finally, CMRV recognized that he needed to raise his grades. Id. ¶ 65; Ex. 31, ECF No. 35-1. The next day, CMRV m et with Om ar Gonzalez (“Mr. Gonzalez”), his tenth grade Geom etry teacher, to discuss his perform ance and strategies for im provem ent. SUMF ¶¶ 6768 ; Ex. 32, ECF No. 35-2. Following Mr. Gonzalez’s recom m en dation, Vergara enrolled CMRV in a pilot program that provided onlin e tutoring for students with difficulty in m ath. SUMF ¶ 69. CMRV used the program until the end of his Geom etry class in May 20 16. Id. ¶ 70 . For the second sem ester of tenth grade, CMRV attended the Conservatory’s afterschool m usic program , where he took classes on Tuesdays, 5:0 0 PM to 6:0 0 PM; 7:0 0 PM to 8 In Wesleyan , the passin g grade for every subject is 70 %. High school students who fail m ust take sum m er school for the required course before advancing to the next grade level. PSMF ¶ 34. Civil No. 17-10 13(PG) Page 11 8 :30 PM; Wednesdays, 4:30 PM to 5:0 0 PM; Thursdays, 4:30 PM to 6:0 0 PM; and Saturdays, 12:0 0 PM to 3:0 0 PM. Id. ¶ 71. CMRV finished tenth grade with the following grades: English, 61%; Geom etry, 69%; Biology I, 61%; Physical Education, 90 %; Spanish, 68 %; History, 78%; Bible, 95%; Music, 10 0 %. Id. ¶72. Because CMRV did not obtain passin g grades in four of his classes, he had to attend sum m er school. His final grades for those classes were: English, 78%; Geom etry, 69%; Biology I, 61%; Spanish, 75%. Id. ¶ 73; Ex. 34, ECF No. 35-4. On August 12, 20 16, Plaintiffs m et with Ms. Llorens and Ms. Cora to go over the conditions previously established for CMRV’s acceptance to the first sem ester of eleventh grade. Id. ¶ 74. They did not establish a reasonable accom m odation plan for that academ ic year. PSMF ¶ 38. Early in Septem ber of 20 16, CMRV’s Algebra II teacher, Paola Enriquez (“Ms. Enriquez”), e-m ailed Vergara with concerns about CMRV’s perform ance in her class and the fact that he had a 73% grade. SUMF ¶¶ 75-76. Soon thereafter, Vergara and her son m et with Ms. Llorens, Ms. Cora, Ms. Enriquez and Mr. Gonzalez. Id. ¶ 77. During that m eeting, Ms. Enriquez m entioned that CMRV was not turning all his work on tim e. 9 As previously noted, com plying with deadlines for projects and assignm ents was one of several conditions for CMRV’s acceptance. Id. ¶ 86. Vergara requested that CMRV be placed in Mr. Gonzalez’s Algebra II class because his teaching style was better for CMRV than Ms. Enriquez’s. Id. ¶¶ 78 -80 . 10 Defendants denied the request, but the parties agreed that CMRV could seek Mr. Gonzalez for help, questions or doubts about Algebra II during lunch or office hours. Id. ¶¶ 82-8 3. CMRV never 9 The court m odified Defen dants’ SUMF ¶ 86 to incorporate Plaintiffs’ qualification, which in turn , reflects Vergara’s deposition testim ony that CMRV turn ed in “som e” of his m ath work late. ECF No. 50 -1 at 15. 10 Plaintiffs adm it that Ms. Enriquez had tried to explain the m aterial to CMRV independently to no avail— “he just did not understand it.” SUMF ¶ 81. Civil No. 17-10 13(PG) Page 12 sought his help. Id. ¶ 84. After that m eeting, Ms. Enriquez began tutoring CMRV approxim ately three tim es a week. CMRV took between six to nine tutoring sessions, but his grades did not im prove. Som e tim e later, Ms. Enriquez inform ed Vergara that she would no longer be able to tutor CMRV. Id. ¶¶ 8 7-89. On Septem ber 29, 20 16, Ms. Cora e-m ailed Vergara about CMRV’s concerns regarding his grade (53%) and perform ance in Algebra II. She m entioned the fact that CMRV had not sought Mr. Gonzalez’s help with the subject and rem inded Vergara the im portance of him doing so. She also provided tutoring alternatives for CMRV, subject to Vergara’s approval and confirm ation. Id. ¶ 90 . 11 On October 7, 20 16, Ms. Cora e-m ailed Vergara again with sim ilar concerns and updated inform ation regarding CMRV’s grades and perform ance, tutoring opportunities, as well as the m ost recent efforts undertaken by the school and faculty to help CMRV m eet his academ ic conditions. Id. ¶ 91. 12 CMRV continued to attend the Conservatory’s after-school m usic program during the first sem ester of eleventh grade. 13 Id. ¶ 94. His m usic class schedule conflicted with the tutoring sessions provided by Wesleyan’s teachers every day after school, from 3:30 PM to 4:30 PM, specifically. Id. ¶¶ 95-96. So, beginning in October one of CMRV’s eleventh grade classm ates, “KM,” tutored him three tim es a week at 7:0 0 PM. Id. ¶¶ 98, 10 1, 10 3. She also helped CMRV during class. Id. ¶ 97. 14 Despite Ms. Cora’s recom m endations, Plaintiffs did 11 Plaintiffs response to Defendants’ SUMF ¶¶ 90 and 91 is to “adm it” the supporting evidence’s authenticity only. ECF No. 50 -1 at 2. Given that Plaintiffs fail to adm it, deny or qualify the substance of Defendants’ properly supported facts, the court finds them undisputed. 12 Vergara’s deposition testim ony shows that she never received the e-m ails in question because the account was “hacked.” Regardless, Ms. Cora m ade a follow-up call to Vergara and read the contents of the e-m ails. According to Vergara, she was already aware of the in form ation. See SUMF ¶¶ 92-93; Ex. 5 at 379-380 (ECF No. 32-6 at 10 4-10 5). On the other hand, Plaintiffs failed to adequately respond to Defendants’ SUMF ¶¶ 93, 94, 95, 96, 98 , 10 1, 10 2 and 10 3. ECF No. 50 -1 at 2. Having reviewed the evidence with which they are supported, the court finds that these facts are undisputed. 13 His schedule was: Mondays, 3:30 PM to 4:30 PM; Wednesdays, 3:30 PM to 4:30 PM; Thursdays, 3:30 PM to 4:30 PM; and Saturdays, 12:0 0 PM to 3:0 0 PM. 14 See also Defs.’ Ex. 5 at 123-124, 136-137 (ECF No. 32-6 at 52-55). Plaintiffs’ deny SUMF ¶ 97 because “KM Civil No. 17-10 13(PG) Page 13 not seek or im plem ent other alternatives for CMRV to im prove. Id. ¶¶ 10 2-10 3. An d KM’s tutoring lessons were n ot enough to help CMRV in m ath. Id. ¶ 99. Th ir d “N o - Ret u r n ” Decis io n By the end of the first quarter, CMRV was failing to m aintain a 75% or m ore in each class. In Algebra II, for exam ple, his grade was 58%. He also failed to turn in assignm ents and projects by their due date or attend tutoring lessons on a con sistent basis. Id. ¶ 10 0 . On Novem ber 14, 20 16, Wesleyan decided to expel CMRV for the second sem ester of eleventh grade given Plaintiffs’ failure to satisfy the academ ic conditions established for his first sem ester acceptance. Id. ¶ 10 4; PSMF ¶ 32. Two days later, Vergara m et with Ms. Enriquez to discuss CMRV’s perform ance in Algebra II. Id. ¶ 10 5. Ms. Enriquez inform ed that CMRV failed to turn in coursework and even m issed a quiz. Id. Vergara later asked for reconsideration of Wesleyan’s Novem ber 14, 20 16 no-return decision, but the school denied her request. Id. ¶¶ 10 6-10 7. The court states the facts related to the legal action taken by Plaintiffs in response to that decision below. As for CMRV’s academ ic perform ance, the record shows that he finished the sem ester with the following final grades: Bible, 82%; English, 77%; Spanish, 78%; Algebra II, 52%; Biology II, 74%; Governm ent, 8 7%; Econom ics, --; Music, 98%; Physical Education, 98%. Id. ¶ 10 9; Ex. 40 , ECF No. 35-10 . On J anuary 4, 20 17, Plaintiffs filed this suit against Defendants. They also m oved the court for a TRO and prelim inary injunction. The court issued the TRO and ordered the school to readm it CMRV for the second sem ester of eleventh grade, beginning in J anuary of 20 17. SUMF ¶¶ 10 8, 110 . The parties agreed to convert the TRO into a prelim inary injunction actually tutored CMRV in Algebra II.” ECF No. 50 -1 at 7. Their response does not controvert the proposed fact: that KM helped CMRV during class. The portions of Vergara’s deposition testim on y cited by Plaintiffs do not create a genuine dispute as to this fact, either. See Defs.’ Ex. 5 at 380 , ECF No. 32-6 at 10 5. Civil No. 17-10 13(PG) Page 14 or pendente lite and adopt a reasonable accom m odation plan. Id. ¶¶ 111; ECF No. 15. Re a s o n a b le Acco m m o d a t io n s As part of the reasonable accom m odation plan, Wesleyan agreed to provide a desk for CMRV in the first, second or third row of the classroom ; adm inister exam s one page at a tim e; give CMRV additional tim e to com plete exam s and hand in class work, as well as clear and in dividual instructions for assignm ents and coursework, or repeat instructions upon request; and provide review m aterials for final exam s. SUMF ¶ 112. 15 Wesleyan also agreed to change CMRV to Mr. Gonzalez’s Algebra class. Id. ¶ 115. Vergara, in turn, agreed to attend bi-m onthly m eetings with teachers and any other additional m eetings requested by teachers or staff; procure tutoring lessons for CMRV in the subjects he so required by a certified educator, subject to Wesleyan’s approval, and subm it m onthly attendance records to the high school principal’s office; provide Wesleyan with the neurological evaluation perform ed by Dr. Carlos Barreto Miranda in March of 20 15; notify Wesleyan the date of CMRV’s scheduled neurological evaluation; procure psychological counseling for CMRV and inform his attendance thereto to the school. Id. ¶ 113. As for CMRV, the parties agreed he would m aintain all his grades at 70 % or m ore an d good conduct, as well as to com ply with Wesleyan’s School Wide Disciplin e Plan, incorporated in the Han dbook. Id. ¶ 114. Ot h e r F a ct s On February 24, 20 17, Vergara m et with Ms. Cora and Mr. Rafael Torres, CMRV’s Biology teacher, to discuss and coordinate m ath tutoring lessons for CMRV. Mr. Torres agreed to tutor CMRV and noted that they needed to m eet three to four tim es a week. Id. ¶ 15 Plaintiffs take issue with the fact that Defendants left out other stipulations and conditions contained in the plan. After a careful review, the court finds the om itted portions im m aterial to the pending dispositive m otion. Civil No. 17-10 13(PG) Page 15 116. The lessons began in March of 20 17. Id. ¶ 117. During the second sem ester of eleventh grade, CMRV continued to take m usic lessons at the Conservatory. Id. ¶ 119. At the end of that sem ester, CMRV obtained the following grades: Bible, 95%; English, 72%; Spanish, 78 %; Algebra II, 68%; Biology II, 96%; Governm ent, --; Econom ics, 8 2%; Music, 10 0 %; Physical Education, 91%. Id. ¶ 118 . 16 His final grades for that school year were: Bible, 8 9%; English, 75%; Spanish, 78 %; Algebra II, 60 %; Biology II, 8 3%; Governm ent, 8 7%; Econom ics, 8 2%; Music, 99%; Physical Education, 94%. See Ex. 42, ECF No. 36-2. CMRV’s teachers com plied with and provided the required accom m odations during CMRV’s tenth and eleventh grades. SUMF ¶ 135. But Wesleyan readily adm its that som e of the accom m odations requested were denied, to wit, changing CMRV to Mr. Gonzalez’s Algebra II class, recording his classes, and photographing the blackboard. Id. ¶ 123. Plaintiffs counter that they also requested bathroom breaks as necessary to accom m odate CMRV’s renal an d urinary condition. ECF No. 50 -1 at 9-10 . One of his teachers, Laura Burgos, refused to give CMRV bathroom breaks. Id. 17 Vergara also asked Wesleyan to allow CMRV to record his classes. Wesleyan denied that request not only because, as a m atter of fact, Wesleyan students cannot record their classes, but also due to privacy concerns. SUMF ¶¶ 124, 126. 18 To provide that 16 Havin g considered Plaintiffs’ qualifying response, the court m odified Defendants’ proposed fact to include CMRV’s grades for each subject. 17 It is unclear for what specific condition the bathroom breaks accom m odation was needed. The references to renal, kidney and urinary condition(s) without a hin t of distinction am ong them abound in the sum m ary judgm ent record. Plaintiffs do not provide adequate citations to the record for m ost of the assertion s included in their response to SUMF ¶ 123. Their proposed additional facts on this supposed request for an accom m odation falter for the sam e reasons. Therefore, the court only considered the properly supported facts and disregarded the rest. See Fed. R. Civ. P. 56(c); L. Civ. R. 56(c), (e). 18 Plaintiffs deny SUMF ¶ 124 by stating that “Wesleyan does allow the recordin g of classes for students with learnin g disabilities depending on the student’s individual needs[.]” ECF No. 50 -1 at 10 . Their den ial does not controvert Defendants’ proposed fact: that for privacy reasons, Defendants denied Plaintiffs’ accom m odation request. Plaintiffs support their den ial with portions of Leyda Mercado’s deposition testim ony. But a close exam ination of that eviden ce heavily suggests that Plaintiffs m isquoted Mercado in their attem pt to create a factual dispute, as she did not testify that Wesleyan allows students (disabled or not) to record their classes. Civil No. 17-10 13(PG) Page 16 accom m odation, Wesleyan would have had to obtain authorization from the parents of CMRV’s classm ates, and as part of that process, disclose the requesting student’s (here, CMRV’s) learning disability or condition. Id. ¶ 125. Vergara m ade another request for reasonable accom m odation. She asked Wesleyan to allow CMRV to take photos of the blackboard--where teachers provided m aterials an d instructions for class assignm ents--with a cellphone or device, instead of taking notes. Id. 19 Wesleyan denied this request. Id. ¶ 123, 133. Vergara later acknowledged that Dr. Perez recom m en ded the use of visual aids for CMRV, not photographing the blackboard. Id. ¶ 134. 20 Per the school’s cellphone policy, students are not allowed to use cellphones during school hours and infractions to that policy are subject to varying levels of disciplinary action, up to and including detention and suspension. Id. ¶¶ 130 -131. See also Wesleyan Academ y School Com m unity Handbook, ECF No. 13-3 at 30 -31. One exception to the policy is the use of cellphones during field trips to take notes or photos for class reports, or to contact parents. ECF No. 50 -1 at 11. Furtherm ore, Wesleyan required all teachers to post all course-related inform ation, class sum m aries, m aterials and grades to Edline, the online system used by the school, which students and parents could access from hom e. SUMF ¶ 132. Vergara testified that the inform ation available in Edline was not always up-to-date. ECF No. 50 -1 at 11. Cyb er b u llyin g Wesleyan’s Anti-Bullying Protocol contains the school’s policy against bullying and See Defs.’ Ex. 44 at 10 4-10 6, ECF No. 36-4; Pls.’ Ex. D at 10 4-10 6, ECF No. 50 -9. Because Plaintiffs failed to adequately support their responses to SUMF ¶¶ 125 and 126, these facts are undisputed too. 19 Plaintiffs did not respond at all to SUMF ¶ 129, so that fact is deem ed adm itted. 20 Although Plaintiffs conten d that “[a] photograph, m ost certainly, constitutes a ‘visual aid [,]’” their assertion is unsupported. See ECF. 50 -1 at 12. Civil No. 17-10 13(PG) Page 17 cyberbullying and sets forth preventive m easures and the in stitutional response to bullying incidents. SUMF ¶ 137. It requires teachers and staff to report and investigate all incidents, even when the victim does not form ally com plain or express disapproval of the purported bullying. PSMF ¶ 48. On February 26, 20 16, Vergara com plained to Ms. Llorens and Ms. Cora about a cyberbullying incident CMRV had confronted via group text m essages with other Wesleyan students (e.g., student identified as “D.P.”). Id. ¶ 45. Vergara did not report or com plain about cyberbullying again until Decem ber of that year. Id. ¶ 32, 44. 21 See Pls.’ Ex. B1 at 395, ECF No. 50 -5 at 139. Although Defendants assert that CMRV had no subsequent issues with the perpetrator, Plaintiffs counter that CMRV had to be treated for depression and given m edication because of the cyberbullying even ts. ECF No. 50 -1 at 13. Now, Defendants aver that they learned of the cyberbullying incident by way of the com plaint filed in J anuary of 20 17. Early in February of 20 17, Vergara m et with Wesleyan’s Dean of Students, J ose L. Mass. She asked him not to activate the anti-bullying protocol, asserting that CMRV had m oved on from the one-tim e incident. See Defs.’ Reply Statem ent of Material Facts ¶ 49, ECF No. 58 -2. Because Vergara refused to sign the m inutes of the m eeting, the school proceeded with the investigation, but subsequent com m unications with Plaintiffs’ counsel brought the school’s efforts to a halt. Id. 21 The record suggests that Vergara m entioned the cyberbullyin g incidents in the letter she wrote to Rev. Benjam in Galarce requesting reconsideration of the n o-return decision notified in Novem ber of 20 16. SUMF ¶¶ 10 4, 10 6; PSMF ¶ 32. It is undisputed that Vergara later m et with Rev. Galarce—on Decem ber 5, 20 16 to be exact—to discuss CMRV’s expulsion and other related m atters. PSMF ¶ 44. Plaintiffs’ proposed additional facts on the cyberbullyin g incidents are either unsupported by the evidence or hotly disputed, as is the case of the proposed facts regardin g Vergara’s conversation with Mercado about the alleged cyberbullyin g. See, e.g., PSMF ¶¶ 47-48 and Defs.’ Reply Statem ent of Material Facts, ECF No. 58-2 ¶¶ 47-48 . Civil No. 17-10 13(PG) Page 18 IV. A. Reh a b ilit a t io n Act D ISCU SSION 22 i. D is a b ilit y D is cr im in a t io n Section 50 4 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 ben efits of, or be subjected to discrim ination under any program or activity receiving federal funds.” Ruskai v. Pistole, 775 F.3d 61, 77 (1st Cir. 20 14) (quoting 29 U.S.C. § 794(a)). Im portantly, Section 50 4 prohibits federally-funded entities and academ ic institutions from discrim inating against disabled students. See Fry v. Napoleon Cm ty. Sch., 137 S. Ct. 743, 749 (20 17); J .D. ex rel. J .D. v. Pawlet Sch. Dist., 224 F.3d 60 , 70 (2d Cir. 20 0 0 ); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992). To establish a prim a facie case of discrim ination, a plaintiff m ust show ( 1) that he is a qualified individual with a disability; ( 2 ) is “otherwise qualified” to participate in or receive services from a program or entity; ( 3 ) that he was excluded from participating in, den ied, or otherwise discrim inated against “solely by reason of [his] …disability;” ( 4 ) that the program or entity received federal financial assistance. Lesley v. Hee Man Chie, 250 F.3d 47, 52-53 (1st Cir. 20 0 1) (alteration in original) (som e quotation m arks om itted) (citing § 794(a)); Rivera-Concepcion v. Puerto Rico, 786 F. Supp. 2d 489, 50 0 (D.P.R. 20 11). 23 22 Since Congress m odeled m any provisions of the Am erican with Disabilities Act (“ADA”), 42 U.S.C. § 1210 1 et seq., after Section 50 4, claim s under both statutes “are analyzed under the sam e standards and the case law construing the ADA pertain s equally to claim s under the Rehabilitation Act.” Davila v. Potter, 550 F. Supp. 2d 234, 243 (D.P.R. 20 0 7) (citing Calero-Cerezo v. U.S. Dep't of J ustice, 355 F.3d 6, 12 (1st Cir. 20 0 4); Phelps v. Optim a Health, Inc., 251 F.3d 21, 23 n. 2 (1st Cir. 20 0 1)); see also Chenari v. George Washington Univ., 847 F.3d 740 , 746– 47 (D.C. Cir. 20 17) (quoting Am . Coun cil of the Blind v. Paulson, 525 F.3d 1256, 1260 & n. 2, 1266-67 & n . 14 (D.C. Cir. 20 0 8)) (notin g that for purposes of analyzing a failure-to-accom m odate claim under the Rehabilitation Act, Section 50 4 is construed in pari m ateria with Title II of the ADA). 23 Where, as here, a plaintiff offers circum stantial evidence to prove a disability discrim ination claim under Section 50 4, the court applies the burden-shifting fram ework laid out by the Suprem e Court in McDonn ellDouglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) and its progeny. See Delgado Echevarria v. Civil No. 17-10 13(PG) Page 19 Disability m eans “(A) a physical or m ental im pairm ent that substantially lim its one or m ore of [an] individual’s m ajor life activities; (B) a record of such an im pairm ent; or (C) being regarded as having such an im pairm ent….” 29 U.S.C. § 70 5(20 )(B) (incorporating definition found in 42 U.S.C. § 1210 2). Major life activities are activities “of central im portance to daily life,” or functions such as “perform ing m anual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Vazquez v. Municipality of J uncos, 756 F. Supp. 2d 154, 161 (D.P.R. 20 10 ) (quoting 29 C.F.R. § 1630 .2) (citing Toyota Motor Mfg., Ky., Inc. v. William s, 534 U.S. 184, 197 (20 0 2)). Thinking and concentrating are also considered m ajor life activities. See Calero-Cerezo, 355 F.3d at 21 (citing Whitney v. Greenberg, Rosenblatt, Kull & Bistoli, P.C., 258 F.3d 30 , 33 n. 4 (1st Cir. 20 0 1)). In the educational setting, an otherwise qualified individual is one who can m eet all of an academ ic program ’s requirem ents in spite of his or her disability, with or without reasonable accom m odation. See Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir. 1998) (citing Southeastern Com m unity College v. Davis, 442 U.S. 397, 40 5 (1979)); S.S. by S.Y. v. City of Springfield, Massachusetts, 146 F. Supp. 3d 414, 419-20 (D. Mass. 20 15) (“[i]f there are reasonable m odifications that would allow a school to accom m odate a disabled individual, the individual is qualified for the program offered by the school.”). In this case, Defendants concede CMRV is physically and m entally disabled for AstraZeneca Pharm . LP, 856 F.3d 119, 133– 34 (1st Cir. 20 17); Rios-J im en ez v. Prin cipi, 520 F.3d 31, 40 -41 (1st Cir. 20 0 8) (applyin g McDonnell Douglas fram ework to disability discrim ination claim under the Rehabilitation Act). If the plaintiff succeeds at the prim a facie stage, the burden then shifts to the defendant to articulate a legitim ate, non-discrim inatory reason for the alleged adverse action against plaintiff. See Novak v. Bd. of Trustees of S. Illinois Un iv., 777 F.3d 966, 974 (7th Cir. 20 15) (citin g Bunn v. Khoury Enters., Inc., 753 F.3d 676, 685 (7th Cir. 20 14)). If the defendant articulates such a reason, then the plaintiff m ust present evidence that the proffered reason is pretext for discrim ination. Id. (quoting Steinhauer v. DeGolier, 359 F.3d 481, 48 4 (7th Cir. 20 0 4)); Rios-J im enez, 520 F.3d at 40 -41 (citing McDon nell Douglas, 411 U.S. at 8 0 2, 80 4). Civil No. 17-10 13(PG) Page 20 sum m ary judgm ent purposes. 24 Thus, the first prim a facie elem en t is m et. Insofar as Defendants adm it that Wesleyan receives federal funds, the school is a covered entity under the Rehabilitation Act. This satisfies the fourth elem ent of the test. Further, it is undisputed that CMRV was subjected to adverse actions because he was expelled on m ore than on e occasion from the school. On this basis, the third elem ent of the test is m et. 25 Now, Defendants argue that CMRV is not “otherwise qualified” because he could not m eet Wesleyan’s academ ic standards and requirem ents for continued enrollm ent even with reasonable accom m odations. Plaintiffs disagree m aintaining that CMRV did m eet Wesleyan’s essential eligibility requirem ents, like age and entering academ ic credentials. See Pls.’ Mem . of Law in Supp. of Opp’n to Defs.’ “MSJ ,” ECF No. 50 at 12. At the outset, the court must note that Plaintiffs confuse essential eligibility requirem ents for adm ission with those for continued enrollm ent. On the one hand, the Wesleyan Academ ic Policy Manual m entions four basis qualifications for adm ission (SUMF ¶ 3). On the other, the Manual establishes essential eligibility standards and requirem ents for graduation and course credit, participation in non-credit activities and other areas of student life, and guidelines for determ ining conditions for adm issions, denial of readm ission, academ ic probation or suspension. See Wesleyan Policy Manual, ECF No. 131 at 57-95. The Policy Manual’s section on student affairs warns that the Adm issions Com m ittee m ay place students who show questionable behavior, poor attitude, or poor academ ic perform ance on disciplinary or academ ic conditions, set the duration of the conditions, an d 24 Notwithstandin g, Defendants m ention that their expert evidence discredits CMRV’s ADD diagnosis. Defendants thus suggest that CMRV was never entitled to reasonable accom m odations. See Defs.’ Reply Statem ent of Material Facts at 6, n. 1, ECF No. 58-2. 25 Plaintiffs’ claim under Section 50 4 for failure to accom m odate is discussed infra at subsection ii. Civil No. 17-10 13(PG) Page 21 stipulate special expectations. 26 These conditions becom e part of the contract between Wesleyan and the student, and Wesleyan can deny readm ission or return for the second sem ester or the subsequent school year based on the student’s noncom pliance with the conditions. See id. at 57-59. As the m aterial facts and evidence show, CMRV’s docum ented struggles with Wesleyan’s academ ic standards date back to his elem entary school years. 27 For present purposes, however, the court will only m ention those that brought about the “no-return” or expulsion decisions. In J anuary of 20 15, the Adm issions Com m ittee m ade the first no-return decision challenged by Plaintiffs; it was based on CMRV’s poor academ ic perform ance— including two F’s—, his noncom pliance with Wesleyan’s attendance policy, and other factors. He was in ninth grade at the tim e. On May 20 , 20 15, the Adm issions Com m ittee decided to readm it CMRV with conditions for the tenth grade, like keeping a m inim um grade of 70 % in all his classes, electives in cluded. The letter warned that the Com m ittee would evaluate CMRV’s progress on a quarterly basis to determ ine his eligibility to rem ain at Wesleyan, an d that the conditions for acceptance would be re-evaluated in October of 20 16 (at the end of the first quarter). See Defs.’ Ex. 26, ECF No. 34-6. Having been diagnosed with ADD back in February of 20 15, Plaintiffs m et at the start of the first sem ester of tenth grade to establish reasonable accom m odations, like a reserved desk for CMRV in the front of the classroom and additional tim e for exam s and hom ework. Despite the reasonable accom m odations provided, which, by CMRV’s own adm ission, allowed him to focus, he failed to com ply with eligibility requirem ents established for his 26 In other cases, one or m ore F’s or two or m ore D’s could land a student on academ ic probation . His final grades for eighth grade were, in relevant part, a 65% in Math, a 58% in Social Studies, and a 55% in Bible. 27 Civil No. 17-10 13(PG) Page 22 tenth grade. 28 The Adm issions Com m ittee issued the second no-return decision on J anuary 24, 20 16. After Vergara asked for reconsideration, the Com m ittee decided to offer readm ission for the first sem ester of eleventh grade subject to conditions, including a m inim um grade of 75% in each of CMRV’s classes, per quarter. Despite Plaintiffs’ contentions, 29 Vergara reenrolled CMRV in school, thus accepting to abide by these eligibility requirem ents an d conditions. The uncontroverted facts dem onstrated that for the first quarter of CMRV’s eleventh grade, during the 20 16-20 17 academ ic year, CMRV had a 58% in Algebra II. Also, he was not subm itting all assignm ents in a tim ely m anner or com plying with tutoring conditions. Wesleyan thus decided not to adm it him for the second sem ester of the 20 1620 17 school year. Based on these and the other undisputed m aterial facts recounted above, the court concludes that Plaintiffs are unable to show that CMRV was “otherwise qualified” for continued enrollm ent at Wesleyan. Even if Plaintiffs could surpass that hurdle, that is, show that CMRV m et essential eligibility requirem ents with reasonable accom m odations, n either the facts nor the evidence on this record suggest that any of the challenged decisions were m ade solely because of CMRV’s actual or perceived disabilities (be it his ADD, renal or urinary conditions, or depression), as opposed to his repeated n oncom pliance with the school’s perform ance requirem ents and academ ic conditions. Rivera-Concepcion, 786 F. Supp. 2d at 50 0 (dism issing Rehabilitation Act claim given plaintiff’s failure to show she was 28 By the end of the first sem ester, CMRV had obtained two D’s. Specifically, the court is referrin g to Plaintiffs’ argum ent that Defendants deviated from Wesleyan’s policy by raisin g the passin g grade to 75%, which also constituted discrim ination . Upon a straightforward readin g of the relevant evidence—the Policy Manual, Handbook, and the Adm issions Com m ittee’s letters—the court concludes that Wesleyan could rightfully place the 75% threshold as a condition for readm ission, whether for a sem ester or an entire school year, in accordance with its academ ic policy. See ECF No. 13-1 at 52-74. 29 Civil No. 17-10 13(PG) Page 23 “otherwise qualified” for the internship position from which she was expelled, and that the expulsion was solely grounded on her m ental disability, as opposed to her absenteeism an d behavior). Therefore, Plaintiffs still fail to establish a prim a facie case of disability discrim ination. ii. Fa ilu r e t o Acco m m o d a t e Plaintiffs allege that Defendants violated Section 50 4 by failing to provide several reasonable accom m odations for CMRV. They argue that CMRV’s academ ic perform ance would have been satisfactory had Wesleyan provided him with the requested reason able accom m odations, which were recom m ended by the m inor’s health professionals, but Defendants never im plem ented. Wesleyan allegedly ignored Vergara’s repeated requests for reasonable accom m odations on behalf of her son. Section 50 4 requires covered entities to offer eligible students m eaningful access to reasonable accom m odations. Alexander v. Choate, 469 U.S. 287, 30 1 (1985); Theriault v. Flynn, 162 F.3d 46, 48 (1st Cir. 1998). Defendants well recognize that “[a] federally-funded organization violates Section 50 4 if it den ies a qualified individual with a disability a reasonable accom m odation that the individual needs in order to enjoy m eaningful access to the benefits of public services.” ECF No. 32 at 12 (citing Rivera-Concepcion, 786 F. Supp. 2d at 50 0 ). The elem ents of a prim a facie case for failure to accom m odate are like those required under a disability discrim ination theory, but for purposes of the third prong, Plaintiffs m ust prove that Defendants knew of CMRV’s disability yet did not reasonably accom m odate it. See En ica v. Principi, 544 F.3d 328, 338 (1st Cir. 20 0 8) (citing Calero-Cerezo, 355 F.3d at 20 ) (discussing the elem ents of a prim a facie case for a failure-to-accom m odate claim under the Rehabilitation Act in the em ploym ent context). Civil No. 17-10 13(PG) Page 24 Generally, to trigger a defendant’s obligation to provide any type of accom m odation, the plaintiff’s “request m ust be sufficiently direct and specific, and it m ust explain how the accom m odation is linked to plaintiff’s disability.” J ones v. Nationwide Life Ins. Co., 696 F.3d 78 , 8 9 (1st Cir. 20 12) (citing Freadm an v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 10 2 (1st Cir. 20 0 7). But see Bajandas v. Cupeyville, In c., 61 F. Supp. 3d 218, 220 (D.P.R. 20 14) (citing Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir. 20 0 2)) (noting, in an em ploym ent discrim ination case under the ADA, that “[t]he em ployee’s request does not have to be in writing or form ally invoke the m agic words ‘reasonable accom m odation.’”). Here, it is undisputed that CMRV underwent various psychological evaluations but was not diagnosed with ADD or other learning disability until February 14, 20 15. Plaintiffs argue that Defendants had a duty to accom m odate him since 20 0 9 because, unbeknownst to Vergara, CMRV appeared on a purported list of students that needed accom m odations. Their contention is unavailing. First, there are no set of facts present that could allow a reasonable jury to conclude that Plaintiffs put the school on notice of CMRV’s disabilities and that they requested specific accom m odations for those disabilities prior to 20 15. As Defendants well point out, Wesleyan had no obligation to provide unrequested accom m odations for unknown disabilities before then. See Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 20 12) (m edical school had no obligation to accom m odate m edical student’s disability [ADHD] until he provided proper diagnosis to and requested specific accom m odations, which he only did after engaging in m isconduct that warranted dism issal from the program ); Carten v. Kent State Univ., 78 F. App'x 499, 50 1 (6th Cir. 20 0 3) (citing Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998) (school not required to accom m odate plaintiff’s disability until he “provided a proper diagnosis…and requested specific accom m odation.”)); Wynne v. Tufts Univ. Sch. of Med., Civil No. 17-10 13(PG) Page 25 976 F.2d 791, 795– 96 (1st Cir. 1992) (alteration in original) (quoting Nathanson v. Medical College of Pa., 926 F.2d 1368, 1381 & 1386 (3d Cir. 1991)) (recognizing that “an academ ic institution can be expected to respond only to what it knows or is chargeable with knowing,” and thus, a relevant part of the Section 50 4 inquiry is “whether the student ever put the school on notice of his handicap by m aking ‘a sufficiently direct and specific request for special accom m odations.’). Second, Plaintiffs’ argum ent is underdeveloped. In their opposition, Plaintiffs neither raise genuine issues of m aterial fact to defeat Defendants’ m otion on this point, nor do they cite any analogous cases or on-point legal authority to sustain their theory. This pales in com parison to the relevant case law and reasoned analysis offered by Defendants. The problem for Plaintiffs is that “[j]udges are not m indreaders. Consequently, a litigant has an obligation to spell out its argum ents squarely and distinctly, or else forever hold its peace.” Echevarría v. AstraZeneca Pharm aceutical LP, 8 56 F.3d 119, 139 (1st Cir. 20 17) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990 )). This includes “highlighting the relevant facts an d analyzing on-point authority.” Rodriguez v. Mun. of San J uan, 659 F.3d 168 , 175 (1st Cir. 20 11) (citation om itted). The upshot is that “issues adverted to in a perfunctory m anner, unaccom panied by som e effort at developed argum entation, are deem ed waived.” Zann ino, 8 95 F.2d at 17. To recap, the court concludes that even if CMRV was “regarded as” disabled before 20 15, thus triggering a duty to accom m odate, Plaintiffs have failed to m eet their burden of showing in the first in stance what specific accom m odation CMRV needed and how those Civil No. 17-10 13(PG) Page 26 accom m odations were connected to his undiagnosed disabilities. 30 See Ortiz-Martinez v. Fresenius Health Partners, PR, LLC, 8 53 F.3d 599, 60 5 (1st Cir. 20 17). Requests for Accom m odations after ADD Diagnosis With respect to reasonable accom m odations requests after CMRV’s ADD diagnosis in February of 20 15, the record am ply dem onstrates that Wesleyan provided m ost, if not all the accom m odations or m odifications recom m ended by CMRV’s treating professionals. The court notes, again, that CMRV was diagnosed with ADD approxim ately one m onth after the Adm issions Com m ittee decided to deny him adm ission to tenth grade based on his poor academ ic perform ance, conduct issues, and n oncom pliance with the school’s stan dards and policies. 31 After the school reconsidered that decision an d readm itted CMRV subject to conditions, school officials m et with Vergara several tim es to discuss appropriate accom m odations for CMRV. On Septem ber 25, 20 15, the parties established a reasonable accom m odation plan. CMRV had a reserved desk in the front rows of the classroom s to im prove his focus; his teachers gave him m ore tim e to com plete exam s and extensions of tim e to subm it assignm ents and projects. The m utually agreed upon accom m odations undisputedly am eliorated CMRV’s learning disabilities, which m ostly affected him in m ath subjects. The record further dem onstrates instances where CMRV belatedly requested m ore tim e to turn in assign m ents to receive partial credit. Despite the accom m odations, CMRV failed two classes during the first sem ester of tenth grade and did not com ply with other conditions established for readm ission. 30 Indeed, Plaintiffs m ake no effort to m ention what accom m odations CMRV needed for which of the alleged disabilities. 31 Even before the diagnosis, Defendants requested professional evaluations an d recom m endations from Plaintiffs to help CMRV im prove not only his grades, but also, his relationships an d social interactions. Civil No. 17-10 13(PG) Page 27 In Septem ber of 20 16, CMRV’s academ ic woes continued, which prom pted another m eeting between Plaintiffs, the high school principal, and two of CMRV’s m ath teachers. Vergara asked that her son be placed in Mr. Gonzalez’s algebra class because she understood that his teaching style was better than Ms. Enriquez’s. Defendants denied the accom m odation but provided alternatives, one of which was that CMRV could seek Mr. Gonzalez’s help during lunch and office hours. The fact is that he never did. Ms. Enriquez tutored CMRV three to four tim es weekly for som e tim e, and he was later tutored by another student, who also assisted CMRV in class. Despite the alternatives provided in lieu of the requested accom m odation, and Defendants’ additional efforts and m any warnings (see, e.g., SUMF ¶¶ 90 -91, 95-96, 98, 10 1, 10 3), CMRV continued to m iss deadlines an d his grades did not im prove. Defendants further point to the uncontroverted fact that CMRV was placed in Mr. Gonzalez’s class after the filing of this lawsuit. Yet, CMRV finished the sem ester with a 68 % in Algebra II notwithstanding the accom m odation and the supposed benefits of Mr. Gonzalez’s teaching style. Plaintiffs challenge Wesleyan’s denial of their request for recording classes as an accom m odation for CMRV. Defendants counter that the request was unreasonable an d their denial, based on legitim ate, non-discrim inatory policy and privacy reasons. As m atter of policy, students cannot record their classes. Leyda Mercado explained during her deposition that part of the policy’s rationale is to avoid the m isuse of class recordings for non-academ ic purposes. Also, the school would have had to engage in the gargantuan task of first obtaining the written consent of all the parents of every other m inor student in all of CMRV’s classes before allowing him to record his classes. The court agrees that this request was, therefore, far from reasonable. Civil No. 17-10 13(PG) Page 28 Next, there is the request to allow CMRV to take photos of the blackboard, instead of taking notes, which Wesleyan denied. According to Vergara, this would have entailed a m inor adjustm ent on the school’s part that was necessary to accom m odate CMRV’s ADD and lagging visual m otor skills. The court reiterates what Vergara’s own testim ony shows— that Dr. Perez, CMRV’s treating psychologist, recom m end the “use of visual aids,” not taking photographs of the blackboard. A careful review of Dr. Perez’s 20 15 evaluation report dem onstrates that she recom m en ded the use of the following “visual aids:” highlighter tape erasable highlighter, hefty tabs, post-it notes, tabs, etc. ECF No. 42-3 at 22. Photographs from a m obile device were not included in the list. Defendants assert that the requested accom m odation was unreasonable in light of Wesleyan’s cellphone policy, which bans the use of m obile devices by students during school hours. Although Plaintiffs point out that the use of cellphones is allowed for field trips, the court finds that exception to Wesleyan’s policy irrelevant to the present analysis. Moreover, it is undisputed that Wesleyan provided alternatives to Plaintiffs’ accom m odation request: CMRV could take handwritten notes of the blackboard and access class m aterials and his assignm ents from hom e. As previously determ ined, Wesleyan requires teachers to post m aterials covered in class and assignm ents to Edline, thus perm itting students to access them rem otely. The court will not second-guess Wesleyan’s decisions on these m atters. The court certainly agrees that it is unreasonable to expect the school m ake an exception to its written policy, especially when the exception at issue could potentially evolve into a slippery slope of allowing students to use electronic devices in class and during school hours. And particularly when alternatives were not only already available, but also, suggested during the m any m eetings between Plaintiffs and school faculty and staff. As Defendants well point out, Civil No. 17-10 13(PG) Page 29 the record in this case shows that reasonable alternatives were in fact provided, but CMRV sim ply chose not to take advantage of them . Finally, Plaintiffs take issue with the fact that one of CMRV’s teachers refused to give him bathroom breaks. The record is com pletely silent as to the tim e and circum stances surrounding that refusal. There is also no evidence showing that Plaintiffs, at the very least, m ade a specific request for this accom m odation and explained the link between CMRV’s disability and the bathroom break accom m odation. Based on the discussion of the applicable law, the undisputed fact of that teacher’s refusal fails to carry Plaintiffs’ failure-toaccom m odate claim forward. Based on the foregoing discussion, the court GRAN TS Defendants’ m otion for sum m ary judgm ent as to Plaintiffs’ discrim ination claim s for failure to accom m odate. iii. D u t y t o En g a g e in a n In t e r a ct iv e Pr o ce s s Som etim es, “it m ay be necessary for the covered entity to initiate an inform al, interactive process with the individual with a disability in need of the accom m odation. This process should identify the precise lim itations resulting from the disability and potential reasonable accom m odations that could overcom e those lim itations.” 29 C.F.R. § 1630 .2(o)(3). A request for an accom m odation m ay thus trigger an entity’s duty to “engage in a m eaningful dialogue with the disabled individual to find the best m eans for accom m odating that disability.” Enica, 544 F.3d at 338 -39 (citing Tobin v. Liberty Mut. Ins. Co., 433 F.3d 10 0 , 10 8 (1st Cir. 20 0 5)). Both parties “are bound to cooperate and com m unicate in good faith in the interactive process.” Mercado Cordova v. Walm art Puerto Rico, Inc., 369 F. Supp. 3d 336, 356 (D.P.R. 20 19) (citing Phelps v. Optim a Health, Inc., 251 F.3d 21, 27-28 (1st Cir. 20 0 1)) (so notin g, albeit in regard to em ployee’s failure-toaccom m odate claim under the ADA). Civil No. 17-10 13(PG) Page 30 A claim for failure to engage in the aforem en tioned interactive process depends on finding that (1) a breakdown in the process occurred due to the defendant’s failure to participate in good faith or the disabled individual’s refusal to explore reason able accom m odations; and (2) the parties could have indeed found a reasonable accom m odation that would enable the disabled in dividual perform the essential job’s functions, or here, to m eet the academ ic program ’s requirem ents, if the interactive process had not broken down. Charette v. St. J ohn Valley Soil & Water Conservation Dist., 332 F. Supp. 3d 316, 361 (D. Me. 20 18 ) (citing J ones, 696 F.3d at 91; Enica, 544 F.3d at 339). Again, in this case, it is undisputed that CMRV was diagnosed with ADD in February of 20 15 and that the parties established various accom m odations for CMRV afterwards. But even before CMRV’s diagnosis, Wesleyan continually attem pted to help CMRV im prove his grades and conduct by asking Vergara to becom e involved in her son’s education and com m unicate frequently with faculty and teachers, seek occupational therapy for CMRV, and procure tutoring lessons for him . CMRV also com m unicated with teachers to discuss his grades and tools for academ ic im provem ent, and the record so shows. See SUMF ¶¶ 34-40 , 43. As discussed in the previous section, at the beginning of CMRV’s tenth grade the parties m et and established a reasonable accom m odation plan. His teachers com plied with the plan by giving CMRV m ore tim e to com plete exam s and quizzes. CMRV m et with his guidance counselor several tim es and kept com m unicating with his teachers, often seeking leniency in the enforcem ent of deadlines for projects and assignm ents. One of the condition s in place for the 20 15-20 16 academ ic year required Vergara to m eet with teachers, at least, m onthly. Id. ¶¶ 47-50 . Civil No. 17-10 13(PG) Page 31 Wesleyan required quarterly m eetings between CMRV’s parents and teachers during CMRV’s first sem ester of eleventh grade. Id. ¶ 61-62. Although no reasonable accom m odation plan was established for that first sem ester, the uncontroverted facts sufficiently dem onstrate that the parties still engaged in m eaningful dialogue to determ ine accom m odations CMRV. The m eetings and written com m unications between Plaintiffs, Defendants and CMRV’s teachers in August and Septem ber of 20 16, as well as the accom m odation alternatives they discussed and agreed on during that tim e fram e and beyond, are just an exam ple of Defendants’ com pliance with Section 50 4’s m andate. Id. ¶¶ 74-77, 78 , 8 7, 90 -91. On this record, the court finds no evidence of a breakdown in the required interactive process as the result of Defendants’ lack of good faith or efforts, let alone that the school refused to partake in that process, period. On the contrary, the facts here dem onstrate that Defendants tried to work constructively with Plaintiffs to address their concerns and m eet CMRV’s needs. Fin ally, there is no evidence for a reasonable factfinder to conclude that other reasonable accom m odations satisfactory to Plaintiffs would have been determ ined but for Defendants’ failure to partake in m eaningful dialogues with Vergara and CMRV. Consequently, Defendants’ request for dism issal of Plaintiffs’ Section 50 4 claim s for failing to engage or participate in the required interactive process is GRAN TED , and the claim s, dism issed. iv . R e t a lia t io n Plaintiffs claim retaliation under Section 50 4 of the Rehabilitation Act, which “prohibit[s] retaliation again st any person, whether disabled or not, for opposing disabilitybased discrim ination m ade unlawful by that statute.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 40 and n. 9 (1st Cir. 20 12) (alteration in original) (citing 28 C.F.R. § Civil No. 17-10 13(PG) Page 32 42.50 3(b)(1)(vii)). A plaintiff’s retaliation claim “does not depend on the success of [his] disability claim .” J ones v. Walgreens Co., 679 F.3d 9, 20 (1st Cir. 20 12) (citing Colón– Fontánez v. Municipality of San J uan, 660 F.3d 17, 36 (1st Cir. 20 11)). Retaliation claim s under Section 50 4, like those under the ADA, are analyzed under the McDonnell-Douglas burden-shifting fram ework. D.B., 675 F.3d at 41 (citing Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1131 (10 th Cir. 20 10 )). To establish a prim a facie case of retaliation, a plaintiff m ust show that: “(1) he engaged in protected conduct, (2) he was subjected to an adverse action by the defendant, and (3) there was a causal connection between the protected conduct and the adverse action.” Id. (citing Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir. 20 10 )). If the plaintiff succeeds, the burden shifts to the defendant to provide legitim ate, non-retaliatory reasons for the alleged adverse action. Id. (citing Carreras, 596 F.3d at 36, and Reinhardt, 595 F.3d at 1131). If the defendant does so, the burden shifts back to the plaintiff to establish that the proffered reasons are pretextual, m eaning a cover-up for the defendant’s retaliatory m otivation. Delgado Echevarria, 856 F.3d at 134 (quoting Collazo-Rosado v. Univ. of P.R., 756 F.3d 8 6, 92 (1st Cir. 20 14)). Here, Plaintiffs argue that they engaged in protected conduct by requesting reasonable accom m odations for CMRV, and that after doing so, he was expelled three tim es. 32 Plaintiffs also allege that they com plained of cyberbullying (protected conduct in itself), and that Defendants’ failure to act on the reported peer-on -peer harassm ent could have been a retaliatory m easure. Plaintiffs’ retaliation argum ents hinge on the tem poral 32 The court notes that the first of these expulsions (or “n o-return” decision , as Wesleyan calls it) was m ade on J anuary 13, 20 15, before the ADD diagnosis and requests for accom m odations discussed above. This fact does not affect the retaliation an alysis or result. Civil No. 17-10 13(PG) Page 33 proxim ity between their protected conduct and the adverse actions taken by Defen dants. The fact is that Plaintiffs engaged in protected conduct on different occasions. 33 The record shows that beginning in February of 20 15, Plaintiffs m ade several requests for accom m odations an d m odifications to allow CMRV to m eet Wesleyan’s academ ic standards and particularized enrollm ent conditions established for his enrollm ent. The first reason able accom m odation plan was im plem ented on Septem ber 25, 20 15, and four m onths later, Wesleyan inform ed the second no-return decision, thus preventing CMRV from advancing into eleventh grade at Wesleyan. “The gap of four m onths, on its own, is not ‘very close’ for establishing causality.” Pena v. Honeywell Int'l, Inc., 923 F.3d 18, 32 (1st Cir. 20 19) (citing Cherkaoui, 877 F.3d at 28 – 29); Hollander v, Am erican Cynam id Co., 895 F.2d 80 , 85 (2d Cir. 1990 ) (no causal connection established despite the fact that adverse action occurred within four m onths of plaintiff’s protected activity). But there is m ore eviden ce suggesting retaliation on the record. In February of 20 16, Vergara reported a cyberbullying incident to Ms. Llorens and Ms. Cora after CMRV’s classm ates sent hateful text m essages about her son to a group chat. The school did not investigate or take any disciplin ary action again st the alleged perpetrators. 34 In J anuary of 20 17, alm ost a year after Vergara reported the in cident, Defendants tried to activate the school’s antibullying protocol to investigate. In a futile attem pt to avoid liability, Defendants insist that they lacked knowledge of the incident before 33 Here, the parties do not dispute Vergara’s advocacy for CMRV is protected conduct under the Rehabilitation Act, so the court does not dwell on this point of law. See D.B., 675 F.3d at 41 (advocating on behalf of disabled student’s right under the Rehabilitation Act and the ADA to be free from disability-based discrim ination plainly constitutes protected conduct under these statutes). 34 The com plaint alleges that other students engaged in cyberbullyin g against CMRV and that their unidentified parents are liable for the dam ages suffered by Plaintiffs as a result. ECF No. 1 at ¶¶ 37-39, 48-49. However, Plaintiffs never am ended their com plaint to include the m inors’ parents in this action and Wesleyan continues to deny any liability for the acts of these m inors outside of school and during off-hours. See ECF No. 32 at 2426. Civil No. 17-10 13(PG) Page 34 the filing of the com plaint. They also try to hide behin d legal technicalities, arguing that one hateful text m essage, by one student, at 6:54 PM does not rise to the level of bullying. Defendants’ excuses fall woefully short of legitim ate, non-retaliatory reasons for their failure to act and subsequent adverse actions against Plaintiffs. On August 12, 20 16, the parties m et to review conditions for CMRV’s acceptance to the first sem ester of eleventh grade. Approxim ately a m onth later, during a m eeting between Plaintiffs and Llorens, Ms. Enriquez and Mr. Gonzalez, Vergara requested a transfer from Ms. Enriquez’s to Mr. Gonzalez’s m ath class as an accom m odation for CMRV. This request, which constitutes protected conduct, was instantly denied. Plaintiffs m ention that two other non-disabled students were transferred to Mr. Gonzalez’s m ath class, thus allowing an inference of differential treatm ent. See Gonzalez-Berm udez, 214 F. Supp. 3d at 159 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 8 16, 827 (1st Cir. 1991)) (m entioning differential treatm ent as one of m any sources of circum stantial evidence that can dem onstrate retaliation). On Novem ber 14, 20 16, before the sem ester ended, Wesleyan expelled CMRV for a third tim e. This adverse action took place within three m onths after the first sem ester m eeting, and two m onths after Plaintiffs’ requested CMRV’s placem ent in a different m ath class. 35 The First Circuit has viewed a two-m onth tim e gap between Plaintiffs’ protected conduct and the adverse action as “close enough to suggest causation.” Sanchez– Rodriguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 20 12) (finding “very close” tem poral proxim ity for causation purposes where the plaintiff filed an EEOC com plaint in February 20 0 7 an d was disciplined in May 20 0 7). 35 The court assum es without decidin g that Vergara advocated on behalf of her disabled son durin g the August 20 16 m eetin g. Civil No. 17-10 13(PG) Page 35 Now, Defendants argue that they had legitim ate, non-discrim inatory reasons for their adverse decisions against CMRV. Mostly, they point to the fact that CMRV failed to m eet Wesleyan’s academ ic requirem ents and other conditions im posed by the Adm ission Com m ittee for re-enrollm ent. But Plaintiffs contend that for the first sem ester of eleventh grade, CMRV would have com plied with all requirem ents and conditions had it not been for Wesleyan’s decision to raise the m inim um passing grade to 75%. They further point out that the school’s deviation from its own policy could be construed as pretext for retaliation. The court is inclined to agree. See Echevarria, 856 F.3d at 136 (citing Acevedo-Parrilla, 696 F.3d at 142-43) (recognizing that a defendant’s m aterial deviation from policy or standard procedure can establish a genuine dispute of m aterial fact as to whether the defendant’s articulated justifications are pretextual). Because “[c]ourts confronted by sum m ary judgm ent m otions m ust focus on the eviden ce as a whole[,]” the final critical question is whether the aggregate evidence of pretext and retaliatory anim us is enough to m ake out a jury question. 36 Gonzalez-Berm udez, 214 F. Supp. 3d at 159– 60 (quoting Mesnick, 950 F.2d at 8 27) (denying defendants’ m otion for sum m ary judgm ent seeking dism issal of the plaintiff’s retaliation claim s under the ADEA). For the reasons discussed above, the court concludes that Plaintiff has subm itted sufficient eviden ce suggesting differential treatm ent and deviations from school policy to support a claim of retaliation when considering the record as a whole. Therefore, the court D EN IES Defendants’ m otion for sum m ary judgm ent requesting dism issal of Plaintiff's claim s of retaliation under the Rehabilitation Act. 36 In the alternative, the record and the parties’ briefs on this issue are too underdeveloped for granting sum m ary judgm ent on the retaliation claim s. The court will not do counsel’s work. See Echevarría, 856 F.3d at 139; Zannino, 895 F.2d at 17. Civil No. 17-10 13(PG) Page 36 v . Ot h e r Se ct io n 50 4 Vio la t io n s A. Se ct ion 50 4 Plaintiffs claim that Defendants violated the Rehabilitation Act because they did not design ate a Section 50 4 coordinator or establish an inform al grievance process. They only cite a single decision in support of their argum ent, Guckenberger v. Bos. Univ., 974 F. Supp. 10 6, 142-44 (D. Mass. 1997), a case in which the court determ ined (after reasoned analysis) that “a student has no cause of action to enforce the Section 50 4 regulations guaranteeing due process….” This holding certainly disfavors Plaintiffs’ case. And upon further readin g, the court finds that their request for relief on this technical violation, without m ore, fails. See Halasz v. Univ. of New England, 816 F. Supp. 37, 45 (D. Me. 1993) (finding that University's technical violation of regulation by failing to nam e coordinator in notice of nondiscrim in ation policy entitled plaintiff to no relief without showing of harm from the violation). Consequently, Defendants’ m otion for sum m ary judgm ent on this claim is GRAN TED . In their opposition, Plaintiffs claim that CMRV was the victim of student-on-student disability-based harassm ent, and for the first tim e, raise a claim of discrim ination under Section 50 4 for deliberate indifference to that harassm ent. Plaintiffs did not raise this claim in their com plaint or sought leave to am end to include it. The court finds that Plaintiffs’ om issions are fatal, and therefore, will not allow them to am end their allegations through the opposition to Defendants’ m otion for sum m ary judgm ent. See Castro-Medina v. Procter & Gam ble Com m ercial Co., 565 F. Supp. 2d 343, 364 (D.P.R. 20 0 8) (citing cases) (so concluding with respect to plaintiff’s attem pt to am end her allegations on the m ajor life activities that were supposedly lim ited by her im pairm ents via her opposition to the defendant’s m otion for sum m ary judgm ent). Civil No. 17-10 13(PG) Page 37 B. La w 4 4 Plaintiffs also claim disability discrim in ation and retaliation under Puerto Rico’s Law 44. See ECF No. 1 at 13-14. “Law 44 bans discrim ination against the disabled by any public or private institution that receives funds from the Com m onwealth of Puerto Rico.” Torres v. House of Representatives of the Com m onwealth of P.R., 858 F. Supp. 2d 172, 194 (D.P.R. 20 12). Specifically, it prohibits covered institutions from taking any discrim in atory action against physically or m entally disabled persons. See 1 P.R. LAWS ANN . § 50 4. “Law 44 ‘is Puerto Rico's counterpart to the ADA.’” Caez-Ferm aint v. State Ins. Fund Corp., 286 F. Supp. 3d 30 2, 320 (D.P.R. 20 17) (quoting Salgado– Candelario v. Ericsson Caribbean, In c., 614 F.Supp.2d 151, 175 (D.P.R. 20 0 8)). To establish a prim a facie case of discrim ination under Law 44, a plaintiff m ust prove the sam e elem ents as those required under the ADA. Id. The court already found that based on the undisputed facts Plaintiffs cannot establish a prim a facie case of disability discrim ination, be it on a sim ple disability-based discrim ination theory or on failure to accom m odate grounds. The court also concludes that Plaintiffs did not present any evidence dem onstrating that Wesleyan receives funds from the Com m onwealth and, therefore, is a covered institution under Law 44. Based on the foregoing, the court GRAN TS Defendants’ m otion for sum m ary judgm ent seeking dism issal of the coterm inous claim s under Law 44. On the other hand, the court D EN IES their request for dism issal of Plaintiffs’ retaliation claim s under Law 44. These survive sum m ary judgm ent for the sam e reasons discussed in Section IV(A)(iv). C. Ot h e r P u er t o Rico La w Cla im s As noted above, Plain tiffs assert a claim under Puerto Rico law based on alleged incidents of cyberbullying perpetrated by CMRV’s classm ates during his eleventh grade. Civil No. 17-10 13(PG) Page 38 Defendants m ove for dism issal of this claim , arguing that the school com plied with its obligations under Law 10 4 of August 1, 20 16, as am ended (“Law 10 4”), by im plem enting an anti-bullying protocol that establishes preventive m easures and institutional response to bullying and cyberbullying incidents like the ones Plaintiffs allege. Even if they could avoid liability on their purported com pliance with the law, the evidence suggests that Defendants knew or should have known of the alleged cyberbullying since February of 20 16, when Vergara com plained to school officials. Yet, Defendants failed to activate the school’s protocol and investigate the m atter prom ptly. Their argum ent regarding CMRV’s forgiveand-forget attitude is insufficient to sustain their request for dism issal of the rem ainin g claim s. At bottom , Plaintiffs have pointed to sufficient evidence to create a triable issue of fact on the m atter of Defendants’ liability for any dam ages suffered as the result of the alleged cyberbullying. There is also enough evidence suggesting that after the cyberbullying events, CMRV was diagnosed with depression and received m edical treatm ent as a result. Next, Defendants argue that the law in question does not provide Plaintiffs with an independent basis for recovery for any dam ages suffered as the result of the alleged cyberbullying. According to Defendants, the only basis for recovery is Puerto Rico’s general torts statute, Article 180 2 of the Puerto Rico Civil Code. By their own adm ission, then, if Plaintiffs cannot recover dam ages under Law 10 4, the Plaintiffs could still have recourse under Article 180 2. See ECF No. 1 at 14-15. Accordingly, Defendants’ m otion for sum m ary judgm ent requesting dism issal of Plaintiffs’ claim s under Puerto Rico law as the result of cyberbullying is D EN IED . Civil No. 17-10 13(PG) Page 39 V. CON CLU SION For the reasons stated above, Defendants’ m otion for sum m ary judgm ent (ECF No. 32) is hereby GRAN TED as to Plaintiffs’ discrim in ation claim s under Section 50 4 of the Rehabilitation Act an d Law 44; D EN IED as to Defendants’ request for dism issal of Plaintiffs’ retaliation claim s under Section 50 4 an d Law 44, and D EN IED as to the request for dism issal of the claim s based on the alleged cyberbullying, either under the Cyberbullying Act or Article 180 2 of the Puerto Rico Civil Code. IT IS SO ORD ERED . In San J uan, Puerto Rico, Septem ber 4, 20 19. S/ JU AN M. PÉREZ-GIMÉN EZ J UAN M. PÉREZ-GIMÉNEZ SENIOR U.S. DISTRICT J UDGE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.