United States Court of Appeals
For the First Circuit
No. 05-2813
MARGARITA VIVES; NELSON TRINIDAD; SALVADOR TRINIDAD-VIVES,
Plaintiffs, Appellants,
v.
VICTOR FAJARDO, SECRETARY, DEPARTMENT OF EDUCATION OF
PUERTO RICO, MARÍA DEL CARMEN REYES; MARÍA I. RODRÍGUEZ;
TANIA SABO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Manuel A. Rodríguez Banchs with whom Nora Vargas Acosta, De
Jesús, Hey & Vargas, and Sheila I. Vélez Martínez were on brief,
for appellants.
Leticia Casalduc-Rabell, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas, Deputy Solicitor General and Maite D. Oronoz
Rodríguez, Deputy Solicitor General, were on brief, for appellees.
January 5, 2007
HOWARD, Circuit Judge. Appellants Margarita Vives,
Nelson Trinidad, and their son, Salvador Trinidad-Vives, brought an
action in the United States District Court for the District of
Puerto Rico against the Secretary of Education, Victor Farjado, and
three employees of the Puerto Rico Department of Education
(Department), Maria Del Carmen Reyes, Maria Rodriguez, and Tania
Sabo. The complaint alleged retaliation in violation of the
Rehabilitation Act. See 29 U.S.C. § 794a; 45 C.F.R. § 80.7(e).
Specifically, appellants claim that Reyes, Rodriguez, and Sabo told
the Puerto Rico Department of Family (DOF) that Vives and Trinidad
were negligent parents in retaliation for filing a complaint with
a federal agency asserting disability discrimination against
Salvador. The district court granted summary judgment for the
defendants on the ground that there was no evidence that the report
to DOF was motivated by retaliatory animus. We affirm.
Vives' and Trinidad's son Salvador was diagnosed with
autism at the age of two. For years, Vives and Trinidad have
complained to the Department that the Puerto Rico schools had not
provided Salvador with appropriate educational services. In March
1999, appellants filed a complaint with the Office of Civil Rights
of the United States Department of Education, alleging that its
Puerto Rico counterpart had discriminated against Salvador on the
basis of his disability by failing to provide him with an
appropriate education. As a result of the complaint, the Office of
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Civil Rights reached an agreement with the Department to increase
the services provided to Salvador. In September 1999, appellants
filed a second complaint with the Office of Civil Rights, alleging
that the Department continued to discriminate against Salvador by
failing to provide him with the promised services.
While appellants were pursuing remedies with the Office
of Civil Rights, the relationship between appellants and Salvador's
school providers deteriorated. Appellants had substantial
disagreements with Sabo, Salvador's teacher, about his care. For
reasons discussed later, at the end of November 1999, the school
principal, Rodriguez, in consultation with Sabo and the school
social worker, Reyes, notified DOF that the school believed that
Salvador was receiving negligent care from his parents.
The providers' decision to report Vives and Trinidad to
DOF is the basis for appellants' retaliation claim. The providers
moved for summary judgment on the ground that there was no evidence
from which a jury could conclude that their decision to notify DOF
was motivated by retaliatory animus. The district court agreed.
It determined that there was "ample evidence" to support the
providers' belief that Salvador was being neglected by his parents,
and that the appellants had produced no evidence that the
providers' reasons for notifying DOF were pretextual. The court
also granted summary judgment sua sponte to the Secretary of
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Education because "there was no particular claim against the
Secretary."
Appellants raise two arguments. First, they contend that
the district court erred in granting summary judgment to the school
providers because there was a material dispute of fact concerning
their motive for contacting DOF. Second, appellants argue that,
even if the providers were properly granted summary judgment, the
court erred by granting the Secretary summary judgment sua sponte.
We review summary judgment rulings de novo. See Nieves-
Vega v. Ortiz-Quinones, 443 F.3d 134, 136 (1st Cir. 2006). Summary
judgment is appropriately granted where there is no genuine issue
of material fact, and the moving party is entitled to judgment as
a matter of law. Fed R. Civ. P. 56(c). Even in retaliation cases,
"where elusive concepts such as motive or intent are at issue,
summary judgment is appropriate if the non-moving party rests
merely upon conclusory allegations, improbable inferences, and
unsupported speculation." Benoit v. Tech. Mfg. Corp., 331 F.3d
166, 173 (1st Cir. 2003) (internal citations omitted).
Under the Rehabilitation Act, the appellants may assert
a retaliation claim based on Vives' and Trinidad's complaint to the
Office of Civil Rights on behalf of Salvador, even though neither
Vives nor Trinidad are disabled. See Davis v. Flexman, 109 F.
Supp. 2d 776, 801-02 (S.D. Ohio 1999) (stating that the plaintiff's
"lack of a disability does not deprive her of standing to bring a
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claim for retaliation under the Rehabilitation Act") (collecting
cases); Whitehead v. Sch. Bd. of Hillsborough County, 918 F. Supp.
1515, 1522 (M.D. Fla. 1996) (similar). Such claims are typically
evaluated through a variant of the McDonnell-Douglas Corp. v.
Green, 411 U.S. 792 (1973), burden-shifting framework. See Calero-
Cerezo v. United States Dep't of Justice, 355 F.3d 6, 25 (1st Cir.
2004) (retaliation claim under Title VII); Hunt v. St. Peter Sch.,
963 F. Supp. 843, 854 (W.D. Mo. 1997) (third-party retaliation
claim under the Rehabilitation Act). We have recognized, however,
that on "summary judgment, the need to order the presentation of
proof is largely obviated, and a court may often dispense with
strict attention to the burden-shifting framework, focusing instead
on whether the evidence as a whole is sufficient to make out a jury
question as to pretext and discriminatory animus." Fennell v.
First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). Thus,
to survive summary judgment, the appellants needed to produce
competent evidence from which a reasonable factfinder could
conclude that the providers contacted DOF in retaliation for
appellants' complaint to the Office of Civil Rights.
We have carefully scrutinized the summary judgment record
and agree with the district court that there is insufficient
evidence of retaliatory animus to warrant a trial. The record
contains several letters from Sabo to Vives asking her for a
contact telephone number for her or her husband because Salvador
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had suffered convulsions at school. Vives responded that she and
her husband were too busy during the day to be reached, and that
the school should call 911 in case of an emergency.
Vives took a similar attitude in response to notices that
Salvador was suffering from health and behavioral problems. There
were several exchanges between Sabo and Vives regarding Sabo's
concern over Salvador's chronic diarrhea and his overly aggressive
behavior. Instead of working constructively to address these
concerns, Vives accused Sabo of perpetually conveying negative
information about her son and asserted that there were no problems
at home. Finally, and most significantly, the school providers
noticed that Salvador had come to school with bruises on his arms.
Under Puerto Rico law, school providers have a legal duty
to report to DOF "situations of abuse . . . and/or neglect against
a minor [that] . . . may be suspected to exist." 8 P.R. Laws Ann.
§ 446. When the school providers contacted DOF about Vives and
Trinidad, they had a sufficient basis to believe that Salvador was
being abused or neglected: Salvador's mother had told the school
that she and her husband were too busy to deal with emergencies
involving their son; Salvador's mother showed an unwillingness to
work with the school to address her son's health and behavioral
difficulties; and there was evidence suggesting that Salvador had
suffered physical abuse at home.
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Appellants contend a factfinder could conclude that the
providers' reasons for contacting DOF were pretextual because that
there was no medical proof that Salvador "in fact had diarrhea as
opposed to soft stool." But the nature of Salvador's
gastrointestinal status is beside the point. Whatever label is
applied, the appellants do not dispute that Salvador suffered some
gastrointestinal difficulties during the school day. There is no
evidence that the appellants explained to the school providers
their understanding of Salvador's health problem. The record
instead reflects that Vives blamed the teacher for Salvador's
problem and refused to engage in constructive dialogue. It was
reasonable for the providers to view this intransigence as
negligence. Aside from this assertion regarding the nature of
Salvador's condition, appellants rely entirely on their bald
assertion that the providers were motivated by retaliatory animus.
But such unsupported speculation is not enough to survive summary
judgment. See Benoit, 331 F.3d at 173. Accordingly, summary
judgment was appropriately granted to the providers.
Appellants also challenge the district court's sua
sponte grant of summary judgment to the Secretary of Education.
They argue that because "the Secretary . . . requested no action
from the court . . . the merits of the retaliation claim should
have been referred to the jury."
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District courts "have the power to grant summary judgment
sua sponte." Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29
(1st Cir. 1996). Before doing so, however, the court, inter alia,
must give "the targeted party" appropriate notice and a chance to
present its evidence on the essential elements of the claim. Id.
Appellants did not receive notice before the Secretary was granted
summary judgment.
We will not, however, invariably remand where the
district court granted summary judgment without affording adequate
notice. To obtain relief in such circumstances, the appealing
party must demonstrate prejudice from the lack of notice. See Ward
v. Utah, 398 F.3d 1239, 1245-46 (10th Cir. 2005); Bridgeway Corp.
v. Citibank, 201 F.3d 134, 139-40 (2d Cir. 2000); Yashon v.
Gregory, 737 F.2d 547, 552 (6th Cir. 1984).
Appellants have not demonstrated prejudice, nor could
they. In filings before the district court, the appellants
acknowledged that their complaint was based entirely on alleged
retaliation perpetrated against them by the school providers. Yet
appellants' only allegation of retaliation against the providers
was their report to DOF for which, as discussed above, there is no
evidence of retaliatory motive. Accordingly, the Secretary was
entitled to summary judgment for the same reason as the other
defendants.
Affirmed.
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