McManus et al v. The Aleutian Region School District et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
WAYNE MCMANUS and SHILO
MCMANUS,
Plaintiffs,
v.
THE ALEUTIAN REGION SCHOOL
DISTRICT, et al.,
Defendants.
Case No. 3:20-cv-00099-TMB
ORDER ON DEFENDANTS’ MOTION
TO DISMISS COUNT 1
(DKT. 30)
I. 	INTRODUCTION
The matter comes before the Court on Defendant Aleutian Regional School District
(“ARSD”) and individually named Defendants’ Motion to Dismiss Count 1 of the First Amended
Complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim.1
Pro se Plaintiffs Wayne and Shilo McManus (“Plaintiffs” or the “McManuses”)2 filed an
Opposition.3 Defendants filed a Reply, and Plaintiffs filed several additional documents, including
1 Dkts. 30 (Motion to Dismiss Count 1); 30-1 (Memorandum in Support).
2 Pro se complaints and filings are held to less stringent standards than formal pleadings drafted
by lawyers. See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642–43 (9th Cir. 2018). Nevertheless,
Plaintiffs remain obligated conform filings to Local and Federal Civil Rules of Procedure. See
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of
procedure that govern other litigants.”), overruled on other grounds by Lacey v. Maricopa County,
693 F.3d 896, 925 (9th Cir. 2012); see also Fed. R. Civ. P. 8; Fed. R. Civ. P. 11; D. Alaska L. Civ.
R. 1.1(a)(3).
3 Dkt. 33 (Opposition).
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documents which the Court construes as a surreplies.4 The matter is fully briefed and ready for
decision; the Parties did not request oral argument, and the Court finds the matter suitable for
disposition without argument. For the reasons discussed below, the Motion to Dismiss Count 1 is
GRANTED in part and DENIED in part.
II. 	BACKGROUND
This action arises out of a dispute between Plaintiffs and their former employer, ARSD.
The Court previously granted Plaintiffs leave to file an amended complaint, and the Court included
in its Order the legal standards for some of Plaintiffs’ claims, including Plaintiffs’ claim brought
under Section 504 of the Rehabilitation Act (“Section 504”).5 On March 12, 2021, Plaintiffs filed
an Amended Complaint against ARSD and Joseph B. Beckford, the ARSD Superintendent, Crystal
Dushkin, Mark Snigaroff Sr., Kathleen McCune, Rebecca Dunton, Sally Swetzof, Mary Swetzof,6
William 	J. 	Dushkin, 	and 	Luke 	Snigaroff, 	in 	their 	individual 	capacities 	(collectively,
“Defendants”).7
4 Dkts. 40 (Reply); 36 (“Motion to Deny Motion to Dismiss Count 1” construed as First Surreply);
43 (“Reply to Document 40” construed as Second Surreply); see also Dkt. 39 (Affidavit in Support
of Plaintiffs’ Opposition to Dismissal).
5 Dkt. 19 (Order).
6 Plaintiffs spell individual Defendants’ names as “Sally Swetzoff” and “Mary Swetzoff.” Dkt. 29
at 1, 3 12–13. However, in Defendants’ Motions to Dismiss and Plaintiffs’ attached letter signed
by one of the individual Defendants, their names are spelled “Sally Swetzof” and “Mary Swetzof.”
See Dkts. 39-7 (Letter from Mary Swetzof); 30-1 at 8, 11–12 (Memorandum in Support of Motion
to Dismiss Counts 4 & 5); 32-1 at 10–12, 15–17 (Memorandum in Support of Motion to Dismiss
Counts 2 & 3). Accordingly, the Court will use this spelling of Defendants’ last names.
7 Dkt. 29 (Amended Complaint).
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A. 	Allegations in Count One of the Amended Complaint
In Count One of their Amended Complaint, Plaintiffs claim certain Defendants violated
their rights under Section 504.8 Plaintiffs allege the following: Plaintiffs were hired as teachers by
ARSD in March 2017, and employed to teach during the 2017-2018 school year in Atka, Alaska.9
ARSD is a recipient of Federal funds and a government entity, subject to Section 504.10 Plaintiffs’
teaching assignments included students with disabilities, and Plaintiffs “were within the zone of
interest of [Section 504’s] requirements for the benefit of disabled students[.]”11
Plaintiffs further allege that ARSD “intentionally did not provide the McManuses and their
disabled secondary students adequate monitoring of progress towards graduation, support towards
graduation, and failed to follow through with an established plan” for the education of students
with disabilities.12 Plaintiffs “reported to state and federal officials,” to ARSD School Board
members, and to Defendant Joseph Beckford, various building code violations, student safety
issues, “employee issues such as overtime fraud, misuse of strict property, and substance abuse”
at the Adak school where they worked.13 Plaintiffs reported to these same entities and individuals
legal violations “regarding confidentiality of [Individualized Education Programs (“IEPs”)] and
that a disabled student “was not being allowed access to his enrolled classes[.]”14 ARSD retaliated
8 Id. at 4–6.
9 Id. at ¶ 16.
10 Id. at ¶ 5.
11 Id. at ¶¶ 17–18
12 Id. at ¶ 19.
13 Id. at ¶¶ 20–21.
14 Id.
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against Plaintiffs for making these reports, as did Defendants Joseph Beckford, Crystal Dushkin,
and Mary Swetzof, who “collaborated to fabricate a story about the McManuses[.]”15 Plaintiffs
state that ARSD specifically retaliated by denying Plaintiff’s personal leave, eliminating Wayne
McManus’s teaching position and not retaining Plaintiffs, evicting Plaintiffs from their home, not
allowing one of Plaintiffs’ sons to attend school, and not allowing Plaintiffs’ other son to compete
in archery nationals, “threatening to remove contractual airfare, revoking access to a professional
development class, and blacklist[ing] [Plaintiffs] with a letter” which stated false reasons for their
non-retention.16
Plaintiffs allege that Defendants Joseph Beckford, Crystal Dushkin, and Sally Swetzof
were “implicated in reports relating to disabled students,” Defendants Beckford, Crystal and
William Dushkin, Sally Swetzof, and Luke Snigaroff were “implicated in reports relating to abuse
of students,” and Defendants Joseph Beckford, Crystal Dushkin, and Sally Swetzof “intentionally
refused to honor a student’s access to classes and his related IEP rights.”17
Plaintiffs 	seek 	the 	following 	relief: 	(1) 	“injunctive 	and 	other 	equitable 	relief,
including reinstatement to a teaching position”; (2) “compensatory . . . damages for mental
anguish and damage to their reputations and careers in the amount of $3,000,000.00”; and (3) legal
fees and costs.18
15 Id. at ¶¶ 25, 27.
16 Id. at ¶ 26.
17 Id. at ¶¶ 22–24.
18 Id. at ¶¶ 28–30.
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B. 	Defendants’ Motion to Dismiss Count 1
ARSD moves, on behalf of all Defendants, to dismiss Count 1 of the Amended Complaint
pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.19 Defendants
argue that Plaintiffs’ Amended Complaint fails to present sufficient facts to allow the Court “to
reasonably draw the inference that [ARSD] took adverse employment action because of Plaintiffs’
advocacy for a student with disabilities.”20 Defendants argue that Plaintiffs simply “made
conclusory allegations that multiple private citizens and [S]chool [B]oard members have acted
under color of state law to violate [Plaintiffs’] federal rights”; however, the factual allegations in
the Amended Complaint “do not reasonably support any such conclusion.”21
Defendants argue that even accepting Plaintiffs’ allegations as true—that Plaintiffs’
contracts were not renewed and that they were issued letters of non-retention, that ARSD denied
Plaintiffs’ personal leave, eliminated Wayne McManus’s position, threatened to revoke Plaintiffs’
contractual airfare, and revoked access to a professional development class—there is no basis to
conclude “those adverse actions were caused by Plaintiffs’ conduct protected by Section 504.”22
Additionally, accepting as true Plaintiffs’ allegations that they made various reports, some of
which involved advocating for students with disabilities, “Plaintiffs have not specified which
reports . . . [ARSD] responded to by retaliating” against Plaintiffs.23
19 Dkt. 30 at 1.
20 Id.; Dkt. 30-1 at 4.
21 Dkt. 30-1 at 7.
22 Id. at 4–5.
23 Id. at 6.
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The Amended Complaint, Defendants argue, does not contain factual allegations that
permit the Court to draw the reasonable inference that ARSD took actions in retaliation for
Plaintiffs’ advocacy on behalf of a student with disabilities or for reporting the violation of the
rights of a student with disabilities.24 Instead, Defendants argue, it is unclear whether the alleged
retaliation would have occurred but for Plaintiffs’ advocacy for students with disabilities, rather
than as a result of Plaintiffs’ reports involving building safety, overtime fraud, misuse of school
property, and maladministration of funds.25
C. Plaintiffs’ Opposition and Surreplies
Plaintiffs filed an Opposition in which they argue Defendants cannot successfully claim
there existed “legitimate non-discriminatory reasons for the adverse actions” taken against
Plaintiffs.26 Further, Plaintiffs argue the temporal proximity between “the release of the PTPC27
complaint to Mr. Beckford for his response mid[-]March of 2018, and [Wayne] McManus[’s]
position being eliminated on March 28, 2018,” evidence retaliation by Defendants. 28
24 Id.
25 Id.
26 Dkt. 33 at 1, 3 (internal quotation marks omitted).
27 PTPC appears to stand for “Professional Teaching Practices Commission.” See Alaska
Department of Education & Early Development, Professional Teaching Practices Commission:
Mission Statement, https://education.alaska.gov/ptpc (last visited June 24, 2021).
28 See Dkt. 33 at 2–3. Additionally, although neither party raises the timeliness of Plaintiffs’ claims,
Plaintiffs include few dates in their Amended Complaint regarding when the alleged harms
underlying their claims occurred. “Section 504 does not have its own statute of limitations.” C.C.
v. Rocklin Unified Sch. Dist., No. 2:17-cv-02645-MCE-AC, 2019 WL 803904, at *3 (E.D. Cal.
Feb. 21, 2019) (citing Alexopulos v. S.F. Unified Sch. Dist., 817 F.2d 551, 554 (9th Cir. 1987)).
Instead, the forum state’s most analogous statute of limitations applies. Dep’t of Educ., State of
Hawaii v. Carl D., 695 F.2d 1154, 1157 (9th Cir. 1983). Some district courts in the Ninth Circuit
have applied the forum state’s personal injury statute of limitations to Section 504 claims. E.g.,
C.C., No. 2:17-cv-02645-MCE-AC, 2019 WL 803904, at *3 (citing Daviton v. Columbia/HCA
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Plaintiffs also filed a “Motion to Deny Motion to Dismiss Count 1 of the First Amended
Complaint,” which the Court construes as the First Surreply.29 Plaintiffs state that their complaint
is sufficient and ask that the Court deny Defendants’ Motion to Dismiss Count 1.30
Plaintiffs filed a “Reply to Motion to Deny Motion to Dismiss Count 1,” which the Court
construes as a Second Surreply.31 Plaintiffs argue that Defendants Mary Swetzof and Joseph
Beckford “are both on the record as saying they were motivated by [Plaintiffs’] complaints to the
‘professional practices board’” and Plaintiffs’ “‘attack on [Mary Swetzof’s] language and
culture.’”32 Plaintiffs appear to argue these statements support their retaliation claim, and Plaintiffs
characterize this as “the crux of the protected 504 activity and resultant retaliation.”33 Finally,
Healthcare Corp., 241 F.3d 1131, 1135 (9th Cir. 2001)); Pimental v. Orloff, No. C–08–0249
MMC, 2008 WL 4963049, at *2 (N.D. Cal. Nov. 19, 2008) (collecting cases); but see Clink v. Or.
Health & Science Univ., 9 F. Supp. 3d 1162, 1168 (D. Or. 2014) (applying the one-year statute of
limitations from the State of Oregon’s Rehabilitation Act).
29 Dkt. 36. The Court notes that although Plaintiffs filed a response, motion, and an affidavit, in
addition to their Opposition to the Motion to Dismiss, which the Court construes in part as
surreplies, the Federal and Local Rules do not automatically provide for such filings. See D. Alaska
L.R. 7.1(c) Replies (“Reply memoranda are optional and restricted to rebuttal of factual and legal
arguments raised in the opposition.”). Generally, parties intending to file a surreply must seek
leave of the Court. See, e.g., Roland v. Hickman, No. 2:15–cv–1133–JCM–VCF, 2015 WL
10735658, at *2–3 (D. Nev. Aug. 12, 2015) (“Before filing a sur-reply, a party must seek leave
of court and show that a sur-reply is necessary to address new matters raised in a reply to which a
party would otherwise be unable to respond. . . . The decision to allow a sur-reply is committed to
the court’s discretion.”); Daniels v. ComUnity Lending, Inc., No. 13cv488–WQH–JMA, 2015 WL
2338713, at *4–5 (S.D. Cal. May 12, 2015) (“Other district courts within the Ninth Circuit have
found that a party must seek leave of the court to file a surreply[.]”); Plaintiffs are cautioned that
such filings in the future may be rejected by the Court and struck from the docket.
30 Dkt. 36 at 1.
31 Dkt. 43.
32 Id. at 2.
33 Id.
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Plaintiffs argue dismissal is improper and that if the Court concludes there are deficiencies in
Plaintiffs’ Amended Complaint, they should be permitted to amend again.34
Additionally, 	Plaintiffs 	filed 	an 	“Affidavit 	in 	Support 	of 	Documents 	Supporting
Plaintiffs[’] Memoranda Opposing Dismissal of the First Amended Complaint.”35 Plaintiffs attach
various documents, including a partial transcript from a December 5, 2018, interview between
Defendant Joseph Beckford and personnel from the U.S. Department of Education’s Office for
Civil Rights (“OCR”); an excerpt from an ARSD handbook; a picture of a piece of paper on
Defendant Crystal Dushkin’s classroom table; the first page of a letter from OCR personnel to
Defendant Joseph Beckford about an investigation involving the McManuses and alleged
retaliation by ARSD; a letter from an ARSD School Board member “regarding what took place at
the April 12[, 2018] public meeting with Defendant Beckford and townspeople in Adak”; an
August 5, 2017 excerpted Facebook message from a former teacher, Sonja Mills; and a May 1,
2018 letter from Defendant Mary Swetzof to ARSD Superintendent and School Board members
“detail[ing] her dissatisfaction” with Plaintiffs.36
D. Defendants’ Reply
Defendants replied to Plaintiffs’ Opposition, reiterating their argument that Count 1 should
be dismissed for failure to state a claim because the allegations included in the Amended
Complaint do not reasonably support an inference that advocacy for disabled students was the but-
for cause of an adverse employment action against Plaintiffs.37 In Reply, Defendants reiterate that
34 Id. at 3.
35 Dkt. 39.
36 Id. at 1–3; Dkts. 39-1; 39-2; 39-3; 39-4; 39-5; 39-6; 39-7 (Exhibits).
37 Dkt. 40 at 3.
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the Court already identified the proper standard for stating a Section 504 retaliation claim is “but-
for causation.”38 Defendants acknowledge that there “can be burden-shifting in retaliation cases”
but that the McDonnell Douglas framework “requires a plaintiff to first establish a prima facie
case” and only after that “does any burden shift for the defendant to show a legitimate
nonretaliatory reason for the action taken.”39 Here, Defendants argue, Plaintiffs have not stated a
prima face case because their Amended Complaint “does not include facts which would reasonably
support the conclusion that their advocacy protected under Section 504 was the but-for cause of
any adverse employment action.40
Defendants also argue it is not appropriate for the Court to consider allegations presented
by Plaintiffs for the first time in their Opposition, such as there was temporal proximity “between
the ‘release’ of a PTPC complaint and the elimination of [Wayne McManus’s] position.”41 Even
if the Court considers this new allegation, Defendants argue that temporal proximity does not
reasonably support the conclusion that “advocacy protected by Section 504 was the cause of [the]
adverse employment action.”42
III. 	LEGAL STANDARD
A. 	Federal Rule of Civil Procedure 12(b)(6)
Defendants move under Rule 12(b)(6) to dismiss Count 1 of Plaintiffs’ Amended
Complaint for failure to state facts sufficient to support a claim for relief. In order to survive a
38 Id. at 1–2 (internal quotation marks omitted) (citing Dkt. 19 at 11–12 & n.58).
39 Id. at 2 (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000)).
40 Id.
41 Id. at 2–3.
42 Id. at 3
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motion to dismiss under Rule 12(b)(6), a complaint must set forth “a short and plain statement of
the claim showing that the pleader is entitled to relief,”43 and “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”44 In ruling on a 12(b)(6)
motion, the Court must “‘accept all factual allegations of the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.’”45
In determining whether a complaint pleads sufficient facts to cross “the line between
possibility and plausibility,” “[t]hreadbare recitals of the elements of a cause of action” and
“conclusory statements” do not suffice.46 However, a plaintiff need not plead “all facts necessary
to carry” his or her burden.47 “Determining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.”48 So long as plaintiffs meet this standard of plausibility, their
claim survives a 12(b)(6) motion even if defendants present a similarly plausible description of the
disputed events.49 “‘A dismissal for failure to state a claim is proper only if it appears beyond
43 Fed. R. Civ. P. 8(a)(2).
44 Ashcroft v. Iqbal, 556 U.S. 662, 677‒78 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
45 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 923 (9th Cir. 2001) (quoting Nat’l
Ass’n for the Advance. of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir.
2000)).
46 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
47 Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), rev’d on other grounds, 563 U.S. 713
(2011).
48 Iqbal, 556 U.S. at 679 (citation omitted).
49 Starr v. Baca, 652 F.3d 1202, 1216–17 (9th Cir. 2011).
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doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’”50
“Generally, the court should not consider materials outside of the pleadings when ruling
on a motion to dismiss for failure to state a claim.”51 However, courts may consider additional
materials where the complaint “necessarily relies” on those documents and their authenticity is not
disputed.52
B. 	Section 504 Claim
The Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., proscribes discrimination against
a qualified individual with a disability because of the disability in regard to the terms, conditions,
and privileges of employment.53 To bring a suit under Section 504, a plaintiff must prove the
following elements: (1) she is an individual with a disability under the Act; (2) she was denied a
reasonable accommodation that she needs to enjoy meaningful access to the benefits of public
50 Arpin, 261 F.3d at 923 (citation omitted).
51 Labs. Int’l Union of N. Am., Local 341 v. Main Bldg. Maint., Inc., 435 F. Supp. 3d 995, 1000
(D. Alaska 2020) (citing Arpin, 261 F.3d at 925).
52 Id.; Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (citation omitted);
Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“[A] court may consider material
which is properly submitted as part of the complaint on a motion to dismiss without converting
the motion to dismiss into a motion for summary judgment.”) (citations and internal quotation
marks omitted).
53 See 29 U.S.C. § 794(a) (Section 504 of the Rehabilitation Act provides, in part that: “No
otherwise qualified individual with a disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial assistance[.]”); 29
U.S.C. § 701(b)(1)(F) (An express purpose of the Rehabilitation Act is “to empower individuals
with disabilities to maximize . . . independence, and inclusion . . . into society, through . . . the
guarantee of equal opportunity.”).
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services; and (3) the program providing the benefit receives Federal financial assistance.54 A public
entity can be liable for damages under Section 504 “if it intentionally or with deliberate
indifference fails to provide meaningful access or reasonable accommodation to disabled
persons.”55
To state a claim for retaliation under Section 504, an individual must show that: (1) she
engaged in a protected activity; (2) she suffered an adverse action; and (3) there was a causal link
between the protected activity and adverse employment action.56 To a establish a causal link, a
plaintiff must plead facts showing that the adverse employment action would not have occurred
but for the plaintiff’s engagement in activity protected by Section 504.57 The Ninth Circuit has
recognized that teachers who allege that their employment has been terminated as retaliation for
advocacy on behalf of students with disabilities have standing to bring claims under Section 504.58
54 McIntyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 912 (9th Cir. 2020); D.K. ex rel. G.M. v Solano
Cty. Office of Educ., 667 F. Supp. 2d 1184, 1190 (E.D. Cal. 2009).
55 See A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204–08 (9th Cir. 2016)
(internal quotation marks and citation omitted).
56 T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015)
(citing, inter alia, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013)); see 34 C.F.R.
§§ 104.61, 100.7(e) (Section 504 incorporates the anti-retaliation provision of Title VI of the Civil
Rights Act of 1964, which prohibits recipients from intimidating, threatening, coercing, or
discriminating 	“against 	any 	individual 	for 	the 	purpose 	of 	interfering 	with 	any 	right 	or
privilege . . . or because he has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding or hearing under this part.”).
57 T.B., 806 F.3d at 472–73 (The Ninth Circuit’s standard for a causal link is “but-for” causation.);
Brooks v. Capistrano Unified Sch. Dist., 1 F. Supp. 3d 1029, 1037 (C.D. Cal. 2014).
58 Barker v. Riverside Cty. Office of Educ., 584 F.3d 821, 826 (9th Cir. 2009).
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IV. 	ANALYSIS
Defendants move, pursuant to Rule 12(b)(6), to dismiss Count 1 of Plaintiffs’ Amended
Complaint for failure to state a claim. After consideration of the Parties’ filings, the Court
GRANTS in part and DENIES in part Defendants’ Motion.
A. 	ARSD
As a threshold matter, Plaintiffs, as teachers of students with disabilities, have standing to
bring a claim under Section 504 of the Rehabilitation Act.59 Additionally, Plaintiffs have alleged,
and Defendants do not dispute, that ARSD receives Federal financial assistance, a necessary
element of a Section 504 claim.60
The Court next examines whether Plaintiffs have plausibly stated a retaliation claim under
Section 504 by alleging sufficient facts that they: (1) engaged in a protected activity; (2) suffered
an adverse action; and (3) there was a causal link between the protected activity and adverse
employment action.61 First, “[a]dvocating for disabled students on issues related to their federal
and state educational rights is a protected activity.”62 Here, Plaintiffs’ allegations that they
complained to ARSD and others that students with disabilities were not receiving adequate
59 Barker, 584 F.3d at 825–26 (“[T]he anti-retaliation provision of section 504 grants standing to
non-disabled people who are retaliated against for attempting to protect the rights of the
disabled. . . . Such reasoning is consistent with Congress’s statutory goal to protect the rights of
the disabled.”).
60 See Kimiko P. v. Alta Cal. Reg. Center, No. 2:19-cv-0068-KJM-CKD, 2019 WL 3004149, at *2
(E.D. Cal. July 10, 2019).
61 T.B., 806 F.3d at 473.
62 Polonsky–Britt v. Yuba City Unified Sch. Dist., No. 2:10–cv–02951–KJM–JFM, 2012 WL
5828513, at *4 (E.D. Cal. Nov. 15, 2012); Barker, 584 F.3d at 826; Brooks, 1 F. Supp. 3d at 1036;
see also Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000) (“[A]n employee’s complaints
about the treatment of others is considered a protected activity.”).
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monitoring or support and that at least one student in particular “was not being allowed access to
his enrolled classes”63 plausibly show they engaged in a protected activity.
Second, the Ninth Circuit takes an expansive view regarding the types of action that qualify
as adverse employment actions.64 An adverse employment action is any action “‘reasonably likely
to deter employees from engaging in protected activity.’”65 Construing Plaintiffs’ allegations as
true, ARSD’s decisions to eliminate Wayne McManus’s position and to not renew Plaintiffs’
teaching contracts qualifies as an adverse employment action.66
Finally, Section 504 of the Rehabilitation Act prohibits discrimination “solely by reason”
of an individual’s disability,67 and the causation standard for claims brought under Section 504
has consistently been interpreted to require a “but-for” standard of causation.68 At this stage,
accepting all factual allegations in the Amended Complaint as true drawing and all reasonable
inferences in Plaintiffs’ favor, Plaintiffs have plausibly alleged that but for their reporting of the
denial of access of protected services to students with disabilities, they would not have suffered
retaliation. Plaintiffs have plausibly alleged a claim for retaliation in violation of Section 504
against ARSD. Accordingly, Defendants’ Motion to Dismiss Count 1 against ARSD is DENIED.
/ / /
63 Dkt. 29 at ¶¶ 20–21.
64 Brooks, 1 F. Supp. 3d at 1036–37 (citing Pardi v. Kaiser Found. Hosp., 389 F.3d 840, 850 (9th
Cir. 2004)).
65 Id. at 1036 (quoting Ray, 217 F.3d at 1243).
66 Id. (citing Okonkwo v. Ariz. State Univ., No. 01–1231–PHX–SRB, 2003 WL 26117561, at *9
(D. Ariz. Dec. 22, 2003)); Dkt. 29 at ¶ 26.
67 29 U.S.C. § 794(a).
68 T.B., 806 F.3d at 473.
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B. 	Individually Named Defendants
In addition to ARSD, Plaintiffs appear to include in Count 1 the following individual
Defendants: Joseph Beckford, Crystal and William Dushkin, Mary and Sally Swetzof, and Luke
Snigaroff. However, “individual defendants may not be sued in their individual capacities” under
Section 504 because the statute does not provide “for individual liability.”69 Plaintiffs also cannot
bring an action under 42 U.S.C. § 1983 against a state official in her individual capacity to
vindicate rights created by Section 504.70 Accordingly, insofar as Plaintiffs attempt to bring a
Section 504 claim against individual Defendants Joseph Beckford, Crystal and William Dushkin,
Sally and Mary Swetzof, and Luke Snigaroff, Defendants’ Motion to Dismiss is GRANTED. For
the foregoing reasons, Defendants’ Motion is GRANTED in PART and DENIED in part.
V. 	CONCLUSION
The Court concludes Plaintiffs have plausibly stated a claim under Section 504 against
ARSD. However, Plaintiffs may not bring a Section 504 claim against the other individually
named Defendants. Accordingly, the Motion to Dismiss Count 1 at Docket 30 is GRANTED in
PART and DENIED in part.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 2rd day of August, 2021.
/s/ Timothy M. Burgess_____________
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
69 U.S. ex rel. Teresa Teater v. Schrader, No. CV05–623–HU, 2006 WL 1030165, at *4 (D. Or.
Apr. 18, 2006) (citing Becker v. Oregon, 170 F. Supp. 2d 1061, 1066–67 (D. Or. 2001) (collecting
cases)); Baublitz v. State of Cal., No. C98–434 CRB, 1998 WL 427444, at *1 (N.D. Cal. July 27,
1998).
70 See Vinson v. Thomas, 288 F.3d 1145, 1155–56 (9th Cir. 2002).
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