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Glenn v. Davis School District

United States District Court, D. Utah

October 23, 2019

WILLIAM JASON GLENN, and LORILYN GLENN, individually, and as parents and guardians of E.G., a minor child, Plaintiffs,



         This matter is before the court on Defendants Davis School District, Reid Newey, Chadley Anderson, Adam King, Bryon Nielsen, Muriel Mann, Cindy Smith, and Tracie McEwen-Garritson's Motion to Dismiss Plaintiffs William Jason Glenn, Lorilyn Glenn, and E.G.'s Third, Fourth, and Fifth Causes of Action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held a hearing on the Motion on October 15, 2019. At the hearing, Defendants were represented by Diana F. Bradley and Rachel G. Terry, and Plaintiffs were represented by Scott L. Hansen. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the Motion. Now being fully advised, the court issues the following Memorandum Decision and Order.


         In the summer of 2017, Jason (“Mr. Glenn”), Lorilyn (“Mrs. Glenn”), and E.G. (collectively, the “Glenns”) moved from Florida to Utah for Mr. Glenn's job. Mr. Glenn is a member of the military and is currently a lieutenant colonel in the Utah Air National Guard. When the Glenns relocated to Utah, their twelve-year-old son, E.G., was about to begin seventh grade as a new student at Fairfield Junior High School (the “School”), which is operated by the Davis School District (the “District”). When E.G. was younger, he was diagnosed with attention deficit hyperactivity disorder (“ADHD”) and mild autism, which constitute disabilities for purposes of Title II of the Americans with Disabilities Act of 1990 (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“RA”). Due to these medical conditions, E.G. has had a school 504 plan in place since the third grade that allows for certain accommodations to assist him in the learning environment. Most recently, the school that E.G. attended in Florida for sixth grade developed a 504 plan (the “Florida 504 Plan”) that included accommodations such as seating in an area with less distractions, checking for comprehension, and providing additional time for writing and tests. Despite his disability, E.G. excels in math and has scored extremely high in math on standardized tests.

         In July 2017, Mrs. Glenn telephoned the School to discuss E.G's transfer there for the upcoming school year. Mrs. Glenn also emailed a counselor at the School and informed her that E.G. would be a new student there. In addition, Mrs. Glenn informed the counselor that E.G. had been in advanced math at his previous school, and she inquired about the requirements to be placed in advanced math at the School. Eventually, in August 2017, Mrs. Glenn registered E.G. for school and checked a box on the registration form that indicated that E.G. had a 504 plan. She also delivered a sealed envelope containing E.G.'s Florida school records and a copy of the Florida 504 Plan to the School's counseling office. Once E.G. was registered, Chadley Anderson (“Anderson”), the District Junior High Math Curriculum Supervisor, authorized E.G's placement into the “Honors 2” math class, a course two years ahead of the typical placement for seventh graders, which was taught by Cindy Smith (“Smith”).

         A few weeks into the school year, Mrs. Glenn noticed that E.G's general school performance was uncharacteristically low. After discussing the issue with E.G., Mrs. Glenn realized that the School was not providing him with his 504 plan accommodations. As a result, Mrs. Glenn spoke with Muriel Mann (“Mann”), the Schools' 504 coordinator and Vice Principal, to see why the School was not implementing the Florida 504 Plan. In her discussion with Mann, Mrs. Glenn learned that the School had not reviewed E.G.'s registration form, failed to enter the Florida 504 Plan into the School's system, and failed to communicate the plan to E.G.'s teachers. Nevertheless, Mann informed Mrs. Glenn that the School would evaluate the Florida 504 Plan by implementing the accommodations for approximately four weeks. Thereafter, the School would meet with the Glenns to evaluate and modify the accommodations to ensure E.G.'s success at the School. Because the District's policy dictates that a 504 plan from another district should not be entered into the District's computer system, Mann simply emailed E.G.'s teachers and directed them to implement the Florida 504 Plan.

         After receiving Mann's email, E.G.'s math teacher, Smith, responded and argued that giving E.G. extra time on tests should not be allowed. Smith further opined that if E.G. could not keep up with the pace, then “he ha[d] no business being in that class.” Furthermore, Smith directly expressed to E.G. that she could not provide him with accommodations in an honors math class and that she would not allow him to remain in the math class if he was unable to keep up.

         Some of E.G.'s other teachers, however, failed to respond to Mann's email. In fact, after her conversation with Mann, Mrs. Glenn reached out to E.G.'s other teachers to see if they were implementing the Florida 504 Plan. To her dismay, several of the teachers responded that they were unaware of the Florida 504 Plan and so had failed to implement it.

         In early October 2017, Mrs. Glenn again contacted Mann to request a meeting and discuss Smith's failure to honor the Florida 504 Plan. Around that same time, Anderson, Smith, Mann, and a school counselor, pulled E.G. out of one of his classes, without the knowledge of Mr. or Mrs. Glenn, to question him regarding his math knowledge and performance in math class. This impromptu meeting caused E.G. a significant amount of stress and uncertainty as he became worried that the School would not allow him to remain in Honors 2 math. Subsequently, Anderson contacted Mrs. Glenn and suggested that E.G. take a test to confirm that he was in the right math class, and Smith contacted Mrs. Glenn to inform her that E.G. would not be given extra time on quizzes and tests but would be required to come in before or after school if he needed additional time. In turn, Mrs. Glenn contacted Adam King (“King”), the District's 504 Compliance Officer, to express her frustration with the School's failure to implement the Florida 504 Plan. She also attempted to contact Bryon Nielsen (“Nielsen”), the School's Principal, but he was on vacation. Because she was unable to contact Nielsen, Mrs. Glenn instead contacted Reid Newey (“Newey”), the District Superintendent, to discuss E.G.'s situation. Newey's assistant directed Mrs. Glenn to communicate with other District employees but did not allow her to speak with Newey directly. Eventually, Mrs. Glenn sent an email to various School and District administrators in which she strongly expressed her frustration with E.G.'s school experience.

         On October 8, 2017, Trace McEwen-Garritson (“Garritson”), the School's Counseling Department Head, emailed E.G.'s teachers and several administrators and requested copies of all emails from the Glenns in anticipation of a meeting that the School had arranged with a military liaison in order to discuss the School's situation with the Glenns. A few days later, Garritson contacted Technical Sergeant Amber Monio (“TSgt Monio”), a public affairs officer at Roland Wright Air National Guard Base where Mr. Glenn was employed, to report the difficult interactions that School and District employees were having with the Glenns. In that conversation, Garritson stated that Mrs. Glenn was sending threatening emails to the District and that the police were involved. Garritson and Mann subsequently emailed TSgt Monio and provided her with copies of emails from the Glenns, which also included private information regarding E.G.'s disability status and his educational records. TSgt Monio, in turn, informed Mr. Glenn's superior officers of the information she had received. Mr. Glenn's superior officers then asked him about the situation, and Mr. Glenn was forced to explain the circumstances and provide personal details regarding his family.

         By November 2017, the School held a meeting in which it decided on and implemented a 504 plan for E.G. that was nearly identical to the Florida 504 Plan. Nevertheless, Mr. and Mrs. Glenn no longer felt comfortable with the School, and in January 2018, they enrolled E.G. in a different school.

         The Glenns filed the instant suit on February 1, 2019 and raised five causes of action: (1) discrimination in violation Section 504 of the RA (asserted by E.G. against the District); (2) discrimination in violation of Title II of the ADA (asserted by E.G. against the District); (3) retaliation under Section 504 and Title II (asserted by Mr. and Mrs. Glenn against Anderson, Mann, Smith, Garritson (collectively, the “Individual Defendants”), and the District); (4) violation of privacy rights under 42 U.S.C. § 1983 and the Fourteenth Amendment (asserted by the Glenns against the Individual Defendants and the District); and (5) failure to train or supervise under 42 U.S.C. § 1983 (asserted by the Glenns against Newey, King, Nielsen (collectively, the “Supervisor Defendants”), and the District).


         Defendants now move to dismiss the Glenns' Third, Fourth, and Fifth Causes of Action for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (quotation marks omitted). “[A]ll well-pleaded factual allegations in the complaint are accepted as true and viewed in the light most favorable to the nonmoving party.” Acosta v. Jani-King of Oklahoma, Inc., 905 F.3d 1156, 1158 (10th Cir. 2018) (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)). “[M]ere ‘labels and conclusions,' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         I. Retaliation Claim

         The Glenns bring their retaliation claim under both Title II of the ADA and Section 504 of the RA. In order to prosecute a retaliation claim under either statute, “a plaintiff need not show that [he or she] suffers from an actual disability.” Selenke v. Med. Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001). Rather, “a reasonable, good faith belief that the statute[s] ha[ve] been violated suffices.” Id. The ADA's anti-retaliation provision, which applies to but is not specifically contained in Title II, provides:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. § 12203. Similarly, Section 504 incorporates the anti-retaliation provision of Title VI of the Civil Rights Act of 1964, 29 U.S.C. § 729a(2), which provides:

No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the [Civil Rights Act] or this part, or because he has made a complaint, testified, assisted, or participated ...

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