T.S. v. Seattle School District No 1

[2] 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 4 AT SEATTLE [5] T.S., individually and on behalf of T.A., a minor, [6] Plaintiff, 7 C21-0617 TSZ v. 8 ORDER SEATTLE SCHOOL DISTRICT NO. 1, [9] Defendant. [10] 11 THIS MATTER comes before the Court on a motion for summary judgment, 12 docket no. 23, brought by defendant Seattle School District (the “District”). Having [13] reviewed all papers filed in support of the motion,1 the Court enters the following order. [14] 15 1 The District filed its motion for summary judgment on November 10, 2022, and noted it for consideration on December 2, 2022. On December 1, 2022, plaintiff’s counsel sought an 16 extension of time to file a response, and the Court renoted the District’s motion to January 13, 2023. See Minute Order (docket no. 27). On January 4, 2023, plaintiff’s attorney filed another 17 motion for extension, which was stricken because it was not accompanied by a supporting declaration or physician’s letter. See Minute Order (docket no. 33). On January 10, 2023, 18 plaintiff’s lawyer renewed the motion for extension, and the Court renoted the District’s motion for summary judgment to March 10, 2023. See Minute Order (docket no. 38). In granting the second motion for extension, the Court indicated that no further extension would be granted. Id. [19] at ¶ 1. Plaintiff’s counsel then sought two more extensions, each time specifying a date certain on which a response would be filed, but no brief was filed, and the extension requests were 20 stricken as moot. See Minute Order (docket no. 44). Nevertheless, the Court indicated that it would consider any response filed before the noting date of the District’s motion. Id. at ¶ 2. The 21 noting date has now passed, and no response has been filed. As a result, the Court will decide the motion for summary judgment on the basis of the pleadings and the materials submitted by 22 the District. 1 Background 2 T.A. is African American and autistic. Compl. at ¶ 3.2 (docket no. 1). Plaintiff 3 T.S. is T.A.’s mother. Id. at ¶ 1.1. This case concerns events occurring on January 20, 4 2016, when T.A. was nine years old. On that day, T.A.’s teacher, Tamara Kelley, took a 5 book away from T.A., upsetting him, and then told him to go to the bathroom if he 6 needed to cry. See id. at ¶¶ 4.13–4.14. According to the operative pleading, when T.A. 7 did not comply with Kelley’s direction, Kelley escorted T.A. by holding his arm, would 8 not allow T.A. to leave the bathroom, became enraged by T.A.’s crying and attempts to 9 exit, and then pushed T.A. to the ground and kicked him in the middle of his chest. Id. at 10 ¶¶ 4.14–4.18. As a result of the incident, the District placed Kelley on administrative 11 leave and subsequently issued a letter of reprimand; Kelley was also prosecuted in Seattle 12 Municipal Court for assault. Id. at ¶¶ 4.28 & 4.41–4.42. In November 2020, the local 13 media reported about T.A.’s experiences and, shortly thereafter, Kelley was terminated. 14 Id. at ¶¶ 4.49–4.50. Plaintiff commenced this litigation on May 9, 2021. The District is 15 the sole defendant; plaintiff asserts no claims against Kelley. 16 The District seeks dismissal with prejudice of all of plaintiff’s claims, which 17 include (A) denial of equal protection, racial discrimination, and failure to train, as 18 violations of 42 U.S.C. § 1983 ; (B) racial discrimination as a violation of Title VI of the 19 Civil Rights Act of 1964, 42 U.S.C. § 2000d; (C) disability-based discrimination as a 20 violation of the Americans with Disabilities Act (“ADA”); (D) disability-based 21 discrimination as a violation of § 504 of the Rehabilitation Act of 1973; (E) unlawful 22 seizure as a violation of 42 U.S.C. § 1983 (Fourth and Fourteenth Amendments); 1 (F) racial and disability-based discrimination as a violation of Washington’s Law Against 2 Discrimination (the “WLAD”); (G) negligence; (H) negligent hiring, training, and 3 supervision; (I) false imprisonment; (J) assault and battery; (K) outrage; (L) negligent 4 infliction of emotional distress; and (M) loss of consortium. See Compl. at §§ V(A)–(M). 5 Claims G through L are pleaded under Washington common law. See id. Claim M for 6 loss of consortium, which is alleged pursuant to RCW 4.24.010, is the only cause of 7 action brought by T.A.’s mother (T.S.) on her own behalf; all other claims are asserted on 8 behalf of T.A. See id. 9 Discussion 10 A. Summary Judgment Standard 11 The Court shall grant summary judgment if no genuine issue of material fact exists 12 and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 13 The moving party bears the initial burden of demonstrating the absence of a genuine issue 14 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if 15 it might affect the outcome of the suit under the governing law. See Anderson v. Liberty 16 Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the 17 adverse party must present “affirmative evidence,” which “is to be believed” and from 18 which all “justifiable inferences” are to be favorably drawn.2 Id. at 255 & 257. When [19] 20 2 Given the lack of response to the District’s motion, the Court may consider facts presented by the District as undisputed. See Fed. R. Civ. P. 56(e)(2). The Court may not, however, grant 21 summary judgment “by default,” but rather must evaluate whether the District is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(e)(3); see also Heinemann v. Satterberg, 731 22 F.3d 914 (9th Cir. 2013). 1 the record, taken as a whole, could not, however, lead a rational trier of fact to find for 2 the non-moving party on matters as to which such party will bear the burden of proof at 3 trial, summary judgment is warranted. See Matsushita Elec. Indus. Co. v. Zenith Radio 4 Corp., 475 U.S. 574, 587 (1986); see also Celotex, 477 U.S. at 322 . 5 B. T.S.’s Claim for Loss of Consortium 6 Washington courts recognize loss of consortium as a “separate and independent 7 claim,” which accrues when the plaintiff “knew or should have known the essential 8 elements” of the claim. Green v. Am. Pharm. Co., 136 Wn.2d 87 , 101–02, 960 P.2d 912 9 (1998); see Ginochio v. Hesston Corp., 46 Wn. App. 843 , 846–48, 733 P.2d 551 (1987) 10 (explaining that, when alleged in the context of a wrongful-death action, loss of 11 consortium is derivative and merely an element of damages, but is otherwise a separate, 12 independent cause of action); see also RCW 4.24.010(1)&(2) (a parent “who has 13 regularly contributed to the support of his or her minor child” may maintain “an action as 14 plaintiff for the injury . . . of the child,” and recover inter alia damages “for the loss of 15 love and companionship of the child”). The limitations period for a loss-of-consortium 16 claim is three (3) years. See RCW 4.16.080(2). Based on the facts alleged in the 17 Complaint, the Court concludes, as a matter of law, that (i) T.S. “knew or should have 18 known” the elements of her loss-of-consortium claim on January 20, 2016, when T.A. 19 was allegedly maltreated by his teacher, (ii) T.S. did not commence this action within 20 three years, and (iii) T.S.’s loss-of-consortium claim is time barred. The District’s 21 motion for summary judgment is GRANTED as to the sole claim that T.S. brings on her 22 own behalf, and Claim M for loss of consortium is DISMISSED with prejudice. 1 C. Claims Brought on Behalf of T.A. 2 1. Federal Claims Requiring Exhaustion 3 The Individuals with Disabilities Education Act (“IDEA”) provides that 4 Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans 5 with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except 6 that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and 7 (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter. [8] 20 U.S.C. § 1415 (l). Section 1415(l) requires exhaustion when a lawsuit seeks relief for [9] the denial of a free appropriate public education (“FAPE”), without regard to the statutes [10] under which the claims are brought. See Fry v. Napoleon Cmty. Schs., 580 U.S. 154 , [11] 168–69 (2017). To evaluate whether § 1415(l)’s exhaustion mandate applies, the Court [12] must look at the “substance” of, rather than the “labels” used in, the operative pleading, [13] and determine the “crux” or “gravamen” of the complaint, “setting aside any attempts at [14] artful pleading.” Id. at 169. Indeed, a plaintiff need not include IDEA phrases or related [15] acronyms (for example, FAPE or individualized education program or plan (“IEP”)) to be [16] viewed as “in essence contesting the adequacy of a special education program.” Id. at [17] 170 (observing that “a ‘magic words’ approach would make § 1415(l)’s exhaustion rule [18] too easy to bypass”). [19] According to the Fry Court, the following inquiries provide “clues” concerning [20] whether § 1983, ADA, Rehabilitation Act, or other federal claims seek redress available [21] under the IDEA: (i) whether the plaintiff could have brought “essentially the same claim [22] 1 if the alleged conduct had occurred at a public facility that was not a school―say, a 2 public theater or library”; and (ii) whether “an adult at the school―say, an employee or 3 visitor―[could] have pressed essentially the same grievance.” Id. at 171 (emphasis in 4 original). If so, then the complaint is unlikely to concern a FAPE, and exhaustion is not 5 necessary. In Fry, the Supreme Court described, as an example of a non-FAPE claim, a 6 challenge, by either a child or an adult, to the lack of access ramps for wheelchairs, which 7 could be asserted against any public facility, not just a school. Id. at 171–72. In contrast, 8 § 1415(l)’s preclusive effect would be brought “into play” in a hypothetical suit involving 9 the failure to provide tutoring in mathematics, which public theaters and libraries are not 10 generally expected to offer, and which adult employees and visitors do not usually seek 11 from institutions governed by the IDEA. Id. at 172–73. 12 The Court concludes that certain § 1983 claims, as well as the Title VI, ADA, and 13 Rehabilitation Act claims, asserted on behalf of T.A. are substantively indistinguishable 14 from an IDEA/FAPE claim and are therefore barred for failure to exhaust administrative 15 remedies. The § 1983 claims pleading denial of equal protection, racial discrimination, 16 and failure to train are premised on the theory that T.A. “has the right to equal access to 17 an educational environment free from harassment and discrimination on the basis of 18 race.” Compl. at ¶ 5.2. The District is accused of “deliberate indifference” with respect 19 to the racial animosity displayed in Kelley’s approach to disciplining African American 20 students and the creation of a “hostile educational climate” that tolerates racial 21 harassment and discrimination. Id. at ¶ 5.7. The Title VI claim alleges the District had 22 notice that Kelley was a “ticking time bomb” and failed to take remedial measures to 1 prevent discriminatory discipline of T.A. and other African American students. Id. at 2 ¶¶ 5.15–5.18. In the ADA claim, the District is reproached for (a) placing T.A. in “an 3 inappropriate classroom” given his “disability-related needs,” (b) not providing T.A. with 4 “adequate disability-related supports in the classroom,” and (c) assigning T.A. to a 5 teacher “known to ‘grab students.’” Id. at ¶ 5.24. Under the Rehabilitation Act, the 6 District is faulted for failing to provide T.A. with “an educational program and related 7 aids and services that were designed to meet his individual education needs as adequately 8 as the needs of non-disabled students of the District.” Id. at ¶ 5.34. The District is 9 alleged to have not offered reasonable accommodations to T.A., excluded T.A. from 10 related services, including behavioral and psychological therapy and social skills training, 11 and withheld information about T.A.’s abuse from his parent. Id. at ¶¶ 5.35–5.39. 12 All of these federal claims relate to T.A.’s educational environment, and they are 13 not the type of grievances to be brought on behalf of minors against public facilities other 14 than schools or by adults in their own capacity against schools receiving federal funds. 15 Having failed to exhaust the procedures outlined in the IDEA, plaintiff cannot proceed on 16 substantively similar claims under § 1983, Title VI, the ADA, or the Rehabilitation Act. 17 Thus, as to Claims A, B, C, and D, the District’s motion for summary judgment is 18 GRANTED, and those claims are DISMISSED, but without prejudice to the IDEA 19 proceeding initiated in August 2022.3 [21] 3 On August 11, 2022, over a year after the District pleaded failure to exhaust administrative remedies as an affirmative defense, see Answer at 25 (docket no. 10), counsel for T.A.’s mother [22] sent a letter to the District’s Superintendent requesting a due process hearing. See Ex. 5 to 1 2. Section 1983 / Unlawful Seizure Claim 2 The District may not be held liable under § 1983 on a respondeat superior theory. 3 See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 691 (1978); see also Ulrich v. 4 City & Cnty. of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002). Instead, the District’s 5 liability must be premised on one of four theories: (i) a policy or longstanding practice or 6 custom from which the alleged constitutional violation resulted; (ii) an unconstitutional 7 action by an official with final policy-making authority; (iii) ratification by an official 8 with final policy-making authority of a subordinate’s unconstitutional conduct; or 9 (iv) a failure to adequately train employees that amounts to “deliberate indifference” 10 concerning the constitutional right at issue. See, e.g., Menotti v. City of Seattle, 409 F.3d 11 1113, 1147 (9th Cir. 2005); see also City of Canton v. Harris, 489 U.S. 378 (1989). [14] Rusimovic Decl. (docket no. 24-5). In the letter, the attorney indicated that T.A. no longer 15 resides within the District’s boundaries and has enrolled in the Renton School District. Id. The letter asserted that the District had violated its obligations under the IDEA by “[n]ot providing 16 [T.A.] with FAPE at any point during his enrollment within the District,” and sought declaratory and compensatory relief. Id. In Fry, the Supreme Court identified the procedural history of the 17 parties’ dispute as another factor to consider in deciding whether § 1415(l) barred unexhausted federal claims. See 580 U.S. at 173 . A prior pursuit of administrative remedies under the IDEA 18 is “strong evidence” that a plaintiff’s claim involves FAPE denial, but a “move to a courtroom” might also arise “from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely.” Id. (emphasis added). In this matter, [19] the “move” was from a courtroom to the IDEA forum, and it occurred during the course of this litigation, after the District asserted exhaustion as a defense. Under these circumstances, the 20 Court treats the August 2022 letter as an acknowledgement that the “gravamen” of Claims A–D is the District’s alleged failure to provide T.A. with a free appropriate public education. In 21 dismissing plaintiff’s § 1983 (equal protection), Title VI, ADA, and Rehabilitation Act claims for failure to exhaust, the Court makes no ruling concerning the merits of any claim under the 22 IDEA. 1 The Complaint in this matter mentions only the first (longstanding practice or 2 custom) and third (ratification) theories of Monell liability, pleading them in conclusory 3 fashion. See Compl. at ¶¶ 5.49–5.50 & 5.52. T.A. is alleged to have been unlawfully 4 seized when Kelley isolated him in a bathroom and prevented him from exiting. Id. at 5 ¶ 5.48. The operative pleading asserts that Kelley’s conduct “was part of a longstanding 6 practice or custom” constituting the “standard operating procedure of the District,” and 7 that the District ratified Kelley’s mistreatment of T.A. Id. at ¶¶ 5.49 & 5.52. The 8 Complaint, however, also acknowledges that Kelley was reprimanded for her actions and 9 subsequently terminated. Id. at ¶¶ 4.42 & 4.50. Consistent with these factual allegations, 10 the District has provided the letter of reprimand issued in August 2016 by Clover Codd, 11 Assistant Superintendent of Human Resources for the District, which informed Kelley 12 that her behavior violated the District’s policies, was “unacceptable and cannot be 13 tolerated,” and might result in further discipline or termination if repeated. See Ex. 3 to 14 Rusimovic Decl. (docket no. 24-3). Based on the undisputed facts, the Court concludes, 15 as a matter of law, that Kelley’s allegedly unlawful seizure of T.A. was not performed 16 pursuant to any longstanding practice or custom of the District and was not ratified by the 17 District. No grounds for Monell liability on the part of the District exists, and Claim E is 18 DISMISSED with prejudice. 19 3. Intentional Tort Claims 20 With respect to the three intentional tort claims asserted on behalf of T.A. (false 21 imprisonment, assault and battery, and outrage), the District cannot be held vicariously 22 liable. An employer cannot be held vicariously liable for an employee’s tort if the 1 employee’s conduct was (i) “intentional or criminal,” and (ii) “outside the scope of 2 employment.” Robel v. Roundup Corp., 148 Wn.2d 35, 53 , 59 P.3d 611 (2002) (emphasis 3 in original, quoting Niece v. Elmview Grp. Home, 131 Wn.2d 39, 56 , 929 P.2d 420 4 (1997)). The undisputed facts establish that Kelley’s conduct, on which the claims of 5 false imprisonment, assault and battery, and outrage are based, was intentional and 6 criminal, as well as outside the scope of her employment; it violated the District’s written 7 policies and Kelley was reprimanded, as well as prosecuted, for the behavior. See Ex. 3 8 to Rusimovic Decl. (docket no. 24-3); see also Compl. at ¶¶ 4.41. As to Claims I, J, and 9 K, the District’s motion for summary judgment is GRANTED, and those claims are 10 DISMISSED with prejudice. 11 4. Negligence Theories 12 a. Vicarious Liability 13 For the same reasons that the District cannot be held vicariously liable for any 14 intentional torts, it cannot be held vicariously liable in negligence; Kelley’s actions were 15 not within the scope of her employment. See Robel, 148 Wn.2d at 52–53 (citing 16 Dickinson v. Edwards, 105 Wn.2d 457, 469 , 716 P.2d 814 (1986) (holding that an 17 employer is liable on respondeat superior grounds if the proximate cause of the injury 18 occurred while the employee was acting within the scope of his employment)). In this 19 matter, any negligence-based claim must be premised on the District’s own conduct. To 20 the extent that Claim G pleads that the District is “vicariously liable for the negligent acts 21 and/or omissions” of its employees, Compl. at ¶ 5.66, the District’s motion for summary 22 judgment is GRANTED, and the negligence claim is DISMISSED with prejudice. 1 b. Negligent Hiring, Retention, Training, and/or Supervision 2 Claim G seems otherwise duplicative of Claim H, which alleges that the District 3 was negligent in hiring, retaining, training, and/or supervising Kelley and other staff. See 4 Compl. at ¶¶ 5.72–5.75. An employer may be held liable for negligent selection and/or 5 retention of an employee who is “incompetent or unfit” if “the employer had knowledge 6 of the employee’s unfitness or failed to exercise reasonable care to discover unfitness 7 before hiring or retaining the employee.” Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 8 343, 356, 423 P.3d 197 (2018). 9 An investigative report prepared after the incident on January 20, 2016, by Stefani 10 Coverson, Labor and Employee Relations Manager for the District (the “Report”),4 11 indicates as follows. As of the 2015–2016 school year, Tamara Kelley had worked for 12 the District for nine years, the last eight of which were at South Shore K-8. Report at 3 13 (docket no. 45 at 6); see Compl. at ¶ 4.5. South Shore K-8 Principal Kristin DeWitte told 14 Coverson that she had heard another staff member refer to Kelley as a “ticking time 15 bomb,” but that she did not herself have any concerns about Kelley before the events of 16 January 20, 2016.5 Report at 5 (docket no. 45 at 8); see Compl. at ¶ 4.32. Geri Guerro, [17] 18 4 In support of its motion for summary judgment, the District provided excerpts of Coverson’s Report. See Ex. 2 to Rusimovic Decl. (docket no. 24-2). In light of the Complaint’s citation to 19 the Report as the source for various factual allegations, as well as the District’s responsive pleading, which repeatedly stated that the “document speaks for itself,” see Answer at ¶¶ 4.19– 20 4.25, 4.27, 4.29–4.36, & 4.39 (docket no. 10), the Court directed the District to file a complete copy of the Report. [21] 5 DeWitte also noted, however, that “Kelley was already going through a difficult time when the alleged incident occurred due to the death of her nephew,” and DeWitte “wished she had [22] encouraged Kelley to take some time off of work.” Report, Ex. 2 to Rusimovic Decl. (docket 1 a former assistant principal, told Coverson that she had received reports about Kelley 2 “grabb[ing] students,” but had not heard any complaint from a parent. Report at 9 3 (docket no. 45 at 12); see Compl. at ¶ 4.35. Guerro explained to Coverson that she had 4 used the “ticking time bomb” metaphor because, if Guerro “had to have a ‘hard 5 conversation’ with Kelley, [Kelley] would yell, ‘go off,’ then leave.” Report at 9 (docket 6 no. 45 at 12); Compl. at ¶ 4.36. Beth Thorson, a Special Education Supervisor, told 7 Coverson that she “worried about Kelley’s verbal interactions with students” and had 8 been concerned about Kelley’s “stress levels” prior to the incident with T.A. Report at 8 9 (docket no. 45 at 11). Thorson recalled telling DeWitte about the “ticking time bomb” 10 label, but she was not aware of any allegation of Kelley previously striking a child. Id. 11 The Complaint indicates that, during the course of the 2015–2016 school year, 12 T.A. reported to his mother that Kelley “would pinch him sometimes at school” and that 13 he had received various scratches or rugburns when Kelley restrained him at school by 14 holding his face to the carpet. Compl. at ¶¶ 4.6–4.9. T.S. allegedly raised concerns about 15 this mistreatment with the District, but was informed that “this practice was necessary to 16 restrain children and control behavior.” Id. at ¶ 4.10. 17 In moving for summary judgment, the District relies on the declaration of a 18 paralegal in the District’s General Counsel’s office, who reviewed the District’s 19 personnel file regarding Kelley. Rusimovic Decl. at ¶¶ 2 & 5 (docket no. 24). The [20] 21 no. 24-2 at 3). Whether and to what extent Kelley’s fragile emotional state rendered her subsequent behavior reasonably foreseeable by the school principal or other supervisory 22 personnel is a question for the trier of fact. 1 paralegal saw “no disciplinary issues documented” in the file, and she summarized 2 Kelley’s annual job performance evaluations as reflecting a satisfactory or better rating. 3 Id. at ¶ 5. According to Coverson’s Report, however, during Guerro’s tenure as Kelley’s 4 supervisor, other staff expressed concerns about the way Kelley spoke to students and 5 about her grabbing them, but all feedback was given to Kelley verbally and was “not 6 documented in writing.” Report at 9 (docket no. 45 at 12). A reasonable inference to be 7 drawn from the information in the Report is that, prior to January 20, 2016, the District’s 8 supervisory personnel were, at least, concerned about Kelley’s temperament, and they 9 might have been aware of Kelley’s alleged violations of the District’s written policies 10 concerning corporal punishment and the use of physical force. 11 Given the current record, the Court cannot conclude that the District is entitled to 12 judgment as a matter of law on the claims of negligent retention and/or pre-incident 13 supervision. On the other hand, the assertions of negligent hiring, training, and/or post- 14 incident supervision are conclusory and inconsistent with the factual allegations of the 15 Complaint, which do not question Kelley’s qualifications for her position as a special 16 education teacher and reflect that Kelley was reprimanded for her January 2016 behavior 17 and reminded about the District’s policies. Thus, with regard to Claims G and H, the 18 District’s motion for summary judgment is DENIED in part as to the claims of negligent 19 retention and/or pre-incident supervision, and otherwise GRANTED. 20 c. Negligent Infliction of Emotional Distress 21 To support a separate claim for negligent infliction of emotional distress, as 22 opposed to non-economic damages in connection with a tort claim, a plaintiff’s emotional 1 distress “must be susceptible to medical diagnosis and proved through medical evidence.” 2 See Hegel v. McMahon, 136 Wn.2d 122, 135 , 960 P.2d 424 (1998). The plaintiff must 3 present “objective evidence” regarding the “severity of the distress” and the “causal link” 4 between the defendant’s conduct and “the subsequent emotional reaction,” which must be 5 “reasonable under the circumstances.” Id. at 132 & 135. Washington courts recognize 6 that “nightmares, sleep disorders, intrusive memories, fear, and anger” might satisfy the 7 “objective symptomology” standard, but only if they “constitute a diagnosable emotional 8 disorder.” Id. at 135. The District moves for summary judgment because no expert has 9 been disclosed and no medical records have been provided to support the emotional10 distress claim. See Def.’s Mot. at 21 (docket no. 23); Freimund Decl. at ¶¶ 2–3 (docket 11 no. 29). Given the status of discovery in this matter, which is undisputed, the District’s 12 motion for summary judgment with respect to Claim L is GRANTED, and the claim for 13 negligent infliction of emotional distress is DISMISSED with prejudice. 14 5. Washington Law Against Discrimination 15 The WLAD authorizes a civil action by “[a]ny person deeming himself or herself 16 injured by an act in violation” of RCW Chapter 49.60. RCW 49.60.030(2). The WLAD 17 lists certain activities (for example, obtaining and holding employment, and engaging in 18 commerce or certain types of transactions) as to which individuals have a right to be free 19 from discrimination. RCW 49.60.030(1). This case involves “the right to the full 20 enjoyment of any of the accommodations, advantages, facilities, or privileges of any 21 place of public . . . accommodation.” See RCW 49.60.030(1)(b); see also Compl. at [22] 1 ¶ 5.57 (indicating that the District “operates a place of public accommodation,” citing 2 RCW 49.60.040).6 3 To survive a summary judgment motion challenging a claim brought under 4 RCW 49.60.030(1)(b), a plaintiff suing for racial or disability-based discrimination must 5 establish the following elements of a prima facie case: (i) the plaintiff’s race or status as 6 disabled; (ii) the defendant’s status as a place of public accommodation; (iii) the 7 defendant’s failure to provide the plaintiff with the same “accommodations, advantages, 8 facilities, or privileges” or “level of designated services” as others of a different race or 9 without a disability were given; and (iv) the plaintiff’s race or disability constituted a 10 “substantial factor” in the defendant’s dissimilar treatment of the plaintiff. See Hartleben 11 v. Univ. of Wash., 194 Wn. App. 877 , 883–84, 378 P.3d 263 (2016); see also Marquis v. 12 City of Spokane, 130 Wn.2d 97 , 113–14, 922 P.2d 43 (1996) (applying to a gender-based 13 discrimination claim, brought by an independent contractor pursuant to RCW 49.60.030, [15] 16 6 The District refers to RCW 49.60.215, but the Complaint does not cite this statute. According to the District, this WLAD provision does not apply because no allegation has been made that 17 T.A. was denied admission to South Shore K-8 or any other Seattle public school. See Def.’s Mot. at 13 (docket no. 23) (citing Evergreen Sch. Dist. No. 114 v. Wash. State Hum. Rights 18 Comm’n, 39 Wn. App. 763, 777 , 695 P.2d 999 (1985) (RCW 49.60.215’s “primary thrust is to the refusing or withholding of admission to places of public accommodation”)). Washington courts do not, however, construe RCW 49.60.215 so narrowly. See W.H. v. Olympia Sch. Dist., [19] 195 Wn.2d 779 , 788, 465 P.3d 322 (2020) (summarizing RCW 49.60.215 as declaring that “[i]t shall be an unfair practice for any person or the person’s agent or employee to commit an 20 act which directly or indirectly results in any . . . discrimination . . . in any place of public . . . accommodation”). In W.H., the Washington Supreme Court held that, with respect to claims 21 brought pursuant to RCW 49.60.215, “school districts are strictly liable for the actions of their employees.” Id. at 789 . The Washington Supreme Court would presumably reach the same 22 conclusion with regard to claims under RCW 49.60.030(1)(b). 1 the three-part “burden allocation scheme” first articulated in McDonnell Douglas Corp. v. 2 Green, 411 U.S. 792 (1973)). 3 In moving for summary judgment, the District does not dispute that T.A. is 4 African American and has a disability, as defined in RCW 49.60.040(7), or that the 5 District operates a place of public accommodation, as defined in RCW 49.60.040(2). 6 The District contends, however, that the record does not establish T.A. was treated in a 7 disparate manner or as a result of discriminatory animus. Although the Complaint alleges 8 Kelley “believed” that, with respect to discipline, “African American students needed to 9 be treated differently than white students,” see Compl. at ¶ 4.37, it does not plead facts to 10 support a conclusion that Kelley acted on any such belief or that T.A. was subjected to 11 discrimination on the basis of race or disability. The operative pleading recounts no 12 instance in which a similarly-situated student who was not African American and/or not 13 disabled (i.e., a comparator) received more favorable treatment than T.A. In contrast, the 14 portion of the investigative report submitted by the District indicates that Kelley’s 15 explanation for restraining T.A. in the restroom on January 20, 2016, while he cried for 16 three hours, was to prevent him from leaving the classroom and running into the street, 17 which he had done the previous week. Report, Ex. 2 to Rusimovic Decl. (docket no. 24-2 18 at 2). This undisputed evidence negates the last two elements of a prima facie case by 19 offering a nondiscriminatory reason for Kelley’s conduct. The record contains no 20 evidence to support a finding that Kelley’s justifications for her actions were merely 21 pretextual, see McDonnell Douglas, 411 U.S. at 804–07, and thus, the District’s motion [22] 1 for summary judgment as to the WLAD claim is GRANTED. Claim F is DISMISSED 2 with prejudice. 3 Conclusion 4 For the foregoing reasons, the Court ORDERS: 5 (1) The District’s motion for summary judgment, docket no. 23, is GRANTED 6 in part and DENIED in part, as follows: 7 (i) T.S.’s claim for loss of consortium (Claim M) is DISMISSED with 8 prejudice as time barred; 9 (ii) The § 1983 (equal protection), Title VI, ADA, and Rehabilitation 10 Act claims (Claims A, B, C, and D, respectively) are DISMISSED pursuant to [11] 20 U.S.C. § 1415 (l) for failure to exhaust; 12 (iii) The § 1983 (unlawful seizure) claim (Claim E), WLAD claim 13 (Claim F), intentional tort claims of false imprisonment, assault and battery, and 14 outrage (Claims I, J, and K, respectively), and claim for negligent infliction of 15 emotional distress (Claim L) are DISMISSED with prejudice; 16 (iv) The negligence claim (Claim G) is DISMISSED in part with 17 prejudice as to any claim of vicarious liability and Claims G and H are 18 DISMISSED in part with prejudice as to negligent hiring, training, and post- 19 incident supervision; and 20 (v) As to the portions of Claims G and H alleging negligent retention 21 and/or pre-incident supervision, the District’s motion for summary judgment is 22 DENIED, and those claims remain for trial. 1 (2) Within twenty-one (21) days of the date of this Order, counsel shall meet 2 and confer and file a Joint Status Report indicating when the parties can be prepared for 3 trial on the negligent retention and pre-incident supervision claims. In such Joint Status 4 Report, the parties shall address plaintiff’s counsel’s status and whether she should be 5 required to associate with another attorney or arrange for a different lawyer to substitute 6 for her in this matter. 7 (3) The Clerk is directed to send a copy of this Order to all counsel of record. 8 IT IS SO ORDERED. 9 Dated this 24th day of March, 2023. [10] A [11] Thomas S. Zilly [12] United States District Judge