Donnell v. Rockwood School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANNE ELIZABETH DONNELL, )

)

Plaintiff, )

)

v. ) No. 4:22 CV 1267 RWS

)

ROCKWOOD SCHOOL DISTRICT, )

)

Defendant. )

MEMORANDUM AND ORDER

Plaintiff Anne Elizabeth Donnell brings this action against Defendant

Rockwood School District, alleging violations under the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Rehabilitation Act, 29 U.S.C. § 701 et

seq., and the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq.

(“MHRA”). Rockwood moves to dismiss Donnell’s complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below,

Rockwood’s motion will be granted in part and denied in part.

BACKGROUND

Donnell is a 25-year-old woman with a visual impairment (blindness) who

uses a service animal in her daily activities. Donnell’s service animal helps her

navigate through situations that she would not otherwise be able to navigate alone.

In January 2021, Donnell was hired through the Special School District (“SSD”) to

work as a paraprofessional and teacher’s assistant in the vision department of a

school in need of vision-support services. The SSD is a party to an “educational

partnership agreement” with various partner school districts, including Rockwood.

The SSD is governed by a “governing council,” which is made up of one member of

the board of education from each partner school district.

In February 2021, the SSD and Rockwood jointly selected Donnell for

placement in Lafayette High School, a school in Rockwood, to work with a visually

impaired student. After being notified of her placement, Donnell was informed by

the area coordinator of the SSD’s vision department, Ms. Betty Davidson, that she

needed to submit a written request to Rockwood’s superintendent to bring her

service animal into Rockwood’s buildings. This was in accordance with

Rockwood’s service-animal policy, which stated:

The Board of Education recognizes its responsibility to permit students

and/or adults with disabilities to be accompanied by a service animal

(as defined by federal regulations) in its school buildings, in classrooms

and at school functions, as required by the Americans with Disabilities

Act, subject to the restrictions set forth in district policies and

regulations.

All requests for an individual with a disability to be accompanied by a

service animal must be addressed in writing to the Superintendent and

must be delivered at least ten business days prior to brining the service

animal to school or a school function. The request should indicate if

the animal is required because of a disability and what work or task(s)

that the service animal is expected to perform in relation to a person’s

disability.

Owners of service animals are liable for any harm or injury caused by

the animal to other students, staff, visitors, and/or property. The animal

will not be permitted if the district determines that the presence of the

animal poses a direct threat to the health and safety of others, or it will

fundamentally alter the nature of a service, program or activity.

Any animal in the schools under this policy will comply with the

restrictions set forth in district regulations relating to the qualifications,

supervision and care of the animal.

On February 12, 2021, more than ten days before she was set to begin her job

in Lafayette High School, Donnell wrote a letter to Rockwood’s superintendent, Dr.

Mark Miles, and requested permission to bring her service animal into Rockwood’s

buildings. Donnell’s letter read:

Dear Dr. Miles,

My name is Annie Donnell, and I work as a paraprofessional in the

vision department through Special School District providing support to

students with visual impairments throughout St. Louis County. I have

been placed by Betty Davidson, Area Coordinator for the vision

department, to work with a student at Lafayette High School in the

Rockwood School District.

Per Rockwood School District’s service animal policy, I am requesting

my service dog to be able to accompany me at Lafayette High School.

She is a guide dog and she is trained to perform the task of orientation

and mobility. Her job is to guide me safely due to my disability.

Dr. Miles did not respond to Donnell’s request, but his assistant responded on

February 17, 2021. The assistant informed Donnell that Dr. Miles would not be

responding because Rockwood’s executive director of elementary education, Dr.

David Cobb, Rockwood’s executive director of student services, Dr. Terry Harris,

and the director of special education for the SSD, Dr. Carmen Harris, all said that

they had been working on Donnell’s request through the SSD and Lafayette High

School. Upon receiving this communication, Donnell contacted Ms. Davidson who

in turn contacted Dr. T. Harris later that day to ask for clarification regarding the

necessary next steps for Donnell to begin working in Lafayette High School. Dr. T.

Harris responded that same day that all further discussion regarding Donnell’s

assignments should take place with Ms. Chaketa Mack-Riddle.1 Dr. T. Harris did

not provide any further updates on Donnell’s request.

Later on February 17, 2021, Ms. Mack-Riddle sent an e-mail to Donnell, Dr.

T. Harris, Dr. Miles, and others, stating that she had informed Ms. Davidson earlier

in the month that Donnell had not been assigned to any partner school district. Prior

to this communication, both Donnell and Ms. Davidson believed that Donnell was

set to begin her placement in Lafayette High School as soon as Rockwood approved

her service-animal request. Upon learning that she was no longer being placed in

Lafayette High School, Donnell requested clarification as to why she was no longer

assigned to a partner school district. Donnell also informed Rockwood that she

believed its service-animal policy did not comply with federal law.

1 Ms. Mack-Riddle’s employer and position are not alleged in Donnell’s complaint. However, it

appears from an exhibit attached to Donnell’s complaint that Ms. Mack-Riddle used an e-mail

address from the SSD.

Rockwood never responded to Donnell’s request or allegation. Rockwood

did, however, fill the placement in Lafayette High School with another individual

who did not require the assistance of a service animal. Thereafter, Donnell began

working remotely for the SSD, doing braille production because it was too late for

her to be paired with another visually impaired student. Donnell contacted

Rockwood through her counsel on May 11, 2021, regarding her service-animal

request and its failure to respond or permit her to use a service animal. On June 2,

2021, Rockwood’s counsel communicated to Donnell’s counsel that they were still

investigating the matter. Several months later, during a call between counsel on

October 22, 2021, Rockwood’s counsel stated that it had completed its investigation

and that Rockwood would not be taking any further action.

Donnell later filed an intake questionnaire with the Missouri Commission on

Human Rights (“MCHR”). Donnell then filed a charge of discrimination on March

8, 2022, and she received a notice of her right to institute a civil action on September

19, 2022. Donnell filed this action against Rockwood on November 28, 2022. In

her complaint, Donnell brings seven claims: (Count I) discrimination in the form of

failure to provide a reasonable accommodation in violation of the ADA; (Count II)

retaliation in violation of the ADA; (Count III) discrimination in violation of the

ADA; (Count IV) discrimination in violation of the Rehabilitation Act; (Count V)

retaliation in violation of the Rehabilitation Act; (Count VI) discrimination in

violation of the MHRA; and (Count VII) retaliation in violation of the MHRA.

Rockwood moves to dismiss Donnell’s complaint pursuant to Rule 12(b)(6).

LEGAL STANDARD

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal

sufficiency of the complaint. In ruling on such a motion, I must accept all factual

allegations in the complaint as true and view them in the light most favorable to the

plaintiff. Hager v. Arkansas Dep’t. of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).

I may not, however, “presume the truth of legal conclusions couched as factual

allegations.” Id. While I also must generally ignore materials that are outside of the

pleadings, I may consider “materials that are necessarily embraced by the pleadings

and exhibits attached to the complaint.” Mattes v. ABC Plastics, Inc., 323 F.3d 695,

697 n.4 (8th Cir. 2003). I may also consider “some materials that are part of the

public record” such as a charge of discrimination. Blakley v. Schlumberger Tech.

Corp., 648 F.3d 921, 931 (8th Cir. 2011).

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need not

provide “detailed factual allegations” but must provide “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face when the plaintiff

pleads sufficient facts to allow me to draw “the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. This requires a complaint to

contain enough factual allegations “to raise a right to relief above the speculative

level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A threadbare

recital of the elements of a cause of action, supported merely by conclusory

allegations, is not sufficient. Iqbal, 556 U.S. at 678.

DISCUSSION

Rockwood moves to dismiss Donnell’s complaint in its entirety pursuant to

Rule 12(b)(6). Rockwood argues that Donnell’s claims fail for several reasons:

Donnell’s retaliation claims under the ADA and MHRA were not properly exhausted

through an administrative proceeding; Donnell’s claims under the ADA and MHRA

are time barred; Rockwood was not Donnell’s employer or joint employer; and

Donnell has failed to state a claim for discrimination or retaliation.

A. Exhaustion of Administrative Remedies

Rockwood argues that Donnell’s retaliation claims under the ADA and

MHRA (Counts II and VII) should be dismissed because Donnell did not exhaust

her administrative remedies. In Counts II and VII, Donnell alleges that she engaged

in the following protected activities: requesting a reasonable accommodation for her

disability; complaining about Rockwood’s treatment of her request for a reasonable

accommodation; complaining about Rockwood’s discriminatory treatment of her

based on her disability; and complaining that Rockwood’s service-animal policy did

not comply with federal law. Doc. 1 at ¶¶ 72–73, 114. Donnell alleges that

Rockwood retaliated against her for engaging in these activities by revoking her

placement in Lafayette High School; failing to timely respond to her request for a

reasonable accommodation; denying her request for a reasonable accommodation;

denying her access to its buildings; and denying her an opportunity to be placed in

Lafayette High School or another school in its district. Id. at ¶¶ 74, 78, 115.

Under the ADA, a claimant must exhaust her administrative remedies by

filing a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) before filing a civil action. Weatherly v. Ford Motor Co.,

994 F.3d 940, 944 (8th Cir. 2021). A claimant must also exhaust her administrative

remedies under Missouri law by filing a charge of discrimination with the MCHR

before bringing claims under the MHRA. Henson v. Union Pac. R.R. Co., 3 F.4th

1075, 1080 (8th Cir. 2021) (citing Mo. Rev. Stat. § 213.075.1). Under both statutes,

administrative remedies are deemed exhausted as to all incidents of discrimination

that are “like or reasonably related to” the allegations in the charge of discrimination,

so the scope of a subsequent civil action may be as broad as the scope of the

administrative investigation that “could reasonably be expected to grow out of” the

charge of discrimination. See Weatherly, 994 F.3d at 944–45 (discussing exhaustion

of administrative remedies under the ADA); Henson, 3 F.4th at 1080 (discussing

exhaustion of administrative remedies under the MHRA).

The Eighth Circuit has “long treated discrimination and retaliation claims as

distinct for exhaustion purposes, so that exhausting one does not usually exhaust the

other.” Weatherly, 994 F.3d at 945; see also Slayden v. Center of Behavioral Med.,

53 F.4th 464, 468 (8th Cir. 2022) (quoting Wallin v. Minnesota Dep’t of Corr., 153

F.3d 681, 688–89 (8th Cir. 1998)) (“‘It is well established that retaliation claims are

not reasonably related to underlying discrimination claims.’”). Here, Donnell

neither mentioned retaliation in the narrative portion of her charge of discrimination

nor checked the box for retaliation. Doc. 8-1. And the substance of Donnell’s charge

of discrimination relates only to her alleged denial of a reasonable accommodation

and her alleged denial of placement in Rockwood due to her disability. Id. As a

result, Donnell did not exhaust her administrative remedies with respect to her

retaliation claims under the ADA and MHRA. See, e.g., Price v. Harrah’s Md.

Heights Operating Co., 117 F.Supp.2d 919, 922 (E.D. Mo. 2000) (“The court

concludes that by not checking the retaliation box and by not specifically alleging

retaliation in the text of her charge, plaintiff deprived the charged party with notice

of the charge.”); Warren v. Metro Transit, No. 4:20-cv-00781 SRC, 2021 WL

124315, at *3 (E.D. Mo. Jan. 13, 2021) (“Failure to mention retaliation in the

narrative portion of the charge or check the box for retaliation results in the failure

to exhaust administrative remedies as to the retaliation claim.”). Rockwood’s

motion will therefore be granted as to Counts II and VII.

B. Timeliness

Rockwood argues that Donnell’s discrimination claims under the ADA and

MHRA (Count I, III, and VI) should be dismissed as time barred.2 The ADA has

adopted the enforcement “procedures set forth in 42 U.S.C. § 2000e-5.” 42 U.S.C.

§ 12117(a). Under 42 U.S.C. § 2000e-5(e)(1), a claimant who first files a charge of

discrimination with a state or local agency (like the MCHR) must file a charge of

discrimination with the EEOC within 300 days of the alleged unlawful employment

practice. Slayden, 53 F.4th at 467 (citing 42 U.S.C. § 2000e-5(e)(1)). Under the

MHRA, a claimant must file a charge of discrimination with the MCHR “within 180

days of the alleged discriminatory act.” Id. (citing Mo. Rev. Stat. § 213.075.1).

Donnell filed a charge of discrimination on March 8, 2022. Doc. 1 at ¶ 50;

Doc. 8-1. Therefore, any alleged acts of discrimination that occurred before May

12, 2021, are time barred under the ADA, and any alleged acts of discrimination that

occurred before September 9, 2021, are time barred under the MHRA. In Counts I,

III, and VI, Donnell alleges that Rockwood discriminated against her by: denying

her access to a reasonable accommodation; revoking her placement in Lafayette

High School; denying her an opportunity to be placed in Lafayette High School or

another school in its district; denying her access to its buildings; denying her access

2 Rockwood also argues that Donnell’s retaliation claims under the ADA and MHRA should be

dismissed as time barred, but those claims will be dismissed for the reasons discussed above.

to her training, which would have taken place in its buildings; and prohibiting her

from attending any school functions. Doc. 1 at ¶¶ 67, 84, 105–06.

Rockwood argues that Donnell’s claims are time barred because all alleged

acts of discrimination occurred before May 12, 2021. According to Rockwood, its

last alleged act occurred on February 17, 2021, when its last communication with

Donnell took place. Rockwood also contends that Donnell knew that she was not

being placed in Lafayette High School or any other school in its district as of

February 17, 2021, and that she therefore knew or should have known that her

service-animal request was moot or of no consequence as of that same date.

Donnell argues that her claims are timely because her communications with,

and complaints to, Rockwood continued beyond February 17, 2021. According to

Donnell, she alleges that Rockwood continued discriminating against her at least

through October 22, 2021, when Rockwood’s counsel stated during a call between

counsel that it had completed its investigation into her allegations and that

Rockwood would not be taking any further action. As alleged in Donnell’s

complaint, her service-animal request “was effectively denied” as of October 22,

2021. Donnell also argues that her discrimination claims are timely because she

alleges a “continuing violation” and that Rockwood’s discrimination against her

resulted from a current discriminatory policy and Rockwood’s ongoing practice of

implementing that policy in a discriminatory manner.

Contrary to Donnell’s suggestion, the continuing-violation doctrine is not

applicable to the facts as alleged in this case. The Supreme Court’s decision in

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), is instructive on the

continuing-violation doctrine under federal law. In Morgan, the Supreme Court

clarified that “discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges. Each discrete

discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113.

The Supreme Court stated that some discrete acts such as “termination, failure to

promote, denial of transfer, or refusal to hire are easy to identify” and that each

incident of discrimination “constitutes a separate actionable ‘unlawful employment

practice.’” Id. at 114. The Supreme Court distinguished hostile-work-environment

claims, however, stating that they are “different in kind from discrete acts” because

“[t]heir very nature involves repeated conduct.” Id. at 115. With hostile-work-

environment claims, the unlawful employment practice “cannot be said to occur on

any particular day. It occurs over a series of days or perhaps years and, in direct

contrast to discrete acts, a single act of harassment may not be actionable on its own.”

Id. In light of these principles, the Supreme Court held that a plaintiff “raising claims

of discrete discriminatory … acts must file [her] charge within the appropriate time

period” but that a hostile-work-environment claim “will not be time barred so long

as all acts which constitute the claim are part of the same unlawful employment

practice and at least one act falls within the time period.” Id. at 122. The latter

theory of recovery is often referred to as a continuing violation.

Missouri law is not contrary to federal law under Morgan because Missouri

courts have concluded that application of the “MHRA’s 180-day statute of

limitations is subject to equitable exceptions, including the continuing violation

doctrine.” Rowe v. Hussmann Corp., 381 F.3d 775, 782 (8th Cir. 2004) (citing

Pollock v. Wetterau Food Distrib. Grp., 11 S.W.3d 754, 763 (Mo. Ct. App. 1999)).

Similar to federal law, in determining the timeliness of a claim under the MHRA,

“at one end of the spectrum are events that can be identified individually as

significant events” while “[o]n the other end of the spectrum are continuing

violations that consist of repeated conduct extending over a period of time.” Tisch

v. DST Sys., Inc., 368 S.W.3d 245, 253–54 (Mo. Ct. App. 2012) (internal quotation

marks omitted). Missouri courts apply a two-part test to determine whether a

plaintiff has established a continuing violation: “The plaintiff must first ‘demonstrate

that at least one act occurred within the filing period’ and, second, must show ‘that

the harassment is a series of interrelated events, rather than isolated or sporadic acts

of discrimination.’” Rowe, 381 F.3d at 782 (quoting Pollock, 11 S.W.3d at 763).

To establish a continuing violation under the MHRA, a plaintiff must show “‘a series

of closely-related, similar events that occurred within the same general time period

and stemmed from the same source that continued into the limitations period.’”

Tisch, 368 S.W.3d at 254 (quoting Pollock, 11 S.W.3d at 763).

The alleged acts of discrimination in this case are discrete acts—that is, acts

that can be identified individually as significant events. For example, Rockwood’s

alleged denial of Donnell’s request for a reasonable accommodation may be

actionable in and of itself. See Dick v. Dickinson State Univ., 826 F.3d 1054, 1059

(8th Cir. 2016) (internal quotation marks omitted) (“[A]n employer’s denial of a

request for a reasonable accommodation … is a discrete act of discrimination that is

an independently actionable unlawful employment practice under the ADA.”).

Rockwood’s alleged revocation of Donnell’s placement in Lafayette High School,

much like a termination, may also be actionable. Rockwood’s alleged denial of

Donnell’s opportunity to be placed in Lafayette High School or another school in its

district, much like a refusal to hire, may also be actionable. And Rockwood’s alleged

denial of Donnell’s access to its buildings, her training, and its school events may be

actionable as well. Because the alleged acts of discrimination in this case are discrete

acts, the continuing-violation doctrine is inapplicable, and the question is whether

each of the alleged acts is time barred.

Based on the allegations in Donnell’s complaint and charge of discrimination,

the alleged acts of discrimination in this case are time barred under the ADA and

MHRA. Rockwood’s alleged revocation of Donnell’s placement in Lafayette High

School is time barred because the alleged revocation occurred by February 17, 2021.

See Doc. 1 at ¶ 34 (alleging Ms. Mack-Riddle sent an e-mail to Donnell, Dr. T.

Harris, Dr. Miles, and others on February 17, 2021, stating that she had informed

Ms. Davidson earlier in the month that Donnell had not been assigned to any partner

school district). Rockwood’s alleged denial of Donnell’s opportunity to be placed

in Lafayette High School or another school in its district is time barred because the

alleged denial occurred by May 11, 2021. See Doc. 8-1 (Rockwood “had effectively

denied [Donnell] an opportunity to be placed at a school within [its] district” as of

May 11, 2021, when Donnell’s counsel followed up with Rockwood). Rockwood’s

alleged denial of Donnell’s request for a reasonable accommodation is also time

barred because Donnell’s request was made to enable her to be placed in Rockwood,

and she was allegedly denied an opportunity to be placed in Rockwood by May 11,

2021. See id. Finally, Rockwood’s alleged denial of Donnell’s access to its

buildings, her training, and its school events is similarly time barred because Donnell

does not allege that she sought such access for any reason other than her placement

in Rockwood, and she was allegedly denied an opportunity to be placed in

Rockwood by May 11, 2021. See id.

Donnell’s additional argument that her claims are timely because she alleges

discrimination resulting from Rockwood’s current discriminatory policy and

ongoing practice of implementing that policy in a discriminatory manner is

unavailing. Donnell argues that challenges to “ongoing patterns and practices of

discrimination and current policies are, by their nature, continuing violations which

are always timely.” This argument fails for several reasons. First, although the

Supreme Court in Morgan did not consider how its analysis would impact a pattern-

or-practice case, Morgan, 536 U.S. at 115 n.9, this is not a pattern-or-practice case,

and I find no basis for not applying the analysis in Morgan to the facts as alleged

here. Indeed, “[a] discriminatory practice, though it may extend over time and

involve a series of related acts, remains divisible into a set of discrete acts, legal

action on the basis of which must be brought within the statutory limitations period.”

Lyons v. England, 307 F.3d 1092, 1108 (9th Cir. 2002). Second, even when alleged

acts of discrimination result from an alleged discriminatory policy, claims based on

those acts are not “always timely.” In such a situation, the statute of limitations

begins to run when the alleged discriminatory policy is applied to the plaintiff. See

Maki v. Allete, Inc., 383 F.3d 740, 745 (8th Cir. 2004) (holding that “the statute of

limitations period began when the allegedly discriminatory pension plan was applied

to the plaintiffs; that is, when each of them retired and became eligible for benefits”).

Based on the allegations in Donnell’s complaint and charge of discrimination,

Rockwood’s alleged discriminatory policy was applied to Donnell before May 12,

2021, when the alleged acts of discrimination occurred.

Because the alleged acts of discrimination in Counts I, III, and VI occurred

before May 12, 2021, they are time barred under the ADA and MHRA.3

Rockwood’s motion will therefore be granted as to Counts I, III, and VI.

C. The Rehabilitation Act

The remaining claims in this case are those brought under the Rehabilitation

Act (Counts IV and V). In Count IV, Donnell alleges that she was excluded from

and denied the benefits of Rockwood’s services, programs, or activities and/or was

otherwise discriminated against by Rockwood because of her disability. Doc. 1 at ¶

90. Donnell alleges that Rockwood discriminated against her by denying her access

to her placement in Lafayette High School or another school in its district; denying

her access to her training, which would have taken place in its buildings; denying

her access to its buildings; and prohibiting her from attending any school functions.

Id. In Count V, Donnell alleges that Rockwood retaliated against her for requesting

a reasonable accommodation; following up on her request for a reasonable

accommodation; complaining about its handling of her request for a reasonable

accommodation; and complaining that its service-animal policy did not comply with

federal law. Id. at ¶¶ 95–96, 98. Donnell alleges that Rockwood retaliated against

3 To the extent Donnell claims that Rockwood continued to deny her a reasonable accommodation,

an opportunity to be placed in Lafayette High School or another school in its district, and access

to its buildings, her training, and its school events beyond May 11, 2021, she has not alleged

sufficient facts to support such a claim. See Twombly, 550 U.S. at 555 (a complaint must contain

enough factual allegations “to raise a right to relief above the speculative level”).

her by revoking her placement in Lafayette High School and/or denying her an

opportunity to be placed in a school in its district. Id. at ¶ 96. I will address

Rockwood’s remaining arguments as they apply to these claims.

1. Employer or Joint Employer

Rockwood argues that, to the extent Donnell’s claims are based on

employment discrimination, they should be dismissed because she does not allege

sufficient facts showing that it was her employer or joint employer. In support of

this argument, Rockwood cites several cases discussing when separate entities—

such as the SSD and Rockwood—may be treated as a single employer or joint

employer. A court must consider several factors when determining whether separate

entities should be treated as a single employer or joint employer: “(1) the degree of

interrelation between the operations, (2) the degree to which the entities share

common management, (3) the centralized control of labor relations, and (4) the

degree of common ownership or financial control over the entities.” Davis v.

Ricketts, 765 F.3d 823, 827 (8th Cir. 2014).

Upon review of Donnell’s complaint, I find that her allegations are sufficient

at this stage to show that she was employed by Rockwood. Donnell alleges that she

was hired to work for the SSD and Rockwood. Doc. 1 at ¶ 9. Donnell alleges that

she was “employed jointly” by the SSD and Rockwood. Id. at ¶¶ 25–26. And

Donnell alleges that the SSD and Rockwood “jointly selected” her for placement in

Lafayette High School. Id. at ¶ 24. Donnell alleges further that the SSD and

Rockwood are parties to an “educational partnership agreement;” that the SSD is

governed by a “governing council,” which includes a member of Rockwood’s board

of education; and that the SSD and Rockwood “work together, jointly,

collaboratively, and in an integrated manner in, among other areas: staffing,

teaching, learning and accountability, collaboration of responsibilities and resources,

student services, data and technology, transportation, and career and technical

education.” Id. at ¶¶ 21–23. These factual allegations, which must be accepted as

true and viewed in the light most favorable to Donnell, are sufficient to show that

Donnell was jointly employed by the SSD and Rockwood.

2. Failure to State a Claim

Rockwood also argues that Donnell’s claims should be dismissed because she

has failed to state a claim for discrimination or retaliation. Section 504 of the

Rehabilitation Act provides that “[n]o otherwise qualified individual with a

disability in the United States … shall, solely by reason of her … disability, be

excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity” that receives federal funding. 29

U.S.C. § 794(a). Donnell alleges that Rockwood is an entity that receives federal

funding, Doc. 1 at ¶ 89, and she brings two claims under the Rehabilitation Act: a

claim for discrimination, and a claim for retaliation.

To state a claim for discrimination under the Rehabilitation Act, a plaintiff

must plausibly allege that: (1) she was disabled; (2) she was qualified to perform the

essential functions of her job with or without reasonable accommodation; and (3)

she suffered an adverse employment action due to her disability. Dick, 826 F.3d at

1060. An adverse employment action is “a tangible change in working conditions

that produces a material employment disadvantage.” Id. (internal quotation marks

omitted). Some examples include “termination, cuts in pay or benefits, and changes

that affect an employee’s future career prospects.” Id. (internal quotation marks

omitted). An employer also “discriminates against an employee if the employer does

not make reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is an applicant or

employee.” Id. at 1059 (internal quotation marks omitted).

Donnell has stated a claim for discrimination under the Rehabilitation Act.

Donnell alleges that she was under a disability, specifically, a visual impairment

(blindness). Doc. 1 at ¶¶ 11–13. Donnell alleges that she was a qualified individual

capable of performing the essential functions of her job as a paraprofessional and

teacher’s assistant. Id. at ¶¶ 4 & 88. And Donnell alleges that she suffered an

adverse employment action due to her disability: being denied placement in

Lafayette High School or another school in Rockwood. Id. at ¶ 90. Donnell also

alleges that Rockwood denied her a reasonable accommodation. Id. at ¶ 5.

Accepting these factual allegations as true, I find that Donnell has stated a claim for

discrimination under the Rehabilitation Act. Rockwood’s motion will therefore be

denied as to Count IV. However, I agree with Rockwood that Donnell has failed to

state a claim for non-employment-related discrimination because she does not allege

that she sought access to Rockwood’s services, programs, or activities for any reason

other than her placement in Rockwood.

To state a claim for retaliation under the Rehabilitation Act, a plaintiff must

plausibly allege that: (1) she engaged in protected activity; (2) she was subjected to

an adverse employment action; and (3) a causal connection exists between the

protected activity and the adverse employment action. Turner v. Mull, 784 F.3d 485,

493 (8th Cir. 2015). Protected activity includes “an informal or formal complaint

about, or other opposition to, an employer’s practice or act … if the employee

reasonably believes such an act to be a violation of the statute in question.” Sherman

v. Runyon, 235 F.3d 406, 409 (8th Cir. 2000). Making a good faith request for a

reasonable accommodation is also a protected activity. See Withers v. Johnson, 763

F.3d 998, 1004 (8th Cir. 2014) (“This court has held that a person who is terminated

after making a good faith request for an accommodation may pursue a retaliation

claim under the ADA and the Rehabilitation Act.”).

Donnell has stated a claim for retaliation under the Rehabilitation Act.

Donnell alleges that she engaged in several protected activities, including requesting

a reasonable accommodation; complaining about Rockwood’s handling of her

request for a reasonable accommodation; and complaining that Rockwood’s service-

animal policy did not comply with federal law. Doc. 1 at ¶ 95. Donnell also alleges

that Rockwood took adverse employment action against her for engaging in these

protected activities, specifically, revoking her placement in Lafayette High School

and/or denying her an opportunity to be placed in a school in its district. Id. at ¶ 96.

While some of Donnell’s alleged protected activities may have occurred after

Rockwood’s alleged adverse employment action, Donnell has at least plausibly

alleged that a causal connection exists between her request for a reasonable

accommodation and Rockwood’s alleged adverse employment action. As a result, I

find that Donnell has stated a claim for retaliation under the Rehabilitation Act, and

Rockwood’s motion will be denied as to Count V.

D. Donnell’s Request for Leave to Amend

In her memorandum in opposition to Rockwood’s motion to dismiss, Donnell

requests, in the alternative, that I grant her leave to amend her complaint. To the

extent that Donnell seeks to amend her complaint, she must file an appropriate

motion along with a proposed amended complaint.

Accordingly,

IT IS HEREBY ORDERED that Defendant Rockwood School District’s

motion to dismiss [7] is GRANTED as to Counts I, II, II, VI, and VII and DENIED

as to Counts IV and V.

RODNEY W. SIPPRL.

UNITED STATES DISTRICT JUDGE

Dated this 25th day of April 2023.

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